KFK 
 1248 
 ■I 
 CG7 
 
 Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN nEHORY OF 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell Unrversity Lfbrarv 
 KFK1248.1.C67 
 
 A supplemental digest of ttie decisions o 
 
 3 1924 017 665 336 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017665336 
 
SUPPLEMENTAL 
 
 DIGEST OF THE DECISIONS 
 
 OF THE 
 
 COURT OR APPEALS 
 
 KENTUCKY: 
 
 1853—1867. 
 
 EMBRACING 
 
 14th, 15th, 16th, 17th, AJVn 18th BEJf. MONROE; 
 
 1st, 2nd, 3rd, AND 4th METCALFE; 
 
 1st AND 2nd DUVAL. 
 
 MARTIN H. X:OFER, 
 
 BLIZABBTHTOWNyKY. 
 
 CINCINNATI: 
 ROBERT CLARKE & CO., 
 
 PUBLISHBES. 
 
 1867. 
 
.y{iM 
 
 i 
 
 Entered according to Act of Congress, in the year 1867, 
 
 By EOBEET OLAEKE & CO., 
 
 In the Clerk's Office of the District Court of the United States for the 
 
 Southern District of Ohio. 
 
PREFACE. 
 
 In the preparation of this work, I have labored to render it 
 valuable to the courts and bar, as a correct indication of the 
 decisions of the court on the various branches of the law since 
 1853. 
 
 Each case has been carefully road and studied, and the points 
 decided, have, whenever it could be done consistently with brevity, 
 been given in the exact language of the court ; and it is hoped it 
 will be found not merely an index, but a safe and reliable book of 
 reference for the every-day use of the profession. 
 
 Great care has been taken to state all the facts on which each 
 syllabus rests ; as without this, digests are often misleading, and 
 sometimes wholly unreliable. 
 
 By a careful analytic subdivision of each separate subject, it is 
 hoped the exact point the reader may desire to consult will be 
 readily found, without the necessity of x"eading much that is foreign 
 to the particular matter in hand. 
 
 When a rule of law or practice, once recognized by the court, has 
 been modified or changed by subsequent legislation or rulings of 
 the court, the fact is referred to in foot-notes, indicating the statute 
 or decision in conflict with the former rule. 
 
 It has often been a matter of great difficulty, and sometimes of 
 impossibility, to decide under which of several heads, a particular 
 point would most naturally and logically fall. Where this has 
 been the case, it has been referred to under all of them, under the 
 
PREFACE. 
 
 belief that it would be better to seem needlessly to repeat some few 
 points, than that the reader should be exposed to the danger of a 
 waste of time in hunting under several heads, in any of which he 
 might reasonably expect to find what he seeks. Digests are much 
 needed for use in the court house, where neither the court nor 
 the practitioner has time to peruse many pages in search for an 
 authority. 
 
 If I have succeeded in rendering the work of such a character 
 as will render it useful to the profession, I have accomplished all I 
 desired or intended. 
 
 M. H. COFEE. 
 
SUPPLEMENTAL DIGEST 
 
 op THB 
 
 DECISIOI^S OF THE COURT OF APPEALS 
 
 OF KENTUCKY. 
 
 ABAlSTDOlSrMBlSrT. 
 
 If land be dedicated for the use of several societies as a place 
 of worship, and part of them provide another place and abandon 
 the use of the property dedicated, they will have no right, while 
 they have no necessity, to the use of such property, and can not 
 maintain an action for the enforcement of the trust. Baptist Church 
 V. Presbyterian Church, 18 B. Mon. 641. 
 
 ABAJSTDOJSrMBNT BY HUSBAND OE "WIFE. 
 See Divorce. 
 
 ABATEMBISTT. 
 
 1. A suit brought by a tenant in common, against his cotenant, 
 to restrain waste, although still pending when another suit is 
 brought, by the same plaintiff, to sell the land and distribute the 
 proceeds under a will, will not sustain a plea- of another action 
 pending. Flint v. Spurr, 17 B. Mon. 513. 
 
 2. The death of the plaintiff does not abate either the judgment 
 or the execution ; but it suspends further proceedings until admin- 
 istration is granted, and the clerk makes the proper indorsement 
 as provided in sections 432, 433, 434, Civil Code. Longest v. Tyler, 
 1 Duv. 195. 
 
ACCORD AND SATISFACTION. 
 
 3. That an action is pending in equity, to enforce a lien for a 
 balance of purchase money due on land, can not be pleaded in 
 abatement to an action at law, to recover judgment on the note se- 
 cured by the lien. Julian v. Pilcher, 2 Duv. 254. 
 
 ABSENT DEFENDANTS. 
 
 See Non-Eesidents. 
 
 ACCOED AND SATISFACTION. 
 
 1. The acceptance of a part of a debt, when due, can not operate 
 as a bar to the recovery of the residue. Fenwick v. Phillips, 3 
 Met. 88 ; Jones v. Bullitt, 2 Litt. 51. 
 
 2. But the payment of a part, in satisfaction of the whole, if 
 made before the debt is due, or at a different place from that at 
 which it was payable, is good, and will discharge the whole debt. 
 Fenwick v. Phillips, 3 Met. 88. 
 
 3. A plea of accord and satisfaction, averring the payment of a 
 less sum than was due, is not good. Williams v. Langford, 15 B. 
 Mon. 569, 570. 
 
 ACT OF GOD. 
 
 If personal property be destroyed by the act of God, after an 
 absolute sale, but while the possession remains, by agreement, 
 with the seller, the purchaser must bear the loss. Sweeney v. 
 Owsley, 14 B. Mon. 413, 414. 
 
 ACTIONS. , , 
 
 I. General Principles. 
 II. For what an action will lie. 
 III. For what an action will not lie. 
 
 I. GENEEAL PRINCIPLES. 
 
 Bemedies in civil cases in the courts of this State are divided into 
 two classes: 1. Actions; 2. Special Proceedings. 
 1. A civil action is an ordinary proceeding in a court of justice 
 by one party against another, for the enforcement or protection of 
 
ACTIONS. 
 
 a private right, or the redress, or prevention of a private wrong. 
 It may also be brought for the recovery of a penalty or forfeiture. 
 Sections 2, 3, Civil Code. 
 
 2. A proceeding in the name of the Commonwealth, to enforce 
 payment of a forfeited recognizance, is in the nature of a civil 
 action, in so far as to require the facts relied on as a defense, to be 
 stated in a written answer. Brown v. Commonwealth, 4 Met. 222. 
 
 3. But a proceeding to compel the father of a bastard child to 
 support it, is not a civil action, but a special proceeding. Chandler 
 V. Commonwealth, 4 Met. 69. 
 
 II. FOR WHAT AN ACTION WILL LIE. 
 
 1. The proprietor of stage coaches will be -liable to persons in- 
 jured by the want of skill and prudence of their drivers. Hawkins 
 V. Biley, 17 B. Mon. 110. 
 
 2. If property be hired for a specific purpose, and the hirer use 
 it for a more hazardous purpose, and it be thereby lost, he will be 
 responsible for its value as if he had wrongfully assumed control 
 of it. Kelly v. White, 17 B. Mon. 131. 
 
 3. An action for damages will lie against a judge of an election 
 who is prompted by corrupt motives in refusing a legal vote. 
 Gaulfield v. Bullock, 18 B. Mon. 497 ; Dudley v. Morgan, 18 B. Mon. 
 711; Chrisman v. Bruce, 1 Duv. 66. 
 
 4. Money, paid for a chattel, which was of no value when sold, 
 may be recovered back. Rohinson v. Bright, 3 Met. 31, 32. 
 
 5. An action will lie against an attorney-at-law who advises, 
 counsels, or procures a single justice of the peace, acting as an 
 examining court in examining one charged with a felony, to com- 
 mit him to jail. Bevill, et al. v. Pettit, 3 Met. 320. 
 
 6. An action will lie against a justice of the peace, who, acting 
 alone as an examining court, commits to jail one charged with a 
 felony. Bevill, et al. v. Pettit, 3 Met. 319. 
 
 7. A constable, who has arrested a slave on a warrant for a pub- 
 lic offense, is liable if the slave, through his failure to exercise 
 reasonable care in preventing it, escape and is lost to his owner. 
 Tudor V. Lewis, 3 Met. 382, 383; 2 Mar. 567; 4 Bibb, 494. 
 
 8. One, in possession of a stray horse, which he had never posted, 
 may maintain an action for the horse, or his value, against one to 
 whom he had bailed him. Barron v. Landes, 1 Duv. 300. 
 
 9. A father may maintain an action against the seducer of his 
 daughter, for the loss of her services. Section 2, chapter 1, 
 
ACTIONS. 
 
 Eevised Statutes, authorizing an action for seduction without alle- 
 gation or proof of the loss of services, is cumulative, and does not 
 take away the right to recover for loss of services. Hancock v. 
 WUhoite, 1 Duv. 313. 
 
 10. A part owner of a steamboat leased the privilege of keeping 
 a bar on the boat, giving the lessee a receipt for $1,000, "being 
 amount in full for privilege of cabin-bar of steamer E. J. W. for 
 the ensuing season." In the first month of the season, the boat 
 was attached for debts of the owners, and so disposed of as to de- 
 prive the lessee of the further enjoyment of his privilege. Held: 
 That he was entitled to recover of the lessor the damages sustained 
 by the loss of his privilege. Miller v. Thornton, 1 Duv. 369, 370. 
 
 11. Corporations are liable to individuals for injuries sustained 
 in consequence of their negligence or that of their employees while 
 engaged in their service. Danville, etc. Turnpike Co. v. Stewart, 2 
 
 Met. 122. 
 
 12. Turnpike companies are bound to keep their roads so as not 
 to endanger the safety of persons or vehicles traveling thereon , 
 and if they fail, and injury results, they are liable to those injured. 
 Danville, etc. Turnpike Co. v. Stewart, 2 Met. 122. 
 
 13. An action for trespass will lie against one, who being con- 
 stitutionally ineligible to the office of sheriff, but acting as such, 
 seizes property under execution. Patterson v. Miller, 2 Met. 498. 
 
 14. The owners of the remainder-in-fee, of land condemned for 
 the use of a turnpike road, may maintain an action against those, 
 who, under directions of the company, quarry stone within or under 
 the bed of the road, for the purpose of repairing the road. Kelly 
 V. Donnahoe, 2 Met. 484, 485. 
 
 15. An action for an injury to the inheritance, can be maintained 
 under the statute of 1854, by those entitled in remainder, whether 
 in possession or not; but for an injury to the possession, the action 
 must be in the name of the tenant in possession. Kelly v. Donna- 
 hoe, 2 Met. 485. 
 
 16. An infant, who pays in advance for his board and tuition at 
 a public school, may recover pro tanto, for time lost on account of 
 sickness; although the rules expressly stipulated that nothing 
 should be refunded for lost time. Slaughter v. Morgan, 1 Met. 30. 
 
 17. An action may be maintained against a stakeholder, to re- 
 cover money bet on an election, and placed in his hands to await 
 the event. Hutchings v. Stillwell, 18 B. Mon. 779. 
 
 18. A husband may maintain a civil action for an injury to the 
 person of his wife, and for the loss of her society and assistance 
 
ACTIONS. 5 
 
 from the time of the injury to her death. Eden v. JJou. & Frank. 
 B. B. Co., 14 B. Mon. 208. 
 
 19. An action may be maintained for a breach of an implied 
 warranty of title to a horse in the vendor's possession, without a 
 judicial eviction ; but in such a case, the proof should be peculiarly 
 satisfactory. Plummer v. Newdigate, 2 Duv. 1. 
 
 20. An action-at-law may be maintained on a note given for 
 the price of land, although another action may be pending at the 
 same time, in equity, to enforce a lien for the same debt, and the 
 one can not be pleaded in bar of the other. Julian v. Pilcher, 2 
 Duv. 254. 
 
 m. FOR WHAT AN ACTION WILL NOT LIE. 
 
 1. No action lies against an incorporated town or city, in favor 
 of the owners of lots, on account of inconvenience resulting from 
 raising the grade of streets, above, or cutting it down below, 
 adjacent lots. Wolf v. Gov. & Lex. B. B. Co., 15 B. Mon. 408. 
 
 2. In the absence of a statute, a city is not liable, to one of its 
 citizens, for damages done by a mob within its limits. Ward v. 
 Louisville, 16 B. Mon. 193. 
 
 3. A justice of the peace, acting within the limits of his jurisdic- 
 tion, without malice or improper design, is not liable for errors of 
 judgment. Bullitt v. Clement, 16 B. Mon. 200. 
 
 4. Eailroad companies are not liable, to the owners of lots in 
 towns and cities, for damages resulting from grades and embank- 
 ments necessary in the construction of their roads, through the 
 streets of such towns, when done by the permission of the proper 
 town authorities. Lou. & Frank. B. B. Co. v. Brown, 17 B. Mon. 775, 
 776; Lex. & Ohio B. B. v. Applegate, 8 Dana 289; Keasy v. 
 City of Louisville, 4 Dana 54; Wolf v. Cov. & Lex. B. B., 15 B. 
 Mon. 409. 
 
 5. !N"o action lies in favor of one, who has granted the right of 
 way to a railroad over his lands, to recover damages, resulting 
 from a proper and reasonable use of the way for the purposes for 
 which it was granted. Hortsman v. Cov. & Lex. B. B., 18 B. 
 Mon. 222. 
 
 6. Nor for injuries to adjacent lands, from the falling-in of the 
 banks of cuts, necessarily made in the construction of the road. 
 Sortsman v. Cov. & Lex. B. B., 18 B. Mon. 222. 
 
 7. ISo action lies against a husband, who remains in possession, 
 by himself or tenant, of a house and lot belonging to his wife, after 
 her death without issue, even though his possession be ever so 
 
6 ACTIONS. 
 
 tortious, to recover the value of the house, which was accidentally 
 destroyed by fire. Morrow v. Mason, 2 Met. 117. 
 
 8. No action lies against an officer, who, after levying a distress 
 warrant on property of an under-tenant, takes a bond not author- 
 ized by law, and gives up the property, for afterward, in a peace- 
 able manner, repossessing himself of it. Grubb v. McCoy, 2 Met. 
 488, 489. 
 
 9. Nor is it material that, at the time of the second seizure, the 
 warrant had been returned and was not in the hands of the officer. 
 Grubh V. McCoy, 2 Met. 488, 489. 
 
 10. That one of several devisees was present at the sale of a 
 slave by the executor, and knew and concealed from the purchaser 
 the fact that the slave was unsound and worthless, of which the 
 executor was ignorant, does not authorize the purchaser to recover 
 back from the executor the amount paid for the slave. Robinson 
 V. Bright, 3 Met. 32, 33. 
 
 11. A defendant, in an attachment bond, can not recover the 
 amount of attorney's fees for defense, unless he has paid or agreed 
 to pay them. Shultz v. Morrison, 3 Met. 99, 100. 
 
 12. 'No action lies against one, who testifies as a witness on an 
 examining trial of one, charged with a felony, before a single 
 justice of the peace, and who is illegally committed to jail by the 
 justice. Bevill, et al. v. Pettit, 3 Met. 321. 
 
 13. A married woman can not maintain an action against her 
 husband for the possession of slaves, her separate estate, without 
 some other grounds of relief than that he has the possession and 
 refuses to surrender it to her. Matson v. Matson, 4 Met. 265. 
 
 14. One to whom an apprentice was bound by an order of the 
 county court, and who hires such apprentice to another for a part 
 of the term, can not maintain an action on a covenant for such 
 hire. Huffman v. Rout, 2 Met. 51. 
 
 15. No action will lie in favor of a loser, to recover back money 
 bet and lost on an election. Love v. Harris, 18 B. Mon. 125. 
 
 16. A judicial officer is not liable to an action for a mere error 
 of judgment, innocently and honestly made. Morgan v. Dudley, 
 18B. Mon. 711; Caulfield v. Bullock, 18 B. Mon. 497; Gregory v. 
 Brown, 4 Bibb, 28. 
 
 17. No action lies to recover back money paid with a full 
 knowledge of all the facts. Tyler v. Smith, 18 B. Mon. 799. 
 
 18. One who has been imprisoned for disobeying an order of 
 court in an action, will have no cause of action against the plain- 
 
AD QUOD DAMNUM. 
 
 tiff, although the order may be afterward reversed. Kay v. Kean, 
 18 B. Mon. 847. 
 
 19. No action will lie on an implied contract when an action 
 could be maintained on a special contract, which is in writing, 
 and covers the same subject. Western v. Sharp, 14 B. Mon. 179. 
 
 20. The husband can not maintain an action for an injury to 
 the person of the wife, which results in instantaneous death. 
 Uden V. Lou. & Frank. B. B. Co., 14 B. Mon. 208. 
 
 ADMINISTEATOES. 
 See Executors and Administeators. 
 
 ADMISSIONS, 
 See Evidence. 
 
 1. An admission, made to a part only of several arbitrators will 
 not sustain an award based on the admission alone. Senderson v. 
 Buckley, 14 B. Mon. 295. 
 
 2. Proof of admissions, made by a party, in the presence of the 
 witnesses only, should be received with caution. But the admis- 
 sions of a party, once satisfactorily proved, is convincing testimony 
 against such party. Siggs v. Wilson, 3 Met. 338 ; Botts v. Williams, 
 17 B. Mon. 697. 
 
 AD QUOD DAMNUM. 
 
 1. An order, awarding a writ of ad quod damnum, upon an ap- 
 plication to establish a private passway, must name the day on 
 which the inquest is to be had, which must also be inserted in the 
 writ. The omission is fatal. Troutman v. Barnes, 4 Met. 338; 
 sec. 7, art. 1, chap. 84, Eevised Statutes ; Irwin & Taul v. Scobee, 3 
 Mon. 50. 
 
 2. An inquest upon a writ of ad quod damnum, in a road case, is 
 fatally defective, which merely ascertains the aggregate amount of 
 damages, without showing on what grounds it is based. Bobinson 
 Y. Bobinson, 1 Duv. 163 ; Bout v. Mountjoy, 2 B. Mon. 302. 
 
 3. The verdict should ascertain : 1. "What will be a just com- 
 pensation to the owner for the land taken ; 2. What additional 
 
8 ADVANCEMENTS. 
 
 fencing will be rendered necessary ; 3. What the damage will be 
 to the residue of the tract, beyond the peculiar benefits which 
 will be derived to such residue from the road. Jtobinson v. Bobin- 
 son, 1 Duv. 163. 
 
 ADVANCEMENTS. 
 
 1. If a father sells to his son a tract of land, and remits a part 
 of the price, the son will be charged with it as an advancement, 
 even though the father may have expressed an intention that he 
 should have that much more than his other children. Clark v. 
 aark, 17 B. Mon. 707 ; Ford v. Thompson, 1 Met. 583, 584. 
 
 2. The mere declaration of a parent will not make that an ad- 
 vancement," which would not otherwise be so, nor exempt a child 
 from liability to account for property given him. Clark v. Clark, 
 17 B. Mon. 707 ; Cleaver v. Kirk, 3 Met. 272, 273 ; Ford v. Thomp- 
 son, 1 Met. 583, 584. 
 
 8. The father conveyed land to his son for a consideration 
 named in the deed, but the proof showed the land to have been 
 worth a much larger sum. Held: That the excess over the price 
 paid was chargeable as an advancement. Gordon v. Gordon, 1 
 Met. 286, 287. 
 
 4. Sons, to whom the father had surrendered lands, stock, and 
 slaves, with the understanding that they should have all they 
 made over a support for the family, will be charged with the 
 profits, over and above the support of the family, as an advance- 
 ment. Ford V. Thompson, 1 Met. 582. 
 
 5. A father made a parol gift of a tract of land to each of two 
 sons, and after his death the heirs refused to convey the land. 
 Seld: That the sons were not chargeable with the rents as an ad- 
 vancement. Montjoy v. Maginnis, 2 Duv. 187. 
 
 ADVEESE POSSESSION. 
 See Possession. 
 
AGENCY. 
 
 AFFIDAVITS. 
 
 I. "When used as evidence. 
 II. Affidavits for attachments. See Attachmenis. 
 
 III. Affidavits to pleadings. See Pleadings. 
 
 IV. Affidavits required Ibefore judgment to sell real property of non-residents 
 
 under attachment. See Non-Residents. 
 V. Affidavit on demands against a decedent's estate. See Decedenfs Estate. 
 VI. Affidavit to obtain execution after death of the plaintiff. See Execution, 
 
 WHEN USED AS EVIDENCE. 
 
 1. Affidavits may be read in opposition to a motion to discharge 
 an attachment. Talbott v. Pierce, 14 B. Men. 197.^ 
 
 2. In an action on an insurance policy, which contained a stipu- 
 lation requiring the assured to deliver an account of their loss, 
 with their oath or affirmation declaring the account to be true, etc., 
 the affidavit of the plaintiff is admissible to prove a compliance 
 with this stipulation, but for no other purpose. Phoenix Ins. Co. 
 
 V. Lawrence, 4 Met. 13. 
 
 3. Affidavits can not be read as evidence on the trial of an at- 
 tachment. The only evidence admissible, is depositions ; or, with 
 the assent of the court, witness examined orally in court. Newton 
 V. West, 3 Met. 27 ; Duncan v. Wickliff, 4 Met. 118. 
 
 AGEEBD CASE. 
 
 1. The circuit court has no jurisdiction of an agreed case ; un- 
 less, it appears by affidavit that the controversy is real, and the 
 proceedings in good faith, to determine the rights of the parties. 
 Jones V. Hoffman, 18 B. Mon. 657. 
 
 AGENCY. 
 
 I. Appointment and revocation. 
 II. Extent of authority. 
 
 III. Liabilities of principal, and how far bound by acts of agent. 
 
 IV. Liabilities of agents. 
 
 I. APPOINTMENT. 
 
 1. A corporation is not bound by a contract made by its presi- 
 1 Overruled in Newton v. West, 3 Met. 27; See. 290, Civil Code. 
 
10 AGENCY. 
 
 dent, or any individual member of the corporation ; unless, the 
 power, so to bind it, is given by the charter, or by some act of the 
 corporation. Mt. Sterling & Jeffersonville Turnpike Co. v. Lomey, 
 1 Met. 551, 552. 
 
 2. An authority, by one partner to the other, to use the firm 
 name at discretion, does not authorize him to use the firm name 
 after a dissolution of the partnership. Gronly v. Bank Kentucky, 
 18 B. Mon. 409. 
 
 3. If one signs his name in blank on a note with the intention 
 to become bound as a guarantor, there is an implied authority, to 
 the holder of the note, to write words of guaranty above his name. 
 Levi V. Mendell, 1 Duv. 80. 
 
 4. If a party sign a blank paper, on which a note is to be drawn, 
 and intrust it to another, he thereby confers an implied authority, 
 on the latter, to fill it up at his discretion, with the amount, date 
 and time of payment, and with the names of additional obligors 
 or other parties. Jones v. Shelbyville Ins. Co., 1 Met. 62. 
 
 5. A sheriff, who, having in his hands an attachment which has 
 not been levied, takes from the defendant a bond with security 
 to pay the debt, will not be regarded as the agent of the plaintiff, 
 but rather as the agent of the obligor. Cook v. Boyd, 16 B. Mon., 
 559. 
 
 I. EXTENT or ATTTHORITT. 
 
 1. Those who deal with the officers of a corporation, must know 
 the extent of the authority of such officer, and can not hold the 
 officer individually responsible, when he has exceeded his powers. 
 Sanford v. McArthur, 18 B. Mon. 421. 
 
 2. An insurance company is not bound, by the promise of its 
 agent, to pay losses sustained, when the policy had, before the loss, 
 ceased to have any effect, in consequence of the assured having 
 kept prohibited articles in the house insured; though the agent 
 knew that fact when he made the promise. Phoenix Ins. Co. v. 
 Lawrence, 4 Met. 13. 
 
 3. An agent can not convey the land of his principal to a trustee 
 to be held for his (the agent's) use. Graves v. Ward, et al. 2 Duv. 
 302, 303. 
 
 4. Nor will a parol promise by a principal to his agent, that the 
 latter may hold the proceeds of land he is empowered to sell, to 
 pay debts due by the principal to his agent, raise any equity in 
 favor of the latter, as against the attaching creditors of the former. 
 Graves v. Ward, et al. 2 Duv. 303. 
 
AGENCY. 11 
 
 III. LIABILITIES 0¥ PRINCIPALS, AND HOW FAE BOUND BY ACTS OF 
 
 AGENTS. 
 
 1. The trustees of a town, whose chairman acted as their agent in 
 making a subscription to the capital stock of a turnpike company, 
 and who produced, at the time of subscribing, a copy of the order 
 of the board, empowering him to do so, can not, if the subscrip- 
 tion be made according to the order produced, rely, in defense, 
 that their agent exceeded his powers ; unless, they show that the 
 other party had notice that he was exceeding his authority. 
 Shelhyville v. Shelbyville Turnpike Go., 1 Met.^57, 58. 
 
 2. The principal will be liable to one, who deals with his agent, 
 for the amount of a note given by the agent, for property bought 
 for, and received by, the principal ; although, the agency may have 
 been unknown at the time the note was given. Wilson v. Thomp- 
 son, 1 Met. 127. 
 
 3. One, who has, by mistake, paid money to an agent, which 
 was not due to the principal, must, after the agent has paid it over 
 to his principal, look to the latter to refund it. Com'rs. Sink. Fund 
 V. Theobald, 17 B. Mon. 482. 
 
 4. If an agent be sued for the freedom of a slave of his princi- 
 pal, which is in the possession of the agent, and the principal has 
 notice of the suit and its object, he will be as much bound by the 
 judgment as if he had been a party to the suit. Warfield v. Davis, 
 14 B. Mon. 41, 42. 
 
 5. A principal is not liable, for the willful and forcible trespass 
 of his agent. Kountz v. Brown, 16 B. Mon. 582. 
 
 6. The proprietors of stage coaches will be liable to persons in- 
 jured by the want of skill, or negligence of their agents. Saw- 
 kins V. Biley, 17 B. Mon. 110. 
 
 7. The hirer of a slave will be responsible to the owner for the 
 cruel and inhuman treatment of the slave by his agent or overseer 
 having control of the slave. Craig v. Lee, 14 B. Mon. 122. 
 
 8. Among common laborers, constituting a distinct class in the 
 employ of a railroad company, no one of them is the agent of the 
 corporation as between himself and his coequals ; and the corpo- 
 ration is not liable to any one of them for injuries resulting from 
 the acts or omissions of any other one of the class, although each 
 of the company's employees would be its agent as to strangers. 
 Lou. & Nash. B. B. Co. v. Collins, 2 Duv. 119. 
 
 9. Owners of steamboats are liable, under our statute, for forcible 
 
12 AQENOT. 
 
 injuries and trespasses by their agents as well as for their care- 
 lessness, negligence, or want of skill. Kountz <v. Brown, 16 B. 
 Mon. 582. 
 
 IV. LIABILITIES OP AGENTS. 
 
 1. An agent, who has received money for his principal, and paid it 
 ever to him, will not be responsible ; although the money received 
 was not due to the principal. Com'rs. Sink. Fund v. Theobald, 17 
 B. Mon. 482. 
 
 2. An officer of a corporation, when acting as such, and within 
 the scope of his authority, will not be individually responsible. 
 Taylor v. Williams, 17 B. Mon. 494, 495; Murray v. Carothers, 1 
 Met. 79. 
 
 3. When an agent's want of authority is known, and it is clear 
 that the agent did not undertake to guaranty a ratification by his 
 principal, the agent is not personally responsible. Murray v. Car- 
 others, 1 Met. 81. 
 
 4. One, dealing with an agent of the public, is presumed, in the 
 absence of evidence of a contrary intention, to give credit to the 
 Government, rather than to the agent. Murray v. Carothers, 1 
 Met. 78. 
 
 5. A merchant, who receives goods simply to be forwarded to 
 another point for the shipper, and who has no funds of the owner 
 to pay insurance, and no goods on consignment, out of which he 
 can be reimbursed, is not bound, on mere request, to insure ; unless 
 he agrees to do so, or such be the course of dealing between the 
 parties, or the custom of the place. Vickery v. Lanier, 1 Met. 137. 
 
 6. A person is not liable on a contract, which he makes as the 
 agent or trustee of another, with authority to do so. Lewis v. 
 Harris, 4 Met. 354. 
 
 7. Whether the agent intended to bind himself personally, is a 
 question for the court; to be decided in view of the language of the 
 contract, the circumstances under which it was made, and the 
 situation of the parties. Lewis v. Harris, 4 Met. 355. 
 
 8. If persons acting as a local board of internal improvements, 
 and having control of a fund created to pay for work done, con- 
 tract for the building of a bridge, they will be individually liable 
 to the contractor; although the fund on which they relied to pay 
 him, be lost without their fault. Husbands v. Smith, 14 B. Mon. 211. 
 
 9. An agent is individually liable for a fraud committed by him; 
 although he acted throughout as agent. Campbell v. Hillman, 15 B. 
 Mon. 515. 
 
ALIENS. 13 
 
 ALIMONY. 
 
 1. The wife's right to alimony, on a divorce being granted, must 
 be determined by the law in force at the time the facts occurred, 
 which are the foundation of the divorce. Wilmore v. Wilmore, 15 B. 
 Mon. 60, 61. 
 
 2. If, after a decree in Kentucky granting a divorce, suit be 
 brought and a judgment obtained, in a sister State, for alimony, 
 and suit be brought, in this State, to enforce payment of the judg- 
 ment, the propriety of the judgment can not be questioned here. 
 Sogers v. Sogers, 15 B. Mon. 382. 
 
 3. It is not necessary, in an action for a divorce and alimony, 
 that the property rights of the parties should be determined, at 
 the same time the divorce issue is decided, but it may be done 
 afterward. Williams v. Gooch, 3 Met. 489; section 462, Civil 
 Code. 
 
 4. When a wife abandons her husband, without cause, she is not 
 entitled to alimony. JJee v. Ziee, 1 Duv. 197. 
 
 5. In granting a divorce to the wife, for cruel and inhuman 
 treatment, an allowance to her of the use of one-half of the hus- 
 band's lands, worth $1,200, and the title to one-half of his movables, 
 worth $400, for the maintenance of herself and infant children, is 
 neither unjust nor unauthorized, she having no property of her 
 own. Quinsenberry v. Quinsenherry , 1 Duv. 198. 
 
 6. In such case, the court has no power, in awarding mainte- 
 nance, to divest the husband of title to his real estate. Quinsenberry 
 V. Quinsenberry, 198, 199. Sees. 6, 7, chap. 7, Eevised Statutes. 
 
 ALIB]SrS. 
 
 I. Who are aliens and who are not. 
 II. Of the disabilities of aliens. 
 
 I. WHO ARE ALIENS AND WHO ARE NOT. 
 
 1. All persons, who are foreigners by birth, are prima facie aliens. 
 White V. WhUe, 2 Met. 190. 
 
 2. Persons, who have taken the preparatory oath prescribed by 
 Congress, as a step toward naturalization, but have not taken the 
 final oath, are aliens. White v. White, 2 Met. 188. 
 
14 ALLEGATION AND PROOF. 
 
 3. The naturalization of the husband of an alien wife, does not 
 make her a citizen. White v. White, 2 Met. 
 
 4. Children, under twenty-one years of age, of persons duly 
 naturalized^are not aliens. White v. White, 2 Met. 191. 
 
 11. OF THE DISABILITY OF ALIENS. 
 
 1. At common law, an alien could not take lands by inheritance, 
 and this law is still in force in Kentucky. White v. White, 2 Met. 
 187, 188; Yeaker v. Fearer, 4 Met. 34; Sunt v. Warwick, Har. 61. 
 
 2. An alien, who has made his declaration, and taken the oath 
 preparatory to becoming a citizen of the United States, is not 
 thereby rendered capable of taking lands by descent. White v. 
 
 White, 2 Met. 188, 189. 
 
 3. An alien can receive the title to land which he acquires by 
 purchase, and being invested with the title, he can hold it until 
 divested of it in the mode prescribed by law. White v. White, 2 
 Met. 189; Ulmendorf v. Garmichael, 3 Litt. 474. 
 
 4. Being incapable of inheriting, an alien can not take the title 
 to lands by descent, and as the title must vest somewhere, on the 
 death of one, having no kindred capaple of inheriting, it vests in 
 the Commonwealth. White v. White, 2 Met. 189, 190. 
 
 5. When, for want of kindred capable of taking by descent, 
 lands escheat to the Commonwealth, the kindred can not acquire 
 title by being subsequently naturalized. White v. White, 2 Met. 190. 
 
 ALLEGATION AND PEOOF. 
 
 I. In civil cases. 9 
 II. In criminal and penal cases. 
 
 I. IN CIVIL CASES. 
 
 1{ Facts, proven or admitted, except so far as they support the 
 allegations, are immaterial. Jackson, Cox & Go. v. Halloway, 14 
 B. Mon. 139 ; Phoenix Ins. Go. v. Lawrence, 4 Met. 18 ; Stern v. 
 Freeman, 4 Met. 311 ; Bowling v. Doneghy, 1 Duv. 221. 
 
 2. If the petition allege the plaintiffs are heirs of a certain 
 person, under whom they claim title, and it is not denied, it need 
 not be proved. Morton v. Warring, 18 B. Mon. 82. 
 
 3. Allegations of value or amount of damages, in actions ex de- 
 licto, can not be taken as true by the failure of the defendant to 
 controvert them. Clark v. Seaton, 18 B. Mon. 229 ; Slone v. Slone, 
 
ALLEGATION AND PROOF. 15 
 
 2 Met. 340, Ml; Huston v. Peters, Sardin & Co., 1 Met. 560; Daniels 
 V. Judy, 14 B. Mon. 394; Man v. Prather, 3 Met. 197. 
 
 4. But in actions when, from the facts stated in the petition, the 
 law implies a promise to pay, the allegations of value will be taken 
 as confessed if not denied, and judgment may be rendered by de- 
 fault. Harris v. Bay, 15 B. Mon. 630 ; Frances v. Frances, 18 B. 
 Mon. 60. 
 
 5. The law implies no promise to pay damages caused by a 
 breach of covenant, and the damages, in such cases, must be 
 proved, whether denied or not. Marr's Adm'r v. Prather, 3 Met. 
 197; Skillman v. Muir, 4 Met. 283, 284. 
 
 6. Unless the variance between the allegations and proof be of 
 such a character as to mislead the adverse party to his prejudice, 
 it will not be sufficient grounds for a reversal. Woodcock v. Far- 
 rell, 1 Met. 442, 443. 
 
 7. If notice of a motion against a constable and his sureties, for 
 failing to return an execution, fails to show how long the constable 
 retained the execution after the return day, or what amount of 
 damages the plaintiff claims, he will only be entitled to recover 
 the smallest amount given by law, although the proof may show 
 him entitled to the largest. Judy v. Howard, 2 Met. 46. 
 
 8. One, who is alleged to be an alien, and denies it in his answer 
 but admits he is of foreign birth, must prove his naturalization. 
 White V. White, 2 Met. 190. 
 
 9. Parol testimony is not admissible, under the allegation " that 
 the indorsements were made at and before the delivery to the 
 plaintiffs (who were payees), whereby the said defendants intended 
 to be equally bound as obligors," to prove that the defendants 
 who indorsed a note in blank before its delivery, did so, either 
 with a view to its being discounted at the bank where it was pay- 
 able, or for the purpose of guarantying its payment. Kellogg v. 
 Dunn, 2 Met. 219. 
 
 10. Allegations, in an answer, of new matter, not constituting a 
 counter-claim or set-off, should be considered as controverted with- 
 out a denial, and must be proved by the defendant. Fahnestock v. 
 Bailey & Varnon, 3 Met. 51 ; Mitchison v. Foster, 3 Met. 325 • 
 Graves v. Ward & Co., 2 Duv. 304. 
 
 11. If the defendant be alleged to be in possession of land for 
 which he is sued, and the land be alleged to lie in the county 
 where suit is brought, both allegations must be taken as true, un- 
 less denied by the answer. Hartley v. Hartley, 3 Met. 60 ; sec 
 153, Civil Code. 
 
16 ALLEGATION AND PEOOF. 
 
 12. If a deed be alleged in the petition to have been executed, 
 and its execution is not denied by the answer, it need not be 
 proved. Barrett v. Goburn, 3 Met. 516. 
 
 13. If a defendant answers without controverting the claim as- 
 serted, but alleges that the demand sued for had been assigned by 
 the plaintiif to another, and offers no proof of the fact, the plaintiff 
 is entitled to judgment. Vanbuskirk v. Levy, 3 Met. 135, 136. 
 
 14. If an insurance company, sued for losses sustained by the 
 assured, aver in its answer that certain specified articles, prohib- 
 ited by the policy, were kept in the house insured, proof of the 
 keeping of other prohibited articles is inadmissible. Phoenix Ins. 
 Co. V. Lawrence, 4 Met. 18. 
 
 15. Proof, relied on to defeat or suspend an action on a forfeited 
 recognizance, should be disregarded, unless there is a written an- 
 swer stating the facts constituting the defense. Brown v. Common- 
 wealth, 4 Met. 222. 
 
 16. In order to obtain here the benefit of the law of the State 
 where a contract was made, it is necessary both to allege and prove 
 what the law of that State is. Stern v. Freeman, 4 Met. 311. 
 
 17. When a plea of infancy is relied on by the defendant, in an 
 action on a note, the plaintiff may prove a ratification of the con- 
 tract, without averring it in his pleadings. Stern v.- Freeman, 4 
 Met. 312, 313. 
 
 18. Whether the same rule applies to a case where the statute of 
 limitations is pleaded. Quere. Stern v. Freeman, 4 Met. 213. 
 
 19. Evidence that the claim of the plaintiff was based on a series 
 of acts, in violation of a penal statute, and against good morals 
 and public policy, can not be given by the defendant in order to 
 defeat the plaintiff's claim, unless they are relied on in the answer. 
 Denton v. Logan, 3 Met. 436. 
 
 20. The allegations of the petition and affidavit, in an action 
 against one proceeded against as a non-resident, and who has not 
 appeared, must be proved. Harris v. Adams, 2 Duv. 142. 
 
 11. IN CUIMINAL CASES. 
 
 1. If an indictment, under section 1, article 17, chapter 28, 
 Eevised Statutes, for unlawfully shooting at another, allege it to 
 have been maliciously done, malice being unnecessarily charged 
 need not be proved. Robinson v. Commonwealth, 16 B. Mon. 616. 
 
 2. A descriptive averment, in an indictment, must be proved as 
 laid ; and this, although the description be unnecessarily minute 
 
AMENDMENTS. 17 
 
 and particular. Clark v. Commonwealth, 16 B. Mon. 213 ; Common- 
 wealth V. Magowan, 1 Met. 369. 
 
 3. But an allegation of value, in an indictment for playing carda 
 with a slave, is not descriptive of the identity of that which is 
 legally essential, and an indictment, charging that money or 
 property, of the value of five dollars, was bet, won, and lost in such 
 a game, is sustained by proof of the betting, winning, and losing 
 of one dollar. Commonwealth v. Garland, 3 Met. 479, 480. 
 
 AMBISTDMBNTS. 
 
 I. Of pleadings. See Pleadings. 
 II. Of affidavits for provisional remedies. 
 III. Of writs and returns. 
 
 II. AMENDMENTS OF AFFIDAVITS FOR PROVISIONAL REMEDIES. 
 
 1. A defective afla.davit for an attachment, permitted to be amended 
 before answer or motion to discharge. Clark v. Seaton, 18 B. Mon. 
 230. 
 
 2. A defect in the petition, on which an attachment is obtained 
 on a return of "no property," may be cured by a subsequent amend- 
 ment; and neither the attachment levy nor lien be thereby vitiated. 
 Lewis V. Quinker, 2 Met. 286, 287. 
 
 3. An affidavit, for an attachment, can not be amended after a 
 motion to discharge the attachment. Pool v. Webster, 3 Met. 281.i 
 
 III. AMENDMENT OF WRITS AND RETURNS. 
 
 1. A sheriff, even though he has gone out of office, may amend 
 his return on fi. fa, by leave of the court. Newton v. Prather, 1 
 Duv. 102, 103. 
 
 2. The plaintiff's attorney withdrew from the hands of the 
 sheriff, with his consent, an order of attachment, on which the 
 sheriff had merely indorsed the time when it came to hand ; on a 
 supplemental affidavit, the clerk issued the same order of attach- 
 ment, having erased therefrom the indorsement of the sheriff; 
 under this order, the sheriff siezed the defendant's property. Held: 
 That the order and levy were valid. Bean v. Garrett, 1 Dav. 409. 
 
 3. A sheriff may amend his return on an attachment, so as to 
 make it conform to the facts. Lane v. JRobinson, 18 B. Mon. 632. 
 
 iln Allen v. Brown, 4 Met. 344, 345, the case of Pool v. Webster, was over- 
 ruled on this point, and it was decided, that section 161 of the Civil Code 
 authorked the amending of a defective affidavit, either before or after motion 
 to discharge. 
 
 3 
 
18 
 
 APPEALS. 
 
 APPEALS. 
 
 I. Appeals to the court of appeals. 
 II. Appeals to the circuit court. 
 
 III. Appeals to the county and quarterly courts. 
 
 IV. Appeal bonds. See Bonds. 
 
 I. APPEALS TO THE COURT OF APPEALS. 
 
 A. When an appeal will lie and when not, and herein of the jurisdiction of the 
 
 court of appeals. 
 
 B. When and how appeals may he taken, and herein of the time within which an 
 
 appeal m,ay he taken. 
 
 a. When an appeal lies and when not, and herein of the jurisdiction of 
 the court of appeals. 
 
 1. ISo appeal lies from a judgment rendered against a single 
 defendant, in an action, by ordinary proceedings, against several— 
 none of whom had been served with process, in the county where 
 the action was brought — until a motion to correct the judgment is 
 made, and refused in the court below. Pottinger v. Mayfield, 14 B. 
 Mon. 647.1 
 
 2. An appeal lies, by a defendant in an action of trespass, quere 
 clausum fregit, upon a plea of liberum tenementum ; though the dam- 
 ages assessed be less than $100. Gaskey v. Lewis, 15 B. Mon. 31. 
 
 3. No appeal lies by the defendant, when the action is for the 
 recovery of money or personal property, and the judgment is for 
 less than one hundred dollars, unless reduced below that amount 
 by a counter-claim or set-off. Kendall v. Spradling, 15 B. Mon. 34.^ 
 
 4. The court of appeals has no jurisdiction over an order of the 
 circuit court, appointing a receiver and ordering the renting of 
 mortgaged property, pending a suit to sell the property to pay debts 
 secured by the deed. M. & Lex. B. JR. Co. v. Punnett, et al., 15 B. 
 Mon. 47, 48. 
 
 5. A garnishee, adjudged to pay a debt due by him to the de- 
 fendant, may appeal from the judgment. Forepauqh v. Avvold 17 
 B. Mon. 631, 632. ^ ' 
 
 6. A cross-appeal is only allowed in behalf of the appellee against 
 the appellant; and not by one appellee against another. Smith v 
 JV. Bank Ky., 1 Met. 580. 
 
 ' Overruled in Muhy v. Oraee, 2 Duv. 541. 
 
 = By an act, approved Februarys, 1858, the jurisdiction of the court of 
 appeals was extended to all judgments, in actions for the recovery of money 
 or personal property, when the amount in controversy is fifty dollars or over. 
 
APPEALS. 19 
 
 7. No appeal lies from an order dissolving an injunction. Rod- 
 man V. Forline, 2 Met. 325, 326. 
 
 8. No appeal lies from an order of a county court, refusing to 
 qualify one as deputy sheriff, on motion of the sheriff. Applegate 
 V. Applegate, 4 Met. 237. 
 
 9. An appeal lies from the order of a county court, refusing 
 tavern license to an applicant. Boehler v. Commonwealth, 1 Duv. 
 3; sees. 15, 16, 20, Civil Code. 
 
 10. The court of appeals has jurisdiction to reverse an order of 
 the circuit court, aflSrming an order of the county court, refusing 
 to grant a license to a merchant to sell liquor. Dougherty v. Gom- 
 monwealth, 14 B. Mon. 240. 
 
 11. The court of appeals has no jurisdiction of a judgment 
 granting a divorce. Wilmorev. Wilmore, 15 B. Mon. 57. 
 
 12. The court of appeals has jurisdiction of a judgment in an 
 action to recover land without regard to its value. Smith v. 
 Moherly, 15 B. Mon. 72. 
 
 13. The court of appeals has no jurisdiction over orders made 
 on the hearing of a writ of habeas corpus. Weddington v. Sam. 
 Sloan, 15 B. Mon. 153. 
 
 14. Nor of orders of commitment by the circuit court for con- 
 tempt. Patton V. Harris, 15 B. Mon. 614. 
 
 15. Nor of errors in refusing a new trial in criminal cases. 
 Walston V. Commonwealth, 16 B. Mon. 42. 
 
 16. Nor of errors of the circuit court, in refusing a new trial, for 
 alleged misconduct of the jury, in criminal eases. Clark v. Com- 
 monwealth, 16 B. Mon. 214 ; Comely v. Commonwealth, 17 B. Mon. 408. 
 
 17. Nor of the judgment of the circuit court in penal prosecu- 
 tions ; unless the appeal be taken at the term at which the judg- 
 ment is rendered, and the record filed in the oflftce of the clerk of 
 the court of appeals, in sixty days after the judgment was ren- 
 dered. Commonwealth v. Adams, 16 B. Mon. 339, 340. 
 
 18. Nor to reverse a judgment, in a criminal case, on the ground 
 that the special judge elected by the bar to try the case was not 
 legally eligible. Comely v. Commonwealth, 17 B. Mon. 409. 
 
 19. Nor of appeals by the coinmonwealth, when, under the in- 
 dictment, no other penalty than a fine of one hundred dollars 
 could be inflicted. Commonwealth v. Crump, 18 B. Mon. 471. 
 
 20. Nor to award a writ of prohibition. Sasseen v. Hammond, 
 18 B. Mon. 674. 
 
 21. Nor of an order of the circuit court, remanding a case to 
 
30 APPEALS. 
 
 the county from which it had been brought, by change of venue. 
 Turner v. Browder, 18 B. Mon. 826, 827. 
 
 22. Nor of an order discharging an attachment, on the ground 
 that the affidavit is defective. Leet v. Locket, 4 Met. 56. 
 
 23. The parties can not, by consent, give the court of appeals 
 jurisdiction to review an order, overruling a motion to discharge 
 an attachment, made before the trial of the cause. Overhy v. Gay, 
 17 B. Mon. 146. 
 
 24. The court of appeals has no power to revise a judgment of a 
 circuit court, in a criminal case ; unless, for errors of law appear- 
 ing, on the record, by bill of exceptions, prepared as provided by 
 the Criminal Code of Practice. Adwell v. Commonwealth, 17 B 
 Mon. 317. 
 
 25. The court of appeals can only reverse a judgment of con- 
 viction in a criminal case for : 
 
 1. Error in admitting or rejecting important testimony. 
 
 2. Error in instructing or refusing to instruct the jury. 
 
 3. Error in failing to arrest the judgment. 
 
 4. Error in allowing or disallowing peremptory challenges to 
 
 jurors. Cornelius Y. Commonwealth, lb B. Mon. 544; Comely 
 V. Commonwealth, 17 B. Mon. 408; Champ v. Commonwealth, 
 2 Met. 26. 
 
 26. The interest, due on a demand when suit is commenced, con- 
 stitutes a part of the amount in controversy; and when both to- 
 gether amount to one hundred dollars, the court of appeals has 
 jurisdiction. Orth & Wallace v. Clutz, 18 B. Mon. 225. 
 
 27. An appeal lies, from the Jefferson County Court, when the 
 amount in controversy is twenty dollars or over. Com. Bank v. 
 Benedict, 18 B. Mon. 312 ; Gross v. Jones, 3 Met. 296, 297. 
 
 28. The court of appeals has jurisdiction of a judgment or order 
 of the circuit court, affirming a settlement made, by the county 
 court, with an administrator. Clark v. Lusk, 1 Met. 449. 
 
 29. The act of February 9, 1858, enlarging the jurisdiction of 
 the court of appeals, does not abolish the distinction between ap- 
 peals by the plaintiff and by the defendant; and no appeal lies now 
 by the defendant ; unless the judgment against him is for fifty 
 dollars or more unless reduced below that amount by counter-claim 
 or set-off. Eevill v. Fettit, 3 Met. 322 ; Tipton v. Chambers, 1 Met. 
 566 ; Brandies v. Stewart, 1 Met. 395. 
 
 30. The court of appeals has jurisdiction to reverse an erroneous 
 judgment, sustaining a demurrer, to an indictment for a misde- 
 
APPEALS. 21 
 
 meanor, for a misjoinder of parties. Commonwealth v. Anthony, 2 
 Met. 403, 404. 
 
 31. And of an appeal from an order of the circuit court, striking 
 the name of an attorney-at-law from the role of attorneys, for 
 alleged malpractice and official misconduct. Turner v. Common- 
 wealth, 2 Met. 624, 625 ; Bice v. Commonwealth, 18 B. Mon. 482. 
 
 32. And of an appeal from a judgment of a county court, per- 
 manently suspending the jailor of a county. JJowe v. Commonwealth, 
 3 Met. 238. 
 
 33. And of a motion against a sheriff, for failing to return an 
 execution issued from the office of the clerk of the court of appeals. 
 Mitchison v. Foster, 3 Met. 326. 
 
 34. And of appeals from judgments of county courts, in forfeited 
 recognizances in bastardy cases. Commonwealth v. Taphorn, 4 Met. 
 71, 72. 
 
 35. "When the jury finds a special verdict, and the court decides 
 no question of law in the progress of the trial, and there is no mo- 
 tion for a new trial, the court of appeals have no power to revise 
 the verdict of the jury. I/isle v. Sogers, 18 B. Mon. 534. 
 
 36. The court of appeals has no jurisdiction of matters of fact, 
 arising on the record in road cases. Wood v. Campbell, 14 B. Mon. 
 424. 
 
 b. When and how appeals may be taken, and herein of limitation of 
 the time of taking appeals. 
 
 1. An appeal, to the court of appeals, is limited to three years 
 from the rendition of the final judgment. Langhorn v. Payne, 14 
 B. Mon. 633. 
 
 2. A decree, for the sale of lands belonging to heirs, some of 
 whom were infants and some adults, rendered at their joint in- 
 stance as plaintiffs, and defendants, and for their joint benefit, can 
 not, after three years, be appealed from, by one of the heirs, who 
 labored under the disability of infancy at the rendition of the 
 decree' and who brings himself, alone, within the saving of the 
 statute. The right of appeal, in such case, being barred as to one, is 
 barred as to all. Helm v. Bently, 1 Met. 510, 511 ; May v. Marshall, 
 2 Litt. 147 ; Callaghan v. Carr, 1 Mar. 22. 
 
 3. An appeal, from a judgment of the circuit court, in a case of 
 misdemeanor, must be taken at the term at which the judgment is 
 rendered, and the record must be filed in the clerk's office of the 
 Court of appeals in sixty days after the judgment is rendered ; and 
 if this be not done, the court of appeals will not have jurisdiction 
 
22 APPEALS. 
 
 of the case. Commonwealth v. Adams, 16 B. Mon. 339, 340 ; Com 
 monweaHth v. McOready, 2 Met. 377. 
 
 4. And this rule applies, whether the Commonwealth or the de- 
 fendant appeals. Commonwealth v. McCready, 2 Met. 377. 
 
 5. A supereedeas can not be issued, hy the clerk of the court of 
 appeals, until a copy of the record has been filed in his office. 
 Sunt V. Berryman, 2 Met. 240. 
 
 6. The rule that in appeals, in cases of misdemeanor, the record 
 must be filed, in the clerk's office of the court of appeals, within 
 sixty days after the judgment is rendered, applies, although the 
 circuit court may have given time to prepare a bill of exceptions. 
 Commonwealth v. McOready, 2 Met. 377. 
 
 7. In an appeal from a judgment against a tavern-keeper, for a 
 breach of his bond, the record need not be filed, in the clerk's office 
 of the court of appeals, in sixty days after the judgment. Mar- 
 goly V. Commonwealth, 3 Met. 406. 
 
 II. TO THE CIRCUIT COrET. 
 
 c. When an appeal will lie and when not, and herein of the appellate 
 jurisdiction of the circuit court, and of practice in appeal cases. 
 
 1. The circuit court has jurisdiction of an appeal from the 
 quarterly court by the defendant, when he relied on a set-off 
 amounting to twenty dollars or over, although the amount claimed 
 by the plaintiff was less than twenty dollars. Goheen v. MyerS) 
 18 B. Mon. 427. 
 
 2. And of an appeal from the county court, allowing gates to 
 be erected across a public road. Bond v. Mullins, 3 Met. 284. 
 
 3. When the quarterly court has no jurisdiction, the circuit court 
 can render no judgment against the defendant in an appeal, but 
 should make such orders as will render the judgment in the quar- 
 terly court inoperative. Wiggington v. Moss, 2 Met. 41. 
 
 4. If an action be brought before a justice on a note, the prin- 
 cipal and interest of which exceeds fifty dollars, and appealed 
 through the quarterly court to the circuit court, the circuit court 
 has no jurisdiction, and should dismiss the action. Fidler v. Hall, 
 2 Met. 462 ; Fleming v. Limehaugh, 2 Met. 267. 
 
 5. The circuit court has no jurisdiction of an appeal from a 
 judgment of the county court upon a forfeited recognizance in a 
 bastardy case. Commonwealth v. Taphorn, 4 Met. 71, 72. 
 
 6. Upon the trial of an appeal from a justice, no new cause of 
 action can be relied on, and the demand can not be increased 
 
APPEARANCE. 23 
 
 beyond the jurisdiction of the justice. Burhage v. Squires, 3 Met. 
 79; Powers v. Sutherland, 1 Duv. 152, 153. 
 
 7. No petition is authorized to be filed in the circuit court in a 
 case appealed from a justice of the peace. Burhage v. Squires, 3 
 Met. 79. 
 
 8. It is only necessary for parties desiring an appeal to the cir- 
 cuit court, from an order of the county court admitting a will to 
 record, to file a transcript of the proceedings in the county court, 
 with the clerk of the circuit court, with the names of the appel- 
 lants and appellees, and have process issued and served on the 
 appellees. Jones v. Jones, 3 Met. 268. 
 
 9. No new parties can be introduced in the circuit court, in a 
 case of forcible entry and detainer. Powers v. Sutherland, 1 Duv. 
 152, 153. 
 
 10. It is the duty of the clerk of the court to which an appeal 
 is about to be taken, to prepare the appeal bond required to be 
 executed by the party appealing. Adams v. Settles, 2 Duv. 76, 77 ; 
 sec. 842, Civil Code. 
 
 11. If a party desiring to appeal attempts in good faith to ex- 
 ecute a bond, and does in fact execute, with security, such bond as 
 is prepared for him by the clerk, and it is defective, he should be 
 allowed to execute a new bond without prejudice to his rights. 
 Adams v. Settles, 2 Duv. 77 ; sec. 753, Civil Code. 
 
 APPEAEANCB. 
 
 1. One will not be conclusively presumed to have appeared, in 
 such manner as to be bound by the judgment, whose name is once 
 recited as m.oving a continuance of a will cause in the county 
 court, but who never appeared afterward during a long course of 
 litigation by appeals in the circuit court and court of appeals. 
 Hamilton v. Berry, 14 B. Mon. 39. 
 
 2. If one sued on an attachment bond appears and puts in an 
 answer, which is adjudged bad on demurrer, and declines to plead 
 further, it will be such an appearance as will entitle him to a jury 
 to assess the damages. Burgess v. Jacobs, 14 B. Mon. 521. 
 
 3. If a demurrer be sustained to an answer, in an action for 
 money alleged to be due on an implied assumpsit, and the defend- 
 ant fails to plead further, the petition may be taken for confessed, 
 and judgment be rendered by the court without a jury. Lambert 
 V. Ingram, 15 B. Men. 270. 
 
Z4: APPEENTIOE. 
 
 4. The filing of an affidavit by the defendant, controverting the 
 grounds on which an attachment issued, and praying for its dis- 
 charge, is an appearance to the action; and judgment may be 
 rendered against him for the debt sued for, without the service of 
 a summons. Duncan v. Wicldiffe, 4 Met. 119. 
 
 5. An appeal, by a defendant constructively summoned, is an 
 appearance to the action. Allen v. Brown, 4 Met. 343; Gill v. 
 Johnson, 1 Met. 652. 
 
 APPEBNTICB. 
 
 1. One to whom an apprentice was bound by an order of the 
 county court, and who hires such apprentice to another for a part 
 of the term, can not recover on a covenant executed for such hire. 
 Huffman v. Rout, 2 Met. 51. 
 
 2. Section 3, article 1, chapter 64, page 136, volume 2, Eevised 
 Statutes, applies as well to the mother of free negroes, as to the 
 mother of white children, and such negro children can not be 
 apprenticed, but by her consent, unless the welfare of the children 
 requires it. Bakers v. Winfrey, 15 B. Mon. 504. 
 
 3. The indenture of apprenticeship, should contain a covenant 
 6n the part of the master, to teach his apprentice the art or busi- 
 ness, for the purpose of learning which, he is apprenticed. Bakers 
 V. Winfrey, 15 B. Mon. 507. 
 
 AEBITEATION AED AWAED. 
 
 I. Submission and award. 
 II. Exceptions to awards. 
 
 I. SUBMISSION AND AWAED. 
 
 1. Executors and administrators may submit matters of dispute 
 to arbitration, by agreement made out of court; and they will not 
 be responsible for loss not arising from their fault or neglect. 
 Overly v. Overly, 1 Met. 121; sec. 499, Civil Code. 
 
 2. To authorize a reference to ai-bitrators, by rule of court, of 
 controversies about which no suit is pending, there should be an 
 agreement filed and noted of record, or an entry on the record, 
 showing what matters are submitted ; and a judgment on an award 
 without these prerequisites is void. Garson v. Garson, 1 Met. 434, 
 435. 
 
ARBITRATION AND AWARD. 25 
 
 3. If, in an action to settle a partnership, before the defendant 
 has answered, the parties agree to an arbitration and the suit is 
 dismissed, the defendant has a right to insist on the same matters 
 of defense and counter-claim before the arbitrators, and as full a 
 settlement as could have been obtained in the suit. Newton v. West, 
 3 Met. 25. 
 
 4. An agreement, of record by the parties, that the verdict of 
 the majority of the jury, shall be made the judgment of the court, 
 is not a submission to arbitrators whose award will be final. North- 
 ern Bank v. Buford, 1 Duv. 335. 
 
 II. EXCEPTIONS TO AWARDS. 
 
 1. When a matter is referred to several arbitrators, all must act, 
 and act together. Henderson v. Buckley, 14 B. Mon. 294. 
 
 2. If an award is based on the admissions of one of the parties, 
 and the admission was not made in the presence of all the arbitra- 
 tors, it will be fatal to the award. Henderson v. Buckley, 14 B. 
 Mon. 295. 
 
 3. Mistake, on the part of arbitrators, of law or fact, is no cause 
 for setting aside the award. Overly v. Overly, 1 Met. 122 ; Budd v. 
 Jones, 4 Dana. 230. 
 
 4. Where there is an action pending and a submission to arbi- 
 rators by rule of court, and the arbitrators make an award in 
 respect to matters not involved in the action, and which were not 
 submitted in the mode prescribed by law, no judgment can be 
 rendered on the award as far as it decides matters outside of the 
 action. Carson v. Carson, 1 Met. 435, 436. 
 
 5. That the award was not made out, and copies delivered ten 
 days before the term at which judgment was rendered on the award, 
 can not be objected to in the court of appeals for the first time. But 
 it is a clerical misprision, available for setting aside the judgment 
 if made in the circuit court. Carson v. Carson, 1 Met. 436. 
 
 6. If arbitrators make oath faithfully to discharge the duties 
 devolved on them as such, it is sufficient. Snyder v. Bouse, 1 Met. 
 626. 
 
 7. Merely formal objections to an award should be disregarded. 
 Snyder v. Bouse, 1 Met. 627. 
 
 8. If the parties to an arbitration be present, when the arbitra- 
 tors act, and examine the claims of each as presented, and make 
 no objection, the award will not be set aside for the want of notice. 
 Newton v. West, 3 Met. 26. 
 
 9. That the umpire was chosen before the arbitrators acted, and 
 
26 ASSAULT AND BATTERY. 
 
 was present during the sittings, but only participated when the 
 arbitrators disagreed, is no valid objection to the award. Newton 
 V. West 3 Met. 26. 
 
 ASSAULT AND BATTEEY. 
 
 1. In an action for an assault and battery the defendant may 
 plead, as a counter-claim, that the plaintiff first assaulted him, and 
 may recover for such assault. Slone v. Slone, 2 Met. 340. , 
 
 2. Where in an action of assault and battery, the defendant sets 
 up, by way of counter-claim, that at the same time and place 
 mentioned in the petition, the plaintiff assaulted him, and claims 
 $500 damages, to which the plaintiff did not reply ; it was held the 
 court could not instruct the jury to find for the defendant $500 — 
 the jury must determine from the evidence, the amount of damages. 
 Slone V. Slone, 2 Met. 341. 
 
 ASSETS. 
 
 1. The personal estate of a decedent is the fund primarily liable 
 for his debts. Slaves not specifically devised are assets, and slaves 
 emancipated are equitable assets in the hands of the executor. 
 Chambers v. Davis, 15 B. Mon. 527, 528; Broadwell v. Broadwell, 4 
 Met. 291, 292. 
 
 2. A mortgagor's equity of redemption, which descends to his 
 heirs, is legal assets in their hands, subject to sale, under execution 
 against them, for debts of their ancestor. Brace v. Shaw, 16 B. 
 Mon. 78. 
 
 3. Creditors have no lien on the estate of their debtor, and the 
 devisee or heir is only answerable for the thing devised ; or if it 
 has been aliened, then for its value. Chambers v. Davis, 17 B. 
 Mon. 534. 
 
 4. Whether a devisee or heir is liable since the Eevised Statutes, 
 for the rent and profits of estate devised or descended and not 
 aliened. Quere. Chambers y. Davis, 17 3. M.on.534:. 
 
ASSIGNMENTS. 27 
 
 ASSIGNMENTS. 
 
 I. What is and what is not assignable. 
 II. How an assignment may be made. 
 
 III. Effect of, and wliat passes by it. 
 
 IV. To what equities an assignment is subject. 
 
 •V. Voluntary assignments by debtors for the benefit of their creditors. 
 VI. Assignments by operation of law. 
 
 I. WHAT IS AND WHAT IS NOT ASSIGNABLE. 
 
 1. Debts due on open account may be assigned so as to vest in 
 the assignee an equitable title to such debts. Forepaugh v. Appold, 
 17 B. Mon. 630. 
 
 2. The wife's choses in action may be assigned by the husband' 
 during coverture. Marion v. Titsworth, 18 B. Mon. 602. 
 
 II. HOW AN ASSIGNMENT MAY BE MADE. 
 
 1. One to whom a note or bill of exchange is delivered, with a 
 blank indorsement, has a right to fill up the blank with an assign- 
 ment to himself. Garuth v. Thompson, 16 B. Mon. 575. 
 
 2. A married woman can not, without the assent of her husband, 
 assign a note which belonged to her before marriage. Turpin v. 
 Thompson, 2 Met. 422. 
 
 3. To constitute an equitable assignment of a debt, or other chose 
 in action, no particular form is necessary. Any order or writing 
 or act which makes an appropriation of the fund, amounts to an 
 equitable assignment. Newhy & Taylor v. Hill & Milton, 2 Met. 531. 
 
 4. An assignment of a debt may be by parol and without the 
 consent of the debtor. Newhy & Taylor v. Hill & Milton, 2 Met. 531. 
 
 5. An assignment of a fund may be by parol for the payment of 
 a debt. Newby & Taylor v. Sill & Milton, 2 Met. 532. 
 
 6. A debt may be assigned by parol to one, who, on the faith -of 
 such an assignment, becomes bound as surety for the assignor. 
 Mwby & Taylor v. HUl & Milton, 2 Met. 532. 
 
 III. EFFECT OF AN ASSIGNMENT AND WHAT PASSES BY IT. 
 
 1. The holder of a bill of exchange who receives it indorsed in 
 blank, in good faith for value, and without notice, may hold it 
 against the real owner from whom it may have been procured by 
 fraud or theft. Garuth v. Thompson, 16 B. Mon. 575, 576. 
 
 2. An assignment by a corporation of all its property and effects 
 
28 ASSIGNMENTS. 
 
 can not have the effect to destroy the corporation. L. L. F. & M. 
 Ins. Go. V. Page & Richardson, 17 B. Mon. 475. 
 
 3. A deed of trust conveying all the notes, bonds, and bills of the 
 grantor, does not vest in the trustee a right to notes assigned to 
 the grantor for collection. Worthington v. Greer, 17 B. Mon. 747. 
 
 4. The assignment of a note on which a guaranty is indorsed 
 only passes to the assignee an equitable right to the guaranty. 
 Levi v. Mendell, 1 Duv. 79. « 
 
 IV. TO WHAT EQUITIES AN ASSIGNMENT IS SUBJECT. 
 
 1. A mortgage recently made and kept from record by an ar- 
 rangement between the mortgagor and mortgagee, will not be 
 allowed to prevail against a general assignment for the benefit of 
 all the mortgagor's creditors. JSildburn v. Brown, 17 B. Mon. 782, 
 783. 
 
 2. If a bill be drawn and accepted, and the drawer subsequently, 
 but before payment, makes a general assignment, the trustee will 
 have no right to funds in the hands of the acceptor until the bill is 
 paid. Buckner v. Sayre, 18 B. Mon. 755. 
 
 3. Beneficiaries in a deed of trust, made by a debtor for the pay- 
 ment of debts, may retain funds in their hands, when the assign- 
 ment was made, to pay any debts then due them from the maker 
 of the deed, or for any liability they may incur for him before 
 notice of the assignment. L. L. F. & M. Ins. Co. v. Page de Richard- 
 son, 17 B. Mon. 458. 
 
 4. If an attaching creditor receives money, the proceeds of the 
 sale of attached property, and his action be dismissed for infor- 
 mality, and his debtor assigns to another creditor the funds thus in 
 his hands, he has an equitable right to retain so much of it as is 
 necessary to pay his debt. Jackson & Cox v. Holloway, 14 B. Mon. 
 136. 
 
 5. The husband's assignment of the wife's choses in action does 
 not defeat her right to an equitable settlement. Moore v. Moore, 
 14 B. Mon. 262. 
 
 V. VOLUNTAEY ASSIGNMENTS FOE THE BENEFIT OP CREDITOBS. 
 
 A. Who may make. 
 
 B. What passes. 
 
 C. Validity of. 
 
 D. Liabilities of Trustees. 
 
 a. Who may make. 
 1. One partner may convey to a copartner his interest in the 
 
ASSIGNMENTS. 29 
 
 partnership effects for the benefit of firm creditors. Talhott v. 
 Pierce, 14 B. Mon. 198. 
 
 2. So one partner may, with the assent of the others, convey the 
 partnership effects to secure firm creditors. Ely, Clapp & Go. v. 
 Sair, 16 B. Mon. 237. 
 
 b. What passes. 
 
 1. An assignment by a debtor, for the benefit of creditors, of all 
 the assignor's estate "of whatever kind or nature," will vest in 
 the trustee an equitable title to open accounts due the assignor. 
 Forepaugh v. Appold, 17 B. Mon. 630. 
 
 2. Eeal property purchased in good faith and paid for, and for 
 which the purchaser holds the bond of his vendor, will not be 
 transferred to the creditors of the vendor by operation of law on 
 his committing an act which, under the statute of 1856, transfers 
 all his property for the benefit of all his creditors. Corn v. Sims, 
 3 Met. 400. 
 
 3. A deed of trust, conveying all the notes, bonds, and bills of 
 the grantor, for the payment of debts, does not vest in the trustee 
 a right to notes assigned to the grantor merely for collection. 
 Worthington v. Greer, 17 B. Mon. 747. 
 
 4. If a bill be drawn and accepted, and the drawer, before pay- 
 ment of the bill, transfers all his effects for the payment of debts, 
 the trustee will have no right to the funds of the drawer in the 
 hands of the acceptor until the bill is paid. Buckner v. Sayre, 18 
 B. Mon. 755; Newby & Taylor v. Sill & Milton, 2 Met. 531. 
 
 5. An assignment of all the property of the debtor for the 
 benefit of his creditors does not pass any right which the assignor 
 could not have enforced. Maider v. Culver, 1 Duv. 166. 
 
 6. The right of a creditor to set aside a fraudulent conveyance 
 made prior to the assignment does not pass to the assignee of the 
 debtor. Maider v. Culver, 1 Duv. 166. 
 
 c. Validity of. 
 
 1. That a deed of trust stipulated that the trustee should sell 
 the property conveyed for a fair price is no limitation on his 
 powers, and no evidence of a fraudulent intent in the execution of 
 the deed. My, Clapp & Co. v. Hair, 16 B. Mon. 238. 
 
 2. !N"or is a stipulation that any surplus remaining after the 
 payment of the debts secured shall be returned to the grantor, 
 any evidence of fraud. My, Clapp & Co. v. Hair, 16 B. Mon. 
 240. 
 
30 ASSIGNMENTS. 
 
 3 The statute of 1856 relating to mortgages, sales, or transfers, 
 in contemplation of insolvency, does not prohibit the making of 
 mortgages, etc., and unless made to prefer one creditor, to the 
 exclusion, in whole or in part, of another, they are valid. Terrill 
 V. Jennings, 1 Met. 455; Hampton v. Morris & Rodman, 2 Met, 
 338. 
 
 4. A mortgage to secure creditors is not per se fraudulent. Bull 
 V. Harris, 18 B. Mon. 201. 
 
 5. Power given to a trustee, to whom property is conveyed for 
 the payment of the debts of the grantor, to compromise debts 
 owing by him, does not show the deed to be fraudulent. White v. 
 Monsarrat, 18 B. Mon. 816. 
 
 d. Liability of Trustees. 
 
 1. A trustee named in a deed of trust is a necessary party to a 
 suit to set it aside. Talbott v. Pierce, 14 B. Mon. 203. 
 
 2. Trustees will be liable to the beneficiaries for the sale of 
 property at an unreasonably low price, when a better price could 
 have been obtained. Ely, Glapp & Co. v. Hair, 16 B. Mon. 238. 
 
 3. A trustee acting unfaithfully toward a cestui que trust, will be 
 responsible for any injury resulting therefrom. White v. Monsar- 
 rat, 18 B. Mon. 814. 
 
 VI. ASSIGNMENTS BY OPERATION OF LAW. 
 
 A. What will and what will not be an assignment, and effect of. 
 
 B. Rights of creditors. 
 
 C. Remedies. 
 
 a. What will and what will not he an assignment, and effect of. 
 
 1. To bring an assignment made by a debtor within the statute 
 of 1856, the act must be done in contemplation of insolvency, and 
 with a design to prefer one or more creditors, to the exclusion, in 
 whole or in part, of others. Hampton v. Morris & Rodman, 2 Met. 
 338 ; Millet v Pottinger, 4 Met. 215. 
 
 2. If a mortgage made in contemplation of insolvency secures 
 several debts created simultaneously with its execution, and one 
 created before, it will transfer all the mortgagor's estate for the 
 benefit of all his creditors. Terrill v. Jennings, 1 Met. 459. 
 
 3. "When the facts are such as to show that, at the time of 
 making a sale or transfers, preferring one creditor to another, the 
 party making it must have known that he was insolvent, it will 
 be within the statute. Applegate v Murrill, 4 Met. 23, 24. 
 
ASSIGNMENTS. 31 
 
 4. A deed to secure all creditors alike is valid. Terrill v. Jen- 
 nings, 1 Met. 455 ; Hampton v. Morris & Hodman, 2 Met. 338 ; 
 Given, Staines & Co. v. Gordon, 3 Met. 539. 
 
 5. If a debtor makes a fraudulent sale of his effects for the pur- 
 pose of securing a pretended debt, which does not in fact exist, 
 and in view of such sale, part of his creditors attach his effects, 
 other creditors will not be entitled to 2k pro rata distribution under 
 the statute. Millet v. Pottinger, 4 M,et. 214, 215. 
 
 6. In order to bring a mortgage within the saving of the statute, 
 as made in good faith to secure a debt or liability created simul- 
 taneously with such mortgage, the debt itself must be created at 
 the time, and have had no previous existence. Terrill v. Jennings, 
 
 1 Met. 458. 
 
 7. Whether the local laws of Kentucky, in relation to assign- 
 ments made in contemplation of insolvency, apply to an assignment 
 made in Maryland, so as to make the assignment fraudulent, as to 
 property of the assignor in Kentucky. Quere. Lehmer v. Herr, 1 
 Duv. 361, 362. 
 
 8. But if one owning land in this State, and owing debts here, 
 in contemplation of insolvency and with a design to prefer one 
 creditor to another, executes a conveyance in another State, to one 
 of his creditors in payment of a debt, the sale will be within the 
 statute of 1856, and operate as a transfer of all the debtor's prop- 
 erty in the State. Brown v. Earley, 2 Duv. 370. 
 
 9. A sale or transfer of property in contemplation of insolvency, 
 and with a design to prefer one creditor to another, operates a 
 transfer eo instanti of all the property of the debtor, including the 
 property sold, for the benefit of all his creditors. Shouse v. Utterback, 
 
 2 Met. 53, 54; Given, Haynes & Co. v. Gordon, 3 Met. 539. 
 
 10. A sale, mortgage, or transfer, though with the statute of 
 1856, is not void. Given, Haynes & Co. v. Gordon, 3 Met. 539. 
 
 11. The transfer of a note as indemnity to one already security 
 for him making the transfer, operates as security to the creditor, 
 and is within the statute. Corn v. Sims, 3 Met. 397. 
 
 12. A transfer by a debtor, which, under the statute of 1856, 
 would operate as a transfer of all his effects for the benefit of all his 
 creditors, will only operate upon property or effects then owned 
 by him, and will not include after-acquired property. Temple, 
 Barker & Co. v. Poyntz, 2 Duv. 278. 
 
 13. Both insolvency, and an assignment to a creditor, or colluding 
 . stranger as ostensible purchaser, must concur before the trust for 
 
32 ASSIGNMENTS. 
 
 the assignor's creditors can result from the operation of the statute. 
 Temple, Barker & Go. v. Poyntz, 2 Duv. 277. 
 
 14. If a debtor, owing debts beyond his means of payment, goes 
 voluntarily into court and confesses judgment, and procures, or 
 connives at procuring, execution to issue immediately whereby 
 part of his creditors are preferred to others, it will amount to an 
 assignment, within the spirit and meaning of the statute. Letcher 
 V. Stagner, 2 Duv. 424 ; Myers' Supp. 239. 
 
 b. Bights of Creditors. 
 
 1. The right of all the creditors of one who has made a sale, or 
 transfer in contemplation of insolvency, and with the design to 
 prefer one creditor to others, attach instantly on the making of the 
 sale or transfer, and can not be defeated by some of the creditors 
 suing out attachments subsequently, though before suit under the 
 statute by others. Shouse v. Utterback, 2 Met. 53, 54; Given, 
 Saynes & Go. v. Gordon, 3 Met. 539. 
 
 2. The rights of the creditors of one who has made a transfer 
 within the statute, are subject to all the equities and incumbrances 
 existing at the time. Gorn v. Sims, 3 Met. 400. 
 
 3. A creditor Vho buys the property of his insolvent debtor, will, 
 if they compel a distribution of the debtor's estate, be entitled to 
 have his pro rata share for his original debt ; but if his debt amounts 
 to less than the agreed price of the property purchased, and he 
 subsequently pays the excess to the debtor, he will be entitled to 
 no distribution on account of such payments. Brown v. Barley, 2 
 Duv. 372. 
 
 4. If property be sold in contemplation of insolvency, and with 
 the design to prefer one or more creditors to others, the general 
 creditors can not subject both the thing sold and its proceeds. 
 Temple, Barker & Go. v. Poyntz, 2 Duv. 278. 
 
 c. Remedies. 
 
 1. A creditor, who claims the benefit of the act of 1856, must 
 show by his petition that he has commenced his suit within six 
 months after the act complained of as within the statute, or that 
 some one else has done so.^ Wintersmith & Young v. Pointer & 
 Conway, 2 Met. 460. 
 
 2. If to avoid the statute it is contended that the debt was cre- 
 ated simultaneously with the mortgage, the mortgagee must show 
 that fact. Terrill v. Jennings, 1 Met. 458. 
 
 1 The propriety of this ruling is questioned in Story, etc. v. Gfraham, 4 Met. 
 321, 322. 
 
ASSIGNEE AND ASSIGNOK. 33 
 
 3. K suit be brought by one creditor to vacate a mortgage and 
 make pro rata distribution of the mortgagor's estate under the 
 statute, other creditors may present their claims, in the same man- 
 ner as against the estate of a decedent. Terrill v. Jennings, 1 Met. 
 460. 
 
 4. When property mortgaged was levied on under execution in 
 favor of a creditor other than the mortgagee, and the mortgagee 
 gave bond to suspend the sale, it was held, on a motion for judg- 
 ment on the bond, that the validity of the mortgage under the 
 statute of 1856 could not be assailed, except in the mode prescribed 
 by the statute — by petition in equity. Given, Saynes & Go. v. 
 Gordon, 3 Met. 539. 
 
 5. And such petition must be filed in six months after the trans- 
 fer. Given, Saynes & Co. v. Gordon, 3 Met. 539. 
 
 6. When the sale of land is by executory contract, and there is 
 no visible change of possession, the rights of creditors will not be 
 .barred by the lapse of six months after such sale without suit. 
 Brown v. Barley, 2 Duv. 372. 
 
 7. By the express terms of the statute an action for a pro rata 
 distribution of a debtor's estate on the ground that he has made a 
 sale or transfer in violation of its terms, must be commenced within 
 six months after the recording of such transfer, or the delivery of 
 the property transferred. Temple, Barker & Go. v. Poyntz, 2 Duv. 
 278 ; Brown v. Barley, 2 Duv. 371. 
 
 ASSIGISTBE AlifD ASSIGISTOE. 
 
 I. Eights, duties, and liabilities of assignors. 
 II. Eights, duties, and liabilities of assignees. 
 
 I. RIGHTS, DUTIES, AND LIABILITIES OP ASSIGNORS. 
 
 1. An assignor of a bond for land, or money, undertakes to pass 
 to the assignee what the bond calls for, and by implication, that he 
 is the absolute owner of the bond. Emerson v. Glaywell, 14 B. 
 Mon. 19. 
 
 2. If an assignor has not such right as his assignment imports, 
 there is an immediate breach of his implied guaranty, and his 
 liability may be inforced, without Waiting to have his want of title 
 established by suit. Emerson v. Glaywell, 14 B. Mon. 19. 
 
 3. In a suit by an assignee against his assignor, on the assign- 
 
 4 
 
34 ASSIGNEE AND ASSIGNOR. 
 
 ment, the consideration paid must be averred; and this and its 
 interest, is all he can recover. Elliot v. Threlkeld, 16 B. Mon. 343.i 
 
 4. If an assignor be a party to a suit, by the obligor against the 
 assignee, to be relieved against the note, he is concluded by the 
 judgment, and can not, in an action by the assignee against him 
 on the assignment, rely on matters which he could, but failed to, 
 plead in the original action. Elliot v. Threlkeld, 16 B. Mon. 343. 
 
 5. The payee, and first indorser, of a bill of exchange, is liable to 
 a second indorser, who has paid the bill, for its full amount. Scott 
 V. Doneghy, 17 B. Mon. 324. 
 
 6. Unless an assigned certificate of deposit, payable on presen- 
 tation, is presented in a reasonable time, and regularly protested, 
 and notice given to the assignor, he will be exonerated. Elliot v. 
 Threlkeld, 16 B. Mon. 344. 
 
 7. An instrument having all the forms of a bill of exchange 
 except the name of a drawer, is defective and incomplete, and no 
 action can be maintained thereon, against the indorser. Tevis v. 
 Young, 1 Met. 205. 
 
 8. If an accommodation indorser indorse a pote in this State, 
 and deliver it to the maker, who subsequently delivers it to the 
 assignee in Ohio, the liability of the indorser and duties of the 
 assign ee, must be determined by the laws of Ohio. Young v. Harris, 
 14 B. Mon. 559. 
 
 9. In order to render the assignor liable on the assignment, it is 
 indispensable that the assignee should prosecute with reasonable 
 diligence all his remedies, both legal and equitable, against the 
 debtor. Chambers v. Keene, 1 Met. 293. 
 
 10. If an assigned note be secured in whole, or in part, by 
 mortgage, and the assignee brings an action for both a personal 
 judgment and a foreclosure, and a judgment in personam and to 
 foreclose be had, he must issue execution first, and then resort to a 
 sale of the property. Chambers v. Keene, 1 Met. 294. 
 
 11. A remote assignor is not primarily liable to the holder; and 
 the immediate assignor is only liable for the consideration received 
 and six per cent, interest: and the holder can not make him liable, 
 without first prosecuting the payor with diligence. Short v. 
 Trabue, 4 Met. 300. 
 
 12. In the absence of all proof, as to the intention of a party 
 who indorses his name in blank on a note, he will be presumed 
 
 1 Overruled in Holt v. Thompson, 1 Duv. 301, 
 
ASSIGNEE AND ASSIQNOK. 36 
 
 only to have intended to become bound as indorser. Levi v. 
 Mendell, 1 Duv. 79, 80. 
 
 13. If one signs bis name, in blank, on a note witb the intention 
 to become bound as a guarantor, there is an implied authority to the 
 holder, to fill the blank with words of guaranty, and whether he 
 intended to become bound as guarantor, may be proved by parol 
 testimony. Levi v. Mendell, 1 Duv. 80. 
 
 14. In an action by the assignee of a chose-in-action, against the 
 assignor on the contract of assignment, it is not necessary to aver 
 the consideration ; and if the amount of the consideration is not 
 shown by the pleadings on either side, the recovery should be for 
 the amount of so much of the debt as remains unpaid. Salt v. 
 Thompson, 1 Duv. 301, 302; sec. 7, chap. 22, Eevised Statutes. 
 
 15. If an assignor signs a note before it is due, and guarantees 
 its payment, his liability accrues at its maturity — if after it is due, 
 in a reasonable time. Yates v. Walker, 1 Duv. 85. 
 
 ir. RIGHTS, DUTIES, AND LIABILITIES OP ASSIGNEES. 
 
 1. If the assignor has not such title to the thing assigned, as his 
 assignment imports, the assignee may sue at once, without waiting 
 for his right to be determined by suit. Emerson v. Claywell, 14 
 B. Mon. 19. 
 
 2. A written undertaking, by a father, to his two sons, to make 
 them, by his will, equal to any of his children, will be extinguished 
 as to one by his dying, before his father, unmarried and without 
 issue, and the other son, to whom it was assigned, can not recover 
 as assignee. Rogers v. Rogers, 14 B. Mon. 111. 
 
 3. An assignee of a debtor, can not, in equity, compel another 
 creditor of his assignor, to surrender funds in his hands, until his 
 own debt is paid. Jackson Cox & Go. v. Holloway, 14 B. Mon. 136. 
 
 4. An assignee, for a valuable consideration, of the choses-in- 
 action of the wife, takes them subject to her equitable right to a 
 settlement. Moore v. Moore, 14 B. Mon. 262. 
 
 5. An assignee suing upon a contract of assignment, must aver 
 what consideration was paid for the assignment; and this and its 
 interest, is all he can recover. Elliot v. Threlkeld, 16 B. Mon. 343.i 
 
 6. He must also, in such a ease, state the facts showing why he 
 failed to recover and collect the amount off the obligor. Elliot v. 
 
 Threlkeld, 16 B. Mon. 344. 
 
 7. If an accommodation indorser indorse a note in this State, 
 
 1 Overruled in Soli v. Thompson, 1 Duv. 301. 
 
36 ASSIGNEE AND ASSIGNOR. 
 
 •and deliver it to the maker, who subsequently delivers it to the 
 assignee in Ohio, the liability of the indorser and duties of the 
 assignee must be determined by the laws of Ohio. Young v 
 Harris, 14 B. Mon. 559. 
 
 8. If an assigned note be secured, in whole or in part, by mort- 
 gage, and the assignee brings an action for both a personal judg- 
 ment and foreclosure, and a judgment is had, both in personam and 
 to foreclose, he must issue execution first, and then resort to a sale 
 of the property mortgaged. Chambers v. Keene, 1 Met. 294. 
 
 9. If an assignee delay, for the space of two months, to issue 
 execution on a personal judgment, in order to await a sale of 
 mortgaged property by a commissioner, his recourse will be lost. 
 Chambers v. Keene, 1 Met. 294. 
 
 10. An assignee may proceed, at the same time, to enforce both 
 a personal judgment and judgment in rem. Chambers v. Keene, 1 
 Met. 294, 295. 
 
 11. A return of nulla bona on an execution, from a quarterly 
 court, in favor of an assignee, is not such evidence of the insolvency 
 of the obligor, or of legal diligence on the part of the assignee, as 
 to entitle him to recourse to his assignor. Barker v. Curd, 1 Met. 642. 
 
 12. In such a case, it is the duty of the assignee to take a tran- 
 script of the record, and file it in the clerk's office of the circuit 
 court, and procure execution there. Barker v. Curd, 1 Met. 643. 
 
 13. It is also his duty to pursue any known equitable remedies 
 within his reach. Barker v. Curd, 1 Met. 643. 
 
 14. The holder of an unrecorded assignment of a debt, in trust 
 or in mortgage, acquires an equity as valid as if such assignment 
 had been recorded, and it will prevail over any subsequent equity 
 to the same fund although acquired without notice of the previous 
 assignment. Newby & Taylor v. Hill & Million, 2 Met. 533. 
 
 15. A remote assignor is not primarily liable to the holder on an 
 assigned chose-in-action, and the immediate assignor, is only liable 
 for the consideration received and six per cent, interest, and the 
 assignee can not make him liable without prosecuting the payor 
 with diligence. Short v. Trabue, 4 Met. 300. 
 
 16. In a suit by an assignee of a chose-in-action against the 
 assignor, on the contract of assignment, it is not necessary to aver 
 the consideration; if the amount of the consideration does not appear 
 in the pleadings, the recovery should be for so much of the debt 
 as remains uncollected. Holt v. Thompson, 1 Duv. 301 302 1 • sec 
 7, ch. 22, Eev. Stat. ' 
 
 1 Overruling Elliot v. Threlkeld, 16 B. Mon. 343. 
 
ASSIGNEE AND OBLIGOR. 37 
 
 17. G-. assigned two notes to T., in April, 1861 ; one payable at 
 Vicksburg, Mies., on the let of November 1861, and the other at 
 New Orleans La., on the 1st of January 1862 ; presentation and suit 
 were prevented by the war which intervened, and on the 22d of 
 November, 1862, T. sued G., on the assignment. Held: The enforce- 
 ment of payment having been rendered impossible, the plaintiff 
 was entitled to recover. Graves v. Tilford, 2 Duv. 108-111. 
 
 18 An assignee, who holds notes given for the purchase-money 
 for land, under circumstances creating strong suspicion of fraud in 
 the sale of the land and transfer of the notes, and who obtained the 
 notes at a very inadequate price, will only be allowed, when assert- 
 ing a lien for the notes against a purchaser at a decretal sale, to 
 enforce them to the amount of consideration actually paid. Doyle 
 V. Armstrong, 2 Duv. 536. 
 
 ASSIGNEE AND OBLIGOR. 
 
 I. Eights of the assignee, and how far his interests will be protected. 
 II. Bights of the obligor, and what defenses are and what are not available 
 against an assignee. 
 
 I. EIGHTS OF THE ASSIGNEE, AND HOW FAE HIS EIGHTS WILL BE PEO- 
 
 TECTED. 
 
 1. If a note be purchased by one, with notice that one of the 
 obligors is merely surety, and that the sale and purchase will 
 defeat the purpose for which it was executed by him, or will 
 vitiate any understanding or agreement between him and his prin- 
 cipal, he will be affected by such notice, and can not hold the surety 
 liable. Bussell v. Ballard, 16 B. Mon. 205. 
 
 2. A holder of a promissory note or bill indorsed in blank, who 
 receives it, in good faith and without notice, for a valuable consid- 
 eration, is entitled to recover the amount of the obligor and hold 
 it against the true owner, though it may have been procured from 
 him by fraud or theft. Garuth v. Thompson, 16 B. Mon. 575, 576. 
 
 3. An assignee of a title bond, will not be answerable to a remote 
 assignor, for any balance of purchase-money remaining unpaid, of 
 which he had no notice from the bond, or otherwise. McBrayer 
 V. Collins, 18 B. Mon. 836, 837. 
 
 4. The assignment of an obligation, to be used as a set-off against 
 a demand due the obligor, will be valid, and the set-off may be 
 pleaded, although the assignee has no beneficial interest in it. 
 Graham v. Tilford, 1 Met. 114; Ottwell v. Cook, 9 B. Mon. 358. 
 
38 ASSIGNEE AND OBLIGOR. 
 
 5. The payment of the bonds of a county, or city, issued to a 
 railroad company, and passed by it into the hands of bona fide 
 holders for value, who received them in the course of business, 
 may be enforced ; although payment could not be enforced by the 
 original parties. Maddox v. Qraham & Knox, 2 Met. 78, 79. 
 
 6. "When two persons were obligors in a note, and both appar- 
 ently principals, but one was in fact only surety, and an assignee, 
 who was ignorant of the relations of the parties, agreed with the 
 principal, without the knowledge or consent of the surety, for a 
 valuable consideration to give time for payment, it was held the 
 surety was not thereby released, and that the knowledge of the 
 assignor that one was only surety, did not affect the rights of the 
 assignee. Neel v. Harding, 2 Met. 250. 
 
 7. If notes be given by two persons, each to the other, for mutual 
 indebtedness, with the understanding that they may be used to 
 raise money or pay debts, and one succeeds in negotiating the 
 notes he received and the other fails, the obligor in the notes 
 negotiated, can not plead the notes, received by him of the other, 
 as a set-off against his notes, even in the hands of one who had 
 received them in payment of an antecedent debt. Barharoux v. 
 Barker, 4 Met. 49, 50 ; Gano v. Finnel, 13 B. Mon. 390. 
 
 8. The assignee of a judgment or execution is entitled to all the 
 equitable remedies to which the plaintiff would have been entitled. 
 Kimble v. Cummins, 3 Met. 328. 
 
 IX. RIGHTS OP THE OBLIGOR, AND WHAT DEFENSES ARE AND WHAT 
 ARE NOT AVAILABLE AGAINST AN ASSIGNEE. 
 
 1. If a note be purchased by a party, with notice that one of 
 the obligors is merely surety, and that the sale and purchase will 
 defeat the purpose for which it, was executed by him, or will vio- 
 late any understanding or agreement between him and his princi- 
 pal, then the purchaser will be affected by such notice, and can 
 not hold the surety liable. Bussell v. Ballard, 16 B. Mon. 205. 
 
 2. An obligor, who induces an innocent purchaser to buy his 
 note, by representing it to be a good debt, and that it will be 
 paid, waives every equity, as against the assignee, whether known 
 or unknown. Smith v. Stone, 17 B. Mon. 171 ; McBrayer v. Col- 
 lins, 18 B. Mon. 838. 
 
 3. A demand against the assignor, to be available as a defense 
 against the assignee, must have existed and belonged to the obligor 
 before notice of the assignment of the obligation against which he 
 offers to plead it. Graham v. Tilford, 1 Met. 115; Walker v. 
 
ASSIGNEE AND OBLIGOR. 39 
 
 McKay, 2 Met. 295, 296; Young v. Guy, 10 B. Mon. 193; Wathen 
 Chamberlain, 8 Dana, 164 ; Bidgeway v. Collins, 3 Mar. 412. 
 
 4. The indorser of a promissory note will be released from lia- 
 bility to the indorsee by a material alteration in the note, made 
 after he indorses it, without his knowledge or consent, if made 
 before the indorsee acquires a right to it, whether the alteration 
 be made by the indorsee or a stranger. Lisle v. Rogers, 18 B. 
 Mon. 536-539. 
 
 5. If an assignee sues on a note assigned by a married woman, 
 he must show that the assignment was made with the authority of 
 the husband. ■ Turpin v. Thompson, 2 Met. 422. 
 
 6. If notes be given by two persons, each to the other, for mu- 
 tual indebtedness, with the understanding that they may be used 
 to raise money or pay debts, and one succeeds in negotiating the 
 notes he receives, and the other fails, the maker of the notes ne- 
 gotiated can not plead the notes, received by him of the other, as 
 a set-off against his notes, in the hands even of one who had re- 
 ceived them in payment of an antecedent debt. Barharoux v. 
 Barker, 4 Met. 49, 50 ; Oano v. Finnell, 13 B. Mon. 390. 
 
 7. An obligor, sued by an assignee, has a right to avail himself, 
 as a defense, of usury embraced in the note, or of any payments 
 made to the obligor before notice of the assignment. True v. 
 Triplett, 4 Met. 58. 
 
 8. If a note containing usury be assigned to a third person, and 
 the obligor gives a new note to the assignee for the debt and 
 usury, his right to a deduction for such usury is lost. Stone v. 
 McConnell, 1 Duv. 56, 57 ; Breckinridge v. Churchill, 3 J. J. Mar. 12. 
 
 9. When the obligor in a note, having notice of its assignment, 
 is summoned as garnishee, and fails to disclose the assignment, or 
 to make the assignee a party, in order that the claimants of the 
 debt may interplead, he will be liable to the assignee, notwith- 
 standing the judgment against him as gai-nishee. Bibb v. Tomber- 
 lin, 1 Duv. 187. 
 
 10. If the debtor of a bank be sued by commissioners appointed 
 to wind up and settle its affairs, on a debt due the bank, he may 
 Setoff against the demand sued for any demand due him from the 
 bank at the date of the assignment. Finnell v. Nesbit, 16 B. Mon. 
 354, 355 ; Harlan v. Lumsden, 1 Duv. 89; Elly v. Sorine, 5 Dana, 
 398. 
 
 11. That the note sued on was given for money lost at gaming 
 is a valid defense against an assignee, notwithstanding a paper 
 
40 . ATTACHMENTS. 
 
 signed at the time the note was executed stating "the note is just, 
 and they have no legal offset against it, and no defense to make." 
 Pace & Young v. Martin, 2 Duv. 522. 
 
 ATTACHMEISTTS. 
 
 I. Grounds of attachment. 
 II. How an attachment is obtained, and herein of the affidavit required. 
 
 III. Execution and return, and what is subject to levy under. 
 
 IV. Disposition of attached property. 
 
 v. Proceedings upon attachments, and herein of the duties and liabilities 
 of garnishees. 
 VI. Attachment before debt is due. 
 VII. Attachment in actions to enforce liens upon personal property, or for 
 its sale or partition. 
 VIII. Eights of priority between attaching creditors, and between them and 
 purchasers or holders of liens. 
 IX. Liability of attaching creditors for wrongfully attaching. 
 Por attachment on return of nulla bona, see Judgments. 
 
 I. GROUNDS OP ATTACHMENT. 
 
 1. A beneficiary in a mortgage, made by one partner against 
 the consent of another, of which he had notice, can not make the 
 execution of the mortgage ground for an attachment. Bull v. 
 Harris, 18 B. Mon. 200. 
 
 2. A charge that the defendant is insolvent, or that he is about 
 to remove from the State, is not good grounds for an attachment. 
 Clark V. Seaton, 18 B. Mon. 230. 
 
 3. But that the defendant is about to remove from the State his 
 property, or a material part of it, not leaving enough therein to 
 satisfy the plaintiff's claims, is good grounds. Clark v. Seaton, 18 
 B. Mon. 230. 
 
 4. The remedy given by section 4, chapter 97, Eevised Statutes, 
 in favor of sureties of officers, fiduciaries, and private persons, 
 against their principals, is repealed by the Civil Code. Patterson 
 V. Caldwell. 1 Met. 493. 
 
 5. The act of March 10, 1856, amending section 221, Civil 
 Code, only repealed so much of that section as made the non- 
 residence of one debtor grounds for an attachment against all. 
 Mills V. Brown, 2 Met. 405, 406. 
 
 6. When the action is for the recovery of money against several 
 ■defendants, some one of whom has departed from this State with 
 
ATTACHMENT. 41 
 
 intent to defraud his creditors, or so conceals himself that a sum- 
 mons can not be served upon him, the plaintiff is entitled to an 
 attachment against all. Mills v. Brown, 2 Met. 406. 
 
 7. When a debtor leaves his home with the intention of going 
 out of the State, and accomplishes this purpose, and is absent from 
 his home, pursuant to such intention, for more than four months, 
 it is ground for an attachment, although some unlooked-for 
 casualty may have delayed him for a few days from passing 
 beyond the boundary of the State. Spalding v. Simms, 4 Met. 
 289. 
 
 8. The concealment, which, under sub-division 5 of section 221 
 of the Civil Code, will authorize the issue of an attachment, con- 
 sists in obstructing his creditors in their legal remedies, by se- 
 creting himself at home, or going secretly away to some other 
 place, whether in the county or out of it. Dunn v. Salter, 1 Duv. 
 345. 
 
 II. HOW AN ATTACHMENT IS OBTAINED, AND HEREIN OF THE AFFIDAVIT 
 
 REQUIRED. 
 
 1. If the petition at law or in equity, contains the allegations 
 necessary in an affidavit for an attachment, and is sworn to, it will 
 be sufficient without a separate affidavit. Scott v. Doneghy, 17 B. 
 Mon. 324 ; Franklin Savings Institution v. M. M. Bank, Wheeling, 1 
 Met. 158. 
 
 2. In all cases, where the debt is due, the clerk has power to 
 make the order of attachment. Scott v. Doneghy, 17 B. Mon. 324. 
 
 3. If the debt is not due, then the order of a court or judge is 
 necessary. Scott v. Doneghy, 17 B. Mon. 324. 
 
 4. An affidavit for an attachment should state that the claim 
 sued for, is just; and the omission of this statement is fatal. Taylor 
 V. Smith, 17 B. Mon. 542. 
 
 5. A defective affidavit for an attachment, permitted to be 
 amended before a motion to discharge. Clark v. Seaton, 18 B. 
 Mon. 230. 
 
 6. That the affiant "is informed and believes" the defendant is 
 about to sell, or otherwise dispose, of his property, etc., is not suf- 
 ficient. The charge should be made distinctly and uneqivocally. 
 Williams v. Martin, 1 Met. 44, sec. 221, Civil Code. 
 
 7. But that the affiant "is informed and believes and so charges," 
 etc., is sufficient. Williams v. Martin, 1 Met. 44. 
 
 8. An affidavit, made by an agent, to procure an attachment, 
 will be good, if it states the necessary facts and he swears he 
 
42 ATTACHMENTS. 
 
 "believes" those facts to bo true. Franklin Savings Institution v. 
 M. M. Bank, Wheeling, 1 Met. 159, sec. 611, Civil Code. 
 
 9. An aflBdavit must state, in terms, or in substance, the nature 
 of the plaintiff's claim, that the claim is just, and the amount the 
 aflSant believes the plaintiff ought to recover; and a failure will be 
 fatal to the attachment. Worthington v. Carey, 1 Met. 471, 472; 
 Anderson v. Sutton, 2 Duv. 488. 
 
 10. Whether an affidavit which charges that the affiant "believes" 
 that the defendant has left the county of his residence — that he 
 " believes " he so conceals himself that a summons can not be served 
 on him, and is sworn to as "true," is sufficient. Quere. Ryan v. 
 Bean, 2 Met. 138. 
 
 11. But when such an affidavit is replied to by the defendant, 
 and a trial had on the issue, without objection to the sufficiency of 
 the affidavit, and the attachment is sustained by the proof, the 
 order sustaining it will not be reversed. Byan v. Bean, 2 Met. 
 138, 139. 
 
 12. A defect in the petition, on which an attachment is obtained 
 on a return of execution "no property found," may be cured by a 
 subsequent amendment, and the attachment, levy, and lien, will 
 not be thereby vitiated. Lewis y. Quinker, 2 Met. 286, 287. 
 
 13. Proceedings by attachment are summary and extraordinary; 
 and to be good, must conform to all the requirements of the 
 law. Pool V. Webster, 3 Met. 279 ; Talyor v. Smith, 17 B. Men. 
 542. 
 
 14. An affidavit, made by an agent or attorney, which does not 
 state that the plaintiff was at the time absent from the county, is 
 fatally defective. Pool v. Webster, 3 Met. 280. So, if made by one 
 other than the plaintiff, and the affidavit fails to state that affiant 
 is his agent or attorney. Anderson v. Sutton, 2 Duv. 488. 
 
 15. An affidavit can not be amended after a motion is made to 
 discharge the attachment. Pool v. Webster, 3 Met. 281 .i 
 
 16. If a defendant in an attachment appears, and makes no objec- 
 tion to the attachment, it must be regarded as valid. Spalding v. 
 Sims, 4 Met. 288. 
 
 17. It is error to sustain an attachment, if the affidavit fails to 
 state that the claim is just. Allen v. Brown, 4 Met. 343; Taylor v. 
 Smith, 17 B. Mon. 542; Pool v. Webster, 4 Met. 280. 
 
 18. An affidavit, defective in not stating that the claim is just, 
 can not be amended under the act approved March 15, 1862, 
 
 1 Overruled in Allen v. Brown, 4 Met. 344, 345, 
 
ATTACHMENTS. 4 3 
 
 (Myers' Supplement, page 41). That act only authorizes an amend- 
 ment as to the grounds of attachment. Allen v. Brown, 4 Met. 344> 
 345. 
 
 19. But such amendment may be made under the general pro- 
 visions of the Code of Practice (section 161), either before or after 
 a motion to discharge. Allen v. Brown, 4 Met. 344, 345. 
 
 20. An attachment, issued on a defective affidavit, is not void* 
 Allen V. Brown, 4 Met. 347. 
 
 21. Clerks have no authority to award attachments, except in 
 the cases provided for in section 222 of the Civil Code. Patterson 
 v. Caldwell, 1 Met. 492; Scott v. Doneghy, 17 B. Mon. 324. 
 
 22. N"o bond or affidavit is necessary in an action for an attach- 
 ment on return of execution, "no property found." Lewis v. Quin- 
 ker, 2 Met. 287. 
 
 23. If neither the petition nor affidavit for an attachment states 
 that the plaintiff's claim is just, and the amount the affiant believes 
 the plaintiff ought to recover, the attachment should be discharged. 
 Anderson v. Sutton, 2 Duv. 487. 
 
 24. An affidavit, seeking an attachment under the act of December 
 23, 1861 (Myers' Supplement, page 38), making the entering of the 
 rebel army ground of attachment, must allege in substance that the 
 debtor has left the county of his residence — that he has been absent 
 therefrom thirty days, and that during that period he has been 
 and continued voluntarily within the so-called Confederate States, 
 or their military lines. Bell, Berkley & Co. v. Hall, 2 Duv. 290. 
 
 25. But an allegation, that the defendant had left the county of 
 his residence with his family, and claimed to be a resident of the 
 Confederate States, is a substantial allegation that he had volun- 
 tarily left, and was voluntarily absent. Bell, Berkley & Co. v. Hall, 
 2 Duv. 293. 
 
 III. EXECUTION AND RETURN, AND WHAT IS SUBJECT TO LEVY UNDER. 
 
 1. If a defendant, in an attachment before it is levied, executes 
 to the sheriff a bond to pay the debt, and the attachment is not 
 levied, the principal and surety will both be bound to the plaintiff 
 on the bond as a common law bond. Cook v. Boyd, 16 B. Mon. 
 559. 
 
 2. An equitable interest in land owned by a non-resident, is sub- 
 ject to levy and sale under a general attachment. Bank Louisville 
 V. Barrick, 1 Duv. 53, 54. 
 
 3. Section 233, Civil Code, applies to two classes of property, and 
 makes them subject to attachment. 1. Such as is liable to be seized 
 
44 ATTACHMENTS. 
 
 under execution ; 2. Any other property or demand of the defend- 
 ant which might, by any mode of proceeding, be subjected to the 
 payment of his debts. Bank Louisville v. Barrick, 1. Duv. 53. 
 
 4. A sheriff' may execute an attachment issued by a justice of the 
 peace. Turners v. Howard, 2 Duv. 112. 
 
 5. If a sheriff returns on an order of attachment, that he has 
 levied it on land and does not state how he levied it, the law, 
 nothing appearing to the contrary, presumes he did his duty, and 
 left a copy with the occupant of the land if there was one, and if 
 none, that he posted up a copy in a conspicuous place on the 
 property. Anderson v. Sutton, 2 Duv. 485. 
 
 IV. DISPOSITION OF ATTACHED PROPEBTT. 
 
 1. No order, for the sale of real property attached, belonging to 
 an absent defendant, can be made until the plaintiff files an 
 affidavit, stating that the defendant has no personal property, or 
 not enough to satisfy the demand, known to the plaintiff; and the 
 making of such order, before the affidavit is filed, is error, and not 
 a clerical misprision. Payne v. Witherspoon, 14 B. Mon. 271. 
 
 2. A third person, who has given bond, pursuant to section 235 
 of the Civil Code, conditioned that the defendant shall perform the 
 judgment of the court, or that the party giving the bond would 
 have the attached property, or its value, forthcoming and subject to 
 the order of the court for the satisfaction of the judgment, is not 
 estopped by the bond, and section 237 of the Code, to show that the 
 property is his, and not subject to the attachment. Schwein v. 
 iSims, 2 Met. 213; Halbertv. McOulloch, 3 Met. 458; Bell v. W. B. I, 
 & W. Co., 3 Met. 565. 
 
 3. If, in such a case, the claimant of the attached property, deposits 
 the value of the property in money in court, he is entitled to an 
 order permitting him to withdraw it on its being found that the 
 property is not subject to the attachment. Schwein v. Sims, 2 
 Met. 213, 214. 
 
 4. But if the defendant in the attachment gives the bond required 
 by sections 242, 243, and the owner of the property becomes his 
 surety in such bond, he will be precluded from asserting claim 
 to the property, or contesting the validity of the attachment. 
 That the claimant tendered the bond required by section 235, 
 which was refused by the sheriff, who refused to surrender the 
 property, unless the bond required by sections 242, 243, was 
 executed, will not relieve the surety from liability, although he 
 was then ignorant of its effect. Haselrigg v. Donaldson, 2 Met. 
 446. 447. ' 
 
ATTACHMENTS. 46 
 
 6. It is error to order the sale of land attached in an action, 
 Bubject to the vendor's lien for purchase-money, without making 
 him a party and ascertaining the amount unpaid. Mills v. Brown^ 
 2 Met. 406. 
 
 6. A sale of property attached, made under an order of the pre- 
 siding judge of the county, issued in vacation, is not complete 
 without a report by the officer, and its confirmation by the court 
 in which the attachment is pending, which may confirm or set it 
 aside. Greer v. Powell, 3 Met. 125, 126. 
 
 7. The court may order a sale of personal property attached, 
 under section 239 of the Civil Code, upon parol proof, and the 
 correctness of such order will be presumed, in the absence of any- 
 thing showing the contrary. Dunn v. Salter, 1 Duv. 346, 347. 
 
 8. Sections 253 and 405 of the Civil Code prescribe the credit on 
 which real estate is to be sold, and the court has no power to fix a 
 shorter period than three months, nor a longer credit than twelve 
 months on the whole. Dunn v. Salter, 1 Duv. 347. 
 
 9. And a sale for half the price, payable in less than a month, is 
 prejudicial to the debtor, and should be set aside by the court of 
 appeals ; although not excepted to in the circuit court — the debtor 
 being constructively summoned and not having appeared. Dunn v. 
 Salter, 1 Duv. 347. 
 
 10. After the defendant has deposited in court the amount of the 
 debt sued for, there should be no sale of land attached in the action, 
 Perry v. Seitz, 2. Duv. 124. 
 
 11. JN"o order for the sale of real property attached in an action 
 in which the defendant has been constructively summoned, and has 
 not appeared, can be made until the bond required by section 440 
 of the Civil Code has been executed. Harris v. Adams, 2 Duv. 142 ; 
 Gill V. Johnson, 1 Met. 652. 
 
 V. PROCEEDINGS UPON ATTACHMENTS, AND HEREIN OF THE DUTIES AND 
 LIABILITIES OP GARNISHEES. 
 
 1. An issue formed on a motion to discharge an attachment, is 
 to be tried by the court and not by a jury. Talbott v. Pierce, 14 
 B. Mon. 201. 
 
 2. A denial in the answer of the existence of the grounds, 
 alleged in an affidavit to procure an attachment, is sufficient to 
 make an issue on a motion to discharge the attachment. Talbott v. 
 Pierce, 14 B. Mon. 201. 
 
 3. A motion to discharge an attachment may be made at any 
 time, before it is sustained. Taylor v. Smith, 17 B. Mon. 542. 
 
46 ATTACHMENTS. 
 
 4. Afficlavitts can not be read as evidence on the trial of an 
 attachment issue. The only admissible evidence is by depositions, 
 or, with the assent of the court, by oral examination of witnesses in 
 court- Newton v. West, 3 Met. 27. 
 
 5. If a garnishee fails to answer, and the court hears proof of 
 the amount owing by him to the defendant, no judgment can be 
 rendered, enforceable by execution, against the garnishee for the 
 amount proven to be owing by him. Smith v. Oower, 3 Met. 
 176, 177. 
 
 6. But the money should be ordered to be paid into court, or to 
 some one designated to receive it, or the garnishee be permitted 
 to retain it, on his giving bond. Smith v. Gower, 3 Met. 177. 
 
 7. "Upon service of a summons on a garnishee, or after his failure 
 to make disclosure satisfactory to the plaintiff, the latter may pro- 
 ceed in an action against him by petition, as in other cases, and 
 may have judgment for any sum found to be due to the plaintiff's 
 debtor, and this judgment may be enforced by execution. Smith 
 V. Gower, 3 Met. 177. 
 
 8. On the trial of an attachment issue the afiSdavits of the 
 parties constitute the pleadings, and can have no other effect. 
 Duncan v. Wickliffe, 4 Met. 118. 
 
 9. Affidavits may be read in opposition to a motion to discharge 
 an attachment and depositions taken on notice may be read as 
 affidavits. Talbott v. Pierce, 14 B. Mon. 197, sec. 307, original 
 Code.i 
 
 10. If there be a judgment against the defendant, the garnishee 
 should be ordered to pay into court the amount admitted, or proven 
 to be due from him to the defendant, and when paid it should be 
 applied to the satisfaction of the judgment. Smith v. Gower, SMet. 176. 
 
 11. Where it appears in the record, that money sought to be 
 recovered of a garnishee, belongs to one not a party, it is the duty 
 of the court to order such party to be brought in. Forepaugh v, 
 Appold, 17 B. Mon. 632. 
 
 12. A garnishee, who is adjudged to pay a debt due by him te 
 the defendant, may appeal from the judgment. Forepaugh v, 
 Appold, 17 B. Mon. 631, 632. 
 
 13. In a proceeding in equity against a non-resident, and a resi' 
 dent debtor of the latter, who is also summoned as a garnishee, t( 
 subject funds or property in his hands to the payment of a debi 
 
 •This rule has been changed, and the subject is now controlled by section 29( 
 Civil Code. See Newton v. West, 3 Met. 27. 
 
ATTACHMENTS. 47 
 
 due by the non-resident, if it appear that the amount of such debt 
 and the period when it is payable, are uncertain, depending on a 
 future contingency — the coiirt can only make such interlocutory 
 orders as will protec the rights of the plaintiff, and retain control 
 of the case for such final orders as the facts may warrant. Boberts 
 V. Brinkard, 3 Met. 309, 310. 
 
 14. When the obligor in a note, having notice of its assignment 
 is summoned as a garnishee, he should disclose the assignment, or 
 make the assignee a party, and if he fails to do so he will be liable to 
 the assignee, notwithstanding the judgment against him as 
 garnishee. Bibb v. Tomberlin, 1 Duv. 187. 
 
 15. The circuit court has power, on motion of the plaintiff, in 
 an attachment pending in an inferior court, though the attachment 
 is not yet returned by the officer, to order it to be transferred to 
 the circuit court when there is pending in that court other 
 attachments levied on the same property. Turners v. Howard, 2 
 Duv. 112, 113 : Myers' Supplement, 42. 
 
 16. If garnishees are summoned who, as alleged by the plaintiff, 
 owe an amount sufficient to pay his debt, and do not answer it is 
 error to order a sale of real estate to pay it; the debts garnish eed 
 should be first applied to its payment. Sub-div. 2, sec. 250 Civil 
 Code. Anderson v. Sutton, 2 Duv. 489. 
 
 17. Where no attachment bond has been executed as required by 
 section 224, Civil Code, the court should dismiss the attachment on 
 hearing. Anderson v. Sutton, 2 Duv. 488. 
 
 18. Before judgment can be rendered for the sale of property 
 attached in an action in which the defendant has only been con- 
 structively summoned, the existence of the facts set forth in the 
 petition and affidavit must be proved, unless the plaintiff files an 
 affidavit to dispense with such proof. Harris v. Adams, 2 Duv. 142, 
 sec. 439, Civil Code. 
 
 VI. ATTACHMENT BEFORE DEBT IS DUE. 
 
 1. If the action be brought before the debt is due, the clerk has 
 no power to grant an order of attachment. Scott v. Doneghy, 17 
 B. Mon. 324. 
 
 2. In such a case, the order for an attachment must be made by 
 the court or a judge. Scott v. Doneghy, 17 B. Mon. 324. 
 
 Vn. ATTACHMENT IN ACTIONS TO ENFORCE LIENS ON PERSONAL 
 PUOPERTT, OR FOR ITS SALE OR PARTITION. 
 
 1. A mortgagee may properly attach property, mortgaged upon 
 
48 ATTACHMENtS. 
 
 proper allegation, showing that the mortgagor is about to remove 
 it out of the State. Patton v. Harris, 15 B. Mon. 615. 
 
 2. A separate action can not be niaintained, to procure an at- 
 tachment to prevent the sale, or removal of property in contest in 
 another action, pending in another county. Moore v. Shepherd, 1 
 Met. 100. 
 
 VIII. EIGHTS OP PRIORITY BETWEEN ATTACHING CREDITORS, AND BE- 
 TWEEN THEM AND PURCHASERS OR HOLDERS OP LIENS. 
 
 1. If an attaching creditor receives money, the proceeds of the 
 sale of attached property, and his action be dismissed for infor- 
 mality, and his debtor assigns to another creditor the funds thus 
 in his hands, he has an equitable right to retain so much of it as 
 is necessary, to pay his own debt. Jackson & Cox v. Eolloway, 14 
 B. Mon. 136. 
 
 2. The lien of the vendor of goods purchased with the fraudu- 
 lent intent, not to pay for them, is superior to that of an attaching 
 creditor. Lane v. Robinson, 18 B. Mon. 631. 
 
 3. A failure of the sheriff to comply literally with the statute, 
 directing the order of the levy and return of attachments, does 
 not vitiate the lien of the attaching creditor, in whose behalf the 
 levy has actually been made. Lane v. Robinson, 18 B. Mon. 632. 
 
 4. In such a case, the sheriff may amend his return, so as to 
 conform to the facta. Lane v. Robinson, 18 B. Mon. 632. 
 
 5. If property be attached, on the ground that the defendant is 
 about to sell his property with the intent to hinder and delay his 
 creditors, and the plaintiff, before a hearing of the attachment, 
 obtains judgment, and causes execution to issue, which is returned 
 "no property found," and then files an amended petition, and sets 
 up these facts, and procures an attachment on that ground, and 
 the first one is discharged, one, who purchased of the defendant 
 after the levy of the first attachment, but before the filing of the 
 amended petition, will have a valid title. Stone & Warren v. Con- 
 nelly, 1 Met. 657; Jones v. Lusk, 2 Met. 359. 
 
 6. If property, on which the landlord has a lien, be levied on, 
 by attachment, by a creditor of the tenant, the officer levying 
 should pay to the landlord so much rent as is due, and in arrear, 
 and is not liable to the landlord for anything more. Williams v. 
 Wood, 2 Met. 42, 43. 
 
 7. After a debtor has committed an act, which, under the statute 
 of 1856, has the effect to transfer all his property for the benefit of 
 all his creditors, no priority can be obtained by any, by subse- 
 
ATTACHMENTa. 49' 
 
 quently suing out an attachment against the property of the 
 ' tor. Shouse v. Utterback, 2 Met. 53, 54 ; Given, Haynes & Co. 
 Gordon, 3 Met. 539. 
 
 8. A defective allegation, on which an attachriient is granted in 
 an action after a return of " no property," which is cured by a sub- 
 sequent amendment, will not vitiate the attachment, levy, or lien. 
 Lewis V. Quinker, 2 Met. 286, 287. 
 
 9. The levy of such an attachment creates a lien, in favor of the 
 plaintiff, to the extent of his debt, and he is entitled to enforce it 
 against all subsequent purchasers. Lewis v. Quinker, 2 Met. 287. 
 
 10. If the vendor of land, attached by other creditors of the 
 vendee, has a lien for unpaid purchase-money, he should be made 
 a party, and the amount of his lien ascertained before a sale is or- 
 dered. Mills V. Brown, 2 Met. 406. 
 
 11. The lien of an attaching creditor will be subordinate to that 
 of one to whom the debtor has sold or transferred, in good faith, 
 and for a valuable consideration, a debt or fund attached, before 
 the institution of the suit. Newby & Taylor v. Hill & Milton, 2 
 Met. 533. 
 
 12. The right of an attaching creditor to set aside a fraudulent 
 sale, and to subject, to the payment of his debt, the property and 
 eifects of the fraudulent vendor, is not taken away by the act of 
 1856, to prevent preference among creditors in contemplation of 
 insolvency. Millett v. Fottinger, 4 Met. 215. 
 
 13. A creditor, having a return of nulla bona, sought to set aside 
 a conveyance made by his debtor as fraudulent, but failed. The 
 purchaser disclosed by his answer that one hundred and eighty- 
 one dollars of the purchase-money remained unpaid, but the plain- 
 tiff took no steps to subject ; another creditor attached the fund, 
 and it was paid to him; and, subsequently, the plaintiff amended 
 and sought to subject it to the payment of his debt. Held : That he 
 could not do so, Brinegar v. Allen, 2 Duv. 99, 100. 
 
 14. Several creditors sued out and levied their attachments. 
 Those first sued out were adjudged defective, and the plaintiffs 
 amended their affidavits under act of March 15, 1862 (Myers' Sup. 
 41), and claimed a lien from the suing out of their original attach- 
 ments. Held: They had a lien, as between themselves and their 
 debtor, but as between themselves and subsequent attaching cred- 
 itors, they only had a lien from the filing of their amendment. 
 Bell, Berkley & Co. v. Hall, 2 Duv. 293. 
 
 5 
 
50 ATTORNETS-AT-LAW. 
 
 IX. LIABILITIES OF ATTACHING CREDITORS FOR WRONGFULLY ATTACHING 
 
 1. If property be distrained or attached, without good cau^ 
 for suing out the distress or attachment, the owner may recove 
 damages, and, if the property be sold, also damages for the sale 
 and, in such case, malice need not be alleged or proved. Mitchel 
 V. Mattingly, 1 Met. 241 ; sec. 3, chap. 1, Eevised Statutes. 
 
 2. In an action for damages, for the seizure of property b 
 attachment without good cause, an answer, "that the groundi 
 alleged by the defendant as constituting the cause for its issue did 
 in fact, as he believes, exist, and were true," is not good. Mitchel 
 V. Mattingly, 1 Met. 241. 
 
 3. Judgment discharging the attachment on motion, on th{ 
 merits, is conclusive evidence that good cause did not exist foi 
 suing it out. Mitchell v. Mattingly, 1 Met. 242. 
 
 4. In an action for seizing property under an attachment, suec 
 out without good cause, the plaintiff can only recover damages foj 
 the seizure, and not for the costs of the attachment. Mitchell v 
 Mattingly, 1 Met. 242. 
 
 5. A defendant in an attachment bond can not recover for attor 
 ney's fees for defending, unless he has paid or agreed to pay sucl 
 fees. Shultz v. Morrison, 3 Met. 99, 100; Doe v. Perkins, 8 B 
 Mon. 198. 
 
 ATTACHMENT BONDS, 
 
 See Bonds. 
 
 ATTOENBYS-AT-LAW. 
 
 I. Powers and privileges. 
 II. Duties and responsibilities. 
 
 I. POWERS AND PRIVILEGES. 
 
 1. If an attorney be counsel for two persons in a contest with a 
 third, and one of them makes admissions to him, he may, in a 
 subsequent action between the two about the same matter, testifj 
 as to such admissions. Eice v. Bice, 14 B. Mon. 418. 
 
 2. An attorney-at-law is a competent witness in behalf of his 
 client. Hall v. Renfro, 3 Met. 53. 
 
 3. In a proceeding to strike the name of an attorney ftom the 
 rolls of the court, the attorney is entitled to have the cbargef 
 
ATTORNEYS-AT-LAW. 51 
 
 against him tried by a special judge, upon filing an affidavit stating 
 that the presiding judge is personally hostile to him, and that he 
 believes that he could not, and would not, because of such hostility, 
 do him justice. Turner v. Commonwealth, 2 Met. 630. 
 
 4. An attorney-at-law, as such, has no power to compromise a 
 suit, or to surrender the claim of his client to the defendant, and 
 dismiss his suit. Smith v. Dixon, 3 Met. 442-444. 
 
 5. He is only authorized to do such things as pertain to the 
 conducting and management of the suit in court, preparatory to a 
 trial or decision, and all his acts, in reference to these things, are 
 binding on the client. Smith v. Dixon, 3 Met. 444, 445. 
 
 6. An appearance by an attorney of the court, for a party in 
 court, will be prima facie evidence of his authority. Anderson v. 
 Sutton, 2 Duv. 490. 
 
 II. DITTIES AND RESPONSIBILITIES. 
 
 1. If an attorney is sei;ved with notice, and attend to take 
 depositions, and none are taken, the party whose attorney he is, 
 is entitled to mileage, although one of them resided at. the place 
 where the depositions were to have been taken. Kentucky Semi- 
 nary V. Wallace, 15 B. Mon. 46. 
 
 2. The acts against champerty and maintenance apply as well 
 to attorneys-at-law as to any one else, and contracts made by them 
 for a part of the thing sued for as compensation for their services 
 in the suit, are void. Davis v. Sharron, 15 B. Mon. 67, 68. 
 
 3. Official misconduct of an attorney-at-law may be summarily 
 inquired into by the court, and if guilty, his name may be stricken 
 from the roll of attorneys. Mice v. Commonwealth, 18 B. Mon. 
 483 ; Turner v. Commonwealth, 2 Met. 630. 
 
 4. To remove an attorney-at-law for misconduct is a power in- 
 cident to all courts, but should be exercised with great caution. 
 Bice V. Commonwealth, 18 B. Mon. 484. 
 
 5. An attorney, who has been counsel for a wife in a suit for a 
 divorce, can not maintain an action at law against the husband for 
 his fee. Williams v. Monroe, 18 B. Mon. 518. 
 
 6. An attorney, who prays and prosecutes an appeal to the court 
 of appeals for a non-resident defendant, who has no property in 
 this State, is not liable for the costs, if no bond is given. Chrismas 
 V. Eussell, 2 Met. 112-114. 
 
 7. The liability of an attorney for costs can only be created in 
 the inferior court by causing process to issue in an action, in which 
 the plaintiff is required to give security for costs, but has failed 
 
52 ATTORNEYS FOE THE COMMONWEALTH. 
 
 to do SO, and the inferior court alone can enforce such liability 
 Ohrismas v. Russell, 2 Met. 114. 
 
 8. An attorney-at-law, who advises, counsels, or procures a 
 single justice of the peace, acting as an examining court, in exam- 
 ining one charged with a felony, to commit him to prison, is an- 
 swerable to the party injured in damages as a trespasser. Revill 
 V. Pettit, 3 Met. 320. 
 
 9. Service in the confederate army does not operate as a legal 
 disqualification to practice as an attorney-at-law. Ex parte 0. S. 
 Tenny, 2 Duv. 352. 
 
 ATTOENBYS-IN-FACT. 
 See Agency. 
 
 ATTOENEYS FOE THE COMMONWEALTH. 
 
 1. Attorneys for the Commonwealth are entitled to one-third of 
 all money or property won on an election, which they may recover 
 in the name of the Commonwealth from the winner. Love V. 
 Harris, 18 B. Mon. 125. 
 
 2. They are only entitled to twenty per cent, of a forfeited re- 
 cognizance, when judgment is rendered on the forfeiture, and if 
 the governor remits the recognizance before judgment, the attor- 
 ney is not entitled. Commonwealth v. Spraggins, 18 B. Mon. 514. 
 
 3. If the bail be a non-resident, and the Commonwealth pro- 
 ceeds by attachment against his property in this State to satisfy a 
 forfeiture, and a judgment for a sale of the attached property is 
 rendered on constructive service and reversed, and before another 
 judgment is had the governor remits the forfeiture, the Common- 
 wealth's attorney will not be entitled to the per cent, given him by 
 statute on judgments on forfeited recognizances. Commonwealth v. 
 Ramsey, 2 Duv. 386. 
 
 ATTOENEY FOE NON-EESIDENTS. 
 
 1. An attorney appointed by the court to defend for a non-resi- 
 dent, who acts under an agreement with the non-resident, and 
 looks to him for compensation, is not entitled to an allowance 
 against the party at whose instance he was appointed. Cabell v. 
 
 ■X^>_X -77 -I 11 * _j_ nnn nn a 
 
AUTHENTICATION. 53 
 
 2. It is error to render judgment, sustaining an attachment 
 against a non-resident, who is not actually summoned, without the 
 appointment of an attorney. Allen v. Brown, 4 Met. 343 ; Payne 
 V. Witherspoon, 14 B. Hon. 272. 
 
 3. An attorney appointed, under section 449, Civil Code, to de- 
 fend for one constructively summoned, has no authority to consent 
 to a judgment against the defendant. Anderson v. Sutten, 2 Duv. 
 490. 
 
 4. It is not error to render judgment against one constructively 
 summoned, without the report of the attorney appointed to defend 
 for him, but no allowance can be made to the attorney without a 
 report. Brown v. Early, 2 Duv. 372. 
 
 AUDITOE OP PUBLIC ACCOUNTS. 
 
 1. It is the duty of the auditor to ascertain and settle the salaries 
 of the civil officers of the State ; and the treasurer is bouinl to pay 
 any salaried officer, on the warrant of the auditor, whatever is 
 thus shown to be due. Garrard v. JVutall, 2 Met. 111. 
 
 2. The official acts of the auditor are the acts of the Common- 
 wealth, and his adjustment of the accounts of sheriffs for revenue 
 collected by them is conclusive, unless changed by a direct pro- 
 ceeding for correcting errors committed by him. Hohson v. Com- 
 monwealth, 1 Duv. 175. 
 
 3. The auditor's quietus to a sheriff is equally conclusive. 
 Sohson v. Commonwealth, 1 Duv. 175. 
 
 AUTHENTICATIO]Sr. 
 
 1. Prior to the act of 1810 to regulate conveyances, a clerk ot 
 the county court had no power to take an acknowledgment of a 
 deed for land not lying in his county. Hedger v. Ward, 15 B. 
 Mon. 114. 
 
 2. A copy of the record of naturalization made in another State 
 must be certified by the clerk under seal, and by the judge or 
 chief justice, to be attested in due form. Caulfteld v. Bullock, 18 
 B. Mon. 498. 
 
 3. The act of Congress, regulating the mode of authenticating 
 records and judicial proceedings in one State to be used in another, 
 
54 BAIL, 
 
 applies only to such documents when used in courts. Caulfield v. 
 Bullock, 18 B. Mon. 499. 
 
 4. The authentication of the copy of a will of a non-resident 
 offered for probate in this State, in order to be valid as a will of 
 lands, must be such as would, under section 18, chapter 35, Eevised 
 Statutes, make it admissible as evidence in the courts of this State. 
 Selm V. JRookesby, 1 Met. 50, 51 ; sec. 31, chap. 106, Eevised Statutes. 
 
 5. A record of the proceedings of a court of another State of the 
 United States, if authenticated according to the acts of Congress, 
 must have full faith and credit in the courts of this State. Miles 
 V. Collins, 1 Met. 310 ; art. 4, sec. 1, Constitution of the United 
 States. 
 
 6. A transcript of the record of the proceedings in a case before 
 a justice of the peace, certified by him to be a full and complete 
 transcript, is admissible in evidence, although it is in the form of 
 a statement of what occurred on the trial, and has the appearance 
 of having been made up from memory. Commonwealth v. Foster, 
 3 Met. 2^ 
 
 BAIL. 
 
 I. Who has authority to take bail. 
 II. Of the hail bond. 
 
 III. What will discharge bail. 
 
 IV. Eemedies against bail. 
 
 I. WHO HAS ArTHORITT TO TAKE BAIL. 
 
 1. It is essential to the validity of a bail bond, taken in a civil 
 action, that it be executed in the presence of the sheriff, or other 
 oflacer, authorized to take bail. ' Jones v. Bunn, 2 Met. 491 ; McMa- 
 han V. Knox, 4 Bibb. 450. 
 
 2. A county .judge had no power, under the tenth section of the 
 act of March 11, 1851, to take a recognizance in a criminal prose- 
 cution. Bowman v. Commonwealth, 14 B. Mon. 391.i 
 
 3. A county judge has power, under the criminal code, section 
 46, to take a recognizance of one, brought before him, charged with 
 a felony. Commonwealth v. Cummins, 18 B. Mon. 29. 
 
 4. A sheriff, arresting a person by authority of his bail, is not 
 authorized to take new bail, and a bail bond taken by a sheriff in 
 such a case, is not valid as a statutory bond. Schneider v. Com- 
 monwealth, 3 Met. 410, 411 ; Commonwealth v. Roberts, 1 Duv. 202. 
 
 iThis case was decided before the adoption of the Criminal Code of Practice. 
 
BAIL. 55 
 
 5. A recognizance, taken by a single justice of the peace, which 
 shows the defendant to have been guilty of a " larceny," is valid, 
 Tharp v. Commonwealth, 3 Met. 414. 
 
 6. A bail bond, taken by an examining court, during the exami- 
 nation of one charged with a felony, is unauthorized and void. 
 Commonwealth v. Moore, 3 Met. 477, 478 ; sec. 49, Criminal Code. 
 
 7. If a clerk issue an order of arrest against one under indict- 
 ment, without an order of court awarding such process, and the 
 defendant be arrested and give bail, the bond is unauthorized, and 
 no judgment can be rendered on it. Shaw v. Commonwealth, 1 Duv. 2. 
 
 8. A jailor has no authority to take bail, and a bond taken by 
 him is not binding as a statutory or common law bond. Common- 
 wealth V. Roberts, 1 Duv.> 202. 
 
 9. The delivery of the defendant from prison, by reason of the 
 execution of a bail bond before one not authorized to take bail, is 
 not sufficient consideration to uphold such a bond. Commonwealth 
 v. Roberts, 1 Duv. 201. 
 
 10. A sheriff has no authority to take from one arrested, in a 
 civil action, a bond whereby the defendant or his surety agrees to 
 become bound that the defendant will perform the judgment of the 
 court in the action, and such bond will be void. Lex. & Dan. R. 
 B. Co. V Barbae, 1 Met. 391-394. 
 
 11. An examining court has power to take a recognizance from 
 one who is charged with shooting at and wounding another, for 
 his appearance at a specified time and place, for an inquiry into 
 the alleged offense. Commonwealth v. Yancey, 2 Duv. 375. 
 
 12. A single justice of the peace, has no power to require or re- 
 ceive bail, from one brought before him charged with a felony, and 
 such a bond is not good for any purpose. Commonwealth v. Fisher, 
 2 Duv. 377. 
 
 II. OP THE BAIL BOND. 
 
 1. If one, charged with a public offense, be brought before an 
 officer authorized to receive bail, and discharged on a recognizance, 
 the recognizance will be valid though informal. Commonwealth v. 
 Cummins, 18 B. Mon. 29. 
 
 2. A bail bond, in a civil action, which stipulates that the defend- 
 ant "will render himself amenable to the court thereupon," the words 
 " process of," being omitted, is valid. Abbott v. Daniel, 3 Met. 341. 
 
 3. An undertaking, "that the defendant will render himself 
 obedient to the orders and process of the court, is equivalent to 
 that prescribed by section 77, Criminal Code, " that he shall at all 
 
56 BAIL. 
 
 times render himself anienable," etc. It is sufficient if the under- 
 taking be substantially as reqiiired. Miller v. Commonwealth, 1 
 l)uv. 17, 18. 
 
 4. The omission of the last clause of the prescribed form of a 
 recognizance, that if " the defendant fails to perform either of these 
 conditions he will pay to the Commonwealth," the amount stipu- 
 lated in the bond, is immaterial. Miller v. Commonwealth, 1 Duv. 18. 
 
 5. A bail bond or recognizance by &' defendant in an indictment, 
 is unauthorized, and is not obligatory on him either as a statutory 
 or common law obligation, but is binding on the surety. Common- 
 wealth V. Radford, 2 Duv. 11. 
 
 6. A defendant who voluntarily appears in court on the return 
 of an indictment, is in legal custody of the court, and a recogni- 
 zance entered into by him and his sureties, while in such custody, 
 is valid. Baird & Price v. Commonwealth, 2 Duv. 79. 
 
 III. WHAT WILL DISCHARGE BAIL. 
 
 1. If one, committed to jail by his sureties, be discharged on 
 writ of habeas corpus, the sureties will be released. Commonwealth 
 V. Bronson, 14 B. Mon. 363. 
 
 2. The requirements, that the bond in a civil action, when 
 accepted, shall be returned to the clerk's office, is directory to the 
 sheriff; and his failure to comply with it will not defeat or impair 
 the rights of the obligee. Jones v. Bunn, 2 Met. 492. 
 
 3. That an execution on a judgment in a case, where the defend- 
 ant had been held to bail, had been returned before the return 
 day, will not discharge the bail. Jones v. Bunn, 2 Met. 492. 
 
 4. The bail in a civil action, when sued on the bond, may be dis- 
 charged by surrendering the defendant on or before the return day 
 of the summons in the action against them. Jones v. Bunn, 2 
 Met. 492. 
 
 5. The governor has power, before judgment, to remit a recogn- 
 izance, and release the sureties in the bond from the twenty per 
 cent, allowed by law to the Commonwealth's attorney on all judg- 
 ments, on forfeited recognizances. Commonwealth v. Morgan, 14 B. 
 Mon. 392 ; Commonwealth v. Spraggins, 18 B. Mon. 514. 
 
 6. The discretion given by section 94 of the Criminal Code, to 
 the court to remit a part, or all of a forfeited recognizance, is a 
 judicial descretion and is not unconstitutional. Commonwealth v. 
 
 Thornton, 1 Met. 382, 383 ; Commonwealth v. Rowland, 4 Met. 226. 
 
 7. The court has power to remit the penalty of a bail bond; 
 although judgment may have been rendered thereon, which was 
 
BAIL. 57 
 
 set aside the same day. Commonwealth v. Bunnion & Hay, 3 
 Met. 3. 
 
 8. A recognizance was filed in the clerk's ofiSce in December, 
 1860. At the succeeding AprU term, the cause was submitted to 
 the grand jury, and they failed to find an indictment, but no order 
 was made discharging the defendant and exonerating the bail. In 
 September, 1862, no indictment having in the mean time been 
 found, summons issued against the defendant and his su.rety to 
 show cause why the recognizance should not be forfeited : Held : 
 The facts show suiflcient cause, and the proceedings were properly 
 dismissed. Commonwealth v. Roberts, 4 Met. 220 ; Eion v. Common- 
 wealth, 1 Duv. 236. . 
 
 9. The circuit court has no power to remit any part of a forfeited 
 recognizance, unless the defendant has been either arrested or 
 surrendered. Commonwealth v. Rowland, 4 Met. 225, 226. 
 
 10. It is the duty of the grand jury to report on cases submitted 
 to them, and if they fail to do so, the defendant and his sureties 
 should be discharged, unless, for good cause shown, the court 
 should otherwise direct, and such cause should appear of record. 
 Mian v. Commonwealth, 1 Duv. 236. 
 
 11. In order to fix the liability of bail in a civil action, execution 
 must issue on the judgment, against the body of the defendant, and 
 be placed in the hands of the sheriflf, within twenty days after it 
 might have issued, and be by him returned not found ; and no 
 other legal test of diligence will sufSce to fix the liability of the bail. 
 Abbott V. Daniel,, 3 Met. 341; sec. 195, Civil Code; Alcorn v. Tuggle, 
 3 Met. 537, 538. 
 
 12. An execution, on a judgment in an action in which the 
 defendant has been held to bail, which commands the sheriff to 
 take the body of the defendant, and him safely keep to pay to the 
 Commonwealth the debt and costs, is not such an execution as is 
 required to fix the liability of the bail. It should be to pay to the 
 plaintiff, and not the Commonwealth. Abbott v. Daniel, 3 Met. 
 342. 
 
 13. Where the defendant, in a criminal prosecution, appears in 
 compliance with his recognizance, and gives new bail, his former 
 bail is discharged. Schneider v. Commonwealth, 3 Met. 410. 
 
 14. The continuance of a cause, at the instance of the defendant, 
 and permission given him to stand on his recognizance, until the 
 next term, though made without the assent of his sureties, does 
 not release them. Miller v. Commonwealth, 1 Duv. 19; Common' 
 yjealth v. Coleman, 2 Met. 385, 386. 
 
58 BAIL. 
 
 15. If a defendant, charged with being the father of a bastai 
 child, gives a recognizance for his appearance in court "to answc 
 the charge," and he appears and pleads not guilty, but is not sui 
 rendered or taken into custody by the court, and is found guilty 
 but makes his escape, the sureties in his recognizance are sti 
 liable, although he may have escaped without their consent o 
 approbation. Wintersoll v. Commonwealth, 1 Duv. 178, 179. 
 
 16. "To answer" the charge is not merely to plead to it, but i 
 is for the defendant to hold himself answerable to it, until dis 
 charged by the court or surrendered to it. Wintersoll v. Common 
 wealth, 1 Duv. 179. 
 
 17. When a defendant, who had given bail for his appearanc 
 to answer an indictment for a felony, "appeared in discharge o 
 his recognizance," and was put upon trial, and during the tria 
 made his escape, his bail is released. AsJcins v. Commonwealth, 
 Duv. 276. 
 
 18. But a different rule applies to a case of misdemeanor. AsJcin 
 V. Commonwealth, 1 Duv. 276. 
 
 19. When the bailee, in a civil action, has it in his power to sur 
 render his principal to an officer, having in his hands an execu 
 tion on the judgment in the action, it is his duty to do so. Alcor 
 V. Tuggle, 3 Met. 538. 
 
 20. Sureties of one, admitted to bail, charged with a felony, ma; 
 surrender their principal at any time to that court before whicl 
 they have undertaken he shall appear, and be thereby discharge! 
 from liability. Commonwealth v. Bronson, 14 B. Mon. 362. 
 
 21. In such a case, if the court, before which the sureties ar 
 bound for the appearance of their principal, be not in session, th 
 surrender should be to the tribunal before which the bail wai 
 given. Commonwealth v. Bronson, 14 B. Mon. 362. 
 
 22. After judgment against the hail on a forfeited recognizance 
 the court has no discretionary power, under section 94 of thi 
 Criminal Code, to remit the recognizance as to the defendant h 
 the indictment who had, jointly with his bail, entered into tb 
 recognizance. Commonwealth v. Radford, 2 Duv. 10. 
 
 23. If a non-resident be received as surety in a bail bond, h( 
 will be bound, notwithstanding the statute requires the bail to b( 
 a resident of the State. Commonwealth v. Ramsay, 2 Duv. 386. 
 
 ^ 24. That the defendant was absent in the Federal army at th( 
 time he was bound by a recognizance to appear in court to answe: 
 an indictment, and was unable to procure a furlough to attenc 
 
BAIL. 59 
 
 the court, is a valid defense against the recognizance. Common- 
 wealth V. Terry, 2 Duv. 383. 
 
 IV. REMEDIES AGAINST BAIL. 
 
 1. In an action on a forfeited recognizance, the defendant must 
 make a written statement of the facts constituting his defense, 
 and without such written statement, a mere exhibition of the evi- 
 dence relied on, either to defeat or suspend the action, should be 
 disregarded. Brown v. Gommonwealth, 4 Met. 222. 
 
 2. When a defendant, in a criminal prosecution, appears in dis- 
 charge of each of several recognizances, and another is entered 
 into, and he fails to appear, an order reciting such failure " to 
 appear in discharge of his recognizance," and declaring it for- 
 feited, sufficiently refers to the one last taken. Tenny v. Common- 
 wealth, 3 Met. 416, 417 ; Miller v. Commonwealth, 1 Duv. 17. 
 
 3. No pleadings are required on the part of the Commonwealth, 
 in a proceeding to enforce a forfeited recognizance. Tenny v. 
 Commonwealth, 3 Met. 417. 
 
 4. That a defendant held to bail in a civil action was insolvent, 
 is not a valid defense to the surety when sued on the bond. Ab- 
 bott V. Daniel, 3 Met. 342, 343. 
 
 5. A summons on a forfeited recognizance, which recites the 
 date of the recognizance, and by reference to the recognizance 
 sufficiently identifies the offense, is Sufficient. Baird & Price v. 
 Commonwealth, 2 Duv. 78. 
 
 6. The summons on a forfeited recognizance is only intended to 
 notify the bail, that the Commonwealth is proceeding to enforce 
 payment, and need not specify the amount of the bond. Tenny v. 
 Commonwealth, 3 Met. 417. 
 
 7. The defendant under indictment is not a competent witness 
 for his sureties to prove that he was prevented from appearing, as 
 he was bound by his recognizance to do, by his absence in the 
 United States army; but his statement may be heard on a motion 
 to the court to remit the forfeiture, and a remission on such evi- 
 dence is not improper. Commonwealth v. Terry, 2 Duv. 383. 
 
 8. The taking of the recognizance of the defendant in an in- 
 dictment is unauthorized, and no judgment can be rendered 
 against him. Commonwealth v. Radford, 2 Duv. 11. 
 
 9. A single recognizance by a defendant and his sureties for 
 the appearance of the former to answer two indictments for the 
 same act, is valid. Baird & Price v. Commonwealth, 2 Duv. 79. 
 
60 BAILMENT. 
 
 BAILMENT. 
 
 1. If the 'bailee of»a slave treats him in such cruel and inhuma: 
 manner as to produce his death, he will be answerable to th 
 owner for his value. Oraig v. Lee, 14 B. Mon. 122. 
 
 2. So he will be liable for any permanent injury to the slav 
 resulting from his neglect or cruelty. Craig v. Lee, 14 B. Mor 
 122. 
 
 3. The surety in the bond of a bailee, covenanting to return th 
 thing bailed, is responsible for its value, if, from the wrongful ac 
 of the principal, he is unable to return it. Carney v. Walden, li 
 B. Mon. 397. 
 
 4. If property be hired for a special purpose, and the hirer us 
 it for a more hazardous purj)ose, and it be thereby lost, he will b 
 responsible for its value, as if he had wrongfully assumed contro 
 of it. Kelly v. White, 17 B. Mon. 131. 
 
 5. A bailee, for the mutual benefit of himself, and the bailor, i 
 not responsible for injuries done the property bailed, except sue) 
 as result from a want of such care and diligence for its safety a 
 is usual with the common run of men, or with men of ordinar 
 discretion, in the management of their own property. Jackson v 
 Robinson, 18 B. Mon. 7. 
 
 6. But a bailee having possession of property on terms exclu 
 Bively advantageous to himself, will be responsible for his failun 
 to exercise as much care, and observe as much diligence, for it 
 preservation, as would be taken and observed commonly by pru 
 dent men. Jackson v. Robinson, 18 B. Mon. 7. 
 
 7. A bailee, who has improperly allowed another to take fron 
 his possession property bailed, may be sued after he has partei 
 with the possession, and no demand need be made before suing 
 Easley v. Easley, 18 B. Mon. 92. 
 
 8. A tavern-keeper is bound to take extraordinary care of th 
 baggage of his guests, and it is not necessary the baggage shouli 
 be in his special keeping ; it is generally sufiicient that it is unde 
 his implied care. Packard v. Northcraft, 2 Met. 442. 
 
 9. Unless a tavern-keeper has given his guest notice, that if hi 
 goods are left in the public room he will not be responsible, h 
 will be answerable if they be left there, and thereby lost, evei 
 though he may have told the guest he had better take them t 
 his room. Packard v. Northcraft, 2 Met. 442. 
 
BANKS. 61 
 
 BANKS. 
 
 1. Eanks will be compelled to pay their notes actually de- 
 stroyed. Bank Louisville v. Summers, 14 B. Mon. 306. 
 
 2. Savings banks are monied corporations of loan or discount, 
 and are liable to tax on their capital stock, to be paid by the 
 cashier, as other monied corporations. Louisville Savings Bank 
 V. CommonwealtK 14 B. Mon. 411. 
 
 3. The capital of a bank consists of money paid on the stock by 
 the holders, and all stock, when paid for, is capital stock. Finnell 
 V. Sandford, 17 B. Mon. 758. 
 
 4. It is the duty of a bank to require stock to be paid for in 
 money; but if it receives the notes of subscribers in lieu of 
 money, the act is not so far illegal as to exonerate the obligors 
 from the payment of the notes. Finnell v. Sandford, 17 B. Mon. 
 759. 
 
 5. 'Nov is it any defense to a suit on such notes by a bank in 
 process of liquidation, that there is enough assets to meet the lia- 
 bilities without the note sued on. Finnell v. Sandford, 17 B. Mon. 
 761. 
 
 6. The officers of a bank are not individually liable to those 
 with whom they may deal, in matters beyond their authority. 
 Sandford v. McArthur, 18 B. Mon. 421. 
 
 7. If a bank note be fraudulently mutilated in such a manner 
 as to endanger the safety of the community and the rights of the 
 bank, the bank is no longer bound to redeem them. Northern 
 Bank v. Farmers' Bank, 18 B. Mon. 511. 
 
 8. Money deposited in bank, to be refunded in an equivalent 
 when called for, becomes the property of the bank. Keen v. Col- 
 lier, 1 Met. 417. 
 
 9. If bank notes be cut in two, as a means of safety in their 
 transmission, and one-half is lost, the bank will be liable for the 
 notes, and judgment may be recovered on its refusal to pay them. 
 Commercial Bank v. Benedict, 18 B. Mon. 310. 
 
62 BANKRUPTCY. 
 
 BANKEUPTCY. 
 
 A decree in bankruptcy has the effect to transfer to the assignee 
 all the bankrupt's choses in action, rights, and interest, but his titl 
 will be no better than that of the bankrupt, and he can not tak 
 mortgaged property, until the mortgage debt is paid. Pindle 
 Assn. V. Vimont, 14 B. Mon. 403, 404. 
 
 BASTAEDY. 
 
 1. After a defendant in a bastardy case has given a recognizanci 
 for his appearance to answer the charge, the warrant need not bi 
 produced. Commonwealth v. Hazlerigg, 18 B. Mon. 31, 32. 
 
 2. It is not necessary that the statement, required to be madi 
 by the mother of a bastard child, and which the county judge ii 
 required to reduce to writing, should be filed in the record. Com 
 monwealth v. Hazlerigg, 18 B. Mon. 32. 
 
 3. A proceeding, to compel the father of a bastard child t( 
 support it, is not a criminal, but a civil proceeding. Chandlers v 
 Commonwealth, 4 Met. 67; Schooler v. Commonwealth, Litt's. Selectee 
 Cases, 91 ; Hamilton v. Same, 3 Mon. 214 ; Bur gen v. Straughan, 1 
 J. J. Mar. 584, 585. 
 
 4. After a defendant has been arrested and given bond for hif 
 appearance, his presence is not necessary to a trial. Chandler v 
 Commonwealth, 4 Met. 67. 
 
 5. An infant father of a bastard child is liable for its maintO' 
 nance in the same manner as an adult. Chandlery. Commonwealth 
 4 Met. 68. 
 
 6. But, before a judgment can be rendered in such a case againsj 
 an infant, a guardian ad litem must be appointed to defend foi 
 him. Chandlers v. Commonwealth, 4 Met. 70. 
 
 7. Evidence, that the father of a bastard child had promised tc 
 marry the mother, is not admissible on the trial of a bastardy case, 
 for any purpose. Chandlers v. Commonwealth, 4 Met. 70. 
 
BELLIGERENTS — RIGHTS OF. 63 
 
 BELLIGBEENTS— EIGHTS OF. 
 
 1. The act of a sovereign exercising belligerent rights against a 
 separate nation, however grossly it may violate the laws, or usage 
 of nations, gives the law by which, at least, all courts and persons 
 within his jurisdiction must be governed. Norris v. Doniphan, 4 
 Met. 392. 
 
 2. The Constitution of the United States, and not the laws of 
 nations, must govern the relations between rebels and the Govern- 
 ment of the United States. Norris v. Doniphan, 4 Met. 394-396. 
 
 3. The law of nations can not convert a limited into an unlim- 
 ited sovereignty. It can not be substituted for the constitution any 
 more in war than in peace. Norris v. Doniphan, 4 Met. 396. 
 
 4. All captures jure hilli are for the benefit of the sovereign. 
 Norris v. Doniphan, 4 Met. 397, 398. 
 
 5. The seizure and confiscation of enemy's property on land, 
 which is not contraband of war, are not acts of war. Norris v, 
 Doniphan, 4 Met. 399. 
 
 6. The seizure and confiscation of the property of citizens, as a 
 punishment for treason, is not authorized in a civil war, in this 
 country, without due process of law. Ibid, 400, 401. 
 
 7. By the common law though war does not create a forfeiture 
 of the rights of alien enemies, growing out of pre-existing con- 
 tracts, it is settled that the right of action of an alien enemy, 
 residing in the enemy's country, is suspended by war during its 
 continuance. Norris v. Doniphan, 4 Met. 402. 
 
 8. One residing in the insurrectionary district, during a civil 
 war, can not maintain an action within the territory where the 
 power of the government is being exercised, to coerce the payment 
 of money. Norris v. Doniphan, 4 Met. 402. 
 
 9. But, if suit be brought, the action should be dismissed with- 
 out prejudice. Norris v. Doniphan, 4 Met. 402, 403; Hoskins & 
 Hughes v. Gentry, 2 Duv. 286. 
 
 10. One who, in pursuance of military orders, took the horse of 
 a citizen, in territory at the time held by a Confederate force, is 
 not answerable to the civil power of the State. Commonwealth v, 
 Holland, 1 Duv. 182, 183. 
 
 11. The act being belligerent, in the legal import of the term, 
 was not robbery in the legal sense. Commonwealth v. Holland, 
 1 Duv. 183. 
 
64 BELLIGERENTS — RIGHTS OP. 
 
 12. John Morgan and his command of Confederates, constituted, 
 in May, 1862, a public enemy in the technical sense, and a com- 
 mon carrier from whom he took a package being transported, is 
 not liable to the owner for its value. Bland v. Adams Express Go. 
 
 1 Duv. 233. 
 
 13. The Strife between the Confederates and the United States, 
 in May, 1862, was not an insurrection, but was a civil war in 
 which the parties were belligerents, and both entitled to the rights 
 of belligerents. Bland v. Adams Express Go. 1 Duv. 233, 234. 
 
 14. Whatever may be the belligerent rights of more absolute 
 governments, our limited Government can have no belligerent 
 power to take from the loyal owner of private property, for any 
 public use, his title, without a full indemnity. Corhin v. Marsh, 
 
 2 Duv. 196. 
 
 15. When, during the late war between the United States and 
 the seceded States, the military authorities had reasonable ground 
 to believe that the non-intercourse laws of the United States, 
 were about to be violated by carrying mules or horses into the 
 Confederate lines, it was their duty to prevent it, and they are not 
 liable for damages for having done so. McErell v. Metcalfe, 2 
 Duv. 533. 
 
 16. The capturing of a town in Kentucky by a Confederate 
 army was not unlawful in a military sense, but was allowable by 
 all the laws of war, between antagonist parties as belligerents. 
 Wltherspoon v. Farmers' Bank Ky., 2 Duv. 497, 498. 
 
 17. A public enemy may take property by devise, but he will 
 hold it subject to the will of the testator's government. Soskins 
 & Hughes v. Gentry, 2 Duv. 286. 
 
 18. The belligerent right to capture or destroy public or pri- 
 vate property of the belligerent's enemy, whenever doing so will 
 strengthen the captor or weaken his enemy, is not unlimited. 
 Christian Co. Go. v. Rankin & Tharp, 2 Duv. 504. 
 
 19. The laws of the civilized world exempt from capture or 
 destruction such public property as court-houses, and the property 
 of library institutions, unless used for some military purpose by 
 the captor's enemy, in which case they may be legally destroyed. 
 Christian Go. Go. v. Bankin & Tharp, 2 Duv. 504. 
 
 • 20. Soldiers can riot justify the doing of an act not legitimately 
 an act of war, by showing that they did it by command of their 
 superior officers. Little, etc. v. Barom, etc., 2 Cranch, 170; Mitchell 
 V. Harmony, 13 How. 113; Christian Co. Co. v. Bankin & Tharp,i 
 Duv. 504. 
 
BETTINa ON ELECTIONS. 65 
 
 21. In war between independent sovereignties, an abuse of 
 belligerent power by soldiers in the service of their nation can 
 not be inquired into by the judiciary of the other ; but this rule 
 does not apply to a domestic war between the people of the same 
 nation. Christian Co. Co. v. Eankin & Tharp, 2 Duv. 605. 
 
 22. Confederate soldiers are liable for trespasses committed in 
 violation of the laws of war, though commanded by their superior 
 officers. Christian Co. Co. v. JRankin & Tharp, 2 Duv. 505. 
 
 23. The act of February 22, 1864, providing a " civil remedy for 
 injuries done by disloyal persons" (Myers' Supplement, 1, 2)^ 
 does not, so far as it applies to soldiers, intentionally or constitu- 
 tionally extend to belligerent acts, but embraces only trespasses 
 and spoliations committed by them in their own individual right. 
 Christian Co. Go. v. Rankin & Tharp, 2 Duv. 505. 
 
 BBTTING- ON" ELECTIOKS. 
 
 1. The sale of property at its fair value, or at more than its fair 
 value, to be paid for in a certain event of a pending election, or 
 not to be paid for at all, or to be paid for at more or less than its 
 fair value, on a different result of the same election, is in substance 
 a bet on the election. Commonwealth v. Shouse, 16 B. Mon. 328. 
 
 2. A bet on the vote of a county in a general election, or of a 
 precinct in a district or county election, is a bet on an election 
 within the meaning of the statute. Commonwealth v. Kennedy, 15 
 B. Mon. 533 ; Commonwealth v. Pash, 9 Dana, 31. 
 
 3. But whether a bet on the vote of a single person would be. 
 Quere. Commonwealth v. Kennedy, 15 B. Mon. 533. 
 
 4. It is not within the statute to bet that a certain person will 
 not be elected to a certain office at a particular election, unless he 
 is a candidate, or is voted for to fill it, or is intended or expected 
 to be voted for. Commonwealth v. Shouse, 16 B. Mon. 329. 
 
 5. When the indictment under the first section of the act against 
 betting on elections, fails to charge that the thing bet was re- 
 ceived, the fine can only be one hundred dollars. Commonwealth 
 V. Crump, 18 B. Mon. 471. 
 
 6 
 
66 BILLS OF EXCEPTIONS. 
 
 BILLS OF EXCBPTIOKS. 
 
 I. When it muat he offered. 
 II. What it must contain. 
 III. How construed in the court of appeals. 
 
 I. WHEN IT MrST BE OPPEEED. 
 
 1. A bill can not be made up and signed in vacation. If time 
 be given, it must be to the first day of the next term ; and unless 
 filed on that day, the right to have it filed and signed will be lost, 
 Freeman v. Brenham, 17 B. Mon. 608, 609; Tweedy v. Common- 
 wealth, 2 Met. 379; Allard v. Smith, 2 Met. 298; Vandevere v 
 Griffith, 2 Met. 425. 
 
 2. Although time be given in a penal prosecution, after over- 
 ruling a motion for a new trial, to prepare a bill of exceptions by 
 the next term, the record must be filed in the clerk's office of the 
 court of appeals within sixty days after the judgment. Common- 
 wealth V. McCready, 2 Met. 377. 
 
 3. A party excepting to a decision must do so at the time ; and 
 if time be given to prepare a bill of exceptions, it must be given 
 at the time the judgment is rendered or decision made, and this 
 must appear of record ; and if this be not done, the bill of excep- 
 tions will not be regarded in the court of appeals. Vandevere v. 
 Griffith, 2 Met. 426. 
 
 4. A statement in an order made at the next term, that " it 
 appearing that at the trial of this cause at the last term of this 
 court, the court allowed the defendant time to prejoare a bill of 
 exceptions, which being now presented is ordered to be filed nunc 
 pro tunc," will not cure the failure to note at the time, that time 
 was given. Vandevere v. Griffith, 2 Met. 426. 
 
 II. WHAT IT MUST CONTAIN. 
 
 1. If a bill of exceptions shows a deed was read to the jury, it 
 must show it was afterward excluded, or it will be presumed not 
 to have been excluded, although its exclusion may be one of the 
 grounds on which a new trial was moved. Dickerson v. Talbott, 
 14 B. Mon. 64. 
 
 2. The bill of exceptions must contain all the evidence, or the 
 court of appeals will not reverse the judgment. Wickliffe v. Car- 
 roll, 14 B. Mon. 171. 
 
BILLS OF EXCEPTIONS. 67 
 
 3. The court of appeals will take judicial notice of an act of the 
 legislature creating a corporation, if it was relied on in the court 
 below, whether it is embraced in the bill of exceptions or not. 
 Lackey v. B. & L. T. B. Co., 17 B. Mon. 47, 48. 
 
 4. A party may, on making a motion for a new trial, state any 
 grounds he thinks proper ; but if such matters relate to the pro- 
 ceedings upon the trial, the decision of the court, which is alleged 
 as erroneous, must be stated in the bill of exceptions, as well as 
 the fact that it was excepted to at the time it was given. Adwell 
 V. Commonwealth, 17 B. Mon. 317. 
 
 5. A party objecting to the competency of a witness must state 
 the objections, and so much of the evidence as is necessary to ex- 
 plain the exception, and.no more. If the objections stated are held 
 sufficient by the circuit court, and they should on appeal be found 
 insufficient, the party objecting can not rely on the fact that the 
 bill of exceptions fails to show that it contains all the evidence, 
 and have an affirmance on the ground that other evidence, not in 
 the bill of exceptions, may have shown him incompetent. Easley 
 V, Easley, 18 B. Mon. 94. 
 
 6. The mere statement of the clerk, that a paper copied into the 
 record was offered as an amended petition, without any reference 
 thereto in the order rejecting it, or in a bill of exceptions embody- 
 ing it, and making it part of the record, can not be treated in the 
 court of appeals as part of the record. Sortsman v. Lex. & Gov. 
 B. B. Co., 18 B. Mon. 223. 
 
 7. A deed referred to in the petition, and filed with it, will not 
 be regarded as any part of the record, unless made so by the bill 
 of exceptions. Vaughn v. Mills, 18 B. Mon. 634 ; Lodd v. King, 1 
 Met. 432; Haney v. Tempest, 3 Met. 97; Leeman v. Hinton, 1 
 Duv. 42. 
 
 8. When a question asked a witness is objected to, and the 
 objection sustained, the bill of exceptions should show by the 
 statement of the party, or his counsel, what answer was expected 
 to be made, otherwise it will be no grounds for a reversal, although 
 the question may be legal and proper. Tipper v. Commonwealth, 
 1 Met. 12 ; Bowler v. Lane, 3 Met. 313. 
 
 9. The court of appeals will not reverse a judgment of con- 
 viction in a criminal prosecution for error, in giving or refusing 
 instructions to the jury, unless it appears the record contains all 
 the instructions given. Clem v. Commonwealth, 3 Met. 12; sec. 
 335, Criminal Code ; Jane v. Commonwealth, 3 Met. 23. 
 
68 BILLS OF EXCEPTIONS. 
 
 10. Quere. Must not the record show that it does not contain 
 all the instructions given? Smith v. Commonwealth, 1 Duv. 225. 
 
 11. A judgment of conviction in a criminal case will not be 
 reversed for error in the instructions of the court, unless the bill 
 of exceptions shows that the giving of the instructions was ex- 
 cepted to at the time. Burns v. Commonwealth, 3 Met. 17 ; Adwell 
 V. Commonwealth, 17 B. Mon. 316. 
 
 12. The bill of exceptions must show both, that the party, com- 
 plaining of instructions as erroneous, objected to the giving of the 
 instructions, and excepted after they were given. JJong v. Hughes, 
 1 Duv. 388. 
 
 III. HOW CONSTRUED IN THE COURT OP APPEALS. 
 
 1. If the bill of exceptions shows that a deed was read to the 
 jury, and fails to show it was excluded afterward, it will be pre- 
 sumed not to have been excluded. Dickerson v. Talhott, 14 B. 
 Mon. 64. 
 
 2. So if the bill of exception? shows that a witness produced a 
 record, but fails to show that it was read to the jury, it will be 
 presumed not to have been read. Dickerson v. Talhott, 14 B. 
 Mon. 65. 
 
 3. Papers, referred to in an answer, will not be treated as evi- 
 dence in the cause, unless the bill of exceptions shows they were 
 read on the trial. Duncan v. Brown, 15 B. Mon. 197. 
 
 4. When it appears from the bill of exceptions, that the plain- 
 tiff had a prima facie right to recover, and the court peremptorily 
 instructed the jury to find for the defendant, the judgment will 
 be reversed ; although the bill of exceptions does not show that it 
 contains all the evidence. Easley v. Easley, 18 B. Mon. 93. 
 
 5. A party, objecting to the competency of a witness, must state 
 the objection with so much of the evidence as is necessary to 
 explain the exception. If the exceptions stated are held suflBcient 
 by the circuit court, and should, on appeal, be found insufficient, 
 the party objecting can not rely on the failure of the bill of excep- 
 tions, to show that it contains all the evidence, and have an affirm- 
 ance on the ground that other evidence, not in the bill of exceptions, 
 may have shown him incompetent. Easly v. JEJasly, 18 B. Mon 94. 
 
 6. A statement in a bill of exceptions, that "the defendant 
 moved the following instructions," and the "Commonwealth moved 
 the following," and that "the court gave the jury the following 
 instructions in lieu of those refused and in explanation of those 
 given :" held sufficient to show that the record exhibited all the 
 
BILLS or EXCHANGE AND PROMISSORY NOTES. 69 
 
 instructions given or refused. Smith v. Commonwealth, 1 Duv. 225, 
 226. 
 
 7. In a suit in equity on a protested bill of exchange, when the 
 protest was filed with the petition and referred to as evidence, no 
 bill of exceptions is necessary to make it part of the record, or to 
 show that it was regarded as evidence. Karman v. Hicks, 1 Duv. 
 324, 325. 
 
 8. If the record contains no bill of exceptions, it must be pre- 
 sumed that the evidence heard was sufficient to warrant the judg- 
 ment. Commonwealth v. Bunnion & Hay, 3 Met. 4. 
 
 BILLS OP EXCHANGE AND PEOMISSOEY NOTES. 
 
 I. What constitutes a bill of exchange or note. 
 II. Whether domestic or foreign. 
 
 III. Assignment of. 
 
 IV. Acceptance, and effect of. 
 
 V. Eights and liabilities of the different parties. 
 VI. Of presentment, demand, protest, and notice. 
 VII. To what equities, hills and notes are subject between holders and other 
 persons whether parties or not. 
 VIII. In what cases a person will be held promissor, surety, or guarantor. 
 IX. Of blank indorsements. 
 X. Of the alteration of bills or notes. 
 XI. Effect of the discharge of some of the parties. 
 
 I. WHAT CONSTITUTES A BILL OP EXCHANGE OR NOTE. 
 
 1. A certificate of deposit, although payable in currency, is sub- 
 stantially a bill of exchange, and is negotiable. Finer v. Clary, 17 
 B. Hon. 662. 
 
 2. An instrument, having all the forms of a bill of exchange 
 except the name of a drawer, is defective and incomplete, and no 
 action can be maintained thereon against the drawer. Tevis v , 
 Young, 1 Met. 205. 
 
 3. The Revised Statutes, section 11, chapter 22, provide that 
 bills, drafts, or checks, payable in bank notes, currency, or other 
 funds, wheresoever drawn or payable, shall be deemed negotiable 
 and treated in all respects as if drawn for money; except as to the 
 value of the currency in which they are payable. Morrison v. Tate, 
 1 Met. 569, 570. 
 
 4. A note or obligation, made payable by a person to himself, 
 creates, of itself, no legal liability, and no action can be maintained 
 
70 BILLS OP EXCHANGE AND PEOMISSORT NOTES. 
 
 on it by one to whom it has been transferred.! Muhling v. Sattler, 
 3 Met. 285, 286. 
 
 5. Such a note is evidence of an indebtedness of the indorser to 
 the indorsee, when executed with the intent to bind the maker for 
 the payment of such previous indebtedness. Muhling v. Sattler, 3 
 Met. 286. 
 
 II. WHETHER DOMESTIC OR FOREIGN. 
 
 1. A certificate of deposit issued by a banker in Ohio and nego- 
 tiated in Kentucky, will be treated as a foreign bill of exchange. 
 Finer v. Clary, 17 B. Mon. 663. 
 
 2. A promissory note payable in bank, and discounted by a 
 bank, is placed by statute on the footing of a foreign bill of ex 
 change, and retains that character when passed by the bank into 
 the hands of a bona fide holder, or when taken up, by the person 
 indorsing it, to the bank. Spencer v. Biggs, 2 Met. 126, 127. 
 
 3. When a bill was drawn by a person residing in Kentucky, and 
 there was no proof showing where it was drawn, the presumption 
 is that it was drawn in Kentucky, and if the drawee resides in 
 another State, it must be regarded as a foreign bill. Harmon v. 
 Wilson, 1 Duv. 324. 
 
 III. ASSIGNMENT OP. 
 
 1. Bills, drafts, or checks, payable in bank notes, currency, or 
 other funds, wherever drawn or payable, are negotiable. Morrison 
 V. Tate, 1 Met. 569, 570 ; sec. 11, chap. 22, Eevised Statutes. 
 
 2. Bills of exchange have, from their origin, been assignable by 
 indorsement, according to the common law, and they are not 
 within the statute of 1798, nor of section 6, chapter 22, Eevised 
 Statutes, reserving, in favor of the obligors, the "right to any 
 defense, discount, or offset, that the defendant has and might have 
 used against the original or any intermediate assignor." Spencer 
 v. Biggs, 2 Met. 126 ; sec. 31, Civil Code. 
 
 3. A promissory note payable to the donor, is a proper object of a 
 gift, causa mortis, and will pass on the death of the donor without 
 any assignment. Turpin v. Thompson, 2 Met. 421 ; Kemper v. Kemper, 
 1 Duv. 402. 
 
 IV. ACCEPTANCE, AND EPPEOT OP. 
 
 1. The drawing of a bill, and its acceptance by the drawee, is 
 an appropriation of the funds of the drawer in the hands of the 
 drawee, necessary to pay the bill, and the drawer has, after that, 
 no right to control or receive the fund. Buckner v. Sayre, 18 B. 
 Mon. 755, 
 
 1 This rule has been changed by statute, and such a note, when indorsed by 
 the maker, and delivered to the indorsee, is valid. Myers' Supplement, 741. , 
 
BILLS OF EXCHANGE AND PROMISSORY NOTES. 71 
 
 V. BIGHTS AND LIABILITIES OF THE DIFFERENT PARTIES. 
 
 1. The payee and first indorser of a bill is responsible to a 
 second indorser, who has paid it, for the full amount of the bill. 
 Scott V. Doneghy, 17 B. Mon. 321. 
 
 2. The rights and liabilities of the parties to a bill of exchange, 
 accepted in one place and payable in another, are to be determined 
 by the law of the place where it is payable. Kelly v. Smith, 1 
 Met. 317. 
 
 3. A bill payable in current exchange in the Bank of Kentucky, 
 at Louisville, is a bill payable in money. Morrison v. Tate, 1 
 Met. 569, 570. 
 
 4. The drawer and two indorsers of a bill of exchange, who are 
 sued jointly, but answer separately, denying its execution, are 
 competent witnesses for each other. Smith v. Northern Bank 
 Xy., 1 Met. 577, 578. 
 
 5. In an action by an indorsee against an indorser for the non- 
 acceptance of a bill, the production of that part of the bill which 
 has been protested, is prima facie sufficient to entitle the plaintiff 
 to judgment. Johnson r. Offutt, 4 Met. 22. 
 
 6. The drawer of a bill for the accommodation of the drawee 
 will not be liable to one to whom it is delivered by the drawee, 
 after an assignment for the benefit of his creditors, who receives 
 it in payment with notice of the assignment. Thompson v. Poston, 
 1 Bay. 393. 
 
 VI. PRESENTMENT, DEMAND, PROTEST, AND NOTICE. 
 
 1. Bills and checks, payable on presentation, must be presented 
 for payment in a reasonable time, and no days of grace are allowed. 
 Finer v. Clary, 17 B. Mon. 663. 
 
 2. Where a party sought to be charged as drawer or indorser of 
 a bill lives near to, but not at, or in, the place of dishonor, and the 
 post-office at that point is the one at which he usually receives his 
 letters, or is the nearest office to his residence, notice may be given 
 him by letter through such office. Bondurant v. Everett, 1 Met. 
 660 ; Northern Bank v. Buford, 1 Duv. 338. 
 
 3. Although the holder of a bill of exchange, payable several 
 months after date, is not bound to present it to the drawee for 
 acceptance until it becomes due, yet if he does present it, and it is 
 dishonored, he is bound to give due notice to those whom he 
 intends to hold bound. Landrum v. Trowbridge, Divight & Co., 2 
 Met. 282, 283; Bank Tenn. v. Smith, 9 B. Mon. 609; Smith v. 
 Moach, 7 B. Mon. 17 ; Taylor v. Bank Ills., 7 B. Mon. 580. 
 
72 BILLS OF EXCHANGE AND PKOMISSOEY NOTES. 
 
 4. A promise to pay a bill after it becomes due is considered an 
 admission of regular presentment for payment, and due notice, or 
 at least a waiver of the objection that it has not been done. Lan- 
 drum V. Trowbridge, Bwight & Co., 2 Met. 283. 
 
 5. But such a promise will not amount to an admission or waiver 
 of notice of protest for non-acceptance of a bill, presented and 
 dishonored between its date and maturity ; and a promise to pay, 
 after the bill falls due, would be without consideration. Landnn 
 V. Trowbridge, Dwight & Co., 2 Met. 283. 
 
 6. The drawer and indorsers of a bill, payable several months 
 after date, which is presented and dishonored before its maturity, 
 are entitled to actual notice in due time of its non-acceptance. 
 Landrum v. Trowbridge, Dwight & Co., 2 Met. 283. 
 
 7. A drawer of an accommodation bill, at whose request and for 
 whose benefit it was accepted, and who received the proceeds, is 
 not entitled to notice of its protest for non-payment. No present- 
 ment is necessary to fix his liability. Barbaroux v. Waters, 3 
 Met. 305. 
 
 8. If a bill payable in bank be shown by the protest to have 
 been presented to the proper officer of the bank at its office, on the 
 day it was payable, but after the bank had closed, and payment 
 is refused because the bank had no funds of the acceptor, the 
 presentation is sufScient, and the acceptor and indorsers are liable. 
 Barbaroux v. Waters, 3 Met. 307, 308. 
 
 9. Under the statutes of Louisiana, a protest by a notary after 
 presentment by his deputy is authorized; and a certificate of 
 protest by the notary, although it shows that payment of the bill 
 was demanded by his deputy, is valid. Lee, Ivy & Co. v. Buford, 
 4 Met. 7, 8. 
 
 10. The protest of a foreign bill by a notary of Ohio, reciting 
 that he had "notified the drawer and indorser thereof" in a 
 specified manner, is, by the statute of Ohio, prima facie evidence 
 that notice was so given ; and by the Kentucky statute of 1864, 
 (Myers' Supplement, 355), the protest is entitled to the same efi'ect 
 here. Harman v. Hicks, 1 Duv. 324. 
 
 11. B. drew bills at Smithland, Ky., on G-. "W. & Co., of New 
 Orleans, La., on the 30th of April, 1861, payable September 2, at 
 the latter city. Held: That the civil war which intervened 
 rendered presentment for protest or payment unnecessary, and 
 that it was excused and the drawers were liable, although no 
 protest had been had, or notice of non-acceptance or non-payment 
 given. Berry, etc.v. Southern Bank Ky., 2 Duv. 380. 
 
BILLS OF EXCHANGE AND PROMISSORY NOTES. 73 
 
 12. "Whether the protest of a bill by an officer of one of the 
 insurgent States, during the existence of the rebellion, would be 
 recognized as legal. Quere. Berry, etc. v. Southern Bank Ky., 2 
 Duv. 380 ; Bell, Berkley & Co. v. Hall, 2 Duv. 292. 
 
 VII. TO WHAT EQUITIES, BILLS AND NOTES ARE SUBJECT BETWEEN 
 HOLDERS AND OTHER PERSONS, WHETHER PARTIES OR NOT. 
 
 1. Any holder of a bill or note, who receives it for value, in 
 good faith and without notice with a blank indorsement, may 
 recover the amount of the obligor, and hold it against the true 
 owner, although it may have been lost or procured from him by 
 fraud or theft. Oaruth v. Thompson, 16 B. Mon. 575, 576. 
 
 2. A total failure of consideration, or even fraud, between the 
 original parties to a bill, will not eifect a bona fide holder for a 
 valuable consideration, who received it at or before it became due, 
 without notice. Kelly v. Smith, 1 Met. 316 ; Spencer v. Biggs, 2 
 Met. 125. 
 
 3. The holder of a commercial instrument, who has received it 
 only as collateral security for an antecedent debt, and who is under 
 no legal obligation to forego the pursuit of any existing remedy, 
 and who has, in no other form, parted with any value or given for 
 it any new or additional consideration, is not a bona fide holder in 
 the legal import of that phrase, and the title thus acquired is 
 subordinate to that of the rightful owner. Lee v. Smead, etc., 1 
 Met. 634. 
 
 4. But the holder of a bill who received it in discharge of an 
 antecedent debt, and thereby suspended his right of action against 
 his debtor upon the original demand, without notice of a defect in 
 the title of the person from whom he received it, has a right to 
 hold it against the real owner, though the person from whom he 
 received it had no title. Alexander v. Springfield Bank, 2 Met. 535. 
 
 5. If a bill of exchange be deposited with a banker for collec- 
 tion, and by him placed in the hands of a creditor as collateral 
 security for an antecedent debt, the creditor's title will not be 
 good against the real owner. Lee v. Smead, etc., 1 Met. 634. 
 
 6. The law in favor of negotiable paper presumes that the 
 indorsement was made before it became due, and that the holder 
 acquired the same in the usual course of business for value. Alex- 
 ander V. Springfield Bank, 2 Met. 535. 
 
 7. A bill drawn for the accommodation of the drawee, for the 
 purpose of sustaining his credit and to aid him in his banking 
 operations, is not enforcible against the drawer except by a 
 
74 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 holder, for value, without notice of such purpose. A pawnee, 
 who received the bill as collateral security for a debt, is not such 
 holder. Thompson v. Poston, 1 Duv. 391, 392. 
 
 8. When the drawee of such a bill, after making an assignmeni 
 for the benefit of all his creditors, delivers it in payment to one 
 of them, who received it with notice of the assignment, the 
 payment was fraudulent and void as to other creditors, and as to 
 the drawer. Thompson v. Poston, 1 Duv. 393. 
 
 9. The fact that when a payee received a bill she knew the 
 drawee had failed, and had not delivered it in the usual course 
 of business, was enough to put her upon inquiry, and to subject 
 her to all the defenses which the drawer could make as to the 
 consideration against a party with actual notice. Thompson v. 
 Poston, 1 Duv. 393. 
 
 VIII. IN WHAT CASES A PERSON WILL BE HELD PROMISSOR, SURETY, 
 
 OE GUARANTOR. 
 
 1. In the absence of all proof as to the intentions of the party 
 who indorses his name in blank upon a note, he will be presumed 
 only to have intended to become hound as indorser. Levi v. 
 Mendell, 1 Duv. 79, 80. 
 
 2. If one signs his name in blank on a note with the intention 
 to become bound as a guarantor, there is an implied authority to a 
 holder of the note to write words of guaranty above his name, 
 and whether he intended to be bound as indorser or guarantor, 
 may be proved by parol testimony. Levi v. Mendell, 1 Duv. 80. 
 
 IX. OF BLANK INDORSEMENTS. 
 
 1. A holder of a bill, indorsed in blank, may fill up the blank 
 with an assignment to himself Caruth v. Thompson, 16 B. Mon. 
 575. 
 
 2. One who indorses a bill of exchange, which has the name of 
 the drawee written on its face without an acceptance written over 
 it, the bill being silent as to the place of payment, and delivers it 
 to the drawee to raise money for the drawee's accommodation, 
 thereby confers on him authority to write an acceptance above 
 his signature, and designate therein any reasonable place of pay- 
 ment. Rogers v. Poston, 1 Met. 647; Eellog v. Dunn, 2 Met. 218. 
 
 3. Persons indorsing their names in blank on a note, payable in 
 bank before delivery to the obligee, are not bound, unless they 
 do so as accommodation indorsers, with a view of having it dis- 
 counted in the bank where it was payable, or with the intention; 
 
BILLS OP REVIEW. 75 
 
 or for the purpose, of guaraateeing its payment. Kellog v. Dunn, 
 2 Met. 217; Needham v. Page, 3 B. Mon. 466. 
 
 4. In the absence of all proof as to the intentions of a party, who 
 indorses his name in blank upon a note, he will be presumed only 
 to have intended to become bound as an indorser. Levi v. Mendell, 
 1 Duv. 79, 80. 
 
 X. OF THE ALTERATION OF BILLS OR NOTES. 
 
 1. A material alteration in a note or bill, after it has been 
 signed by a surety or indorser, will release him. JJisle v. Rogers, 
 18 B. Mon. 536. 
 
 2. To change the date of a note, payable three months after 
 date, from the 4th to the 10th, of the same month, is such mate- 
 rial alteration as will release the indorser, if made after he signed 
 it, and without his consent. Lisle v. Rogers, 18 B. Mon. 536. 
 
 3. Whether the alteration be made by the indorsee, or by a 
 stranger, will not alter its effect, if made before it came to the 
 hands of the assignee. Lisle v. Rogers, 18 B. Mon. 539. 
 
 XI. EFFECT OF THE DISCHARGE OF SOME OF THE PARTIES. 
 
 1. If the holder of a bill give time to, or discharge any of, the 
 parties to the bill, it will discharge every other party, who, on 
 paying the bill, would be entitled to sue the party to whom such 
 discharge was given. Bank Ky. v. Floyd, 4 Met. 161. 
 
 2. If the holder of a bill, in consideration of a sum paid him by 
 the last two indorsers, agrees to release them, the antecedent par- 
 ties will not be thereby released nor entitled to have the bill 
 credited by the sum so paid. Bank Ky. v. Floyd, 4 Met. 162. 
 
 BILLS OP EEVIBW. 
 
 I. Nature of, and for what causes they may be filed. 
 II. Within what time they may be filed. 
 
 I. NATURE OF, AND FOR WHAT CAUSES THET MAT BE FILED. 
 
 1. The Code of Practice has not changed the pre-existing rules 
 and principles of courts of equity on the subject of bills of review. 
 Bush V. Madeira, 14 B. Mon. 213. 
 
 2. A bill of review may be allowed on account of the discovery 
 of new evidence, of a stable and certain character, which could not 
 have been discovered by reasonable diligence in time to have been 
 used on the original trial. Bush v. Madeira, 14 B. Mon. 219 j 
 
76 BILLS OP REVIEW. 
 
 McLean v. Nixon, 18 B. Mon. 775; Singleton v. Singleton, 8 B. Moi 
 367. 
 
 3. A circuit court can not vacate, modify, or reverse a fins 
 order or judgment on account of errors, apparent in the recorc 
 after the expiration of the term at which it was rendered. And& 
 son V. Anderson, 18 B. Mon. 98; Willis v. Vallette, 4 Met. 196; Hoch 
 V. Gentry, 3 Met. 469, 470. 
 
 4. That there was no allegation in the petition, exhibit, or proc 
 to uphold the judgment, is not one of the grounds on which 
 circuit court has power to reverse its own judgments. Anderson \ 
 Anderson, 18 B. Mon. 98. 
 
 5. The court rendering a judgment can alone entertain a bill c 
 review for newly-discovered evidence. Hawkins v. Lambert, 18 I 
 Mon. 107. 
 
 6. The chancellor has power, under the Code of Practice, t 
 vacate a decree procured by fraud, after the expiration of the terr 
 at which it was rendered. Newland v. Gentry, 18 B. Mon. 670. 
 
 7. A party who has been before the court of appeals with hi 
 case, can not afterward maintain a bill of review to correc 
 errors, patent on the record, which either were or might hav 
 been assigned before. Mitchell v. Berry, 1 Met. 609. 
 
 8. A bill seeking a review for newly-discovered evidence, mue 
 state that the new evidence could not be produced or used at th 
 the time the decree was made, and the new matter must be sucl 
 as to satisfy the court, that if it had been produced, a differen 
 result would probably have been produced. Mitchell v. Berry, 
 Met. 611; Edmonson v: Moseby, 4 J. J. Mar. 500; Brunk v. Meant 
 11 B. Mon. 220; Brewer Bowman, 3 J. J. Mar. 492. 
 
 9. That it has been very recently discovered that evidence 
 before known, was not used in the defense of a suit, is no ground 
 for a review. Mitchell v. Berry, 1 Met. 612. 
 
 II. WITHIN WHAT TIME BILLS OP REVIEW MUST BE PILED. 
 
 1. A bill of review is limited to three years from the renditioi 
 of the final judgment. Langhorn v. Payne, 14 B. Mon. 632. 
 
 2. Eegularly, a bill of review should not be filed in the cireui 
 court in a case pending in the court of appeals, until the mar 
 date of the latter court is entered. McLean v. Nixon, 18 B. Moi 
 775. 
 
 3. A bill of review for errors, apparent on the face of the recorc 
 is barred by the same time that would bar an appeal to the cour 
 of appeals. Mitchell v. Berry, 1 Met. 609. 
 
BONDS — STATUTORY. 77 
 
 BONDS— STATUTOEY. 
 
 I. Statutory bonds, generally. 
 II. Attachment bonds. 
 
 III. Bonds by claimants of property levied on. 
 
 IV. Sale bonds. 
 
 V. Indemnifying bonds. 
 VI. Replevy bonds 
 VII. Injunction bonds. 
 VIII. Appeal bonds. 
 
 I. STATUTORY BONDS, GENERALLY. 
 
 1. If property exempt from execution be levied on, and a 
 delivery bond taken, equity will relieve against it. Perry v. 
 Hensley, 14 B. Mon. 475. 
 
 2. The obligors in a bond given to retain possession of 
 property, ordered to be delivered to the plaintiff in an action for 
 the recovery of specific personal property, are only bound for the 
 performance of the judgment of the Court in reference to such 
 property — ^that is, for its delivery, or its value, and damages for its 
 detention. McXee v. Pope, 18 B. Mon. 556. 
 
 3. A forthcoming bond, taken by a sheriff on a replevin bond 
 which is indorsed "no security of any kind to be taken," is 
 inoperative as a statutory bond, and can not be the basis of an 
 execution. Ditto v. Geoghegan, 1 Met. 170 ; Richardson v. Bartley, 
 2 B. Mon. 330. 
 
 4. A bond given by the proprietor of a tocacco warehouse, 
 pursuant to statute, but which is defective as a statutory bond, 
 will be obligatory on the surety as a common law bond. Lane v. 
 Kasey, 1 Met. 412. 
 
 5. "Where a bond has been given by the defendant in a proceed- 
 ing to recover rent, in which an attachment was issued by a 
 justice of the peace, conditioned to perform the judgment of the 
 court, payment may be coerced by rules and proceedings as for a 
 contempt, although the attachment has been discharged. Leet v. 
 Lockett, 4 Met. 57. 
 
 6. On an attachment against a steamboat by a mortgagee, the 
 chancellor awarding the attachment, directed, " the defendant or 
 person in possession of the attached property, may retain posses- 
 sion upon executing, before the marshal, bond with good security 
 
78 BONDS — STATUTORY. 
 
 in the sum of $4,000, conditioned to pay to the plaintiff such sur 
 as may be adjudged him in the action, or that the attached proper 
 shall be forthcoming and subject to the order of the court for tl 
 satisfaction of such judgment as may be rendered by the court 
 A bond was given in exact conformity to the order, and it wi 
 held the surety was discharged on having the boat forthcoming i 
 as good condition as when the attachment was levied. Bell v. p 
 R. I. & W. Co., 3 Met. 564; Halbert v. McOulloch, 3 Met. 456. 
 
 II. ATTACHMENT BONDS. 
 
 1. In an action on an attachment bond, the defendant is liabl 
 — ^the debt not having been controverted, but the attachmei 
 successfully disputed — for the costs and reasonable attorney's fee 
 paid in contesting the attachment. Trapnall v. McAfee, 3 Me 
 36, 37. 
 
 2. There can be no recovery in a suit on an attachment bon 
 for the trouble and expenses of defending the action in which th 
 attachment was granted. The recovery should be limited by th 
 damages resulting from the operation of the attachment. Burge 
 V. Sharer, 14 B. Mon. 500; Trapnall v. McAfee, 3 Met. 35-37. 
 
 3. Ko action can be maintained on an attachment bond for th 
 malicious suing out of an attachment until the attachment i 
 discharged, and such final disposition must be alleged. Nail \ 
 Thompson, 3 Met. 123; Spring v. Besore, 12 B. Mon. 553. 
 
 III. BY CLAIMANT OF PROPERTY LEVIED ON. 
 
 1. The owner of property, in whose possession it is found, if i 
 be levied on under attachment against a third person, if h 
 gives bond as required by section 235 of the Civil Code, is no 
 thereby precluded from asserting his claim by presenting i 
 petition to the court whence the attachment issued, to be made 
 party in the action, and stating his claim or disputing the validit; 
 of the attachment. Schwein v. Sims, 2 Met. 214. 
 
 1. But if the defendant in the attachment gives the hon( 
 required by sections 242, 243, and the owner of the property 
 becomes his surety in such bond, the latter will be thereb] 
 precluded from asserting claim to the property or contestinj 
 the validity of the attachment. That the claimant tendered th- 
 bond required by section 235, which was refused by the sherifl 
 who refused to surrender the property unless the bond provide( 
 for by sections 242, 243 was executed, will not relieve the suretj 
 from liability, although he was then ignorant of its legal effect 
 Sazelrigg v. Donaldson, 2 Met. 446, 447. 
 
BONDS — STATUTORY. 79 
 
 3. A bond given by an under tenant whose property had been 
 seized under a distress warrant, stipulating that, if the property 
 should be adjudged subject to the distress, he would pay to 
 the plaintiff the value of the property and ten per cent, thereon, 
 is unauthorized, and did not release the levy. Grubb v. McCoy, 2 
 Met. 487. 
 
 4. A bond given by a third person claiming property levied on 
 by an officer, should be made paj'^able to the plaintiff in the 
 execution and not to his assignee, and, if executed to the latter, 
 will be invalid as a statutory bond, and no judgment can f)roperly 
 be given on it, on motion, merely. Watson v. Gabby, 18 B. 
 Mon. 665. 
 
 5. Where the defendants in an execution suspended the sale 
 of property under it, by executing bond under section 713 
 of the Civil Code, and a portion of the defendants afterward 
 executed a replevy bond, which was quashed on the ground that 
 all the defendants had not joined in its execution; the plaintiff is 
 entitled to judgment on the former bond in the proceedings 
 authorized by section 716. Southern Bank Ky. v. White, etc., 1 
 Duv. 291. 
 
 6. The execution of a bond under section 713 to suspend the 
 sale of property levied on, does not prevent the sheriff from 
 proceeding against other property of the defendant, nor from 
 allowing the debt to be replevied ; nor would the satisfaction 
 of the replevy bond be an entire satisfaction of the former bond. 
 Southern Bank Ky. v. White, etc., 1 Duv. 291, 292. 
 
 IV. SALE BONDS. 
 
 1. A surety in a sale bond having the effect of a replevy bond, 
 will be released if no execution is issued within one year after its 
 maturity. Spillman & Duff v. Smith, 15 B. Mon. 133. 
 
 2. If a sheriff sells property under execution on a credit and 
 takes bonds, the creditor receives the bonds in satisfaction of his 
 judgment ; and if the consideration of the bonds fail, the purchaser 
 can not quash the bonds, but must look to those who passed to him 
 the defective consideration. Mlinger v. Tansey, 17 B. Mon. 368. 
 
 3. Although a purchaser, by a deputy, at a sale made by his 
 co-deputy, is void so far as to give no title to the property 
 purchased ; yet, the bonds given by him for the price of his bids, 
 will not be void as to the creditor who had no hand in the sale. 
 Mlinger v. Tansey., 17 B. Mon. 369. 
 
80 BONDS — STATUTOEY. 
 
 v. INDEMNIFYING BONDS. 
 
 1. When an officer, levying an execution, takes an indemnifying 
 bond, and is sued for the property seized, the bond is a bar to the 
 recovery. Gunn v. Oudehus, 15 B. Mon. 450. 
 
 2. If, in such case, suit be brought against the officer, and the 
 plaintiff in the execution be substituted as a defendant, the bond 
 may also be relied on by him as a bar to the action. Gunn v. 
 Gudehus, 15 B. Mon. 450. 
 
 3. To sustain the defense in such a case, the defendant must 
 show that the surety was good when taken. Gunn v. Giidehus, 15 
 B. Mon. 451. 
 
 4. A sheriff who takes an indemnifying bond, before levying an 
 execution, is bound to levy it and to sell the property. Snoddy & 
 Bransford v. Foster, 1 Met. 163. 
 
 5. But if he fails to do so, he is only liable to the plaintiff in 
 the execution for the damages actually sustained by his failure to 
 levy and sell, and may, in order to mitigate the damages, show the 
 property did not belong to the defendant in the execution. Snoddy 
 & Bransford v. Foster, 1 Met. 163. 
 
 6. Whenever an officer having an execution for collection, in 
 good faith and in the exercise of his discretion, doubts whether 
 property is subject to levy and sale, he has a right to demand a 
 bond of indemnity. Board v. Helm, 2 Met. 502 ; sec. 709, Civil 
 Code. 
 
 7. To entitle an officer to protection against the consequences 
 of any violation of the rights of others, in a levy or sale under 
 execution, he must comply strictly with the statute by taking and 
 returning an indemnifying bond with good security. Green v. 
 Hackley, 3 Met. 389; sec. 711, Civil Code. 
 
 8. A bond taken after suit has been instituted is too late, and 
 will be no protection to the officer, in an action by a third person, 
 for trespass in seizing property under execution. Green v. Hackly, 
 3 Met. 390. 
 
 VI. REPLEVY BONDS. 
 
 1. A replevy bond taken for six, instead of three months, and 
 the execution thereon and sale under it, are invalid, and the pur- 
 chaser acquires no title by his purchase. Vertrees v. Shean, 2 Met. 
 292, 293. 
 
 2. ISTeither the consent of the parties, nor the acts of the sheriff, 
 can render such a bond valid, or give it the effect of a judgment 
 for any purpose. Vertrees v. Bhean, 2 Met. 292, 293. 
 
BOTJNDART SOVEREIGNTY AND JURISDICTION OP KENTUCKY. 81 
 
 3. The plaintiff in an execution may have a replevy bond, in 
 which all the defendants in the execution do not join, quashed. 
 Southern Bank Ky. v. White & McMahan, 1 Duv. 292. 
 
 VII. INJUNCTION BONDS. 
 
 1. In a suit on an injunction bond in the usual form, no recovery 
 can be had for trouble and expense in defending the suit. The 
 criterion of recovery is the damages sustained by the operation 
 of the injunction. Burgen v. Sharer, 14 B. Mon. 498. 
 
 VIII. APPEAL BONDS. 
 
 1. It is the duty of the clerk of the court to which an appeal 
 is about to be taken, to prepare the appeal bond required to be 
 executed by the party appealing. Adams v. Settles, 2 Duv. 76, 77 ; 
 sec. 842, Civil Code. 
 
 2. If a party desiring to appeal, attempts in good faith to 
 execute a bond, and does in fact execute, with security, such bond 
 as is prepared by the clerk, and it is defective, he should be 
 allowed to execute a new bond without prejudice to his rights. 
 Adams v. Settles, 2 Duv. 77 ; sec. 753, Civil Code. 
 
 3. The supersedeas bond required by section 887, Civil Code, 
 provides for the security of the appellee, not only in case of 
 affirmance, but also in case of a reversal, to the extent of the 
 judgment appealed from, when the court of appeals directs a 
 judgment to be rendered in his favor by the inferior court. Hobhs 
 V. King, 3 Met. 249, 250. 
 
 4. A party desiring an appeal to the circuit court, with his 
 surety, signed a bond prepared by the clerk, which was blank, 
 except the style of the court, the name of the parties, and the 
 date. Held : The appellant had a right, on motion, to execute a 
 new bond with the same effect as if originally executed. Adams 
 V. Settles, 2 Duv. 76, 77. 
 
 BOUKDAEY SOVBEEIG-ISTTT AISTD JUEISDICTION OF 
 
 KENTUCKY. 
 
 1. The boundary and jurisdiction of the State of Kentucky 
 extend to low water-mark on the northern or western side of the 
 Ohio river. McPall v. Commonwealth, 2 Met. 396; Fleming v. 
 Kennedy, 4 J. J. Mar. 158. 
 
 2. One authorized by the laws of Ohio to solemnize matrimdny 
 
 7 
 
82 OARKIERS. 
 
 in that State, but having no license or authority to do so undei 
 the laws of Kentucky, who solemnizes matrimony on this side o] 
 low water-mark on the northern or western shore of the Ohic 
 river, is answerable to an indictment found in this State foi 
 unlawfully solemnizing the rights of matrimony. McFall v, 
 Commonwealth, 2 Met. 397. 
 
 CAEEIEES. 
 
 1. In the case of a carrier by water there must be a landing of 
 the goods at the wharf or usual landing-place, with reasonable notice 
 to the consignee. But this rule may be varied by contract, or 
 affected by a well-established, reasonable, and generally known 
 local custom of such age, uniformity of observance, certainty, 
 fixedness of character, a;nd notoriety that a jury would feel clear in 
 saying it was known to the party sought to be affected by it. 
 Huston V. Peters, Hardin & Co., 1 Met. 561, 562. 
 
 2. When the facts conduce to show such a custom, it is error to 
 withdraw them from the jury; but the court should instruct the 
 jury as to the chara,cter of the custom that would be available. 
 Huston V. Peters, Hardin & Co., 1 Met. 562. 
 
 3. Steamboat owners are not responsible to passengers for wearing 
 apparel not delivered to them as baggage but worn about the 
 person of the passenger. Crystal Palace v. Vanderpool, 16 B. 
 Mon. 308. 
 
 4. The owner of a private ferry, who notoriously undertakes, 
 for hire, to convey across the river all persons, indifferently, with 
 their horses and carriages, is liable as a common carrier for prop- 
 erty received for transportation and lost. Hall & Co. v. Renfro, 
 3 Met. 54 ; Robertson v. Kennedy, 2 Dana, 430. 
 
 5. Common carriers are responsible for the goods they under- 
 take to carry, unless the loss or damage is the result of inevitable 
 accident — usually termed the act of God — or is occasioned by the 
 public enemy, or is the result of ordinary deterioration of the 
 goods in transportation, or of an inherent infirmity in the goods. 
 Hall & Co. V. Renfro, 3 Met. 54; Bland v. Adams Express 
 Co., 1 Duv. 233. 
 
 6. The keeper of a public ferry can not limit his liability as a 
 common carrier by a special contract. Hall do Co. v. Renfro, 3 
 
 Met. 55. 
 
 7. Whether a combination of common carriers for the purpose of 
 
CARRIERS. 83 
 
 guarding against the reduction of freights below the standard of 
 due compensation, is unlawful. Quere. Sayre v. Louisville Union 
 Benevolent Association, 1 Duv. 146. 
 
 8. But a combination, not to carry at a less price than that fixed 
 by the association, without reference to the reasonableness of the 
 price fixed, is unlawful. Sayre v. Louisville Union Benevolent 
 Association, 1 Duv. 146, 147. 
 
 9. The keeper of a public ferry is not responsible for the loss 
 of stock being ferried, if the loss resulted from the restiveness or 
 viciousness of the animal lost or of other animals on the boat at 
 the same time belonging to the same owner. Hall & Co. v. Renfro, 
 3. Met. 54, 56. 
 
 10. A common carrier, from whom money was taken by John 
 Morgan's command of Confederate soldiers, is not responsible for 
 the loss. Bland v. Adams Express Go., 1. Duv. 234. 
 
 11. Where a contract of affrightment contains a provision 
 entitling the carriers in the event of their own liability for dam- 
 ages, against which the consignor had obtained insurance, 'to 
 recover the amount from the underwriter, the carrier must pay 
 the damages before he can claim such right. C. H. & D. R. R. Co. 
 V. Spratt, 2 Duv. 6. 
 
 12. In such a case, the consignor may sue either the carrier or 
 underwriter; and a judgment in favor of the carrier against the 
 underwriter, or, vice versa, would not bar the right of the consignor 
 to recover against the carrier. G. H. & L. R. R. Co. v. Spratt, 
 2 Duv. 7. 
 
 13. Where several parties are associated for the transportation 
 of freight from Louisville to New York, executing through bills of 
 lading, and charging through freights, they will each be charge- 
 able as common carriers between those points. G. M. & JO. R. R. 
 Go. V. Spratt, 2 Duv. 7, 8. 
 
 14. Public policy imposes, on common carriers, a constructive 
 liability peculiarly stringent, and they will not be permitted to 
 limit that liability by special con-tracts, unless they are fairly 
 made and fully understood by the other party, and are clearly 
 proved. Adams Express Co. v. Nock, 2 Duv. 564. 
 
 15. Carriers of passengers are not liable to the same extent as 
 carriers of goods: yet public policy, and the interest of the travel- 
 ing community, require that they should be rigidly held to their 
 legal responsibility. L. & P. R. R. Go. v. Smith, 2 Duv. 558. 
 
84 CERTIOKAEI. 
 
 16. Carriers are bound to carry articles within the scope of their 
 business, without any other contract than such as the law would 
 imply. Adams Express Co. v. Nock, 2 Duv. 565. 
 
 CAVEAT EMPTOE. 
 
 See Contracts. 
 
 CEETIOEAEI. 
 
 The court of appeals will, upon their own mere motion, 
 award a certiorari when, from the facts appearing in the record, 
 there is a strong presumption that there has been a mistake in 
 copying the record. Franklin Academy v. Hall, 16 B. Mon. 474. 
 
 CHALLENGES TO FIGHT WITH DEADLY WEAPONS. 
 
 1. There is nothing in article 8, section 20 of the Constitution of 
 Kentucky, indicating an intention to deprive the legislature of 
 the power, which it possessed, without constitutional grant, to 
 punish a person for challenging, in this State, any one, whether a 
 citizen or alien. Moody v. Commonwealth, 4 Met. 2. 
 
 2. The constitutional provision against dueling, applies to every 
 one, whether he be a citizen or not, who gives a challenge to, or 
 accepts one from, a citizen, and such person, though not a citizen, 
 shall be deprived of the right to hold any office of honor or profit 
 in the State ; and leaves the legislature free to prescribe the 
 penalty in all other cases. Moody v. Commonwealth, 4 Met. 3. 
 
 3. It is not competent, on the trial of an indictment for challeng- 
 ihg to fight a duel, to prove by a witness the rules of the code 
 duello. Whether the code itself would be admissible. Quere. 
 Moody V. Commonwealth, 4 Met. 4. 
 
 4. Where papers, charged to have been a challenge, were in the 
 possession of one absent in the army in time of war, it is compe- 
 tent to prove their contents by printed copies, which had been 
 published. Moody v. Commonwealth, 4 Met. 4. 
 
OHAMPEKTY. 85 
 
 CHAMPBETY. 
 
 I. What contracts are champertous. 
 II. Effect of champertous contracts. 
 
 I. WHAT CONTBACTS ARE OHAMPERTOUS. 
 
 1. A contract, by which an attorney is to have a part of the 
 subject of a suit brought by him as compensation for his services, 
 is void. Bavis v. 8harron, 15 B. Mon. 67, 68 ; Miles v. Collins, 1 
 Met. 311 ; Bust v. Larue, 4 Litt. 411. 
 
 2. A sale, by a widow of her right of dower in lands held by the 
 alienee of her husband, will be void, unless he expressly hold 
 subject to her right. Kinsolving v. Pierce, 18 B. Mon. 785. 
 
 3. The common law in reference to champerty, will be presumed 
 to be in force in a sister State, unless the contrary is made to 
 appear. Miles v. Collins, 1 Met. 311, 312. 
 
 4. The champerty act of 1824, applies as well to conveyances, 
 made by tenants in common or coparceners, as to other convey- 
 ances whenever the tenant, in possession at the date of such deed, 
 is holding the land, attempted to be conveyed adversely to the 
 rights of the grantor. Wall v. Wayland, 2 Met. 158 ; Barrett v. 
 Gohurn, 3 Met. 513. 
 
 5. A deed, made by the auditor pursuant to an act of the legis- 
 lature directing the release of the title the State had acquired to 
 land in consequence of the death of the owner without heirs 
 capable of inheriting, is not void, although another, at the date of 
 the deed, may have been in the adverse possession of the land. 
 White V. White, 2 Met. 192, 193. 
 
 6. A possession may be adverse under the act of limitations, 
 which is not adverse under the champerty act. Barrett v. Coburn,, 
 3 Met. 514 ; Bailey v. Deakins, 5 B. Mon. 161, 162 ; Castleman v. 
 Combs, 7 Mon. 273 ; Griffith v. Dickens, 4 Dana, 561. 
 
 7. If, under a judgment and writ of haben facias for one moiety 
 of a tract of land, the possession of the other moiety, which belongs 
 to one then in possession of the whole, be delivered, and the owner 
 of that moiety ousted, and the latter, while thus out of possession, 
 sells and conveys his moiety to a stranger, the conveyance is not 
 within the champerty act, Barrett v. Goburn, 3 Met. 515. 
 
86 CHILDREN. 
 
 II. EFFECT OF CHAMPEKTOtJS CONTRACTS. 
 
 1. No action can be maintained on a covenant of warranty in a 
 deed for land, held adversely to the grantor at the time of the 
 making of the deed. Graves v. Leathers, 17 B. Mon. 668. 
 
 2. But a vendor of land, adversely held, is liable to his vendee 
 for any fraudulent representations in regard to the possession ol 
 the land sold. Graves v. Leathers, 17 B. Mon. 669. 
 
 3. A widow, in possession of land as dower, will be presumed to 
 hold consistently with her title, and a conveyance, by those 
 entitled in remainder, will not be champertous, unless it be 
 openly and notoriously declared to be held adversely to those 
 who have right. Briskell v. Hanks, 18 B. Mon. 864; Fraziew- 
 Naylor, 1 Met. 595. 
 
 CHILDEBN". 
 
 1. The technical, legal import of the word children, accords 
 with its ordinary and popular signification. When used as a 
 description of persons to take under a will, it will only be con- 
 strued to include grand-children : 1. When the will would be 
 Otherwise inoperative ; 2. When the testator has shown, by other 
 words, that he did not use the word in its ordinary and proper 
 meaning, but in a more extended sense. Churchill v. Churchill, 2 
 Met. 466 ; Phillips v. Seal, 9 Dana, 2 ; Yeats v. Gill, 9 B. Mon. 204; 
 12 B. Mon. 115 ; Sheets v. Grubbs, 4 Met. 340, 341. 
 
 2. A devise to the children of the testator's sister, one of whom 
 was dead at the time of the execution of the will, passes nothing to 
 the descendants of such decedent. Sheets v. Grubbs, 4 Met. 340, 341.' 
 
 3. When a divorce is granted, the father has the abstract right 
 to the custody of the children, but the court granting the divorce 
 should confide the care and custody of an infant child to the 
 parent most trustworthy and capable. Adams v. Adams, 1 Duv. 169. 
 • 4. The word "children," in a will held synonomous with 
 "issue," " heirs," or " descendants." Bunlap v. Shreve, 2 Duv. 336. 
 
 5. Whether a devise to "children" as a class, unqualified by 
 the context or by extraneous facts, should now be construed as a 
 devise to " issue," " heirs," or " descendants." Quere. Ihmlap v. 
 Shreve, 2 Duv. 340. 
 
 . 6. A testator gave two-sevenths of a residual fund to "the cMl- 
 dren of his deceased sis ter;" three of the sister's children were 
 
 1 Overruled in Dunlap v. Shreve, 2 Duv. 335. 
 
CHURCHES AND CHURCH PROPERTY. 87 
 
 living, and two were dead at the date of the will. Meld : That the 
 descendants of the deceased children were entitled to the share to 
 which their mother would have been entitled if living. Dunlap v. 
 Shreve, 2 Duv. 335. 
 
 CHUECHBS AND CHUECH PEOPBETY. 
 
 1. If property be deeded to a religions society, without any 
 reference to its connection with other bodies, the majority of that 
 society or church to which it was deeded, are the beneficiaries, 
 and in deciding between two bodies, each claiming to be the 
 church to which the property was conveyed, it is a question, not 
 of identity of individuals, but of organizations. JEEarper v. Straws, 
 14 B. Hon. 51. 
 
 2. If property, held for religious uses, be exchanged for other 
 property, it must be held on the same terms and for the same 
 uses as that originally held. Harper v. Straws, 14 B. Mon. 53. 
 
 3. If a trust for the use of a religious society of the African 
 race, be not unlawful, and presents only a question of property, 
 the relation of whites and blacks in the community can no more 
 authorize the imposing of conditions upon the right, when deter- 
 mined, than they can properly influence the determination itself. 
 Sarper v. Straws, 14 B. Mon. 55. 
 
 4. The question of the identity of the church, to whose use 
 property is dedicated, does not depend on the numbers of the 
 respective parties claiming to be entitled to it, but upon the ques- 
 tion, which is the original organization ? Sarper v. Straws, 14 
 B. Mon. 55, 56. 
 
 5. Those who inaugurate and become members of a new organ- 
 ization, throw themselves out of the old one, and forfeit all identity 
 with it, or interest in its property. Sarper v. Straws, 14 B. 
 Mon. 56. 
 
 6. If property be dedicated for the use of several societies as a 
 place of worship, and a part of them provide another place, and 
 abandon the use of the property dedicated, they will have no right, 
 while they have no necessity to the use of such property, and can 
 not maintain an action for the enforcement of the trust. Baptist 
 Church V. Presbyterian Church, 18 B. Mon. 641. 
 
 7. If one of several churches, having an interest in property 
 dedicated to their common use, receives a conveyance of the legal 
 title, it will be held subject to the uses intended by the dedica- 
 tion. Baptist Church v. Presbyterian Church, 18 B. Mon. 642. 
 
88 ciactriT courts. 
 
 8. But in such a case, if the legal title-holder lease the premises 
 for repairs to be done on the house, the lessee will not be dis- 
 turbed ; provided his lease does not interfere with the use of the 
 house as a place of worship. Baptist Church v. Presbyterian Church, 
 18 B. Mon. 642, 643. 
 
 CIECUIT COUETS. 
 I. Jurisdiction, and powers of. 
 
 A. Original jurisdiction and powers in civil actions and proceedings. 
 
 B. Appellate jurisdiction of. See appeal to the circuit court. 
 
 I. JURISDICTION AND POWERS OF. 
 
 a. Original jurisdiction and powers in civil actions and proceedings. 
 
 1. By article 8, chapter 27, Eevised Statutes, the circuit court has 
 jurisdiction of sums less than fifty dollars. Sams v. Stockton & 
 Curtis, 14 B. Mon. 233.i 
 
 2. Original proceedings in chancery, to set aside or vacate wills 
 that have been admitted to probate, are now only allowed in two 
 classes of cases : 1. To impeach the final decision of the circuit 
 court, aflrming an order of probate upon any grounds that would 
 give jurisdiction to a court of equity over any other judgment at 
 law. 2. In behalf of non-residents, or others interested in the 
 probate, who were not parties to the proceedings by actual ap- 
 pearance or personal service of process. Hughey v. Sidwell, 18 
 B. Mon. 260. 
 
 3. That a petition, seeking to set aside a will of which matter 
 the circuit court had no jurisdiction, sought also the division of 
 the estate, will not confer jurisdiction to set aside the will. 
 Hughey v. Sidwell, 18 B. Mon. 261. 
 
 4. The circuit court has no jurisdiction of an agreed case, un- 
 less it appears by affidavit that the controversy is real and the 
 proceeding in good faith to determine the rights of the parties. 
 Jones V. Hoffman, 18 B. Mon. 657. 
 
 5. The Jeiferson Circuit Court has jurisdiction to award a 
 writ of mandamus against the city council of Louisville. Kay 
 V. Kean, 18 B. Mon. 847. 
 
 6. The circuit court has jurisdiction, by mandamus, to compel a 
 county court to make a levy to pay for abridge built under a con- 
 tract with the county court. Anderson County v. Stone, 18 B. Mon. 
 852, 853 ; sec. 526, Civil Code. 
 
 1 This provision was repealed by sections 18 and ?9, CivU Code. 
 
CIRCtriT COURTS. 89 
 
 7. The circuit court has jurisdiction where the principal and 
 interest of the debt sued for exceed the sum of fifty dollars. Bake- 
 well V. Sowell, 2 Met. 269. 
 
 8. When several notes, amounting in the aggregate to more than 
 fifty dollars, are united in the same paragraph of a petition, the 
 circuit court has jurisdiction. Bakewell v. Howell, 2 Met. 269, 
 270. 
 
 9. The circuit court has no power to set aside a sale of land 
 made under its judgment because of error, apparent in the record, 
 in the judgment under which it was made. Vanhussum v. Moloney, 
 2 Met. 551. 
 
 10. The circuit court has jurisdiction of an action against sev- 
 eral obligors bound in the same contract for separate sums, if they 
 amount in the aggregate to a sum of which the court has juris-, 
 diction. Wilde & Go. v. Haycraft, 2 Duv. 311. 
 
 11. The circuit courts have jurisdiction to determine whether 
 an election has been " free and equal " as required by the consti-. 
 tution. Leeman v, Hinton, 1 Dav. 40. 
 
 12. The circuit court of the county, in which an action is brought, 
 and the defendant served with process, has jurisdiction to sell 
 land lying in another county, and attached in the action. Nixon 
 V. Jack, etc., 16 B. Mon. 180. 
 
 13. A circuit court has no power under the statute, authorizing 
 the extension of the term, to adjourn from April to July so as to 
 retain power over its orders, to set them aside, nor can orders, 
 made at the regular term, be set aside at a called term except as 
 provided by the code, McManama v. Garrett, 3 Met. 518. 
 
 14. The circuit court has no power to make a rule of practice 
 by which all questions, decided by the court during the progress 
 of a trial, are regarded as excepted to without formal exceptions 
 at the time. Kennedy v. Cunningham, 2 Met. 541. 
 
 15. If a will has been destroyed or suppressed, the chancery 
 court of the county of the testator's residence, has jurisdiction to 
 establish it. Barnes v. Edward, 17 B. Mon. 640. 
 
 16. The circuit court has no jurisdiction of an action in equity, 
 in which the plaintiff in an execution issued by a justice, and re- 
 turned " no property," seeks to subject to the satisfaction of his 
 Ijudgment, land, to which the defendant in the execution has the 
 egal title. Weatherford v. Myers, 2 Duv. 91. 
 
90 CITIZEN. 
 
 CITIZEN. 
 
 1. The citizens of every local comnmnity owe public duties to 
 the corporate body of which they are members, and many of these 
 duties have to be performed without compensation. Louisville v. 
 Baird, 15 B. Hon. 267. 
 
 2. A foreigner, who has resided in the State, county, and pre- 
 cinct the length of time required by the constitution, has a right 
 to vote immediately on being naturalized. Dudley v. Morgan, 18 
 B. Mon. 724. 
 
 3. Naturalization is a personal privilege, and the alien wife 
 does not become a citizen by the naturalization of her husband. 
 White V. White, 2 Met. 191. 
 
 4. We have in this country no law by which foreigners may 
 become denizens. The act of Congress provides only for natural- 
 ization, by which aliens become citizens. White v. White, 2 Met. 
 188. 
 
 5. The attempt by force to destroy the union of the States did 
 not essentially change the fundamental relations of the citizens of 
 the revolting States. De jure, they still owed allegiance to the 
 government, and continued to be citizens of the United States. 
 Soskins & Hughes v. Gentry, 2 Duv. 286. 
 
 CLAIM AND DBLIVEEY OF PBESONAL PEOPEETT. 
 
 See Personal Property. 
 
 CLEEKS. 
 
 1. The clerk of a court, in which an action is brought, may, in 
 all cases where the debt sued for is due, make the order for an 
 attachment. If the debt is not due, the order must be made by a 
 court or judge. Scott v. Doneghy, 17 B. Mon. 324. 
 
 2'. It is the duty of the clerk of the circuit court to make out, 
 for an unsuccessful litigant, a copy of the record without pre- 
 viously demanding payment or security for his fee. Collins v. 
 Cleveland, 17 B. Mon. 459. 
 
 3. The clerk of a court, having custody of judgments, executions, 
 
CODE OP PRACTICE. 91 
 
 and replevin bonds, has no authority by law to receive money on 
 them, and payment to him, unless authorized by the party, or 
 specially directed by the court having control of the fund, fur- 
 nishes no protection to the party making it. Durant v. Gabby, 2 
 Met. 91 ; Chinn v. Mitchell, 2 Met. 95. 
 
 4. It is not the official or legal duty of a clerk of the circuit 
 court to receive money deposited or paid into court, and the sure- 
 ties in his official bond are not liable for his failure to pay over 
 money thus received, ffardin v. Carico, 3 Met. 291, 292. 
 
 5. The clerk of a court has no right to issue process on an 
 indictment until so ordered by the court. Shaw v. Commonwealth, 
 1 Duv. 2 ; sec. 141, Criminal Code. 
 
 6. A county clerk does not, after the expiration of his term, 
 hold until his successor is qualified. Leeman v. Hinton, 1 Duv. 
 43 ; Stevens v. Wyatt, 16 B. Mon. 548. 
 
 7. One appointed county court clerk, to fill a vacancy, is en- 
 titled to hold the office until his successor is qualified. Leeman v. 
 •Hinton, 1 Duv. 43, 44; sec. 5, art. 6, chap. 32, Eevised Statutes. 
 
 8. It is the duty of the circuit court clerk to prepare an appeal 
 bond for one desiring to appeal to that court, and if he fails to 
 prej^are a proper bond, the appellant will be allowed to give a 
 new bond without prejudice to hie appeal. Adams v. Settles, 2 
 Duv. 76. 
 
 CODE OP PEACTICB. 
 
 1. The Code makes no change in the law which determines 
 what facts constitute a cause of action. Sill, for use of Winter- 
 smith, V. Barret, 14 B. Mon. 85. 
 
 2. The Code permits, but does not require, an equitable defense 
 to be made to an action upon a legal demand. Dorsey v. Reese, 
 14 B. Mon. 157.1 
 
 3. The Code has not changed pre-existing rules and principles 
 of courts of equity on the subject of bills of review. Bush v. 
 ■Madeira, 14 B. Mon. 213. 
 
 4. The rule of chancery practice, allowing a defendant to seek 
 relief against a co-defendant, has not been changed by the Code. 
 Horine v. Moore, 14 B. Mon. 312. 
 
 5. The Code has made no change in the rule, that if the plain- 
 tiff demurs to the answer, and the petition is bad, it must be so 
 
 1 It is otherwise now. See section 14, Civil Code. 
 
92 C0MMIS8I0NEES. 
 
 adjudged, and whether the answer is sufficient or not need not be 
 adjudged. Martin v. McDonald, 14 B. Mon. 548. 
 
 6. No cross-petition was allowed by the original code. Sanders 
 V. Sanders, 17 B. Mon. 13. 
 
 7. The Code regulates proceedings in all actions brought after 
 it went into effect. Tolly v. Price, 17 B. Mon. 411. 
 
 8. It repeals all laws in force at its adoption, in reference to 
 any matters provided for by the Code, or inconsistent with its 
 provisions. Orth & Wallace v. Glutz, 18 B. Mon. 225. 
 
 9. The jurisdiction of the court of appeals is regulated by the 
 Code. Orth & Wallace v. Glutz, 18 B. Mon. 225. 
 
 10. The Code only repeals such laws as are inconsistent with 
 its provisions, or apply to cases provided for by it. Madison & I. 
 & P. R. B. Co. V. Briscoe, 18 B. Mon. 572. 
 
 11. Section 233, Criminal Code, which declares that "the jury 
 shall be bound to take the decisions of the court on points of law, 
 as the law of the case," is not unconstitutional. Commonwealth v. 
 Van Tuyl, 1 Met. 5. 
 
 12. Proceedings in chancery to contest a will, which were insti- 
 tuted prior to July 1, 1854, are not affected by the Code. Hender- 
 son V. HayneSy 2 Met. 343-346. 
 
 COMMISSIONBES. 
 
 1. Commissioners should be appointed by a county court, on 
 the application of a county court of an adjoining county, to confer 
 with commissioners appointed by that county, respecting the 
 building of a bridge across a stream dividing the two counties. 
 Il^elson County Court v, Washington County Court, 14 B. Mon. 96. 
 
 2. Commissioners authorized to control a fund for building 
 internal improvements, who contract for work, relying on the 
 fund to pay for it, will be individually responsible if the fund 
 be lost, although not by their neglect. Husbands v. Smith, 14 B. 
 Mon. 211. 
 
 3. If the judgment be that the commissioners shall sell so much 
 of a particular piece of land as will bring a stated amount, and 
 the commissioner sells for a substantial excess, the sale will be 
 void. Gathright v. Hazard, 17 B. Mon. 561. 
 
COMPENSATION. 93 
 
 COMMONWEALTH. 
 
 1. The Common-wealth has a right, by suit, to recover, from the 
 winner, money or property, bet on an election. Love v. Harris, 
 18 B. Mon. 125. 
 
 2. Lapse of time can not operate to bar the Commonwealth's 
 right of entry on land never granted by her. Hartley v. Hartley, 
 3 Met. 58 ; Childs v. Calk, 4 Bibb, 554. 
 
 COMMON SCHOOLS. 
 
 1. Two-thirds of all money or property, bet on an election, and 
 recovered by the Commonwealth of the winner, is for the benefit 
 of common schools. Love v. Harris, 18 B. Mon. 125. 
 
 COMPENSATION. 
 
 1. The owner of a slave, convicted by a jury of an offense punish- 
 able with death, will not be entitled to compensation, if, before 
 sentence by the court, he should die by his own hands. Hamilton 
 V. The Auditor, 14 B. Mon. 231. 
 
 2. The compensation, secured by the constitution to the owner 
 of property taken for public use, can not be diminished by any 
 speculative advantage to be derived from its appropriation to 
 public use. H. & N. B. B. Go. v. Lickerson, 17 B. Mon. 177. 
 
 3. The real value of the land taken, to the owner as it is actually 
 situated, is the just compensation to which he is entitled, when it 
 is taken for public use ; and in making that estimate, its real value 
 to him, situated as it is, if he were not the owner of it, but owned 
 the adjacent property on both sides of it, is the criterion of the 
 amount of compensation to which he is entitled. H. & N. B. B. 
 Co. V. Dickerson, 17 B. Mon. 179 ; Bobb v. M. & Mt. S. T. B. Co., 
 3 Met. 120. 
 
 4. Incorporated towns and cities are not liable to the owners 
 of adjacent lots on account of inconvenience, resulting from rais- 
 ing the grade above, or cutting it down below, the adjacent lots. 
 Wolf V. 0. & L. B. B. Co., 15 B. Mon. 408. 
 
94 COMPENSATION. 
 
 5. The owner of land, condemned for a bridge site, is not en- 
 titled to have the injury, resulting to him as the owner of a ferry, 
 the landings of which are on the same tract with the bridge site, 
 estimated as a part of the compensation, to which he is entitled 
 for the land taken, or as incidental damages, resulting from the 
 erection of the bridge. R. &. L. T. Co. v. Rogers, 1 Duv. 141. 
 
 6. The legislature has no power to authorize a railroad company 
 to enter on the lands of a citizen and construct the road, until 
 just compensation has been made. Waller v. Martin, 17 B. Men, 
 191. 
 
 7. The owner of land, condemned for a bridge, is entitled to 
 the value of the land actually taken and compensation for any in- 
 cidental or collateral damage which the taking of it will produce 
 to his other land. R. & L. T. R. Go. v. Rogers, 1 Duv. 141 ; H. & 
 N. R. R. Co. V. Dickerson, 17 B. JVEon. 179. 
 
 8. The owner of land, sought to be condemned for the use of a 
 corporation, is entitled to the ground until the assessment and 
 payment of its value, and its value at the time of the trial is the 
 true measure of the assessment. Arnold v. Cov. & Cin. Bridge Co., 
 1 Duv. 376. 
 
 9. Where property, sought to be condemned for the use of a 
 corporation, had been conveyed to the separate use of a married 
 woman, and was subject to a lien of the vendor, the judgment 
 should have been for payment to her separate use, whenever the 
 vendor should waive his lien. Arnold v. Gov. & Cin. Bridge Co., 1 
 Dav. 376. 
 
 10. Where, in such a case, a deed had been made by a father and 
 placed in the hands of a third person as an escrow, to be delivered 
 on certain conditions, which had not been performed, judgment 
 should have been for payment to the father. Arnold v. Gov. & Cin. 
 Bridge Co., 1 Duv. 377. 
 
 11. If the owner of land, taken for a railroad, claims consequen- 
 tial damages, over and above the value of the land actually taken, 
 the advantages to the residue of the land from the building and 
 use of the road, may be set off against such consequential dam- 
 ages. H. & ]Sr. R. R. Co. V. Dickerson, 17 B. Mon. 180 ; i. &. N. 
 R. R. Co. V. Thompson, 18 B. Mon. 744. 
 
 12. Congress has no right, when authorizing the taking of pri- 
 vate property for public use, to fix, by enactment, the price to be 
 paid; that must be ascertained by proof, and the full value be paid 
 or secured. Hughes v. Todd, 2 Duv. 192. 
 
CONFLICT OF LAWS. 95 
 
 13. The owner of property taken for public use, is not divested 
 of his title until compensation is made or secured, and if that be 
 not done in a reasonable time the owner may resume his posses- 
 sion. Corbin v. Marsh, 2 Duv. 201. 
 
 ^ 14. The right to the service of a hired negro, is the property of 
 the hirer, and the government had no more constitutional right to 
 take that, without compensation, than to take the slave from the 
 master. Hughes v. Todd, 2 Duv. 191. 
 
 COMPEOMISE. 
 
 ' 1. One who enters into a compromise in ignorance, of facts, and 
 receives the compromise money after the facts are known to him, 
 thereby waives any right he might otherwise have had. Bryant 
 V. Proctor, 14 B. Mon. 460. 
 
 2. If it be attempted to sustain an otherwise void deed on the 
 ground that it was given in a compromise, and that from the lapse 
 of time the parties can not be placed in statu quo, it must be shown 
 that something substantial passed from the party, and that no fair 
 compensation has been received therefor under color of the void 
 deed. Alves v. Town of Henderson, 16 B. Mon. 173. 
 
 3. Power given to a trustee, in a deed conveying property for 
 the payment of the grantor's debts, to compromise debts owing by 
 him, does not show the deed to be fraudulent. White v. Monsarrat, 
 18 B. Mon. 814. 
 
 COMPUTATION OP TIME. 
 See Time. 
 
 COlSTPISCATIOlSr. 
 
 See FORFEITUKE. 
 
 CONFLICT OP LAWS. 
 
 1. A contract, made in another State, the effect of which might 
 •have been determined by the laws of that State, if they had been 
 
96 CONFLICT OP LAWS. 
 
 shown, will, if they be not shown, be determined by the laws of 
 this State. Forepaugh v. Appold, 17 B. Mon. 630. 
 
 2. The limitation laws of the State where the remedy is sought, 
 and not those of the State where the party resides, must govern. 
 Bennett v. Devlin, 17 B. Mon. 358. # 
 
 3. The liability of an indorser of a mercantile paper, is to he 
 tested by the law of the place where the indorsement is made. 
 Finer v. Clary, 17 B. Mon. 661, 662. 
 
 4. The rights and liabilities of the parties to a bill of exchange, 
 accepted in one place and payable in another, are to be determined 
 by the law of the place where it is payable. Kelly v. Smith, 1 
 Met. 317. 
 
 5. No action can be maintained in this State against the admin- 
 istrator of a non-resident decedent, who qualified in, and still re- 
 sides in, another State, by a creditor of the intestate. Baker v. 
 Smith, 3 Met. 265. 
 
 6. The law of the matrimonial domicil, is the rule which deter- 
 mines the rights of both husband and wife in regard to movables^ 
 slaves included — owned by either at the time of the marriage. 
 Towns V. Durbin, 3 Met. 357 ; Beard v. Basey, 7 B. Mon. 148. 
 
 7. The husband and wife were residents of Kentucky, and mar- 
 ried there in 1852, the wife owning slaves at the time. They sub- 
 sequently moved to Missouri, and then to Illinois, where the wife 
 died childless, and shortly afterward the husband died at the same 
 place. One of the slaves was at the time in Kentucky, and was 
 claimed by the distributees of both husband and wife, and it was 
 held that their rights must be determined by the laws of Kentucky, 
 and not by the laws of Illinois, and that the distributees of the 
 wife were entitled to the slaves. Towns v. Durbin, 3 Met. 358. 
 
 8. In the absence of averment that a deed was made in another 
 State, and proof of what the laws of such State is on the subject, 
 the validity of the deed must be tested by the laws of this State. 
 Surdt V. Courtney, 4 Met. 142 ; Surlott v. Pratt, 3 A. K. Mar. 174. 
 
 9. An agreement to perform an act at a particular place is 
 presumed to be made with reference to the law of that place ; and 
 an agreement to perform an act without designating the place of 
 performance, is presumed to have been made with reference to the 
 law of the place at which the agreement was made ; and these 
 presumptions are conclusive. Short v. Trabue, 4 Met. 301. 
 
 10. The indorsement of a note in Kentucky, payable in Lousi* 
 
CONSTABLE. 97 
 
 ana, renders the indorsor liable according to the law of Kentucky. 
 Short Y. Trabue, 4 Met. 301. 
 
 11. In order to obtain here the benefit of the law of the State 
 where a contract was made, it is necessary both to allege and 
 ■prove what the law of that State is. Stern v. Freeman, 4 Met. 311. 
 
 12. A law of Ohio authorizing a personal judgment against a 
 defendant upon whom process had been served by leaving a eoj)y 
 at his dwelling, when he had absented himself to avoid service of 
 process, can not be held invalid here as between citizens of that 
 State. Biesenthall v. Williams, 1 Duv. 331. 
 
 13. The jurisdiction of foreign courts being established, the 
 
 judgment must be received as prima facie evidence, at least, that 
 
 all its mandates were in accordance with the law and binding 
 
 on the parties, until legally impeached or reversed. Biesenthall v. 
 
 Williams, 1 Duv. 331. 
 
 14. When the laws of a State conflict with a treaty made by the 
 United States, the former must give way. Yeaker v. Yeaker, 4 
 Met. 39; sec. 2, art. 6, Constitution United States. 
 
 15. If a treaty made by the United States is inconsistent with a 
 State law, and gives rights which the latter denies, and limits the 
 time within which they may be asserted, the laws of the State are 
 only suspended so long as, under the treaty, the right is enforcible ; 
 and, at the end of that time, they are revived and the right will 
 be lost. Yeaker v. Yeaker, 4 Met. 39. 
 
 16. The Congress of the United States has power to prescribe 
 the qualifications and mode of appointing pilots on the Ohio river 
 and any State regulation in conflict with the regulations estab- 
 lished by Congress, is inoperative and void. Dryden v. Common- 
 wealth, 16 B. Mon. 602. 
 
 COKSIDBEATION. 
 
 See Contracts. 
 
 CONSTABLE. 
 
 1. The appointment of one, as constable, who does not reside in 
 the district for which he is appointed, is void. Commonwealth for 
 Harris v. Teal, 14 B. Mon. 30. 
 8 
 
&8 CONSTABLE. 
 
 2. But though the appointment be void, and the bond executed 
 by the constable not good as a statutory bond, yet it is good as a 
 common law bond, and his sureties will be answerable on it as 
 such. Commonwealth for Harris v. Teal, 14 B. Mon. 30. 
 
 3. A constable is not liable for a failure to return uncollected fee 
 bills to the party listing them, until the expiration of six months 
 from the time they were listed, and, not then, unless their return 
 be demanded and refused. Walters v. Chinn, 1 Met. 503. 
 
 4. The mere fact that the plaintiif, in execution, consented 
 without consideration to allow a constable to retain money col- 
 lected on an execution, will not justify the constable's failure to 
 return the execution, as required by law, nor exonerate him from 
 the penalty imposed by statute for his failure. Judy v. Howard, 
 2 Met. 45. 
 
 5. The law provides two distinct penalties against constables for 
 failing to return executions by the return day thereof, in addition 
 to rendering him liable for the amount of the execution. One of 
 ten per cent, for a failure to return in ten days, and one of thirty 
 per cent, for a failure to return in thirty days after the return day. 
 Judy V. Howard, 2 Met. 46. 
 
 6. If notice of a motion against a constable and his sureties for 
 failing to return an execution, fails to show how long the constable 
 retained the execution after the return day, or what amount 
 of damage the plaintiff claims, he will only be entitled to recover 
 the smallest amount given by law, although the proof may show 
 him entitled to the largest. Judy v. Howard, 2 Met. 46. ' 
 
 7. The statutes imposing penalties on officers for a failure to 
 return executions by the return day thereof, are highly penal, 
 and in their enforcement courts will hold parties to a strict ob- 
 servance of their requisitions. Judy v. Howard, 2 Met. 46. 
 
 8. A constable who arrests a slave on a warrant, for a public 
 offense, is bound to exercise reasonable diligence to prevent his 
 escape ; and if he fail to exercise such diligence, and the slave 
 escapes, and is lost to the owner, he and his sureties will be liable 
 on his official bond. Tudor v. Zewis, 3 Met. 382, 383 ; Conover v. 
 Commonwealth, 2 Mar. 567 ; Owens v. Qatewood, 4 Bibb, 494. 
 
 9. Before any action can be maintained against a sheriff, con- 
 stable, etc., for money collected by them, a demand must be made, 
 whether the plaintiff resides in the same county with such officer 
 or not. Huston v. Hagar, 1 Duv. 25, 26. 
 
CONSTITUTIONAL LAW. 99 
 
 CONSTITUTIOlSrAL LAW. 
 
 I. General principles. 
 II. Of the title of acts necessary to their validity. 
 
 III. Laws impairing the obligations of contract. 
 
 IV. Ex posi facto and retrospective laws. 
 
 V. Laws to take private property for public use. 
 VI. Laws affecting the right of trial by jury. 
 VII. Laws imposing taxes. 
 VIII. Laws and other matters affecting elections. 
 IX. Laws impairing rights of corporations. 
 X. Other laws. 
 
 I. GENERAL PRINCIPLES. 
 
 1. That the constitution requires the legislature to pass certain 
 laws on the subject of emancipation, different from those in force 
 when the constitution was adopted, did not, of itself, repeal the 
 laws thus directed to be altered. Jackson v. Collins, 16 B. Men. 
 218. 
 
 2. A county court clerk has no right, when an election has been 
 held, and the successful candidate decided to be ineligible, to hold 
 on to the office until a successor is elected and qualified. Stevens 
 V. Wyatt, 16 B. Mon. 548. 
 
 3. The Congress of the United States has power to prescribe 
 the qualifications and mode of appointing pilots on the Ohio 
 river, and any State regulation in conflict with that established 
 by Congress is void. Dryden v. Commonwealth, 16 B. Mon. 603, 
 604. 
 
 4. In a matter of doubtful construction of a statute, the court 
 will give it that construction which is in harmony with the con- 
 stitution. Waller v. Martin, 17 B. Mon. 191. 
 
 5. Whether the legislature has power to authorize land in a 
 town or city, which has been dedicated to the public for streets 
 and alleys, to be sold. Quere. Covington v. McNickle, 18 B. Mon 
 285. 
 
 6. The governor has power, before judgment, to remit a for- 
 feited recognizance, except costs and fees. Commonwealth v 
 Spraggins, 18 B. Mon. 514. 
 
 7. Section 94, Criminal Code, which allows the court to remit 
 at its discretion, a part or all of a forfeited recognizance, confers 
 only a judicial discretion, and is not unconstitutional, Common- 
 
100 CONSTITUTIONAL LAW. 
 
 wealth V. Thornton, 1 Met. 382, 383 ; Gommonwealth v. Rowland, 4 
 Met. 226. 
 
 8. An act, which allows the recovery of punitive damages for 
 willful and negligent killing of a human being, is not in viola- 
 tion of the constitutional prohibition against punishing a party 
 twice for the same offense. Chiles v. Drake, 2 Met. 151. 
 
 9. Article 5 of the amendments to the Constitution of the United 
 States, which provides that "no person shall be held to answer 
 for a capital or otherwise infamous crime, unless on the present- 
 ment or indictment of a grand jury," has no application to pros- 
 ecutions in the State courts. Jane v. Gommonwealth, 3 Met. 22. 
 
 10. Whether an act, clothing judicial ofScers with certain minor 
 fanctions that are in their nature strictly executive, is unconstitu- 
 tional. Quere. Speed & Worthington v. Crawford, 3 Met. 214. 
 
 11. Section 9, article 2, chapter 91,Eevised Statutes, authorizing 
 county courts to suspend jailors, is unconstitutional. I/owe v. 
 Gommonwealth, 3 Met. 241 ; sec. 20, art. 4, Constitution of Ken- 
 tucky. 
 
 12. Section 36, article 4, of the constitution, of itself, and with- 
 out legislation, authorizes an indictment against any of the offlcers 
 named therein, for the oflfenses mentioned, and a conviction and 
 judgment vacating the offender's office. Ziowe v. Gommonwealth, 3 
 Met. 240. 
 
 13. The act of May 20, 1861, to suspend the circuit and other 
 courts of the State, and for other purposes, is not unconstitutional. 
 Johnson v. Higgins, 3 Met. 569, 570 ; JBarkley v. Glover, 4 Met. 
 45, 46. 
 
 14. Section 15, article 13, of the State Constitution, does not 
 apply to the legislative department of the government, but to the 
 judicial. Johnson y. Siggins, 5 Met. 569, 570; Barkley n. Q-lover, 
 4 Met. 45, 46. 
 
 15. There is nothing in section 20, article 8, of the constitution 
 of this State, indicating an intention to deprive the legislature of 
 the power which it possessed, without constitutional grant, to 
 punish a person for challenging in this State any one, whether a 
 citizen or alien. Moody v. Gommonwealth, 4 Met. 2. 
 
 16. The constitutional provision against dueling applies to 
 every person, whether citizen or not, who challenges or accepts a 
 challenge from a citizen ; and such person, though not a citizen, 
 shall be deprived of the right to hold any office of honor or profit 
 in the State, and the constitution leaves the legislature free t9 
 
CONSTITUTIONAL LAW. 10! 
 
 prescribe the penalty in all other eases. Moody v. Commonwealth 
 4 Met. 3. 
 
 17. "When the laws of a State conflict with a treaty made b; 
 the United States, the former must give way. Yeaker v. Yeaket 
 4 Met. 39; sec. 1, art. 6, Constitution United States. 
 
 18. When a State law is deemed unconstitutional, becaus 
 opposed to the constitution, laws, or treaties of the United Statej 
 it is only void so far as it contravenes the constitution, law, o 
 treaty. Yeaker v. Yeaker, 4 Met. 39. 
 
 19. That clause of the constitution, which authorizes Congres 
 " to delare war, grant letters of marque and reprisal, and mak 
 rules and regulations concerning captures on land and water, 
 has no application to the capture of property on land in a civi 
 war. Norris v. Doniphan, 4 Met. 390, 391. 
 
 20. The authority to make war for the suppression of rebellior 
 is derived from those clauses of the constitution, which declar 
 that "the President shall take care that the laws be faithfuU; 
 executed," and that Congress shall have power "to provide fo 
 calling forth the militia to execute the laws of the Union, suppres 
 insurrection, and repel invasion." Norris v. Doniphan, 4 Met. 395 
 393. 
 
 21. The act of Congress, approved July 17, 1862, entitled " ai 
 act to suppress insurrection, to punish treason and rebellion, t 
 seize and confiscate the property of rebels, and for other purposes, 
 is unconstitutional, so far as it authorizes the confiscation of th 
 property of citizens as j)unishment for treason and other crimef 
 by a proceeding in rem without presentment or indictment, an^ 
 without arrest or summons of the owner. Norris v. Doniphan, 
 Met. 400, 401. 
 
 22. The act of the general assembly, approved March It 
 1862, authorizing proceedings against ofScers of the so-called pre 
 visional government of Kentucky, is not unconstitutional in sub 
 stituting constructive for actual service, and allowing persona 
 judgment on such constructive service. Burnam v. Commonwealtl 
 1 Duv. 211. 
 
 23. The distinctive difference between the question, whether a] 
 act of Congress is in violation of the Federal Constitution, am 
 whether an act of the State Legislature is in conflict with the Stat 
 Constitution, is, that in the former case, the power to enact th 
 law in question must be shown to have been delegated ; in th 
 latter, it must be shown that its passage is prohibited. Griswold^ 
 Sephurn, 2 Duv. 24. 
 
102 CONSTITUTIONAL LAW. 
 
 24. Express power to attain a designated end or fulfill a specific 
 trust, necessarily implies the subsidiary power to employ the 
 means necessary for effectuating the contemplated end, excepting 
 only so far as a particular mean may be inconsistent with the 
 charter of authority. Griswold v. Hepburn, 2 Duv. 24. 
 
 25. The declaration that Congress shall have power "to make 
 all laws which shall be necessary and proper for carrying into 
 execution the foregoing powers," neither enlarges nor contracts the 
 specific powers expressly granted, but only certifies and defines 
 the natural and necessary sphere of implied powers which are as 
 much delegated as the express power to which they are subser- 
 ■^ient, as means to ends. Griswold v. Hepburn, 2 Duv. 24, 25. 
 
 26. The word "necessary" is not equivalent to "indispensable," 
 but all means relating to the end of any express power, and con- 
 ducive to the execution of it, are, in the constitutional sense, 
 "necessary means." Griswold v. Hepburn, 2 Duv. 25. 
 
 27. The power given by the Federal Constitution to Congress, 
 to borrow money, was legally exercised by the issue of treasury 
 notes. Griswold v. Hepburn, 2 Duv. 39. 
 
 28. The true test of implied power is whether a preferred mean 
 is adapted to the end of an express power, and is also unprohib- 
 ited, or, in other words, is congenial with the spirit and purpose 
 of the constitution. Griswold v. Hepburn, 2 Duv. 26. 
 
 29. The words of a particular clause of the old constitution 
 having received a well-known construction, and being literally 
 transferred to the new constitution, the construction given them 
 will be presumed to have been adopted by the convention. Com- 
 monwealth V. Bush, 2 Duv. 265, 266. 
 
 30. The Constitution of the United States is the supreme law of 
 the land, at all times and under all circumstances, over the citi- 
 zens, the States, and the national government in all its depart- 
 ments and operations, military as well as civil, in war and in 
 peace. Corbin v. Marsh, 2 Duv. 193, 194. 
 
 31. The rule of evidence, admitting the dying declaration of a 
 murdered man as evidence in a prosecution for homicide, is not in 
 conflict with the constitutional provision, that the accused shall 
 have a right to confront the witnesses testifying against him. 
 Wal^ton V. Commonwealth, 16 B. Mon. 35. 
 
 32. The power of congress to regulate commerce between the 
 States, does not, in the absence of any exercise of the power to 
 regulate the ferrying of persons across the Ohio, deprive the States 
 of the power to regulate it. Newport v. Taylor, 16 B. Mon. 798, 799. 
 
CONSTITUTIONAL LAW. 
 
 II. OF THE TITLE OF ACTS NECESSARY TO THEIR VALIDITY. 
 
 1. An act entitled, "An act for the redress of injuries arisi 
 from the neglect or misconduct of railroad companies and other 
 and which provides that if any person is lost or destroyed by 1 
 willfiil neglect of another, the personal representative of 1 
 deceased shall have a right to sue and recover punitive damag 
 is not in conflict with section 37, article 2, of the State Cons 
 tution. Chiles v. Drake, 2 Met. 150. 
 
 2. E"one of the provisions of a statute should be construed as 
 conflict with section 37, article 2, of the Constitution, whi 
 declares that "no law, enacted by the general assembly, sh 
 relate to more than one subject, and that shall be expressed in 1 
 title," where they all relate directly or indirectly to the same si 
 ject, have a natural connection, and are not foreign to the subj 
 expressed in the title. Phillips v. Gov. & Cin. Bridge Co., 2 M 
 222; L. & 0. T. Co. V. Ballard, 2 Met. 168, 169; ChUes v. Bra 
 2 Met. 150 ; Johnson v. Higgins, 3 Met. 569. 
 
 3. An act entitled, "An act for the benefit of the Louisville a 
 Oldham Turnpike Company," which authorized the company 
 borrow money," execute mortgages, or to sell the road and apj 
 the proceeds to the payment of debts, and also authorizes 1 
 chancellor, on the application of creditors, to decree a sale of 1 
 road, and substituting the purchaser to the rights and powers 
 the company, is not in conflict with section 37, article 2, of 1 
 constitution. L. & O. T. Co. v. Ballard, 2 Met. 168, 169. 
 
 4. The act of 1858 entitled, "An act to amend the second s 
 tion of article 63, Eevised Statutes, title, Limitations 
 Actions and Suits " (2 Eevised Statutes, 135), is in conflict w' 
 section 37, article 2, of the constitution, so far as it attempts 
 prescribe a limitation to any actions other than actions for r^ 
 property. Chiles ds Thomas v. Monroe, 4 Met. 75. 
 
 5. The act "To amend an act to establish a levy and cour 
 court for Jefferson County" (acts 1863, 1864, p. 23), is not uncc 
 stitutional. Wilson v. City of Louisville, 2 Duv. 499. 
 
 6. Third section of "An act to prevent the selling and using 
 certain weapons," approved March 10, 1856, 2 Eevised Statut 
 509, is unconstitutional because the act includes two different si 
 jects, and the subject of the third section is not embraced in \ 
 the title. O'Donoghue v. Akin, 2 Duv. 478, 479. 
 
4 CONSTITUTIONAL LAW. 
 
 III. LAWS IMPAIUING THE OBLIGATION OF OONTEAOTS. 
 
 1. The legislature has no power to revoke the dedication of land 
 public use, as for streets, alleys, wharfs, etc. Alves v. Town of 
 enderson, 16 B. Mon. 170. 
 
 2. If a lien, existing in favor of the State, be waived by it in 
 ?^or of such person as might acquire a lien by a subsequent mort- 
 ,ge, and the legislature afterward repeals the act by which the 
 in was waived, it will be inoperative as against those acquiring 
 lien, while the waiver was in force. Sinking Fund Gomfs. v. 
 orthern Bank Ky., 1 Met. 188. 
 
 3. Marriage, though in some respects a contract, is not within 
 e constitutional interdiction of legislative acts, impairing the 
 iligation of contracts. Cabell v. Gahell, 1 Met. 326; McGruirev. 
 '^cGruire, 7 Dana, 184; Berthelenny v. Johnson, 3 B. Mon. 90. 
 
 4. The legislature has no power to authorize a deduction from 
 e salary of a circuit judge during the period for which he was 
 Bcted, except for a neglect of duty. Garrard v. Nutall, 2 Met. 
 7 ; Adams v. The Auditor, 13 B. Mon. 150. 
 
 5. An act authorizing a court of equity to decree a sale of the 
 ■operty and franchises of a turnpike road company, for the pay- 
 ent of its debts, upon application by a creditor, does not impair 
 e obligation of the contract by which the company was incor- 
 )rated, and is not unconstitutional. L. & 0. T. Go. v. Ballard, 
 Met. 168, 169. 
 
 6. An act suspending the power of the coui-ts to render judg- 
 ent on debts from May 24, 1861, until January 1, 1862, is not 
 leonstitutional as impairing the obligations of contracts. Johnson 
 
 Higgins, 3 Met. 572-575 ; Barkley v. Glover, 4 Met. 46, 46. 
 
 7. The legal obligation of a contract consists in the remedy given 
 T law to enforce its performance or to make compensation for the 
 ilure to perform it, and consequently any attempt, by the legis- 
 ture so to change the remedy as to impair the obligation of the 
 intract, is prohibited by the Constitution of the United States. 
 erry & Johnston v. Ransdall, 4 Met. 294 ; Blair v. Williams, 4 Litt. 
 t; Lapsley v. Brashears & Barr, 4 Litt. 47. 
 
 8. Whatever belongs merely to the remedy, may be altered 
 jcording to the will of the State, provided the alteration does not 
 apair the obligation of the contract, but if that effect is produced, 
 is immaterial, whether it is done by acting on the remedy, or on 
 le contract itself; in either case, it is prohibited by the constitu- 
 on. Berry & Johnson v. Mansdall, 4 Met. 294. 
 
CONSTITUTIONAL LAW. 10 
 
 9. The act, approved March 15, 1862, entitled " An act to am.en( 
 chapter 63, Eevised Statutes, entitled Limitation of Actions" an 
 which applies the' statute of limitations, contained in the Eevisei 
 Statutes to all cases whether the right of action accrued before, o 
 after, the Eevised Statutes took effect, and only allows thirty day 
 after the passage of the act before it went into effect, does no 
 allow a reasonable time within which to sue, and is unconstiti] 
 tional. Berry & Johnson v. Bansdall, 3 Met. 294-296 ; 7 B. Moi 
 168 ; 5 B. Mon. 564. 
 
 10. The acts of 1861 and 1862, authorizing the confirmation c 
 defective sales of infant's real estate, do not operate to impair th 
 obligation of contracts, or to divest vested rights, and are consti 
 tutional. Thornton v. McG-rath, 1 Duv. 354, 355. 
 
 11. To make treasury notes a legal tender in satisfaction of 
 contract for money, deriving its obligation from State laws, uncon 
 stitutionally impairs the obligation of the contract. Griswold ^ 
 Hepburn, 2 Duv. 43. 
 
 12. The law under the sanction and faith of which a contract i 
 made and to be performed defines its obligation, and any legisls 
 tive act that makes the right less valuable and available, impair 
 the obligation of the contract. Griswold v. Hepburn^ 2 Duv. 44. 
 
 13. Congress has no power to pass laws impairing the obligatio: 
 of contracts, beyond that expressly granted over bankruptcji 
 Griswold V. Sepburn, 2 Duv. 45. 
 
 14. An office established and held for the public good is not 
 contract, nor is its tenure secured by any binding contract; an 
 offices created by legislative enactments may by changed o 
 abolished by the legislature. Stan^eford v. Wingate, 2 Duv. 443. 
 
 IV. EX POST FACTO AND RETROACTIVE LAWS. 
 
 1. An act of the legislature, giving an appeal from an assess 
 ment of damages for land taken for public use, passed after th 
 assessment was made, is not unconstitutional ; although at the tim 
 judgment was rendered no appeal was allowed. S. & N. B. L 
 
 Go.Y. Dickerson, 17 B. Mon. 176, 177. 
 
 2. An act of limitation applying to causes of action accrue( 
 before its passage, and which does not allow a reasonable tim 
 afterward within which to sue, is unconstitutional. Berry & John 
 son V. Bansdall, 4 Met. 294. 
 
 3. Eetroactive statutes are not, merely as such, unconstitutiona] 
 Thornton v. McGrath, 1 Duv, 354, 355. 
 
106 CONSTITUTIONAL LAW. 
 
 4. The acts of 1861 and 1862, authorizing the confirmation of 
 defective sales of infant's real estate, are not unconstitutional. 
 Thornton v. McGrath, 1 Duv. 354, 355. 
 
 5. The provisions of the Criminal Code allowing the Common- 
 wealth five peremptory challenges to jurors in criminal prosecu- 
 tions, commenced before the adoption of the Code, is not unconstitu- 
 tional. Walston V. Commonwealth, 16 B. Mon. 40-42. 
 
 6. A law giving a right of action to a widow, to recover 
 damages against one who had killed her husband before the 
 passage of the act, partakes of the nature of an ex post facto law. 
 O'Donoghue v. Akin, 2 Duv. 479, 480. 
 
 V. LAWS TO TAKE PRIVATE PROPERTT FOR PUBLIC USE. 
 
 1. The extension of the boundaries of a city, by the legislature, 
 for the purpose of enabling the city to tax the lands thus brought 
 Within its limits, is a taking of private property for public use 
 without compensation. Covington v. Southgate, 15 B. Mon. 498; 
 Cypress Pond Braining Co. v. Hooper, 2 Met. 355. 
 
 2. The compensation, secured by the constitution to the owner 
 of property, taken for public use, can not be diminished by any 
 speculative advantage to be derived from its appropriation to 
 public use. H. & N. B. R. Co. v. Dickerson, 17 B. Mon. 177. 
 
 3. The legislature has no power to authorize a railroad company 
 to enter on the lands of a citizen and construct their road, until 
 compensation has been made. Waller v. Martin, 17 B. Mon. 
 191. 
 
 4. The legislature has power to authorize the Covington & Cin- 
 cinnati Bridge Company, though it is a private corporation, to 
 take, under proper restrictions, private property for its use. 
 Arnold v. Cov. & Gin. Bridge Co., 1 Duv. 374. 
 
 5. Congress has no right, when authorizing the taking of private 
 property for public use, to fix, by enactment, the price to be paid ; 
 that must be ascertained by proof, and the full value must be 
 paid. Hughes v. Todd, 2 Duv. 191, 192. 
 
 6. The act of Congress, authorizing the taking of slaves for the 
 public use, by enlisting or drafting them into the army, without 
 compensation, is unconstitutional. Hughes v. Todd, 2 Duv. 190. 
 
 7. No statute will be construed as intended to be retrospective, 
 unless such an interpretation shall be inevitable. O'Donoghue v. 
 Akin, 2 Duv. 480. 
 
CONSTITrTIONAL LAW. 107 
 
 8. The act of Congress declaring free, the wives and children of 
 slaves volunteering in the army of the United States, is unconsti- 
 tutional. Marsh v. Corbin, 2 Duv. 196, 197. 
 
 9. The United States has no belligerent right to take the 
 private property, of loyal owners, for public use without compen- 
 sation. CorUn V. Marsh, 2. Duv. 196. 
 
 VI. LAWS AFrECTING THE BIGHT OP TRIAL BY JURY. 
 
 1. The provision of the Criminal Code, allowing the Common- 
 wealth five peremptory challenges to jurors in criminal prosecu- 
 tions, commenced before the adoption of the Code, is not unconsti- 
 tutional. Walston V. Commonwealth, 16 B. Mon. 40^2. 
 
 2. Section 233, Criminal Code, which declares that in criminal 
 cases "the jury shall be bound to take the decisions of the court, 
 on points of law, as the law of the case," is not unconstitutional. 
 Commonwealth v. Van Tuyl, 1 Met. 5. 
 
 VII. LAWS IMPOSING TAXES. 
 
 1. The legislature may confer on a city the right to tax the 
 sale of lottery tickets within the limits of such city; although the 
 right to sell such tickets be given by the legislature ; unless a 
 bonus was paid for the privilege. Wendover v. Lexington, 15 B. 
 Mon. 264. 
 
 2. An act, procured to be passed by the city of Covington, 
 extending the limits of the city to include lands, not needed for 
 city purposes, for the purpose of enabling it to tax such lands for 
 the benefit of the city, is unconstitutional. Covington \. Southgate, 
 15 B. Mon. 498; Cypress Pond Braining Co. v. Hooper, 2 Met. 
 855. 
 
 3. An act, extending the limits of a town so as to include lands 
 and subject them to taxation for town purposes, will not be un- 
 constitutional, as taking private property for public use without 
 compensation, unless it be manifest that the burden is imposed 
 without any view to the interest of the owner of the lands and 
 merely to increase the town revenue. Sharp v. Donovan, 17 B. 
 Mon. 228. 
 
 4. When a town is extended by improvement, so as to give those 
 living adjacent to the original boundary all the advantages enjoyed 
 by the citizens of the town, the legislature has power to extend 
 the town boundary so as to include and subject them to taxation 
 for town purposes ; and whether the boundary, thus fixed, is just 
 ;where it should be, or where necessity requires it to be, is not a 
 
108 CONSTITUTIONAL LAW. 
 
 question for judicial inquiry or scrutiny. Sharp v. Donovan, 17 
 B. Mon. 231 ; Maltus v. Shields, 2 Met. 557. 
 
 5. An act, creating a corporation with power to levy a tax on 
 all the land within a designated boundary, for the purpose of 
 draining ponds and creeks by which much of the land is inundated 
 and rendered of little value, which would be greatly increased in 
 value by being drained, but which includes within the boundary a 
 large amount of land which does not require draining and would 
 not be benefited by draining the other land, will, as to those 
 within the boundary not consenting, be unconstitutional. Cypress 
 Pond Draining Co. v. Hooper, 2 Met. 354, 355 ; art. 13, sec; 14, 
 Constitution of Kentucky. 
 
 VIII. LAWS AND OTHER MATTERS AFFECTING ELECTIONS. 
 
 1. A marshal of a town or city is ineligible, after serving two 
 terms, to a third term, in the same manner as a sheriff. Hall v. 
 Hostetter, 17 B. Mon. 785, 786. 
 
 2. A foreigner, who has resided in the State, county, and pre- 
 cinct the length of time required by the constitution, has a right 
 to vote immediately on being naturalized. Morgan v. Dudley, 18 
 B.Mon. 724,725. 
 
 3. Section 41, article 4, of the State Constitution was intended 
 to relate only to such police courts as had been established prior 
 to the adoption of the present constitution, and it determines 
 definitely and certainly, the time and manner of electing the 
 judge, clerk, and marshal of such courts. Trustees of Owensboro v. 
 
 Webb, 2 Met. 578. 
 
 4. The legislature has no power to alter in any respect either 
 the time or manner of electing a town marshal for a town, the 
 police court of which was established before the adoption of the 
 present constitution. Trustees of Owensboro v. Webb, 2 Met. 579 ; 
 sec. 41, art. 4, Constitution of Kentucky. 
 
 5. An act, providing for the appointment by the governor, or 
 other person, of an officer for a town or city incorporated before 
 the adoption of the present constitution, is unconstitutional. 
 Speed & Worthington v. Crawford, 3 Met. 212. 
 
 6. An act, creating an office, but failing to designate the period 
 for which one, appointed or elected, shall hold the office, is uncon- 
 stitutional. Speed & Worthington v. Crawford, 3 Met. 213. 
 
 7. Under the law in force when the mayor and city attorney of 
 L. were elected, they were entitled to hold their respective offices 
 for two years. After they were elected, the legislature, by act, 
 
CONSTITTTTIONAL LAW< 109 
 
 reduced the term to one year and provided for the election of 
 successors. Seld: The law is constitutional. Btandeford v. 
 Wingate, 2 Duv. 440-442. 
 
 IX. LAWS IMPAIRING THE RIGHTS OP CORPORATIONS. 
 
 1. When the privilege of selling lottery tickets is given, by act 
 of the legislature, without a bonus, an act allowing a city, within 
 whose limits such tickets are sold, a right to tax the sale, is not 
 unconstitutional. Wendover v. Lexington, 15 B. Mon. 262. 
 
 2. A reservation by the legislature, in an act creating a private 
 corporation, of the right to alter, amend, or repeal the charter, 
 gives no right to add to the original number of trustees men of its 
 own selection, without the assent of the original trustees or their 
 successors. Sage v. Dillard, 15 B. Mon. 356-358. 
 
 3. A corporation, created no^or purposes or as an instrument 
 of government, though created lor purposes of public and general 
 concern, is not a public corporation, and its charter is within the 
 protection of the State and Federal Constitutions, and can not be 
 repealed, or the rights or franchises of the corporation changed, 
 by the legislature. Jjouisville v. Louisville University, 15 B. Mon. 
 674, 675 ; Gregory v. Trustees of Shelby College, 2 Met. 597, 598. 
 
 4. An act of the legislature, authorizing a court of equity to 
 decree a sale of the property and franchises of a turnpike road 
 company for the payment of its debts, upon the application of a 
 creditor, does not impair the chartered rights of the corporation, 
 and is not unconstitutional. L. & 0. T. Go. v. Ballard, 2 Met. 
 168, 169. 
 
 5. Section 3 of the act approved March 10, 1854, entitled "An 
 act for the redress of grievances arising from neglect or miscon- 
 duct of railroad companies and others," 2 Eevised Statutes, 510, 
 giving to the personal representative of one killed by the willful 
 neglect of any person or corporation, a right of action for such 
 killing, is not unconstitutional as impairing the chartered rights 
 of a corporation created before the law was enacted. Board Int. 
 Imp. Shelby County v. Scearee, 2 Duv. 577. 
 
 X. OTHER LAWS. 
 
 1. The act of the legislature, prohibiting certain courts in 
 Jefferson county from receiving attorneys-at-law as bail, is not 
 unconstitutional. Johnson v. Commonwealth, 2 Duv. 411. 
 
110 CONSTRUCTION OF STATUTES. 
 
 CONSTEUCTIOlSr OP STATUTES. 
 
 1. If the provisions of a statute are clear and iinambiguous, 
 evil consequences that may result from it must be remedied by 
 legislative, and not by judicial action. Bosley v. Mattingly, 14 B. 
 Mon. 90. 
 
 2. If there is an inconsistency between two statutes passed at 
 the same session, the last one operates a constructive repeal of the 
 first. Dougherty v. Commonwealth, 14 B. Mon. 244. 
 
 3. The courts will not do violence to the obvious meaning of a 
 statute, because hardships and inconveniences may result from it. 
 Brace v. Shaw, 16 B. Mon. 80. ^ 
 
 4. A literal compliance with the statute regulating the attesta- 
 tion and publication of wills, has never been required — a substan- 
 tial compliance is all that is necessary. Upchurch v. Upchurch, 16 
 B. Mon. 112. 
 
 5. If two sections of the same act can only be made to har- 
 monize by modifying one or both, the one most general in its 
 terms will be modified, and full effect given to the more specific 
 language of the other. Fisher v. Kollerts, 16 B. Mon. 408. 
 
 6. In a matter of doubtful construction, the courts will give it 
 that construction which is in harmony with the constitution. 
 Waller v. Martin, 17 B. Mon. 191. 
 
 7. The general words in one clause of a statute may be restricted 
 by the particular words in a subsequent clause of the same act. 
 Covington v. McNickle, 18 B. Mon. 286 ; Fisher v. Kollerts, 16 B. 
 Mon. 407. 
 
 8. A proviso must always be construed as relating to the subject- 
 matter of the enacting clause or clauses. Ditto v. Geoahvan, 1 
 Met. 173. 
 
 9. Whenever the law has been settled by clear expressions or 
 adjudications, the mere change of phraseology in a revision will 
 not be construed to change the law, unless it clearly imports an 
 intention to change it. Overfield v. Sutton, 1 Met. 624 ; Allen v. 
 Mamsey, 1 Met. 637, 638; iee v. J'omaw, 3 Met. 116 ; Johnson v. 
 Offutt, 4 Met. 21. 
 
 10. In construing an act to establish a private corporation, it is 
 a rule of law that it must be construed strictly as against the cor- 
 
CONSTRUCTION OF STATUTES. HI 
 
 poration, and liberally in favor of the public. Maddox v. Graham 
 & Knox, 2 Met. 73. 
 
 11. Statutes of limitation are confined in their operation to 
 actions brought after the limitation has not only been prescribed, 
 but has also operated as a bar to the plaintiff's cause of action. 
 Fenwick v. Phillips, 3 Met. 90. 
 
 12. The statutes imposing penalties upon officers for failing to 
 return executions by the return day thereof, are highly penal, and 
 in their enforcement courts will hold parties to a strict observance 
 of their requisitions. Judy v. Soward, 2 Met. 46. 
 
 13. The enactment of a rule of law or equity, in the Eevised 
 Statutes, raises no presumption that such was not the law before. 
 Nunnally v. White, 3 Met. 590. 
 
 14. A statute which provides that it shall be in force from its 
 passage, must be regarded as in force during the whole of the day 
 on which it is approved by the governor. Mallory v. Hiles, 4 
 Met. 54. 
 
 15. A general law concerning persons may include artificial, as 
 well as natural, persons; and every corporation, including the 
 United States, each separate State, and each county, is, in law, a 
 corporation. Louisville v. Commonwealth, 1 Duv. 296. 
 
 16. In the construction of statutes, effect must be given to every 
 provision, except in cases of irreconcilable incongruity. Dasey v. 
 Killam, 1 Duv. 407. 
 
 17. Monopolies are odious, and generally unjust and detrimental, 
 and are never implied from a simple grant of a franchise not neces- 
 sarily exclusive in its character. L. & P. B. B. Go. v. L. G. B. 
 W. Co., 2 Duv. 181. 
 
 18. A proviso, in the charter of a railroad company, that it shall 
 not so construct its road, as to "affect the legal rights of other 
 companies," only applies to, and protects the other, companies in 
 the unobstructed use of their roads, and the exclusive right to 
 their profits, i. & P. B. B. Go. v. L. C. B. W. Co. 2 Duv. 181. 
 
 19. There is no conflict between section 4, chapter 80, page 226, 
 volume 2, Eevised Statutes, and section 18, of the same chapter. 
 Lane v. Berry, 2 Duv. 283. 
 
 20. ISTo statute will be construed as having been intended to be 
 retrospective, unless such interpretation is inevitable. O'Donoghue 
 V. Akin, 2 Duv. 480. 
 
112 CONTEMPTS. 
 
 CONTEMPTS. 
 
 1. The court of appeals has no jurisdiction to reverse an order 
 of the circuit court committing one for a contempt. Patton v. 
 Harris, 15 B. Mon. 614; Turner v. Gommonwealth, 2 Met. 630, 631. 
 
 2. But a continuance of imprisonment for two or three years for 
 a contempt in failing to pay money adjudged to be due, would 
 seem unreasonable and inconsistent with the spirit of the constitu- 
 tion respecting fines, etc. Patton v. Sarris, 15 B. Mon. 614. 
 
 3. So long as a judgment of a court of competent jurisdiction, 
 remains in full force, and unreversed and unsuspended, the party 
 against whom it was rendered, is bound to obey it; even though it 
 be erroneous. Kay v. Kean, 18 B. Mon. 847. 
 
 4. And one refusing to obey such judgment, may be imprisoned 
 for contempt and will have no right of action against the plaintiff 
 after a reversal of the judgment. Kay v. Kean, 18 B. Mon. 847. 
 
 5. A defendant who refuses to pay the costs of a suit for divorce 
 adjudged against him, may be committed for a contempt. Ballard 
 V. Caperton, 2 Met. 415. 
 
 COISTTEAOTS. 
 
 I. What will constitute or prove a contract. 
 II. The subject-matter of. 
 
 III. Validity of. 
 
 IV. Consideration of. 
 V. Alteration of. 
 
 VI. Rescission of. 
 VII. Waiver, merger, and discharge of. 
 VIII. Breach and performance of. 
 IX. Construction of. 
 X. Catching bargains. 
 XI. Mistakes in contracts. See Mistakes: 
 
 I. WHAT WILL CONSTITUTE OH PROVE A CONTRACT. 
 
 1. The delivery of a blank note, by a surety to his principal, is 
 authority to fill it up with the amount borrowed and the name of 
 the payee. Patton v. Shanklin, 14 B. Mon. 16. 
 
 2. So soon as a bargain of sale of specific personal property is 
 struck, the contract becomes absolute without actual payment or 
 delivery, and risk of accident to it, is with the purchaser. Sweeney 
 v. Owsley, 14 B. Mon. 413. 
 
CONTRACTS. 113 
 
 3. In order to establish a contract to marry, it must be shown 
 that there had been made, and accepted, a serious offer to marry. 
 Burnham v. Cornwall, 16 B. Mon. 288. 
 
 4. Payment by a surety of part of a debt after he is released 
 by limitation, will not revive his original obligation and make him 
 liable for the balance. Emmons v. Overton, 18 B. Mon. 649. 
 
 5. A general promise to do an act, not made to any one particu- 
 larly, or accepted by any, is not a contract and is not enforcible. 
 Sail V. McLeod, 2 Met. 103. 
 
 6. If an attorney be employed by A., who is a defendant in a 
 suit, to act as his attorney, and also for B., another defendant, of 
 which B. was apprised, although his services may have been ben- 
 eficial to B., and were received and accepted by him, B. would not 
 thereby become liable to pay for them ; unless he was apprised that 
 the attorney looked to him for compensation, and afterward received 
 his services without giving notice that he would not pay for them. 
 Savings Bank of Cincinnati v. Benton, 2 Met. 244. 
 
 7. Mutuality of obligation is essential to the validity of a con- 
 tract to marry. Allard v. Smith, 2 Met. 301. 
 
 8. A proposition or offer imposes no obligation on the party 
 making it, unless it be accepted by the party, to whom it is made, 
 within a reasonable time. Moxley v. Moxley, 2 Met. 311 ; Hutch- 
 ison V. Blakeman, 3 Met. 81. 
 
 9. If a proposition for a contract be made by letter and an 
 answer, accepting the offer as made, be put in the mails in a rea- 
 sonable time, it is a valid contract from that moment. Hutchison 
 V. Blakeman, 3 Met. 82. 
 
 10. Any qualification of, or departure from, the terms proposed, 
 invalidates the offer ; unless it be agreed to by the other party. 
 Hutchison v. Blakeman, 3 Met. 81-83. 
 
 11. If the proposer of a contract fixes no time, within which it 
 must be accepted by the other party, it must be done in a reason- 
 able tinie. Moxley v. Moxley, 2 Met. 311. 
 
 12. A note or obligation, made payable by a person to himself, 
 creates, of itself, no legal liability, and no action can be maintained 
 on it by ofie to whom it has been transferred. Muhlin v. Sattler, 
 3 Met. 285, 286.i 
 
 13. A parole agreement between creditor and debtor, that the 
 
 1 This rule has been changed by statute, and such a note Is valid when in- 
 dorsed by the maker and delivered to the indorsee. Sec. 1, Act Jan. 24', 
 1866; Myers' Supplement, 741. 
 9 
 
in OONTRAOTS. 
 
 brmer should take of the latter a buggy at a valuation to be made 
 ay two persons to be thereafter selected by them, and if it was 
 valued at less than the debt, the amount was to be credited on the 
 lebtor's note ; if valued at more, the creditor to pay the excess— 
 rave the creditor no enforcible right to the buggy, either against 
 'he debtor, or his attaching credito rs. Calvert v. Sasseen, 4 Met. 
 246. 
 
 14. When the payor and payee of a note are of the same name, 
 t will not be presumed that they are the same person. The legal 
 presumption is in favor of the validity of the contract. Cooper v. 
 Poston, 1. Duv. 93. 
 
 15. "When a son lived with his mother, using her land as his 
 )wn and having no contract for pay for his services, and in evident 
 jxpectation of being provided for by her at her death, he can not 
 recover pay for his services. Perry v. Perry, 2 Duv. 312. 
 
 16. For facts held sufllcient to render an attorney individually 
 iable to the assignee of his client for the amount of a debt in his 
 lands for collection, see Haielrigg v. Brerkton, etc., 2 Duv. 525.. 
 
 II. THK SUBJECT-MATTER OP. 
 
 1. If part of the price of personal property be paid at the time 
 of purchase, and no time be set for the payment of the balance, 
 md before delivery the property is destroyed by the act of God, 
 the delivery is excused and the price may be recovered. Sweeney 
 V. Owsley, 14 B. Mon. 413, 414. 
 
 2. A contract made by persons engaged in distilling, to " sell 
 810,000 worth of whisky," not then on hand but to be manufactured 
 and delivered in twelve months, is valid and enforceable. Whitehead 
 V. Root, 2 Met. 586. 
 
 3. It is essential to every executed contract of bargain and sale 
 that there should be a thing or subject-matter to be contracted for. 
 The thing sold must have an actual or potential existence. A mere 
 possibility or contingency, not founded upon a right or coupled 
 with an interest, can not be the subject of a contract. Wheeler v. 
 Wheeler, 2 Met. 476, 477. 
 
 4. The subject-matter is an indispensable element of a contract 
 for the absolute sale of it, as an existing thing, and its unexpected 
 non-existence deprives the contract of legal obligation, and both 
 parties may treat it as void. Smith v. &orin, 2 Duv. 157. 
 
 5. S. sold tobacco to G., and received the agreed price; but before 
 the sale was made, the tobacco had been sold by the agent of S. 
 to strangers for a price greater than G. was to pay for it. Qn 
 
CONTRACTS. lis 
 
 presentation of the ord«r for the tobacco, the agent paid over tc 
 (t. the price for which the tobacco sold. Seld: That S. could 
 recover of Gr. the excess over the price paid. Smith v. Gorin, S 
 Duv. 158. 
 
 6. A contract can not be absolutely and immediately effectual 
 unless the sebjeet-Hiatter of it be actually existing, or proximately 
 potential as the nataral fruit of something that does exist. Trus 
 tees Caldwell Inst, v. Yovng, 2 Duv. 589; 1 B. Mon. 257. 
 
 III. VALIDITY OF. 
 
 A. As regards «<af ecfes, public polioy, or nmraUty. 
 
 B. In other respects. 
 
 G In respect to the statute of frauds and per juries, see Frauds-^Statute of. 
 
 a. As regards statutes, public policy, and morality. 
 
 1. A contract, having for its consideration the doing of work oi 
 the Sabbath day, can not be enforced. Slade v. Arnold, 14 B 
 Mon. 288. 
 
 2. One, who sells property and agrees to look to A. for paymen 
 if S. is elected president of the United States, or to H. if P. ii 
 elected, may recover the price according to the stipulations of hii 
 contract. Meironimus v. Harris, 14 B. Mon. 314. 
 
 3. Swapping horses on the Sabbath day is a business prohibite( 
 by the statute, and no recovery can be had on a breach of warranto 
 made in a swap made on that day. Murphy v. Thompson, 14 B 
 Mon. 420. 
 
 4. A contract, made in violation of a statute made for the pro 
 tection of public morals, is void. Murphy v. Thompson, 14 B. Mon 
 420. 
 
 5. A contract with an attorney-at-law to give him a part of th^ 
 thing sued for as compensation for his services, is champertou 
 and void. Bavis, etc v. Sharron, 15 B. Mon. 67, 68. 
 
 6. The price of goods sold for the purpose of gambling can no 
 be recovered, Britton v. Duling, 15 B- Mon- 140. 
 
 7. One, who lost his horse in gaming, gave him up to the winner 
 and then executed his note for one hundred dollars for the horse 
 Held: The note could not be collected. Britton v. Duling, 15 B 
 Mon. 141. 
 
 8. Under the statutes, all gamiag contracts are void, and a be 
 on an election is embraced by it. Conner v. Bagland, 15 B. Mob 
 
 636. 
 
 9. The law pan not eanctiou a traneiaetion, or enfijree a contract 
 
116 CONTRACTS. 
 
 having for its object or consideration a violation of good faith or 
 its own mandate. Payne v. Vandever, 17 B. Mon. 19. And such a 
 transaction may be avoided by either party, even though it can 
 only be done by showing his own perfidy. Ibid. 
 
 10. Contracts made by or with unlicensed brokers for the sale 
 and pul-chase of bills of exchange, are not void for want of such 
 license. Lindsey v. Rutherford, 17 B. Mon. 248. 
 
 11. Contracts made with pedlars, who have no license, to pay 
 for goods purchased of them, which were not manufactured in 
 Kentucky, are void. Bull v. Harragan, 17 B. Mon. 352. 
 
 12. A contract by a prisoner, who is sick in jail, to pay the 
 jailor for extra services and attentions beyond those required by 
 law of the jailor, is not void as against public policy. Trundle v. 
 Biley, 17 B. Mon. 400. 
 
 13. It is the duty of banks to require stock to be paid for in 
 money ; but if a bank receives the notes of subscribers in lieu of 
 money, the act is not so far illegal as to exonerate the obligors 
 from the payment of the notes. Finnel v. Sanford, 17 B. Mon. 
 759. 
 
 14. A contract, by which a guardian agrees to resign his office, 
 that the other contracting party may be appointed in his stead so 
 as to obtain custody and control of the ward's person and estate, is 
 against public policy and void. Cunningham v. Cunningham, 18 
 B. Mon. 24, 25. 
 
 15. A contract, to forbear, for a consideration, to prosecute a 
 party for crime is void. Manion v. Titsworth, 18 B. Mon. 602. 
 
 16. A sale by a widow of her right of dower in land held by the 
 alienor of her husband is champertous and void ; unless he expressly 
 holds subject to her right. Kinsolving v. Pierce, 18 B. Mon. 785. 
 
 17. A contract, to pay the master for the hire of an apprentice 
 bound by the county court, is void. Huffman v. Rout, 2 
 Met. 51. 
 
 18. If any part of an entire consideration for a promise is illegal, 
 either at common law, or by statute, the whole agreement is void. 
 Collins V. Merrell, 2 Met. 164; 3 Bibb, 500; 6 Dan^, 91; 8 B. Mon. 
 98; 9 B. Mon. 90. 
 
 19. That part of the consideration of a note was money lent for 
 the purpose of gaming, renders the whole note void ; even though 
 the lending and gaming be in another State. Collins v. Merrell, 
 2 Met. 164, 165. 
 
 20. An ante-nuptial contract between husband and wife, to be 
 
CONTRACTS. 117 
 
 performed during marriage, though annulled at law by the mar- 
 riage, may be enforced in equity. Maraman v. Maraman, 4 
 Met. 87. 
 
 21. A contract by a husband, made before marriage, or after- 
 ward when living amicably with his wife, to pay an allowance for 
 her support if at any future time she should separate from him, is 
 against public policy and void. Gaines v. Poor, 3 Met. 506. 
 
 22. But such a contract, made in contemplation of immediate 
 separation, is not against public policy. Gaines v.. Poor, 3 Met. 
 506, 507. 
 
 23. A contract, to pay for lottery tickets delivered by the mana- 
 ger of a lottery, or to return those not sold, made in a State where 
 their sale is not prohibited, and containing no stipulation to do any 
 act in violation of the laws of any other State, is valid; although 
 the purchaser may have sold them in violation of the laws of an- 
 other State. Jameson v. Gregory, 4 Met. 368. 
 
 24. One, who advances money to enable another to conceal a 
 ffelony or stifle a prosecution, can not recover : otherwise, if the 
 offense is not a felony. Barclay v. Breckinridge, 4 Met. 377. 
 
 25. A note, given for money lost at gaming, is void in the hands 
 of an assignee notwithstanding a writing executed simultaneously 
 with the note in which the obligors declare "the note is just," and 
 they have no legal offset against it, and no defense to make. 
 Pace & Young v. Martin, 2 Duv. 522. 
 
 26. One who had been a surgeon in the Confederate army, and 
 subsequently took the oaths of allegaince and amnesty, is entitled 
 to recover for professional services performed during the war 
 while residing in Kentucky. Baynes v. Smith, 2 Duv. 430. 
 
 27. When the facts do not show, whether the offense was a felony 
 or only a breach of trust, the latter will be presumed. Barclay v. 
 Breckinridge, 4 Met. 377. 
 
 28. When the clerk of a private banker had converted money of 
 his employer to his own use, and charged it on his books to a 
 depositor, to avoid detection, and then procured the defendants to 
 execute a note to a third party, who assigned it to the plaintiff, in 
 order to raise money to replace the deficit, and thus conceal his em- 
 bezzlement — Held: The note was valid and enforcible, the 
 act of converting the money not being a felony under our statute. 
 Barclay v. Breckinridge, 4 Met. 378.' 
 
 I Embezzlement by officers, agents, clerks, or servants of corporations is 
 now made felony. See Myers' Supplement, title Embezzlement, 201. 
 
118 CONTRACTS. 
 
 29. A contract, for the sale and purchase of Confederate money, 
 ie against the policy of the State and the courts should refuse aid 
 to either of the parties to such a contract. Laughlin v. Dean, 1 
 Duv. 20, 21 ; Campbell v. Anderson, 2 Duv. 384. 
 
 30. An agreement to pay part of the money realized on a paper, 
 to which the plaintiff signed the name of another without authority, 
 is illegal and will not be enforced. Hooker v. Gentry, 3 Met. 469. 
 
 h. In dthet respect's. 
 
 1. If a common law court, in which a negro has sued for his 
 freedom, makes an order directing the sheriff to hire out the 
 plaintiff, unless the defendant executes bond, conditioned to have 
 tim forthcoming at a subsequent term, and iA the mean tiine not 
 to sell or send him out of the State, it t^^ill be obligatory as a 
 common law bond. Warfield v. Davis, 14 B. Mon. 41. 
 
 2. A bond, given to a sheriff to pay a debt for which he has an 
 attachment, will be valid as a common law bond. Cook v. Boyd, 
 16 B. Mon. 559. 
 
 IV. CONSIDERATION OF. 
 
 1. A promise, made by a surety, to pay the debt after be is re- 
 leased by the statute of limitations, will not be obligatory, and will 
 not prevent him from relying on the statute. Emmong v. Overton, 
 18 B. Mon. 650. 
 
 2. A party, contemplating a removal to Mississippi, agreed not 
 to go, but to buy a farm in Kentucky, in consideration that an 
 tincle of his wife, who was much attached to her and opposed to 
 his going, would furnish him $6,000 toward paying for the farm 
 purchased. The uncle died, after paying two thousand dollars 
 and without giving any written obligation to pay the balance, 
 and the nephew-in-law administered on his estate. Seld: That 
 he might retain the balance due him, there being enough besides 
 to pay all the debts of the uncle. Berry v. Gruddy, 1 Met. 566. 
 
 3. Money, paid for a chattel of no value when sold, and there is 
 thus a total failure of consideration, may be recovered back. 
 Bobinson v. Bright, 3 Met. 31, 32. 
 
 4. The agreement of a creditor after his debt is due to accept a 
 part in satisfaction of the whole, is without consideration. Fenwick 
 V. Phillips, 3 Met. 88, 89. 
 
 5. The relation of father and son is a good consideration for a 
 promise. Ford v. Mlingwood, 3 Met. 362, 36§ ; Motntire v. JSughes 
 4 Bibb, 186; Mahan v. Mahan, 7 B. Mon. 582. 
 
G'ONTBAOM. 119 
 
 6. The release by a ■w'ife of her ijotential right of dower forms a 
 valuable considei'atioa, and will uphold a settlement made on her 
 by her husband, even against his creditors. Ward v. Grotty, i 
 Met. 60. 
 
 7. The obligees in a contract should not be deemed to be person- 
 ally liable if it appears from the face of the writing that it was 
 not executed for a debt they owed, nor intended by the parties that 
 they should be personally liable. Murray v. Garothers, 1 Met. 80. 
 
 8. The delivery of the defendant from jail, by reason of the 
 execution of a bail bond before one not authorized to take bail, is 
 not sufficient consideration to uphold the bond as a statutory bond. 
 GominonweaUh V; Roberts, 1 Duv. 201. 
 
 9. The rule that where there is a moral obligation to pay, such 
 Obligation forms sufficient consideration to uphold a direct promise, 
 is subject to exceptions. Montgomery v. Lampton, 3 Met. 521. 
 
 10. Where a party had made an assignment for the benefit of 
 all his creditors, and the plaintiff, in consideration that the trustee 
 would give undoubted security for one-half of his debt, released 
 the debtor fi-om the balance, and afterward the debtor gave his 
 note for that part which was released — Held: That it was without 
 consideration. Montgomery v. Lampton, 3 Met. 522. 
 
 11. The rule seems to be, that where the debtor is discharged 
 by the voluntary act of his creditor, a subsequent promise will not 
 be enforced ; otherwise, if the discharge be by operation of law. 
 Montgomery v. Lampton, 3 Met. 522. 
 
 12. Mutual covenants of warranty, contained in deeds of par- 
 tition, constitute a valid consideration for each other. Nunnally v. 
 
 White, 3 Met. 589. 
 
 13. A promise, by an agent of an insurance company, sent to 
 adjust losses, made with a knowledge that the policy had been 
 forfeited before the loss occurred, is without consideration and Void. 
 Phoenix Ins. Go. v. Lawrence, 4 Met. 13. 
 
 14. A writing imports ^rtma /acie a consideration, and it is not 
 necessary to the validity of a written contract that it should 
 express a consideration. Steadman v. Quthrie, 4 Met. 152, 153 ; 
 sec. 1, chap. 22, vol. 1, 265, Eevised Statutes. 
 
 13. B. was indebted to K., who was indebted to H. ; B. gave his 
 note to H., who received it in part satisfaction of his debt against 
 K. The note was for 890 more than B. owed K. Held: This 
 would have been a valid defense against K, but was no defense 
 against H. Harrod v. Black, 1 Duv. 181. 
 
120 CONTRACTS. 
 
 16. Prejudice to the obligee is as valid a consideration as an 
 advantage to the obligor. Marrod v. Black, 1 Duv. 181 ; Overstreet 
 V. Phillips & Thompson, 1 Litt. 121; JRudd v. Banna, 4 Mon. 
 532. 
 
 17. If a condition, on which a part of a subscription to the 
 capital stock of a corporation is payable, has been performed, and 
 a subscriber gives his note, unconditionally, for the whole, payable 
 at a future day, the postponement of the payment of that part 
 then due, is a sufficient consideration for a promise to pay the 
 residue before it would have been due by the original terms. 
 R. & N. B. B. Co. V. Moss, 2 Duv. 243. 
 
 18. Where two persons executed a note, payable to one of the 
 obligors and a third person — Held : That as one of the parties 
 could not legally be both obligor and obligee, as there was a third 
 party to whom the promise would inure, he should be held an 
 obligor. Quinsenberry v. Artis, 1 Duv. 30, 31. 
 
 V. ALTERATION OF. 
 
 1. The terms of a parole contract, for the sale of land, may be 
 changed by parole, and terms of severe rigor in the original con- 
 tract, will be presumed to have been waived, when the party has 
 failed, for a considerable time, to insist on them, and allowed the 
 other party to go on improving the land after the time at which 
 the contract and improvements were, by the original terms, to be 
 forfeited. Bellamy v. Bagsdale, 14 B. Mon. 364, 365. 
 
 2. One who signs a note as surety, and delivers it to his prin- 
 cipal, with the distinct understanding that another, whose name 
 is written in the body of the note as surety, will also sign it, will 
 be bound to one holding the note, who has no notice of the agree- 
 ment, although the other may never sign it, and the name of 
 another person, who signs it as surety, may be inserted in lieu of 
 the first. Jones v. Shelbyville Ins. Co., 1 Met. 62 ; Terry & Bell v. 
 Hazlewood, 1 Duv. 109 ; Lisle v. Sogers, 18 B. Mon. 535. 
 
 3. A material alteration in a bond, after it has been signed, if 
 made without the participation of any one interested in it, will 
 not vitiate it or change its legal obligation. Terry & Bell v. 
 Hazlewood, 1 Duv. 109; Lee v. Alexander, 9 B. Mon. 25. 
 
 4. One, who indorses a note dated December 4, and delivers it to 
 the obligor, who, without his knowledge or consent, alters the date 
 to December 10, and then sells it to one who has no knowledge of 
 the alteration, will be released from liability. Lisle v. Bogers, 18 
 B. Mon. 535-537. 
 
CONTRACTS. 
 
 5. The rule that an alteration made in a writing, by a thi: 
 person, will not affect the rights of an innocent holder, does n 
 apply to such a case as this. In order to come within that ru' 
 the alteration must be made after the holder becomes entitled 
 the paper. Lisle v. Rogers, 18 B. Mon. 539. 
 
 VI. RESCISSION. 
 
 1. A vendee, who seeks the rescission of a contract, must she 
 the facts entitling him to it. Butler v. Miller, 15 B. Mon. 625. 
 
 2. If land, not sold, was conveyed by mistake, the fact, that t 
 vendor had no title, will furnish no ground for a rescission on t] 
 application of the vendee. Butler v. Miller, 15 B. Mon. 626. 
 
 3. After a deed has been made and accepted, and the vendee p 
 in .possession, in which he has not been disturbed, and there w 
 no fraud, the contract can not be rescinded on his applicatic 
 Butler V. Miller, 15 B. Mon. 627. 
 
 4. If a party has put it out of his power to restore the thing i 
 ceived, and is sued for the price, he is not entitled to a rescissii 
 of the contract. Clark, etc. v. Finnel, etc., 16 B. Mon. 338. 
 
 5. A parole promise to convey land is not void, and if the proi 
 issor be willing to convey, a rescission can not be had by t 
 promissee on the ground that the promise is not binding. Cheshi 
 V. Fayne, 16 B. Mon. 630. 
 
 6. Defect of title to part of the land, held under an execut 
 contract, will not authorize a rescission, but a deduction pro tar, 
 may be had. Benny v. WicJcUffe, 1 Met. 226. 
 
 7. Directions in a mandate of the court of appeals, that the tii 
 to land in contest be conveyed to one claiming it as purchaser, 
 so far an execution of the contract as to deprive the purchaser 
 the right to a rescission on account of a defect of title to a pa 
 of it. Denny v. Wickliffe, 1 Met. 222. 
 
 8. If a father promises his daughter, that, if she will eonv 
 certain lands to her bi^other, he will secure her another tract, ai 
 the daughter makes the conveyance, and afterward asks a rescissi- 
 on the ground that his parole promise is not binding, no rescissi- 
 will be decreed, if the father is willing and does convey ; but, th 
 he has made a will, by which he gives the land to his daughter, 
 not sufficient. Cheshire v. Payne, 16 B. Mon. 630, 631. 
 
 9. A rescission will not be decreed a vendee, without allegatii 
 or proof of fraud, or unfairness, when he is in the undisturb 
 possession of the land purchased, and there is no probability 
 
122 CONTRACTS. 
 
 his being disturbed, or suffering loss for the want of title. Puvall 
 V. Parker, 2 Duv. 183, 184. 
 
 10. Equity may refuse a vendor a specific execution, on doubts 
 ftS to his title, which Would be insufficient to justify a rescission on 
 the application of the Vendee, and especially when he is in the 
 undisturbed possession. Duvall v. Parker, 2 Duv. 185. 
 
 1. Such a vendee should always seek a specific execution if a 
 good title can be procured in a reasonable time, and ask for a 
 rescission only when it is ascertained that such a title can not be had. 
 Duvall V. Parker, 2 Duv. 185. 
 
 12. A rescission, will not be decreed, for a mere technical breach 
 of a covenant to convey by a particular day. Duvall V. Parker, 2 
 Duv. 183, 184. 
 
 13. A vendee suing for a rescission, for want of title in his 
 vendor, should make those from whom he apprehends danger 
 parties, and, if he fails to do so, the vendor may make those, 
 apparently, holding the legal title, parties, and have their claims 
 determined. Duvall v. Parker, 2 Duv. 185, 186. 
 
 VII. WAIVfiR, MERGER, AND DISCHARGE. 
 
 1. One, who has given a bond of indemnity to a surety in a sale 
 bond having the force of a replevin bond, Will not be released from 
 his bond, because, at the request of the surety, no execution issued 
 on the bond, until more than twelve months after its maturity. 
 JBpillman & Duff v. Smith, 15 B. Mon. 135. 
 
 2. All must know that the location of a road, under a charter, 
 when not fixed by the charter, is to be determined by the company 
 or its officers, and the belief of a subscriber that a particular route 
 Would be chosen, though known to the person procuring the sub- 
 ficription, could not, unless improperly induced by him, make the 
 Choice of such route a condition of his Subscription. Lackey V. 
 B. & L. T. B. Co., 17 B. Mon, 50. 
 
 3. When, by the terms Of a contract, either party is to give se- 
 curity, for its performance, whenever demanded, and security be 
 demanded by one party and not given by the other, the first will 
 be discharged ft"om liability on the contract. Blackwell v, Fosters, 
 1 Met. 94. 
 
 4. In such a case, the security must b6 given or tendered within 
 a reasonable time; all the circumstances of the case being con- 
 sidered. Blackwell v. Foster, 1 Met. 95. 
 
 5. When goods ate Bold, and nothing is said as to payment or de- 
 livery, although everything may have been done so as to divest %M 
 
CONTRACTS. 1 
 
 V^endor of title, if the vendee fails, in a reasonable time, to pay i 
 and remove the property, the vendor may disrega«rd the contrs 
 and sell the property to another. Woodcock v. Farrell, 1 M 
 441. 
 
 6. If several makerd of a note sign it without designating on t 
 note whether they are principals or sureties, and the obligee 
 his assignee agree with the first signer without the assent of t 
 othei's to give him day for payment, the others will not be releas 
 by showing that they are only sureties for him with whom t' 
 agrement was made, unless they had knowledge at the time tt 
 the others were only sureties. Heel v. Harding, 2 Met. 250. 
 
 7. A vendoi* agreed with his vendee, that if, at the end of thi 
 years from the date of sale, the latter should desire to sell t 
 estate, he would purchase it at a stated price on request of t 
 vendee. The vendee failed to make the request until nearly 
 month after the expiration of the three years — Meld: That he h 
 lost his right to compel the purchase, Magoffin v. Molt, 1 Dt 
 96, 97. 
 
 8. The mere fact that a railroad has not been completed, a 
 may never be, is no defense to an action to recover the amoi; 
 subscribed to its capital stock. Smith & Davis v. Gower, 
 Duv. 18. 
 
 VIII. BREACH AND PERFORMANCE. 
 
 1. If an owner of property agrees to give another a certain si 
 to sell the property at a giVen price, and by his own act prevei 
 his doing so, he Will be liable for the sum agreed to be pa 
 Alexander v. Breeden, 14 B. Mon. 155. 
 
 2. "When there is a special agreement as to the price of wo) 
 which the plaintiff is prevehted fipom completing by the default 
 the defendant, the recovery, for the work done, must be limit 
 by the terms of the special contract, and he may recover in adi 
 tion, such damages as he may have sustained by not being allow 
 to complete the job. Western Vv Sharp, 14 B. Mon. 178. 
 
 3. If, after an absolute sale of specific personal property, it 
 destroyed by the act of God before delivery, the purchaser mi 
 lose it, and ia bound to pay the price. Sweeney v. Owsley, 14 
 Mon. 413, 414. 
 
 4. Oiie, Sited on a contract, can not fely on his own failure 
 perform a part of it as a defense to th^ whole. Wight v. S. E. 
 Co., 16 B. Mon. 7, 8. 
 
 5. Wo recotei-y can be had fOr the breach of a contract to mar 
 
124 CONTRACTS. 
 
 unless there wds an offer on the part of the plaintiff before suit 
 was brought to execute it. Burnham v. Cornwell, 16 B. Mon. 288. 
 
 6. A contract, for specific personal services at a fixed price only, 
 terminates with the completion of the work agreed to be done, 
 and if a party abandons it before that time, without the fault of 
 the other party, he is not entitled to any compensation. Foster v. 
 Watson, 16 B. Mon. 384, 385. 
 
 7. So, if the other party has just cause for abstracting the execu- 
 tion of the work and does so, this will give him no right to recover 
 on the contract for work -actually done; otherwise, if he be pre- 
 vented without just cause. Foster v. Watson, 16 B. Mon. 385. 
 
 8. But if, in the latter case, the services were of value to the 
 other party, he may recover such value independently of the con- 
 tract. Foster v. Watson, 16 B. Mon. 387. 
 
 9. A conveyance of her estate, made by a woman pending a 
 treaty for marriage, without the assent of the intended husband, 
 will be a valid defense to an action for a breach of a promise to 
 marry. Cheshire v. Payne, 16 B. Mon. 627, 628. 
 
 10. A written contract to locate a division line between owners 
 of adjacent lands, will be specifically enforced. Fugate v. Bobinson, 
 18 B. Mon. 683. 
 
 11. A. agreed to pay B. a certain sum in sawing lumber at a 
 given price — B. to furnish the logs. B. died; and it was held that 
 his administrator could not recover on the note, without showing 
 that he had furnished the logs, and A. had failed to saw them. 
 Hawkins v. Ball, 18 B. Mon. 820. 
 
 12. If T. having purchased wood of C, which C. had purchased 
 of A., and which was all to be delivered by C. before it was to be 
 paid for, agree to look to A. for the delivery of the wood and not 
 to C, the contract, as to C, is complied with, whether the wood is 
 delivered or not. Totten v. Cooke, 2 Met. 278. 
 
 13. When the plaintiff was induced by a false representation of 
 a third person, to write a letter to the defendant discarding him, 
 and releasing him from his engagement to marry her, and the 
 defendant received the letter and acted on it in good Mth— Held.- 
 That the plaintiff could not recover for a breach of the contract 
 to marry. Allard v. Smith, 2 Met. 301. 
 
 14. That a purchaser had accepted a part of a lot of wheat which 
 was of a quality inferior to that purchased, will not prevent his 
 objecting to the remainder. Cook v. Brandeis & Crawford, 3 Met. 557. 
 
 15. When a covenant was made between several devisees, each 
 
CONTRACTS. 125 
 
 ilding a defeasible foe subject to be defeated by their death 
 ithout issue, by which each agreed to relinquish all claim to any 
 terest in the shares of the others, who might die without issue, 
 id the contract had been executed by one of the covenanters — 
 eld: That although the contract might not otherwise have 
 len binding, such execution, by one, made it obligatory on all. 
 unnally v. White, 3 Met. 589 ; Graves v. Graves, 7 B. Mon. 213. 
 
 16. A contract to convey land, and the contract to pay therefor, 
 e mutual executory agreements, not dependent on each other, 
 id the non-performance of the one can not be pleaded in bar to 
 1 action brought for a breach of the other. Hutchings v. Moore, 
 Met. 112 ; McGamphell v. Miller, 1 Bibb, 454. 
 
 17. Where two executors were empowered by a will to sell and 
 invey land and one sold and conveyed alone, the contract can 
 )t be rendered valid and enforced against the vendee, by tender- 
 ig him a deed from one of three devisees, between whom the 
 -oceeds of the land were to be divided ; even though the title of 
 lat devisee to the land sold might be good. Wells v. Lewis, 4 
 :et. 271, 272. 
 
 18. When standing trees are sold as chattels, and selected and 
 arked, by the vendee, with the knowledge and consent of the 
 mdor, there is a constructive delivery, and the title vests in the 
 jndee. Byassee v. Beese, 4 Met. 373, 374. 
 
 19. A plaintiff contracted to serve the defendant for a year as 
 rerseer, at a fixed price, and was ready to perform his contract, 
 it was prevented by the defendant. Held : That he could only 
 icover the damage actually sustained, and not the full price 
 jreed to be paid. Whitaker v. Sandifer, 1 Duv. 262 ; Ghamberton 
 'McCallister, 6 Dana, 352. 
 
 20. A contract made in 1863, to pay for land in gold— the differ- 
 ice between gold and currency being taken into consideration in 
 itimating the value of the land— will be specifically enforced in 
 luity, whether treasury notes are a legal tender or not. Sord v. 
 Uller, 2 Duv. 103 ; Smith v. Dillann, 2 Duv. 152. 
 
 21. One, who agreed to become a substitute for another who was 
 rafted to 'serve in the United States army, and was accepted by a 
 istrict provost marshal, but rejected by a revisory board because 
 ' his great age and infirmity, can not recover the amount agreed 
 , be paid him. Bibb v. Hunter, 2 Duv. 494, 495. 
 
 22. Where the vendee of personal property refuses to receive 
 le thing bargained for, the vendor may treat it. as his own, and 
 
126 CONTRACTS. 
 
 recover the difference between the value at the time and place of 
 delivery and the contract price; or he may sell it, with proper 
 precaution and diligence, to satisfy his lien for the price, and 
 recover the unpaid balance; or he may consider it as the property 
 of the vendee, and recover the full price ; and, in either case, the 
 election is with the vendor. Cook v. Brandeis & Crawford, 3 Met. 
 557. 
 
 IX. CONSTKDCTION OP. , 
 
 1. One, who undertakes to put brick in a wall, for a stipulate^ 
 price per thousand, must bear the loss of an accidental destructioo 
 of an unfinished wall. Shanks v. Griffin, 14 B. Mon. 153. 
 
 2. If persons acting as a local board of internal improvements, 
 and having control of a fund created to pay for work done, con- 
 tract for the building of a bridge, they will be individually liable 
 to the contractor, although the fund, on which they relied to pay 
 him, may he lost without their fault. Jtugbands v. Smith, 14 B, 
 Mon. 211. 
 
 3. If no place be fixed for the performance of a contract, its 
 construction will be governed by the law of the place where it is 
 made. Young v. Harris, 14 B. Mon. 558, 
 
 4. If a note is indorsed in Kentucky, but delivered by th« 
 indorser to his assignee in Ohio, the contract of assignment must 
 be construed according to the law of the latter State. Young v. 
 ffarris, 14 B. Mon. 559. 
 
 5. In the construction of contracts, the intention of the con- 
 tracting parties is to be considered, and such a construction given 
 jas will effectuate that intention. McMiUm v. M- & L. M. B. Co., 
 15 B. Mon. 234. 
 
 6. The obligee in a contract, who has himself acted in good faith, 
 is entitled to have it construed liberally, so as to give him, as far as 
 may be, the benefits h« had a just right to expect. Jackson & Co.. 
 V. JStna Ins. Co., 16 B. Mon. 259, 262. 
 
 7. A contract for the sale of pork, to be weighed and delivered, 
 and the purchase-money to be paid at a future day, will leave in 
 the vendor, until delivery and payment, such property and inter- 
 est as is insurable, as the property of the vendor, notwithstanding 
 a condition in the policy that any change of title shall render it 
 void. Jackson & Co. v. .^tna Ins. Co., 16 B. Mon. 269. 
 
 8. Contracts are to be so eonstrued as to give effect to the real 
 intention of the parties, and this is to be ascertained, prijnariiyi 
 by the words they have used, mth. the aid, .if necessary, oif such 
 
CONTRACTS. 127 
 
 ler considerations as may show the sense in which they wepe 
 ed. Montgomery v. firemen'? Im- Co., 16 B. Mon- 439. 
 
 9. If a policy, insuring a steamboat, expressly exempt the 
 surer from liability for loss resulting from the bursting of 
 ilera, and the boilerp burst, and fire results from the explosion, 
 ' which the boat is consumed, the insurer will not be liable, 
 Montgomery v. Firemen'? Ins. Co., 16 B. Mon, 443. 
 
 10. A contract to pay money " so soon as I sell my house and 
 t in L.," is substantially a contract to pay in a reasonable time. 
 'ioks V. Shouse, 17 B. Mon. 488. 
 
 11. A contract made in another State, the effect of which might 
 we been determined by the laws of that State, if they had been 
 10 wn, will, if they are not shown, be determined by the law of 
 lis State. Forepaugh v. Appold, 17 B. Mon. 630. 
 
 12. In a contract to pay for a given piece of work at a fixed 
 'ice, in installments due at fixed times, the performance of the 
 ork is not a condition precedent to be performed before the 
 oney is payable. Moore v. Caruthers, 17 B. Mon. 678. 
 
 13. The obligors in a contract shall not be deemed to be per- 
 inally liable, if it appears from the face of the writing that it 
 as not executed for a debt they owed, nor intended by the parties 
 lat they should be personally liable. Murray v. Carothers, 1 
 :et. 80. 
 
 14. One dealing with an agent of the public is presumed, in the 
 t>8ence of evidence of a contrary intention, to give credit to the 
 overnment rather than to the agent. Mwrray v. Carothers., 1 
 :et. 78. 
 
 15. When by the terms of a contract, either party is to give se- 
 irity for its perftirm*iioe,, and no time is fixed within which it 
 lall be given, it must be done in a reasonable time. Blackwell v, 
 'oMers, 1 Met. 94, 95- 
 
 16. A telegraph company, which has given notice, that it will 
 ot be responsible for mistakes in the transmission of messages, 
 nless they are repeated frpm the office to which the message is 
 mt, will only be responsible for mistakes in unrepeated messages, 
 rhich result from carelessness or want of skill Camp v. W. U 
 -'elegraph Co., 1 Met. 168. 
 
 17. If A. does work for B., to be paid for by C, and C.'s liability 
 I to be fixed by an act to be done by B., B- will himself be liable, 
 
 he fails to reader C. so. Kearn,y v. Comngton, 1 Met. 345. 
 
 18. There is m iHi|iiied warranty in the sale of real estate, but 
 
128 CONTRACTS. 
 
 the vendor impliedly undertakes that he has a right to make sale 
 of the thing sold, and, if he has no title at all, he will be liable. 
 Com'rs Sinking Fund v. Northern Bank Ky., 1 Met. 193 ; Bodley v. 
 McGhord, 4 J. J. Mar. 476 ; Wilson v. Jeffries, Ibid, 495. 
 
 19. T. purchased wood of C, which C. had purchased of A., and 
 was to receive it for C. at the place where it was cut, and to be 
 measured by A. ; C. was to deliver the wood at a designated place 
 other than that where it was measured from A. to C. Held: That 
 the place of measurement, as between C. and T., was the same as 
 between C. and A., and not the place of delivery. Totten v. Cook, 
 2 Met. 278. 
 
 20. When two writings are executed at the same time with ref- 
 erence to each other, and to the same subject-matter, they consti- 
 tute but One agreement, and are to be construed as if written on 
 the same paper. Knott v. Hogan, 4 Met. 101. 
 
 21. A contract, to sell one hundred and sixty acres of land for 
 the sum of six thousand four hundred dollars, " being at the rate 
 of forty dollars per acre," is a sale by the acre and not in gross, 
 and the vendor is entitled to pay for an excess of ten and a quarter 
 acres at the contract price. Hutehings v. Moore, 4 Met. 113. 
 
 22. When a contract, for the sale of charcoal by the bushel, des- 
 ignated the place at which it was to be made, and the seller was to 
 deliver it to the buyer at a different place, the place of delivery 
 is the place of measurement, and the delivery being by wagon, 
 the proper mode of ascertaining the quantity is by gauging the 
 wagon at the place of delivery ; unless another mode is provided 
 by the contract or established by usage. Caldwell, Hunter & Go. 
 v. Dawson, 4 Met. 123, 124. 
 
 23. The fact, that one party to a contract had notice of a local 
 custom, and supposed it would enter into the contract, is not suf- 
 ficient, nor can such local custom enter into the contract, though 
 both parties had notice of it, unless they contracted with reference 
 to it. Caldwell, Hunter & Go. v. Dawson, 4 Met. 125. 
 
 24. B. made a contract with W., by which it was stipulated that 
 " B. feeds and returns to W. two hundred and fifty hogs, no hog 
 to weigh less than two hundred andi twenty pounds, and each and 
 every hog to be well fatted, no sow with pig, and to average three 
 hundred pounds gross." B. fattened a part of the hogs and bought 
 the residue, and W. refused to receive them because they were not 
 fattened by B. Held : That if B. had ready for delivery, at the 
 time and place specified, two hundred and fifty hogs, in all 
 
CONTRACTS. 129 
 
 sspects, of the description required, "W. was bound to receive them. 
 Vhite V. Booker, 4 Met. 268. 
 
 25. The intention of the parties to be gathered from the entire 
 Lstrument — not the meaning of a particular word, must govern 
 
 I the construction of contracts. White v. Booker, 4 Met. 268. 
 
 26. A note reading, " we, or either of us, directors of the C. & J. 
 urnpike Eoad Company, promise to pay," etc., is the individual 
 ote of the signers, and not the note of the corporation. Whitney 
 . Sudduth, 4 Met. 297, 298; JSfash v. Roberts, 1 B. Mon. 201. 
 
 27. An agreement to perform an act at a particular place, is 
 resumed to be made with reference to the law of that place, and 
 
 II agreement, to perform an act, without designating a place of 
 erformance, is presumed to be made with reference to the law of 
 le place at which it is made ; and these presumptions are conclu- 
 ive. ShoH V. Trahue, 4 Met. 301. 
 
 28. A person is not liable on a contract, made by him as the 
 gent or trustee of another, which he had no authority to m.ake. 
 'jewis V. Harris, 4 Met. 354. 
 
 29. Whether an ageat intended to bind himself individually, is 
 question for the court; to be decided in view of the language 
 
 f the contract, the circumstances under which it was made, and 
 lie situation of the parties. Lewis v. Harris, 4 Met. 355. 
 
 30. In contracts called "sale or return," the property in the 
 oods passes to the purchaser, subject to an option in him to re- 
 arn them within a fixed time, or in a reasonable time, and if he 
 lils thus to return them, the sale becomes absolute, and the price 
 lay be recovered in an action for goods sold and delivered. 
 ^ameson v. Gregory, 4 Met. 369. 
 
 31. Where there is a want of mutuality in the obligations, arising 
 rom contracts of purchase, time is essential, as well in equity, as 
 t law. Magoffin y. Holt, 1 Duv. 99 ; Page v. Hughes, 2 B. Mon. 439. 
 
 32. The plaintiff sold to the defendant, on June 28, one thous- 
 nd barrels of flour at seven dollars and forty -five cents per barrel. 
 J"o time was fixed for the payment, and the flour was to be deliv- 
 red at the house of defendant within a short time, where the 
 atter should be ready to receive it. The flour was burned with- 
 ut the fault of either party on July 1, without having been either 
 elivered or paid for. Held: The plaintiff could not recover. 
 3rown & Long v. Childs & Co., 2 Duv. 315. 
 
 33. The obligatory effect of a note or bond can not be destroyed or 
 mpaired by a contemporaneous parole agreement, relating to, and 
 lurporting to restrain its obligation. Murphy v. Hubble, 2 Duv. 249. 
 
 10 
 
130 CONTEIBITTION. 
 
 34. The sale of a lot of mules at a fixed price on a stipulated 
 credit — the seller to keep them for a few weeks and then deliver 
 them to the purchaser on his giving notes for the price with good 
 security — vests the title to the mules in the purchaser. Duncan v. 
 Lewis, 1 Duv. 184; Crawford v. Smith, 7 Dana, 61. 
 
 35. There was, in 1858, no difference in the legal effect of a con- 
 tract, to pay "dollars," and a more specific contract, to pay the 
 amount in gold or silver. Johnson v. Tickers, 1 Duv. 267. 
 
 36. Both the hirer, and owner, of a slave, must be presumed to 
 have known, that the hireling might be lawfully taken from the 
 hirer, as well as the owner, for public use, and failing to provide 
 security against such taking, the hirer must be presumed to have 
 risked that, just as he did the death or escape of the slave. 
 Rughes v. Todd, 2 Duv. 191. 
 
 X. CATCHING BARGfAINS. 
 
 1. A contract, made by a son during the lifetime of his father, 
 by which he sold to a third person his interest in his father's 
 estate, which he had or might have under his will, is void; and 
 that the father knew of, and approved it, does not render it valid. 
 Wheeler v. Wheeler, 2 Met. 476, 477. 
 
 2. But where a son with full knowledge of the probable value of 
 liis expected share of his father's estate, with the assent of his 
 father, sells out his prospective interest under circumstances of 
 perfect fairness and good faith ©n the part of the purchaser, the 
 chancellor will not relieve him, although he may have sold for a 
 grossly inadequate price. Lee v. Lee, 2 Duv. 134. 
 
 CONTEIBTJTIOIT. 
 
 1. If several insurance companies have taken risks on the same 
 property and one pays all the loss, it may compel the others to 
 make contribution. Croinier.Ky.& Lou. Ins. Co., 15 B. Mon. 436. 
 
 2. Among wrong-doers, the law raises no implied promise of, 
 or right to, contribution ; but the replevying of a judgment against 
 them satisfies it, and if one of them pays the whole of the replevin 
 bond, the others are bound to contribute their shares. Minnie v. 
 Johnson, 1 Duv. 171. 
 
 CONYBESION. 
 1. Equity will treat property, directed by a deed to be converted, 
 
CONVERSION. 131 
 
 8 converted from the delivery of the deed if directed by a will 
 fom the death of the testator. Barnett v. Barnett, 1 Met. 259 ; 
 lioughborough v. Loughborough, 14 B. Mon. 654. 
 
 2. If a grantor conveys land to a trustee, to be sold to pay debts, 
 nd any surplus remaining to be held in trust for the grantor, and 
 nough be sold during his life to pay the debts, the land, yet 
 nsold, will, for purposes of distribution, be treated as if already 
 onyerted into money. Loughborough v. Loughborough, 14 B. 
 Ion. 554. 
 
 3. Money directed to be employed in the purchase of land, or 
 and, directed to be converted into money, is to be treated as that 
 peeies of property, into which it is directed to be converted. 
 lolliris V. Champ, 15 B. Mon. 122. 
 
 4. If the lands of an infant be decreed to be sold for the purpose 
 if buying other lands, and he dies after the sale, but before the 
 (urchase of other land, the money must be distributed to those, 
 o whom the land would have passed, had he died before the sale. 
 Collins V. Champ, 15 B. Mon. 122. 
 
 5. A widow, who renounces the provisions of her husband's 
 rill, has no right to have lands, directed by the will to be sold and 
 he proceeds distributed to the devisees, treated as personal estate, 
 ,nd have distribution of it as such. Barnett v. Barnett, I Met. 
 !58, 259. 
 
 6. If property be directed to be sold and the direction to sell is 
 )0sitive, the right of the legatee will be regarded in equity as a 
 ight to the money from the time of the testator's death ; though 
 he period of sale is remote and the conversion can not be made, 
 mtil the time arrives. Hooker v. Gentry, 3 Met. 473; Burnsides v. 
 Wall, 9 B. Mon. 322. 
 
 7. If a tenant in common, owning three-fifths of several slaves, 
 iraancipates them by his will, it is a conversion by the testator 
 .nd deprives his co-tenants of their right to the slaves and converts 
 t into a money demand against his estate. Nunnally v. White, 3 
 ilet. 593; Tom. Davis v. Tingle, 8 B. Mon. 544. 
 
 8. The word "conversion," as used in the Eevised Statutes, 
 ection 1, article 3, chapter 46, page 2, volume 2, relating to 
 .demption of legacies and devises, has a technical meaning, and 
 pplies as well to real, as to personal, estate. Wickliffe v. Preston, 
 : Met. 181; sec. 25, chap. 21, vol. 1, 264, Eevised Statutes. 
 
 CONVBYAlSrCBS. 
 See Deeds. 
 
132 CO-OBLIGORS, 
 
 CO-OBLIGOES. 
 
 1. If two persons, owning separate interests in the same tract of 
 land, make a joint bond for a conveyance, they may be sued 
 jointly. Emerson v. Claywell, 14 B, Mon. 20. 
 
 2. One co-obligor, who has paid off the obligation of all, and 
 stipulated, at the time of payment, for the right to sue the other 
 obligor, may maintain an action in the name of the obligee against 
 the other obligors. Smith v. Latimer, 15 B. Mon. 77. 
 
 COPIES. 
 
 See Evidence. 
 
 COEPOEATIOI^S. 
 
 I. Of creating, organizing, and dissolving. 
 II. Amendments, or alterations of charters. 
 
 III. Of the different kinds of corporations. 
 
 IV. Subscriptions for, and transfer of, stock. 
 V. Powers, rights, and liahilities of. 
 
 VI. Contracts, by and with. 
 VII. Of dividends. 
 
 VIII. Of powers, rights, and liabilities of oflScers of. 
 IX. Records of. 
 X. Actions by or against. 
 
 I. OF CREATING, ORGANIZING, AND DISSOLVING. 
 
 1. Whether a corporation has been legally organized, can not be 
 questioned collaterally. It must be done by a direct proceeding 
 against the corporation. Wright v. S R. B. Co., and Allen v. 
 8ame, 16 B. Mon. 7. 
 
 2. A general assignment of all its property and eifects for the 
 payment of debts, can not have the effect to dissolve a corporation. 
 Z. L., F. & M. Ins. Go. v. Page & Richardson, 17 B. Mon. 457. 
 
 3. If the property and effects of a corporation be ordered into 
 the hands of a commissioner to wind up its affairs, its corporate 
 functions are thereby suspended ; although there may have been 
 no direct proceeding for the forfeiture of its charter. Sanford v. 
 Kentucky Trust Company Bank, 1 Met. 110. 
 
CORPORATIONS. 133 
 
 4. If the charter of a company provides, that it shall not he 
 )rganized until a given amount of stock had heen subscrihed for, 
 t is necessary in an action for the recovery of subscriptions to 
 iver, and prove, that the amount required had been subscribed. 
 Fry V. L. & B. S. JR. B. Co., 2 Met. 324. 
 
 5. An order, merely preliminary to the organization of a cor- 
 Doration created to drain a district of country, which ascertains 
 ;he boundary of the district, but does not, in any way, affect the 
 •ights of those within the boundary, can not be reversed, by a 
 Dart of those included in it, on the grounds that a tax, authorized 
 3y the charter, but which had not been levied, was unjust and 
 jppressive, and that the act authorizing it is unconstitutional. 
 Oombs V. Jefferson Pond Draining Co., 3 Met. 73, 74. 
 
 6. A sale of the property and franchises of a corporation, under 
 i, decree, to satisfy a mortgage, does not destroy its corporate 
 3xistenee, but it remains a corporation, and may proceed to collect 
 iebts which did not pass by the sale. Smith & Davis v. Gower, 2 
 Duv. 19. 
 
 II. AMENDMENTS, OR ALTERATIONS OP CHARTERS. 
 
 1. A right, conferred upon a corporation by an act of the legis- 
 lature, can not be taken away by a subsequent act; but when the 
 right claimed is not expressly given, but only arises by implication, 
 md the legislature has passed another act inconsistent with such 
 3onstructive right, it should not be given; unless imperatively 
 required by the scope and design of the charter. M. T. Co. v. 
 Howe, 14 B. Mon. 432. 
 
 2. The legislature has no power, under a reservation, in an act 
 areating a private corporation, of the " right to amend the charter," 
 bo create new trustees, or add others to the original corporation, 
 without its consent. Sage v. Dillard, 15 B. Mon. 356-358. 
 
 3. The charter of a private corporation can not be amended by 
 the legislature so as to impair the property rights, or franchises 
 3f the corporation. Louisville v. Louisville University, 15 B. Mon 
 680. 
 
 4. Amendments, necessary to carry into effect the main design 
 for which a corporation was created, may be made without the 
 consent of the shareholders. Fry v. L. & JB. S. B. B. Co., 2 Met. 
 321. 
 
 5. But an alteration, which materially and fundamentally 
 changes the responsibility and duties of the company, or which 
 superadds an entirely new enterprise, may be resisted by the 
 
134 CORPORATIONS. 
 
 Stockholders ; unless such such alterations are provided for in the 
 charter itself, or in the general laws of the State in force at the 
 time of its passage. Fry v. L. & B. S. R. B. Co., 2 Met. 321. 
 
 6. An amendment to a charter is as much a part of it as if incor- 
 porated in the original grant. I/. & P. R. R. Go. v. L. C. R. W. 
 Co., 2 Duv. 178. 
 
 III. OF THE DIFFERENT KINDS OF. 
 
 1. A corporation, created not for the purposes of government, 
 and not in any wise an instrument of the State government — even, 
 though created for purposes of general concern, such as educa- 
 tion — is not a public, but a private, corporation, and its charter is 
 in the nature of a contract with the State, and under constitu- 
 tional protection against repeal. Louisville y. Louisville University^ 
 15 B. Mon. 675. 
 
 2. The character of a corporation depends upon the purpose for 
 which it was created, and powers conferred upon it, and not on 
 the character of its stockholders. It does not alter the character 
 of a corporation, that the State, or the United States, owns a part 
 of it. B. & L. R. R. Co. V. Metcalfe, 4 Met. 205. 
 
 3. A private corporation, like a bank, is, in the technical sense, 
 a person ; but a municipal corporation, like a State, or county, or 
 city, while nominally a person, is virtually a political power. 
 Louisville v. Commonwealth, 1 Duv. 297. 
 
 IV. SUBSCRIPTIONS FOR, AND TRANSFER OF, STOCK IN. 
 
 1. Stock subscribed to a corporation, payable, by the terms of 
 the subscription, to the president and directors, when none existed 
 at the time of making the subscription, will be valid, and may he 
 recovered after the company is organized, in an action in the cor- 
 porate name of the company. Lackey v. R. & L. T. R. Co., 17 
 B. Mon. 48. 
 
 2. All must know that the location of a road under a charter is 
 to be determined, when not fixed by the charter, by the company 
 or its officers; and the belief of a subscriber that a particular route 
 would be chosen, though known to the person procuring the sub- 
 scription, could not, unless improperly induced by him, make the 
 choice of such route a condition of the subscription. Lackey v- 
 R. & L. T. R. Co., 17 B. Mon. 50. 
 
 3. To enable a corporation to recover ten per cent, interest for 
 the non-payment for stock subscribed as called for,it must be shown 
 that the requisitions of the charter have been strictly pursued. 
 Lackey v. R. & L. T. R. Co., 17 B. Mon. 51. 
 
CORPORATIONS. 135 
 
 4. The capital of a bank consists of the money paid on the stock 
 •y the holders ; and all stock, when paid for, is capital stock. Fin- 
 lel V. Sandford, 17 B. Mon. 758. 
 
 5. It is the duty of a bank to require stock to be paid for in 
 aoney : but if it receives the notes of subscribers in lieu of money, 
 he act is not so far illegal as to exonerate the obligors from the 
 )ayment of the notes. Finnel v. Sandford, 17 B. Mon. 759. 
 
 6. An answer to a suit on a note given for capital stock in a bank 
 n process of liquidation, averring that there is a sufficiency of 
 issets without the note to pay the liabilities of the bank, is not 
 rood. Finnel v. Sandford, 17 B. Mon. 761. 
 
 7. The trustees of a town, whose chairman, acting as their agent 
 n making a subscription to the capital stock of a turnpike road, 
 Droduced at the time of subscribing a copy of the order of the 
 )oard empowering him to do so, can not, if the subscription be 
 nade according to the order produced, rely in defense that their 
 igent exceeded his powers, unless they show that the other party 
 lad notice that he was exceeding his authority. Shelbyville v. 
 S. T. Co., 1 Met. 57, 58. 
 
 8. That a railroad company has failed to construct a road, and 
 permitted its property and franchises to be sold, does not exonerate 
 I city or county from the payment of its bonds issued to the com- 
 jany in payment of its stock subscription. Maddox v. Graham 
 k Knox, 2 Met. 83, 84. 
 
 9. Where a statute authorizes a county court to subscribe to the 
 itock of a railroad company, upon the condition that the holders 
 )f real estate therein should, by a majority, vote for such subscrip- 
 ;ion, and the question was submitted by the court to all the voters 
 »f the county, the levy of a tax to pay the subscription is invalid. 
 Bullock V. Curry, 2 Met. 174. 
 
 10. In an action by a corporation, against one who had subscribed 
 br stock, to recover the amount of his subscription, which was 
 nade on the single condition that it was not to be paid for until 
 5400,000 were subscribed, in ascertaining whether that amount 
 lad been subscribed, the stock should be estimated at its nominal, 
 md not at its saleable, value; and stock to be paid for in material 
 md labor, at a price not greater than the company would have 
 )een compelled to pay in cash, should be estimated in ascertaining 
 he aggregate stock subscribed for. Phillips v. Cov. & Cin. Bridge 
 7o., 2 Met. 223, 224. 
 
 11. Where the charter of a railroad company defines the terms 
 )f subscription for stock, it is only necessary that the writing. 
 
136 CORPORATIONS. 
 
 signed by subscribers, should show an intention to become stock- 
 holders, and the number of shares subscribed for. Fry v. L. & 
 B. 8. B. E. Co., 2 Met. 316, 317. 
 
 12. "Where the directors of a railroad company were authorized 
 by the charter to vary the route, when a cheaper and better route 
 could be had: that they did so does not exonerate subscribers from 
 the payment for their stock, although they may lose some of the 
 advantages they had expected from its being built on the route 
 where it had been located when they subscribed. Fry v. L. & B. 
 S. JR. R. Co., 2 Met. 317-319. 
 
 13. When the charter of a turnpike company authorizes a county 
 court to subscribe stock, the subscription can only be made in the 
 manner and upon the terms provided by the act of incorporation. 
 In such a case, a subscription for stock in the company is the only 
 contract the court can make with the company. W. & M. S. T. 
 JR. Co. v. Clarke County Court, 3 Met. 143. 
 
 14. An order by a county court, pledging $5,000 " to continue a 
 turnpike road (from W.) to Mount Sterling, to be expended be- 
 tween Winchester and the Montgomery county line," the Win- 
 chester & Mount Sterling Turnpike Company not being then 
 organized, is not valid as an absolute or conditional subscription 
 of stock in the company. W. & ilf. 8. T. B. Co. v. aarke 
 County Court, 3 Met. 144. 
 
 15. One who has subscribed to the capital stock of a corporation 
 on conditions may, with the as- sent of the company, make his sub- 
 scription absolute; and a note given, payable absolutely, in lieu 
 of such conditional subscription, will be presumed to have been 
 given on sufficient consideration. H. & N. B. B. Co. v. Jfoss, 
 2 Duv. 243. 
 
 16. The first section of an act, authorizing a subscription by a 
 county for stock in a railroad company, and the levy of a tax to 
 pay it, provided, that before subscription should be made and the 
 tax levied, the question of levying the tax should be submitted to 
 the voters of the county ; and if a majority of the votes cast 
 should be in favor of the tax, it should be levied. The third sec- 
 tion of the same act j^rovided that the county court should appoint 
 a day for the vote to be taken ; and if a majority of the votes cast 
 should be in favor of a subscription, the court should immediately 
 subscribe the same, in accordance with the vote. Held: That the sub- 
 mission of the question of making the subscription alone, without 
 submitting the question of levying the tax, did not authorize the 
 levying of the tax. Bullock v. Curry, 2 Met. 175, 176. 
 
COEPORATIONS. 137 
 
 17. One who subscribes for the capital stock of a railroad there- 
 3y becomes a stockholder, and it is no defense to an action to 
 'ecover the amount of his subscription, that no certificate of stock 
 aas been tendered him. Smith & Davis v. Gower, 2 Duv. 19. 
 
 V. POWERS, RIGHTS, AND LIABILITIES OF. 
 
 1. The mayor and council of the city of Lexington have no 
 power to tax personal property not actually within the city. 
 Johnson v. City of Lexington, 14 B. Mon. 658. 
 
 2. Incorporated towns and cities are not liable to the owners of 
 idjacent lots on account of inconvenience, resulting from raising 
 the grade above, or cutting it down below, such lots. Wolf v. 
 a & L. JR. B. Co., 15 B. Mon. 408. 
 
 3. Turnpike road companies are bound to keep their road so as 
 not to endanger the safety of persons or vehicles traveling 
 thereon, and if they fail and injury results, they are liable to those 
 injured. Danville, etc., T. B. Co. v. Stewart, 2 Met. 122. 
 
 4. A city is not responsible for property burned up, because its 
 authorities had failed to keep the public cisterns in order, or to 
 provide hooks and ladders. Patch v. Covington, 17 B. Mon. 733. 
 
 5. Power to pledge the franchises and rights of a corporation 
 implies the power to pledge everything necessary to the enjoy- 
 ment of the franchises. Phillips v. Winslow, 18 B. Mon. 445. 
 
 6. A corporation possesses only those powers and properties 
 given it by its charter, or some addition or amendment thereto ; 
 and an act to establish a private corporation, must be construed 
 strictly as against the corporation, but liberally in favor of the 
 public. Maddox v. Graham & Knox, 2 Met. 72, 73. 
 
 7. Bonds, payable on their face to "the M. & L. E. E. Co., their 
 assignees, or bearer," might be lawfully issued by a city, under a 
 legislative grant to issue to the company bonds " negotiable and 
 transferable" by order of the company. Maddox v. Graham & 
 Knox, 2 Met. 79. 
 
 8. Cities or counties, authorized to issue bonds, may, if the act 
 is silent as to the place of payment, make them payable at such 
 place as they may choose. Maddox v. Graham & Knox, 2 Met. 
 30, 81. 
 
 9. Corporations are liable to individuals for injuries sustained 
 in consequence of their negligence, or that of their employees, 
 while engaged in their service. Danville, etc., T. B. Co.y. Stewart, 
 i Met. 122. 
 
138 CORPORATIONS. 
 
 10. The power of a railroad, or other private corporation, to 
 take private property for its use, being a delegation of sovereign 
 power, must be construed as it would be if granted to a municipal 
 corporation ; while the powers of private and public corporations, 
 with respect to their property, are governed by the same prin- 
 ciples, and, in the absence of express provisions of law, depend 
 upon the purposes for which the corporation was formed. B. & L. 
 R. R. Go. V. Metcalfe, 4 Met. 205, 206. 
 
 11. Generally, a private corporation has an implied power to do 
 whatever may be necessary to execute its express powers, and to 
 accomplish the purpose for which it was formed. B. & L. R. B. Co. 
 V. Metcalfe, 4 Met. 206. 
 
 12. A railroad company, expressly authorized to borrow money, 
 may execute a mortgage to secure its payment without express 
 authority. B. & L. R. R. Go. v. Metcalfe, 4 Met. 206-209. 
 
 13. The power of a corporation to make by-laws for the govern- 
 ment of its members, does not authorize it to violate law, nor to 
 require its members to do so ; its powers are limited by the nature 
 of the corporation and the laws of the country, and it can make 
 no rule which is contrary to law, good morals, or public policy. 
 Sayre v. Louisville Union & Benevolent Association, 1 Duv. 
 144. 
 
 14. A by-law of a corporation, whose members are common 
 carriers, forbidding a member to carry freight for a less rate than 
 that fixed by the corporation, without reference to whether the 
 rate fixed is reasonable or not, is illegal. Sayre v. Louisville Union 
 & Benevolent Association, 1 Duv. 146, 147. 
 
 15. The charter of a private corpos.-ation required the jury to 
 assess the cash value of property, condemned for the use of the 
 company, and allowed it, pending an appeal from such assess- 
 ment, to use the property, by depositing, in some specie-paying 
 bank, the amount assessed. Held : This was intended to secure to 
 the owner the cash value of the property, and that the tender or 
 deposit of depreciated paper, even if it be a legal tender, was no 
 compliance with the terms and conditions of the charter, and 
 gave the company no right to the use of the property. Arnold v. 
 Gov. & Gin. Bridge Go., 1 Duv. 375. 
 
 16. It is the duty of a turnpike road company to have bridges 
 wherever the safety or convenience of travel may require. Board 
 Int. Imp. Shelby Go. v. Scearce, 2 Duv. 576, 577. 
 
CORPOEATIONS. 139 
 
 VI. CONTRACTS BY AND WITH. 
 
 1. A variance from the true name of a corporation when the 
 true name can be collected from the instrument, or is shown by 
 proper averments, will not vitiate a grant by or to a corporation 
 Kentucky Seminary v. Wallace, 15 B. Mon. 44. 
 
 2. Generally, one who has dealt with a corporation as such, will 
 not be permitted to controvert its existence. H. & N. R. B. Co. 
 V. Zeavell, 16 B. Mon. 363. 
 
 3. A stockholder in a corporation may deal with it, sue, and be 
 sued by it, and, if a creditor, may be secured as a preferred cred- 
 itor by a deed of trust, i. 1,., F. & M. Ins. Co. v. Page & Bich- 
 ardson, 17 B. Mon. 439. 
 
 4. A contract, by a corporation, which is neither forbidden by 
 any statuary law nor by its charter, will be valid, unless it be 
 entirely foreign to the purpose of its existence. Frankfort Bridge 
 Co. V. Frankfort, 18 B. Mon. 47. 
 
 5. A corporation can not be bound by a contract, made by its 
 president or any individual member, unless the power so to bind 
 it is given to the president, or individual member, by the charter 
 or by some act of the corporation. M. S. & J. T. Go. v. Looney, 
 1 Met. 551, 552. 
 
 6. A bond, payable to the "M. & L. E. E. Co.," is substantially 
 the same as if payable to the "president and directors" of the 
 same company. Maddox v. Graham & Knox, 2 Met. 78, 79 ; Pen- 
 ileton V. Bank Ky., 1 Mon. 175. 
 
 7. Payment of bonds of a county or city, issued to a railroad 
 3ompany and passed by it into the hands of bona fide holders for 
 sralue, who received them in the course of business, may be 
 mforced, although they might not be enforceable in the hands of 
 ihe company. Maddox v. Graham & Knox, 2 Met. 86. 
 
 VII. OF DIVIDENDS. 
 
 1. The premiums received by an insurance company for unex- 
 )ired risks, are not profits until the risks expire, and any losses 
 ,hat may occur are adjusted. L. L., F. & M. Ins. Co. v. Page & 
 Richardson, 17 B. Mon. 440. 
 
 2. Dividends, declared by a corporation when there are no 
 )rofits to divide, are illegal, and money paid to stockholders, may 
 •e recovered back by the corporation or its assignee. L. L., F. & 
 \f. Ins. Co. V. Page & Richardson, 17 B. Mon. 441. 
 
 3. The receipt by stockholders of an illegal dividend, declared 
 
140 CORPORATIONS. 
 
 by the corporation, is not a ratification of the act declaring the 
 dividend. L. L. F. & M. Ins. Co. v. Page & Richardson, 17 B. 
 Mon. 443. 
 
 VIII. POWERS, RIGHTS AND LIABILITIES OF OFFICERS OF. 
 
 1. Officers of a bank, or other corporation, are not individually- 
 liable to those with whom they deal in matters beyond their 
 authority. Sanford v. McArthur, 18 B. Mon. 421. 
 
 2. The president, or other member of a corporation, can not make 
 a contract binding on it, unless authorized to make the contract 
 by the charter or by some act of the corporation. M. S. & J. 
 T. Co. v. Zooney, 1 Met. 551, 552. 
 
 IX. RECORDS OF. 
 
 1. If the books containing the records of proceedings of a cor- 
 poration be lost, their contents may be proved by parole. Com'rs 
 Sink. Fund. v. Northern Bank Ky., 1 Met. 185. 
 
 2. The journals of the proceeding of a city council must show 
 that an ordinance reported had been adopted, or it will not be 
 valid. Covington v. Ludlow, 1 Met. 298. 
 
 3. And it can not be shown aliunde the records that an ordinance 
 had passed. Covington v. Ludlow, 1 Met. 298. 
 
 4. An ordinance, reported to a city council, but which the record 
 does not show to have been passed, can not be declared by a sub- 
 sequent council, composed entirely of different persons to have 
 been adopted by the former council. Covington v. Ludlow, 1 Met. 
 298. 
 
 X. ACTIONS BY OR AGAINST. 
 
 1. In an action against the stockholders of a corporation, who 
 are numerous, and in which the question is one of common interest, 
 and it is impracticable to bring them all before the court, it is 
 proper that one or more should be allowed to defend for all. L. & 
 O. T. R. Co. V. Ballard, 2 Met. 171 ; sec. 37, Civil Code. 
 
 2. In an action, by a corporation against the stockholders, to 
 recover the amount of their subscriptions, if the charter provides 
 that the company shall not be organized until a given amount of 
 stock is subscribed, it is necessary to aver and prove that that 
 amount had been subscribed. Fry v. L. & B. S. R. R. Co. 2 Met. 
 324. 
 
 3. When the holders of railroad mortgage bonds apply to a court 
 of equity, before the bonds are due, to compel the payment of 
 interest due and in arrears, the defendant should be permitted to 
 
COSTS. 141 
 
 lect, whether the road should be leased to raise the amount duo, 
 r whether the whole should he sold. If the company fails to elect 
 r elects to have the road leased, and no one will" take it for a term 
 if years and pay the debt, it should be sold, B. & L. B. B. Co. 
 \ Metcalfe, 4 Met. 211, 212. 
 
 4. If a railroad be leased for the payment of debts, the lessee 
 hould be required to give bond to keep the road, cars, and other 
 )roperty not consumed by use, in good repair and return it to the 
 iompany at the end of the term, in as good condition as it was 
 vhen received, and before possession is given an inventory should 
 3e taken by a commissioner. 3. & L. B. B. Co. v. Metcalfe, 4 
 \Iet. 212. 
 
 COSTS. 
 
 1. Parties, coming voluntarily into a cause, will be liable for 
 josts, as if originally made parties. Davis v. Sharron, 15 B. 
 Mon. 67. 
 
 2. A party, succeeding in his action, has a r ight to his costs 
 sxcept in the cases specified by statute j although he may not 
 recover as much as he claimed. Smith v. Broyles, 15 B. Mon. 467. 
 
 3. A party, who offers to confess judgment for part of the 
 demand sued for, will, if the recovery finally had does not exceed 
 the sum for which he offered to confess judgment, be entitled to 
 bis costs, only from the time of the offer, and must pay all the 
 costs of both parties up to that time. Bull v. Harragan, 17 B. 
 Mon. 353. 
 
 4. A reasonable attorney's fee should be taxed in the wife's 
 costs, when she succeeds in an action of divorce. Williams v. 
 Monroe, 18 B. Mon. 518. 
 
 5. A plaintiff, who sells his interest in the siibject of the action 
 pending the suit, is not exonerated from costs. Neal v. Elliot, 18^ 
 B. Mon. 613. 
 
 6. If, pending a suit, the right of action be transferred and the 
 assignee substituted as plaintiff, and made answerable for all past 
 and future costs, and the defendant makes no objection, he can not 
 object in the court of appeals, that no surety was given. Warner 
 v. Turner, 18 B. Moa. 761. 
 
 7. The chancellor has the descretion to decree the ordinary 
 legal costs of an action, but he has not the discretion to decree 
 extraordinary costs incurred by a party. Williamson v. William- 
 son, 1 Met. 305. 
 
142 COSTS. 
 
 8. After an action has been dismissed, no judgment for cost can 
 be rendered ; unless the order be set aside. Williamson v. William- 
 son, 1 Met. 307. 
 
 9. The allowance made to a guardian ad litems to be paid by the 
 plaintiff and taxed as costs, can only be taxed against an adverse 
 unsuccessful party. Williamson v. Williamson, 1 Met. 306. 
 
 10. The party, succeeding in a civil action, is entitled to recover 
 his costs, whatever may be the amount of his recovery. Brandeis 
 V. Stewart, 1 Met. 396, 397. 
 
 11. The husband is bound, in all cases, for the costs of a suit by 
 his wife against him, for a divorce and alimony, including a 
 reasonable attorney's fee to the wife's lawyers ; unless the wife 
 be in fault, and have ample estate to pay the costs. Ballard v. 
 Caperton, 2 Met. 414; Meyar v. Meyar, 3 Met. 303. 
 
 12. And this liability of the husband is not avoided by the death 
 of the wife before judgment. Ballard v. Caperton, 2 Met. 415. 
 
 13. A wife, suing for, but failing to obtain, a divorce, is not 
 entitled, under the statute making the husband liable for costs, to 
 a judgment against him for her costs. Nikirk v. Nikirk, 3 Met. 433. 
 
 14. If the cause of action is transferred, pending suit, and the 
 name of the assignee is substituted as plaintiff, security should be 
 given for past, as well as future, costs. Dougherty v. Smith & 
 Wilson, 4 Met 281; Warner v. Turner, 18 B. Mon. 759. 
 
 15. If, after suit for a divorce has been prepared for trial, the 
 parties become reconciled, it is proper to make an allowance 
 against the husband to pay the wife's attorney, she having been 
 the aggrieved party. Burgess v. Burgess, 1 Duv. 288. 
 
 16. An allowance in such a case, to two firms of lawyers held 
 unreasonable. Burgess v. Burgess, 1 Duv. 288. 
 
 17. In a suit, by a wife for divorce, when she appeared to be in 
 fault and the owner of estate worth over $2,000 — Held: The 
 husband should not be compelled to pay her costs. Dugan v. 
 Dugan, 1 Duv. 289. 
 
 18. "Costs," as used in the statute relating to divorces includes 
 a reasonable attorney's fee. Dugan v. Dugan, 1 Duv. 289. 
 
 19. A wife ought not to be allowed to tax her husband with the 
 fees of four attorneys. Dugan v. Dugan, 1 Duv. 289. 
 
COrNTT COTTRTS. 
 
 COUNTY COUETS. 
 
 « 
 
 I. Juriadiction and powers of. 
 II. Duties and responsibilities of. 
 
 I. JURISDICTION AND POWERS OF. 
 
 1. County courts only have power to order the conveyance 
 land sold by a deceased vendor by executory contract, whi 
 descends to his heirs. Hedger v. Ward, 15 B. Mon. 115. 
 
 2. Neither a county judge, nor any number of justices less th 
 a majority, have power to contract and charge the county or t 
 county court with the cost of building public buildings or impro^ 
 ments. Harrison County Court v. Smith, 15 B. Mon. 166. 
 
 3. County courts have no power to adjudicate, in any mann- 
 upon exceptions to the report of processioners, or to confirm, 
 reject the report. Mclntire v. Gettings, 15 B. Mon. 177. 
 
 4. In binding out the children of a free negro woman, the coun 
 court should allow the mother to select the persons to whom th 
 should be bound, and should bind them to such persons, unlc 
 there should be valid reasons against it. Bakers v. Winfrey, 15 
 Mon. 505. 
 
 5. County courts have authority, in certain cases, on notice 
 the heirs of a deceased vendor, to order deeds upon bonds, wh 
 the bonds are shown to be the act and deed of the party, whc 
 act it purports to be, on proof of the payment of the purchat 
 money, or performance of other conditions, upon which the de 
 was to have been made. Grubbs v. Steele, 15 B. Mon. 573. 
 
 6. When there is a vacancy in the office of county court clei 
 court should appoint a clerk, and for this purpose the county jud 
 alone constitutes the court. Stevens v. Wyatt, 16 B. Mon. 548-5E 
 
 7. The county court of the county of the testator's residen 
 alone has jurisdiction to probate his will ; unless the will be d 
 etroyed or suppressed, when the chancery court of the couni 
 where it ought to have been probated, has jurisdiction. Barr 
 V. Edward, 17 B. Mon. 640. 
 
 8. The authority, given to county courts and general councils 
 cities to license taverns, does not give them the power to refu 
 altogether to license any tavern. The discretion, given in su 
 cases, is not an arbitrary, but a judicial and legal discretion, to 
 
144 COUNTY COURTS. 
 
 exercised according to the intention of the legislature. Louisville 
 V. McKean, etc., 18 B. Men. 11. 
 
 9. The judge of the county court has power to appoint a special 
 term of the county court, whenever he shall deem it necessary for 
 the transaction of any business of which the county court has 
 jurisdiction. Commonwealth v. Graves & Clary, 18 B. Mon. 34, 35. 
 
 10. The granting of a license to keep a tavern is a matter in 
 the discretion and sound judgment of the county court, and if 
 granted, the propriety of doing so can not be called in question in 
 a collateral proceeding. Commonwealth v. Graves & Clary, 18 B. 
 Mon. 35. 
 
 11. The county court has no power to inquire into the eligibility 
 of one holding certificate of his election to the office of sheriff. 
 Patterson v. Miller, 2 Met. 497. 
 
 12. The county courts have power, under the statute concerning 
 guardians and wards, to appoint guardians to minors, who are free 
 persons of color. Clinkenbeard v. Clinkenbeard, 3 Met. 331. 
 
 13. The right, impliedly conferred on the county court to dis- 
 approve the appointment of a deputy sheriff, belongs to its execii- 
 tive and not to its judicial powers. Applegate v. Applegate, 4 Met. 
 237 ; Taylor v. Commonwealth, 3 J. J. Mar. 401. 
 
 14. On an application for tavern license, the county court has 
 a large margin of discretion, which the court of appeals will never 
 control, unless it has been manifestly abused. Nepp v. Common- 
 wealth, 2 Duv. 546. 
 
 II. DUTIES AND RESPONSIBILITIES OF. 
 
 1. It is the duty of the county court, on the application of the 
 county court of an adjoining county, and it may be compelled by 
 mandamus, to appoint commissioners to confer with others, ap- 
 pointed by the court making the application, in reference to the 
 building of a bridge over a stream dividing the two counties. 
 Nelson County Court v. Washington County Court, 14 B. Mon. 97. 
 
 2. If a person, applying for a license to sell spiritous liquors 
 as a merchant, has such qualifications as the law requires, he is 
 entitled to a license as matter of right. Dougherty v. Common- 
 wealth, 14 B. Mon. 242. 
 
 3. County courts, in making contracts to build bridges, and lay- 
 ing a levy to pay for the work, act in a ministerial, and not in a 
 judicial capacity, and may be compelled by mandamus to make a 
 levy. Anderson County Court v. Stone, 18 B. Mon. 852,853; sec. 
 526, Civil Code; Kaye v. Kean, 18 B. Mon. 847; Sammar v. Cov- 
 ington, 3 Met. 499. 
 
COUNTER-CLAIM. 
 
 COUNTEE-CLAIM. 
 
 1. Tlie Civil Code, in express term, limits a counter-claim to ' 
 cause of action in favor of the defendants, or some of thei 
 against the plaintiffs, or some of them, arising out of the contra 
 or transaction, set forth in the plaintiff's petition, as the found 
 tion of the plaintiff's claim or the subject of the action. Sil 
 Heirs v. Q-olden, 16 B. Mon. 555 ; sec. 126, Civil Code. 
 
 2. A claim, arising out of the contract or transaction set for 
 in the plaintiff's petition, or connected with the subject of t 
 action, although it may arise out of a tort, may be relied on as 
 counter-claim. Tinsley v. Tinsley, 15 B. Mon. 459, 460 ; Sloan 
 Sloan, 2 Met. 340. 
 
 3. The liability of a doweress, as distributee, to contribute 
 the payment of the amount, that may be recovered by her hi 
 band's vendee on his covenant of warranty, can not be pleaded 
 a counter-claim in an action by her to have dower allotted. Hit 
 Heirs v. Qolden, 16 B. Mon. 555. 
 
 4. If an answer presents an immaterial issue on the petitic 
 but contains a counter-claim, no judgment can be rendered J 
 the plaintiff, until a trial of the issue, made by the answer a 
 reply. Moore v. Caruthers, 17 B. Mon. 681. 
 
 5. In such a case, any sum, found due the defendant on t 
 counter-claim, should be credited on whatever may be due t 
 plaintiff, and if the counter-claim exceeds the amount due t 
 plaintiff, the verdict should be for the defendant for the exce 
 Moore v. Garuthers, 17 B. Mon. 681. 
 
 6. In an action, by a railroad company against a subscriber 
 its capital stock, the defendant was permitted to plead, as 
 counter-claim, that by an agreement, made with the agent of t 
 company at the time of making his subscription, it was agre 
 that any damage, done to his lands by constructing the ro 
 through it, was to go as a credit on his subscription. L. & N. 
 R. Go. V. Thompson, 18 B. Mon. 742, 743. 
 
 7. A writ of habere facias issued on a judgment, and the defer 
 ant enjoined it, and pending the injunction planted the land 
 contest in corn, and raised a crop; but the injunction being d 
 solved, the plaintiff was put in possession of the land and growi 
 crop, and brought suit on the injunction bond to recover dama^ 
 for being kept out of possession of the land. Held : The value 
 
 11 
 
146 COUNTER-CLAIM. 
 
 the growing crop taken by the plaintiff was a valid counter-claim. 
 Tinsley v. Tinsley, 15 B. Mon. 459, 460. 
 
 8. In a proceeding by mandamus, to compel a county court to 
 pay for a bridge, money already paid can not be recovered back, 
 by way of counter-claim, on the ground that the bridge had not 
 been built according to contract ; but the counter-claim may be 
 relied on, as a defense, as furnishing a reason why no more should 
 be paid. Anderson Co. Co. v. Stone, 18 B. Mon. 853. 
 
 9. In an action for an assault and battery, the defendant may 
 plead, as a counter-claim, that the plaintiff' first assaulted him, 
 and may recover, on his counter-claim, for an assault and battery. 
 Slone V. 8lone, 2 Met. 340. 
 
 10. A purchaser of personal property, at a sale by adminis- 
 trators, can not, in an action by them against him for the price, 
 plead, by way of counter-claim, that one of the administrators had 
 converted a part of the property to his own use after the sale. 
 Fhillips V. Keifer, 2 Met. 479. 
 
 11. Neither usury, nor payment, is pleadable as a counter-claim 
 in an action by an assignee on a note. True v. Triplett, 4 Met. 
 58, 59. 
 
 12. A defendant against whom an attachment issued, in an 
 action for a debt, can not set up damages, sustained by him by 
 reason of the malicious suing out of the attachment, as a counter- 
 claim in that action, although the plaintiff is a non-resident, and 
 Las no other property in this State, out of which to make the 
 damages claimed, except the debt sued for in the action. Nolle 
 V. Thompson, 3 Met. 122, 123 ; sec. 126, Civil Code. 
 
 13. A defendant can not recover, by way of counter-claim, or 
 upon a cross-petition against a person not a plaintiff, on a claim 
 which does not affect the plaintiff or the subject of the action. 
 Wells V. Boyd, 1 Duv. 367 ; sec. 126, Civil Code. 
 
 14. A counter-claim must be against the plaintiffs, or some of 
 them ; a cross-petition is allowable when the defendant has a 
 cause of action, affecting the subject-matter of the original action. 
 Wells V. Boyd, 1 Duv. 368. 
 
 15. If the value of lands of the wife, sold by the husband, has 
 been expended on other lands of the wife, and her heirs, on failing 
 to recover the land on account of assets received from the father, 
 sue the executor and other heirs of the father by another wife for 
 the value of the land thus lost to them, they will be charged with 
 the enhanced value of such other Iknds produced by the expendi- 
 ture and improvement. Todd v. Todd, 18 B. Mon. 166. 
 
CREDITORS AND PURCHASERS. 14'i 
 
 16. M. agreed that if H. would sign a note, payable to him as 
 surety for L., he would procure G. to sign it as a co-surety. M 
 failed to secure the signature of G., and L. became insolvent 
 Held : That H. might plead these facts as a counter-claim, in ai 
 action on the note, and recover of M. the damages sustained bj 
 his failure to procure L. as a co-surety. Murphy v. Hubble, 2 Duv 
 248, 249. 
 
 COUNTY JUDGE. 
 
 1. A county judge has no jurisdiction to commit a slave arrestee 
 as a runaway. Green v. Arthur, 3 Met. 76. 
 
 2. A writ of forcible entry and detainer, issued by a countj 
 judge, and all steps taken under it, are void. Johnson v. JSrwine 
 3 Met. 252 ; sec. 502, Civil Code.i 
 
 COURT OF APPEALS. 
 
 See Appeals and Practice in the Courts of Appeals. 
 
 COUETS OP mQUIET. 
 
 See Examining Courts. 
 
 COVENANTS. 
 See Contracts and Deeds. 
 
 CEEDITOES AND PUECHASEES. 
 
 1. The creditors of an insolvent decedent may surcharge a set 
 tlement, made in the county court of the accounts of the deceden 
 as guardian. Alsop's Creditors v. Barbae and wife, 14 B. Mon. 525 
 
 2. The general doctrine is well established, that the absolut< 
 sale of personal property, unless it be followed by the possessioi 
 
 1 By an amendment to section 502, Civil Code, approved February 26, 1863 
 a, county judge has power to issue and try writs of forcible entry and de 
 tainer. Myers' Supplement, 122. 
 
148 OEEDITORS ANB PURCHASERS. 
 
 of the vendee, is fraudulent as to creditors of the vendor. Janis 
 V. Davis, 14 B. Mon. 532, 533. 
 
 3. If the vendee resides with the vendor, the rule is the same, 
 and there must be actual visible change of the possession. Jarvis 
 V. Davis, 14 B. Mon. 533. 
 
 4. Any interest, which a mortg-agee or grantee in a deed of trust 
 has in the property conveyed, is subject to the payment of his 
 debts. Ely, Olapp & Co. v. Hair, etc., 16 B. Mon. 241. 
 
 5. If a creditor has a lien on two funds, and another has a lien, 
 of a younger date, on only one of the funds, the latter will have a 
 right in equity to have the fund, on which he has no lien, first 
 applied to the payment of the debt of the other creditor. Swigert 
 V. Bank Ky., 17 B. Mon. 285. 
 
 6. If one creditor seeks the aid of a court of equity to reach a 
 fund in the hands of another creditor, the latter will not be com- 
 pelled to surrender it until his own debt is first paid. Swigert v. 
 Bank Ky., 17 B. Mon. 288. 
 
 7. Mortgages and other deeds of conveyance and agreements 
 creating liens, which are not recorded, are not valid in a court of 
 law against creditors, nor against any legal right, which they may, 
 in good faith, acquire. Swigert v. Bank Ky., 17 B. Mon. 290. 
 
 8. But, when all are in a court of equity, asserting and relying 
 on mere equities, the doctrine does not apply. Swigert v. Bank 
 Ky., 17 B. Mon. 289, 290. 
 
 9. An unrecorded deed of trust or mortgage will, in equity, 
 prevail even against a creditor, who has notice of it before he 
 acquires a legal right to the property or estate embraced by it. 
 Forepaugh v. Appold, 17 B. Mon. 631. 
 
 10. An absolute conveyance of personal property, whether by 
 sale or gift, and whether recorded or not, when the possession re- 
 mains with the grantor or donor, is fraudulent as to creditors, and 
 purchasers. Enders v. Williams, 1 Met. 350. 
 
 11. Purchasers have a higher equity than creditors, and a volun- 
 tary conveyance is fraudulent as to purchasers without actual 
 notice. Enders v. Williams, 1 Met. 350. 
 
 12. A deed, although acknowledged and left in the clerk's office 
 for registration, is not constructive notice to creditors or pur- 
 chasers, until the tax is paid thereon. As to them, the vendor only 
 has an equitable title. Phillips v. Clark, 4 Met. 352 ; sec. 32, chap. 
 24, p. 284, vol. 1, Eevised Statutes. 
 
 13. The creditors of one, for whose use for life, estate was 
 
CREDITORS AND PURCHASERS. 149 
 
 devised to trustees, with remainder, in fee, to his children, with 
 permission to the trustees to sell part of the estate to pay the son's 
 debts, and buy slaves, have no right to subject any part of the estate 
 to the payment of their claims Rowan v. Rowan, 2 Duv. 413, 414. 
 14. The creditors of a firm have, through the equities of each 
 partner, an exclusive lien on the firm assets, and should not be 
 allowed to participate in the individual assets of the partners, 
 until their individual creditors have received a per cent, on theii 
 debts, equal to that received by firm creditors, out of the assets ol 
 the firm. Whitehead y. Caldwell,2 Duv. 432; Northern Bank Ky . v, 
 Keizer, 2 Duv. 169, 
 
 CEIMHSTAL LAW AN"D PEOCEBDINGS. 
 
 I. General principles. 
 II. Felonies. 
 III. Misdemeanors. 
 IV. Trial in criminal and penal prosecutions. 
 
 I. GENERAL PRINCIPLES. 
 
 A. Self-defense. 
 
 B. Inielleetual insanity. 
 
 C. Moral insanity. 
 
 D. Drunkenness. 
 
 E. Provocation. 
 
 F. Rational doubt of guilt. 
 
 a. Self-defense. 
 
 1. If, from the offensive language, movements, threats, attitude, 
 and proximity of an adversary, one has reasonable grounds to 
 believe, and does believe, that he intends to proceed immediately 
 to inflict great bodily harm upon him, and he shoots and wounds 
 his adversary, he will be excusable on the grounds of apparent 
 necessity. Rapp v. Commonwealth, 14 B. Mon. 622, 623. 
 
 2. One, who has reasonable grounds to believe, and does believe 
 that he is in immediate danger of great bodily harm, or of losing 
 his life, and that his assailant is about to take his life, or to inflict 
 great bodily harm, and that he can only prevent it by killing him, 
 may do so, and he will be excusable on the grounds of self-defense 
 and apparent necessity. Meredith v. Commonwealth, 18 B. Mon. 56. 
 
 3. Whether such belief and reasonable grounds of belief existed 
 or not, is a matter of fact to be determined by the jury. Meredith 
 V. Commonwealth, 18 B. Mon. 56, 
 
150 CRIMINAL LAW AND PROCEEDINGS. 
 
 4. The principle applicable to a mutual renconter, or an affray 
 with deadly weapons, does not apply to a case where the accused 
 had been once assaulted with a deadly weapon, by the deceased 
 who had threatened to kill him on sight. In such a case, the law 
 does not require him to retreat if he can ; but he may stand his 
 ground, and if he kills his assailant, he will be excusable. Phillips 
 V. Commonwealth, 2 Duv. 330. 
 
 5. In such a case, it was erroneous to instruct the jury that they 
 ought to find the defendant guilty of murder, unless they should 
 be of opinion that he, when he fired the pistol, had reasonable 
 ground to believe, and did believe, in good faith, that the deceased 
 was then about to carry his previous threat into execution, and 
 would do so imless prevented by killing him, and that the accused 
 had no other apparent means of escape. Phillips v. Commonwealth, 
 2 Dqv. 330. 
 
 b. Intellectual insanity. 
 
 1. If insanity be relied on as a defense, it must be established, 
 to the satisfaction of the jury, that in committing the act the 
 accused was laboring under such a defect of reason, from disease 
 of the mind, as not to know the nature and quality of the act he 
 was doing, or if he did know it, that he did not know it was 
 wrong. Graham v. Commonwealth, 16 B. Mon. 596.1 
 
 2. The true test of responsibility is, whether the accused had 
 sufficient reason to know right from wrong, and whether or not 
 he had 8u.fficient power of control to govern his actions. Graham 
 V. Commonwealth, 16 B. Mon. 592, 593 ; Smith v. Commonwealth, 1 
 Dav. 232. 
 
 c. Moral insanity. 
 
 1. Moral insanity, as a defense in a criminal case, is peculiarly 
 liable to abuse, and the utmost care and circumspection are required, 
 on the part of the court, in presenting to the jury legal principles 
 relating to it. Scott v. Commonwealth, 4 Met. 229. 
 
 2. To establish moral insanity as a defense, it is necessary to 
 show, either by clear proof its contemporaneous existence evinced 
 by present circumstances, or the existence of an habitual tendency, 
 developed in previous cases, becoming in itself a second nature. 
 But it is not necessary that it should have manifested itself in 
 former acts of a similar character or like nature of the offense 
 charged. Scott v. Commonwealth, 4 Met. 229. 
 
 1 In Smith y. Commonwealth, 1 Duv. 229, an instruction similar to this was 
 held under the circumstances of that case not to be correct. 
 
CRIMINAL LAW AND PROCEEDINGS. IE 
 
 3. Before moral insanity can be admitted to excuse the commii 
 Bion of crime, it must be shown to exist in such violence as 1 
 render it impossible for the party to do otherwise than yield to i' 
 promptings. Scott v. Commonwealth^ 4 Met. 230. 
 
 4. No enlightened jurist now doubts the existence of such a tyj 
 of moral, as contradistinguished from intellectual, insanity i 
 homicidal mania, or morbid and uncontrollable appetite for mai 
 killing; and pyromania, or a like passion for house- burning; an 
 kleptomania, or an irresistible inclination to steal. Smith v. Con 
 monwealth, 1 Duv. 231. 
 
 d. Drunkenness. 
 
 1. Drunkenness, or temporary insanity, produced by the act i 
 the defendant in getting drunk, constitutes no excuse for the con 
 mission of crime. Tyra v. Commonwealth, 2 Met. 2, 3. 
 
 2. One, who, designing a homicide, drinks to intoxication, ar 
 in that condition commits it, is guilty of murder ; but drunkei 
 ness brought on by sensual or social gratification, with no crimin 
 intent, may reduce an unprovoked homicide from murder to mai 
 slaughter, and if transient insanity ensues, although it should n^ 
 altogether excuse, it should mitigate the crime. Smith v. Cot 
 monwealth, 1 Duv. 227. 
 
 3. An instruction "that drunkenness can never be received as 
 ground to excuse or palliate a crime," is erroneous. Golliher 
 Commonwealth, 2 Duv. 165. 
 
 4. When and how far drukenness may excuse or palliate erin 
 must depend on its m.otive, its degree, and its effect on the mir 
 and passions. Golliher v. Commonwealth, 2 Duv. 165. 
 
 e. Provocation. 
 
 1. Mere words and gestures, though they may excite passio 
 will not extenuate a homicide committed with a deadly weapo 
 and make it manslaughter. Bapp v. Commonwealth, 14 B. Mo: 
 621. 
 
 2. The court should not leave the jury to determine what wi 
 legal provocation. Payne v. Commonwealth, 1 Met. 377. 
 
 /. Rational doubt. 
 1. A rational doubt is one growing out of the evidence, and n 
 a mere chimera existing in the juror's mind ; and to acquit ( 
 mere light and trivial doubts existing in the juror's mind, ar 
 not growing out of the evidence, tends to the encouragement 
 malefactors, is detrimental to the best interests of society, and 
 
152 CKIMINAL LAW AND PROCEEDINGS. 
 
 virtual violation of the juror's oath. Graham v. Commonwealth, 
 16 B. Mod. 592. 
 
 . 2. The " rational doubt " which should result in an acquittal, 
 lest an innocent man might be unjustly punished, is a doubt as to 
 all, or any one, of the constituent elements necessary to legal 
 responsibility or j)unishable guilt. Smith v. Commonwealth, 1 Duv. 
 228. 
 
 3. If the jury have a rational doubt of the truth of any fact 
 necessary to constitute the offense charged, the defendant ought to 
 be acquitted. Payne v. Commonwealth, 1 Met. 376. 
 
 4. If the jury have a rational doubt whether the defendant is 
 guilty of a higher or lower grade of the oifense charged, they 
 ought to find him guilty of the lower. Payne v. Commonwealth, 1 
 Met. 376; Graham y. Commonwealth, 16 B. Mon. 592. 
 
 5. A doubt of sanity is essentially different from a doubt of 
 insanity: the former should always avail ; the latter, never. Smith 
 V. Commonwealth, 1 Duv. 229. 
 
 II. FELONIES. 
 
 A. Treason, and willful murder. 
 
 B. Wounding, wiih intent to kill. 
 
 C. Perjury, and false swearing. 
 
 D. Embezzlemeht, and obtaining money under false pretenses. 
 
 E. Horse-stealing. 
 
 F. Forgery, and passing counterfeit money. 
 O. Larceny. 
 
 Telonies are such offenses as are punishable hy death or confinement in the 
 penitentiary. Sec. 1, art. 1, chap. 28, p. 30, vol. 1, Revised Statutes. 
 
 a. Treason, and willful murder. 
 
 1. To make one a principal in a murder, it is not necessary 
 that he should inflict the mortal wound ; it is sufficient if he was 
 present, aiding and abetting the act, or if he advised and counselled 
 its commission. Thompson v. Commonwealth, 1 Met. 15. 
 
 2. One, who, designing a homicide, drinks to intoxication, and 
 in that condition commits it, is guilty of murder. Smith v. Com- 
 monwealth, 1 Duv. 227. 
 
 3. If several persons conspire together to commit treason, and 
 treason is committed in pursuance to the conspiracy, the conspir- 
 acy is merged in the higher crime of treason. Commonwealth v. 
 Blackburn, 1 Duv. 5. 
 
 4. G., while attending an election at a church, became involved, 
 
CEIMINAL LAW AND PEOOEEDINGS. 153 
 
 with some friends, in a conflict with an antagonistic party, in 
 which he was disarmed and knocked down ; but, liaving escaped 
 to the woods,, manifested an intention to go home, and went back 
 for his horse ; but before he had mounted, he was informed thai 
 his party had triumphed, and driven off the adverse party. He 
 tlien took his gun, and went into the crowd in the church, declar- 
 ing he would "kill four d — d rascals;" and after entering 
 shouldered his gun, with the muzzle pointing behind him, wher 
 almost instantly it went off, and killed E., who was one of the 
 friends constituting his party. Held: 1. That if he had gone into 
 ■the house for the felonious purpose of killing any person, and had 
 voluntarily fired his gun for the purpose of executing that malicious 
 design, the killing of E., though unintentional, would have beei 
 murder. 2. Or had he, without any such special purpose, volun- 
 tarily and recklessly fired into the crowd and killed any person 
 it would have been murder. 3. That if, in the first hypothecatec 
 case, the firing was accidental, it was manslaughter only. 4. Tha; 
 whatever may be the true phase of the case, it was not murder 
 unless the firing was voluntary. Golliher v. Oommonwealth, 'i. 
 Duv. 164. 
 
 5. One, who has been once assaulted with a deadly weapon, anc 
 subsequently threatened by the deceased, who was a bold and reck 
 less man, will not be guilty of murder if, on subsequently meeting 
 him, and inquiring whether it is his purpose then to carry hif 
 threat into execution, and being informed it is, shoots him down 
 although he might not then believe, nor have reasonable ground: 
 to believe, bis life or person was in immediate danger, or that he hac 
 no other means of escape. Philli-ps v. Commonwealth, 2 Duv. 329 
 
 6. The mere passive sanction of one present by constraint, a 
 the commission of a homicide, does not render him guilty of mur 
 der. Butler v. Commonwealth, 2 Duv. 436. 
 
 h. Wounding, with intent to kill. 
 
 1. In order to maintain the charge of malicious shooting, witl 
 intent to kill, it must be such a case as would have been murde: 
 if the party wounded had died. JRapp v. Commonwealth, 14 B 
 Mon. 621 ; Commonwealth v. Yancy, 2 Duv. 376. 
 
 2. It is competent, on the trial of an indictment for maliciou 
 shooting, for the defendant to prove that he had notice that a son 
 in the I'oom when he entered, and who left immediately, and re 
 turned about the time of the shooting of his father, had made i 
 contingent threat to shoot the defendant, Bapp v. Commonwealth 
 14 B. Jilon. 623, 624, 
 
154 CRIMINAL LAW AND PROCEEDINGS. 
 
 3. It is a felony to shoot at and wound another, willfully and 
 maliciously, with intent to kill ; but to do the same act without 
 malice, and not in self-defense, is only a misdemeanor. Common- 
 wealth V. Yancy, 2 Duv. 375. 
 
 c. Perjury, and false swearing. 
 
 1. The offense of false swearing, created and defined by section 2, 
 article 8, chapter 28, page 385, volume 1, Eevised Statutes, con- 
 sists in knowingly and willfully taking a false oath relating to a 
 subject on which the party can be legally sworn, before an officer 
 legally authorized to administer the oath. Commonwealth v. Powell, 
 2 Met. 13. 
 
 2. Corrupt motive is indispensable to perjury and all other 
 crimes, andone having knowledge respecting the fact, who testifies, 
 however positively, only what he believes to be true, can be guilty 
 of no crime, although he was mistaken. Scott y. Cook, 1 Duv. 315. 
 
 d. Embezzlement, and obtaining money under false pretenses. 
 
 1. The oiTense of obtaining money under false pretenses will be 
 treated as having been committed at that place, where the money 
 is obtained, and not at the place where the fraud was concocted, 
 and the representations made. Commonwealth v. Van Tuyl, 1 
 Met. 4. 
 
 2. The oifense consists in obtaining the money, and not in the 
 means used to obtain it. The Mse pretense is only the means, 
 by which the offense is perpetrated. Commonwealth v. Van Tuyl, 
 1 Met. 3, 4. 
 
 3. A debtor, who represents to his creditor that he has a given 
 quantity of tobacco of a specified quality, which he will deliver in 
 payment of his debt, and thereby induces the creditor to surrender 
 his note, is not guilty of the crime of obtaining property under 
 false pretenses, if he has the quantity of tobacco ; although it may 
 be of a quality greatly inferior to what he represented it to be. 
 Commonwealth v. Haughey, 3 Met. 224, 225. 
 
 4. To constitute the crime of obtaining money, or goods under 
 false pretenses, it is necessary that the false representation, by 
 which it is procured, should relate to some past occurrence, or 
 existing fact, and no statement, of anything to take place in the 
 future, is a pretense within the meaning of the statute. Glackan v. 
 Commonwealth, 3 Met. 234; Commonwealth v. Haughey, 3 Met. 223. 
 
 5. One, who fraudulently and falsely promises that, if property 
 be delivered to him, he will sell it, and pay over the proceeds, and 
 fails after selling it to pay the money, will not be subject to con- 
 viction for having obtained it under false pretenses ; although he 
 
CRIMINAL LAW AND PROCEEDINGS. 151 
 
 did not intend to pay it over, when he received it. Crlackan v 
 Commonwealth, 3 Met. 236. 
 
 6. An agent of a corporation, who fraudulently converts to hi 
 own use money, placed under his care or management as sucl 
 officer, is guilty of a felony; no matter for what purpose it ma; 
 have been placed under his care. Barclay v. Breckinridge, 4 Mei 
 
 378, 379. 
 
 7. If a clerk of a private banker converts the money of hi 
 employer to his own use, and charges it on the books to a depos 
 itor, he is not guilty of a felony. Barclay v. Breckinridge, 4 Met 
 
 379, 380. 
 
 8. On the trial of one jointly indicted with another, for obtain 
 ing money under false pretenses, a confession made by such othe 
 after the fact, can not be given in evidence against him on trial 
 there being no proof of a combination to prosecute that sort o 
 enterprise indefinitely. Jones v. Commonwealth, 2 Duv. 554. 
 
 e. Horse-stealing. 
 
 1. If two persons steal a horse in Tennessee, and bring it t( 
 Kentucky, and one disposes of it here, for the benefit of both— 
 the other aiding him here and in the same county, where thi 
 horse was sold — ^both are guilty, under our statute, of horse-steal 
 ing, and may be punished here. Ferrill & Bullard v. Commonwealth 
 1 Duv. 158, 159. 
 
 2. That one, who has stolen a horse in Tennessee, and brough 
 it into this State, where he sold it, may be tried and convicte( 
 in Tennessee, is no reason whj- he may not be convicted here 
 Ferrill & Bullard v. Commonwealth, 1 Duv. 158. 
 
 /. Forgery, and passing counterfeit money. 
 
 1. It is not necessary, on the trial of one indicted for having 
 counterfeit bank notes in his possession with intent to pass them 
 to prove an intention to pass them in this State. It is sufflcien 
 to show an intention to pass them anywhere. Clark v. Common 
 wealth, 16 B. Mon. 213. 
 
 g. Larceny. 
 
 1. One, indicted for stealing a bank note of greater nomina 
 value than four dollars, has a right to show its value in gold, o: 
 silver coin, and if worth less than four dollars in such coin, to bi 
 punished for petit larceny, instead of grand larceny. Broms v 
 Commonwealth, 2 Duv. 351. 
 
156 CRIMINAL LAW AND PROCEEDINGS. 
 
 III. MISDEMEANORS. 
 
 Generally. For the various kinds of misdemeanors, see their several 
 
 titles. 
 
 1. All oflfenses, other than felonies, whether at common law or 
 made so by the statute, are misdemeanors. Sec. 1, art. 1, chap. 
 28, p. 370, vol. 1, Eevised Statutes. 
 
 2. To wager on the result of the vote of a particular precinct, is 
 to bet on the election within the meaning of the statute. Com- 
 monwealth V. Kennedy, 15 B. Mon. 533. 
 
 3. One, authorized by the laws of Ohio to solemnize matrimony 
 in that State, but having no license or authority to do so under 
 the laws of this State, who solemnizes matrimony on the Ohio 
 river, on this side of low water-mark, is guilty of the offense of 
 unlawfully solemnizing the rights of matrimony. McFall v. Com- 
 monwealth, 2 Met. 397. 
 
 4. If one wound another, not in self-defense, in sudden heat and 
 passion, without previous malice, it will only be a misdemeanor. 
 Rapp V. Commonwealth, 14 B. Mon. 621; Commonwealth y. Yancy, 
 2 Duv. 375. 
 
 5. An intent to kill is not an ingredient of the offense of stab- 
 bing, descrilDed in section 1, article 17, chapter 28, page 397, vol- 
 ume 1, Eevised Statutes. Tyra v. Commonwealth, 2 Met. 3. 
 
 IV, TRIAL IN CRIMINAL AND PENAL PROSECUTIONS. 
 
 A. What must be proved. 
 
 B. Instructions. 
 
 O. Verdict and judgment. 
 
 D. Arrest of judgment. 
 
 E. Appeals. See Appeals to Court of Appeals. 
 
 F. Proceedings after reversal. 
 
 a. What must be proved. 
 
 1. If an indictment, for having counterfeit bank notes in pos- 
 session with intent to pass them, describes the notes with even 
 unnecessary particularity, still the description must be proved as 
 laid. Clark v. Commonwealth, 16 B. Mon. 213 j Commonwealth v. 
 Magowan, 1 Met. 369. 
 
 2. It is not necessary in such a prosecution to show an intention 
 to pass the counterfeit bills in this State ; an intention to pass 
 them anywhere is sufficient. Clark v. Commonwealth, 16 B. Mon. 
 214. 
 
CRIMINAL LAW AND PROCEEDINGS. 157 
 
 3. In order to render a plea of insanity available, the jury must 
 be satisfied from the evidence that the accused was laboring under 
 such a defect of reason as not to know the nature and quality oi 
 the act he was doing, or if he did know it, that he did not know 
 it was wrong. Graham v. Commonwealth, 16 B. Mon. 592. 
 
 4. In a prosecution under section 1, article 17, chapter 28. 
 Eevised Statutes, for unlawfully shooting at another, it is not 
 necessary to show that it was done with malice. Bobinson v, 
 Commonwealth^ 16 B. Mon. 616. 
 
 5. In a proceeding under a city ordinance, against a taverr 
 keeper, for selling liquor on a Sunday, proof of a selling on a 
 Sunday, within the period of time within which the prosecution 
 must be commenced, is sufiScient, and it is not necessary to prove 
 the offense on the particular Sunday named in the warrant 
 Magowan v. Commonwealth, 2 Met. 6. 
 
 6. An averment, in an indictment for gaming with a slave, thai 
 money and property of the value of five dollars were bet, won 
 and lost, is sustained by proof that one dollar was bet, won, anc 
 lost. Commonwealth v. Garland, 3 Met. 479, 480.' 
 
 h. Instructions. 
 
 [Note. — Only sucli points, relating to instructions, as could not be propeTlj 
 distributed to any of the subdivisions of criminal law, have been collectec 
 here. For instructions relating to any particular branch of the subject, see 
 the appropriate subdivision.] 
 
 1. It is error for the court to instruct the jury that they musi 
 find a particular fact from a part of the evidence only. Thej 
 have a right to consider it altogether, and to give to each par 
 such weight as, in their opinion, it is entitled to. Adwell v. Com 
 monwealth, 17 B. Mon. 320. 
 
 2. The jury must obtain their knowledge of the law from th( 
 court, and they are bound to take the decision of the court as th< 
 law of the ease. Commonwealth v. Van Tuyl, 1 Met. 5 ; Monte v 
 Commonwealth, 3 J. J. Mar. 132. 
 
 3. It is error to leave to the jury to decide what is legal provo 
 cation. Payne v. Commonwealth, 1 Met. 377. 
 
 4. The court should always instruct the jury in writing, anc 
 any verbal explanations or qualifications are improper ; nor wil 
 
 iThe allegation of value is not descriptive of the identity of that which i 
 legally essential, and need not be strictly proved as laid; and this case is nol 
 therefore, in conflict with Clark v. Commonwealth, 16 B. Mon. 213, or Corn 
 monwealth v. Magowan, 1 Met. 369. 
 
158 CRIMINAL LAW AND PROCEEDINGS. 
 
 the error be cured by subsequently (after the jury has retired) 
 reducing such verbal explanations to writing. Payne v. Common- 
 wealth, 1 Met. 378 ; sec. 226, Criminal Code. 
 
 5. An instruction, that "if homicide be committed with a deadly 
 weapon in the previous possession of the slayer, the law implies 
 malice in the perpetrator," given without qualification, is mis- 
 leading. Smith V. Commonwealth, 1 Duv. 226, 227. 
 
 6. An instruction, that "when the jury, from the evidence, 
 entertain a rational doubt on the question of insanity, they should 
 always find in favor of sanity," is erroneous. Smith v. Common- 
 wealth, 1 Duv. 229. 
 
 7. The true test of responsibility is, whether the accused had 
 sufficient reason to know right from wrong, and sufficient power 
 of control to govern his actions. Graham v. Commonwealth, 16 
 B. Mon. 592 ; Smith v. Commonwealth, 1 Duv. 232. 
 
 8. It is error to instruct the jury, on the trial of one charged 
 with murder, that if they believe the accused confessed the killing, 
 they ought to find him guilty. The jury should be left to deter- 
 mine whether, from all the facts before them, the confession was 
 true. Butler v. Commonwealth, 2 Duv. 435. 
 
 9. It is erroneous to instruct the jury, in a criminal prosecu- 
 tion, that they have a right to disregard the instructions of the 
 court. Commonwealth v. Van Tuyl, 1 Met. 4 ; Monte v. Common- 
 wealth, 3 J. J. Mar. 132 ; sees. 226, 233, Criminal Code. 
 
 10. An instruction, on the trial of one charged with an oifense 
 made penal by statute, although it pursues almost the exact words 
 of the statute, will be erroneous if it fails to furnish such exposi- 
 tion of the meaning and intent of the law, as is demanded by the 
 peculiar facts and circumstances of the case. Eitte v. Common- 
 wealth, 18 B. Mon. 40. 
 
 c. Verdict and judgment. 
 
 1. If there be two counts in an indictment, one good, the other 
 bad, and the verdict be guilty generally, judgment may be given 
 on the verdict. Buford v. Commonwealth, 14 B. Mon. 28. 
 
 2. ,If two persons be jointly indicted for keeping a tippling house, 
 the fine against each, if convicted, is sixty dollars, and a several 
 judgment against one will be sustained. Curd & Ward v. Common- 
 wealth, 14 B. Mon. 389. 
 
 3. One, indicted for an offense consisting of several degrees, may 
 be found guilty of any degree, not higher than that charged, and 
 included in it. Bobinson v. Commonwealth, 16 B. Mon. 617 ; Tyra 
 
CRIMINAL LAW AND PROCEEDINGS. 159 
 
 V. Commonwealth, 2 Met. 2 ; Commonwealth v. Garland, 3 Met. 480 ; 
 sees. 268-260, Criminal Code. 
 
 4. One, indicted for shooting with intent to kill, may be found 
 guilty of shooting with intent to wound. Bohinson v. Common- 
 wealth, 16 B. Mon. 617 ; Tyra v. Commonwealth, 2 Met. 2. 
 
 5. In criminal cases, it is indispensably necessary to a verdict of 
 condemnation, that the guilt of the accused should he^ fully proved ; 
 a mere preponderance of evidence will not authorize such a ver- 
 dict. The evidence must be sufficient to produce a full conviction 
 of guilt, to the exclusion of all reasonable doubt. Jane v. Common- 
 wealth, 2 Met. 33. 
 
 6. Prior to the Code of Practice, when a party was found guilty 
 of two crimes and his punishment fixed, in each, at five years con- 
 finement in the penitentiary, and sentenced by the court to be 
 confined for the space of five years, on such indictment, both terms 
 commenced and ended at the same time, and five years imprison- 
 ment satisfied both judgments. James v. Ward, 2 Met. 272, 273. 
 See section 282, Criminal Code. 
 
 7. One indicted as a slave, can not be convicted and punished 
 as a free person. Oivens v. Commonwealth, 2 Duv. 349. 
 
 d. Arrest of judgment. 
 1. The only ground upon which a judgment in a criminal case 
 can be arrested, is, that the indictment does not state facts, con- 
 stituting a public offense within the jurisdiction of the court. 
 Walston V. Commonwealth, 16 B. Mon. 36 ; Tipper v. Commonwealth^ 
 1 Met. 9; sec. 271, Criminal Code; Comely v. Commonwealth, 17 B. 
 Mon. 409. 
 
 /. Proceedings after reversal by court of appeals. 
 
 1. If a judgment of conviction be reversed for a defect in the 
 indictment, on a motion, which was available in arrest of judg- 
 ment; on its return, the court may, if satisfied, from the evidence 
 on the trial, the defendant has been guilty of a public off'ense, 
 detain him in custody or on bail, until the final adjournment of 
 the grand jury at the next succeeding term. Corneilus v. Common- 
 wealth, 3 Met. 484; sees. 160, 161, Criminal Code. 
 
 2. If, in such a case, a new indictment be found, the former trial, 
 under the defective indictment, will not be available on a plea of 
 former acquittal. Corneilus v. Commonwealth, 3 Met. 484; Mount 
 V. Commonwealth, 2 Duv. 94. 
 
160 cT'RTEsy. 
 
 CEOSS-PETITION. 
 See Pleadings. 
 
 CURTESY. 
 
 1. A husband, whose wife had by ante-nuptial contract secured 
 her estate to her separate use to the exclusion of her husband, will, 
 if he suTvives the wife, have the same rights as if no such contract 
 had been made. Hart v. Soward, 14 B. Mon. 305. 
 
 2. Since the law of 1846, a husband, surviving his wife, is 
 entitled to a life estate in her slaves, whether there be issue of the 
 marriage or not. Jiari v. Soward, 14 B. Mon. 304. 
 
 3. A husband, who has assented to the making of a will by his 
 wife, may revoke his assent, at any time, before the will is pro- 
 bated. George v. Bussing, 15 B. Mon. 563. 
 
 4. A husband, who was not actually seized during the coverture, 
 is not entitled to curtesy in the lands of the wife. Petty v. Malier, 
 15 B. Mon. 605. 
 
 5. The receipt of rent, by the husband for lands of the wife, is 
 such seizure as will entitle him to an estate in the land as tenant 
 .by the curtesy. Powell v. Gossom, 18 B. Mon. 192. 
 
 6. If a husband, entitled to curtesy only, sells a fee simple, he 
 can only recover of his vendee the value of his life estate. Powell 
 V. Gossom, 18 B. Mon. 194. 
 
 7. The possession of the lands of a married woman by her 
 guardian, is such a seizure as will entitle the husband to curtesy. 
 Phillips V. Ditto, 2 Duv. 549. 
 
 CUERBNCY. 
 
 See Money. 
 
DAMAGES. 161 
 
 DAMAGES. 
 
 I. In general. 
 II. In actions for torts. 
 III. In actions on contracts. 
 
 I. IN GENERAL. 
 
 For damages for property taken for public use, see Compensatio S 
 
 For damages on affirmance of appeals from judgments for money, see Practice 
 
 in Court of Appeals. 
 For interest as damages, see Interest. 
 For excessive damages as grounds for New Trial, see that title. 
 
 1. The question of amount of damage is one peculiarly in the 
 province of the jury. McClain v. Esham, 17 B. Mon. 156. 
 
 2. N"o recovery can be had for mesne profits for a time anterior 
 to the date of the demise, unless the plaintiff shows title before 
 that time. Masterson v. Hagan, 17 B. Mon. 330. 
 
 3. Since the adoption of the Code of Practice, there can be no 
 recovery of mesne profits in the name of John Doe after a 
 recovery of the land in his name. Masterson v. Hagan, 17 B. 
 Mon. 334. 
 
 4. Two, out of eight tenants in common, have no right, in 
 an action for mesne profits, to recover damages for the whole 
 injury done to the land of all. Masterson v. Hagan, 17 B. Mon. 
 334. 
 
 5. Damages can only be recovered where the injury is the 
 natural and proximate consequence of the act or omission com- 
 plained of Patch V. Covington, 17 B. Mon. 734. 
 
 6. Eailroad companies are not liable to the owners of lots in 
 towns and cities, for damages resulting from grades and embank- 
 ments necessary in the construction of their roads through the 
 streets of the town, when done by permission of the proper au- 
 thorities. L. & F. B. R. Go. V. Brown, 17 B. Mon. 776. 
 
 7. One who has granted the right of way over his lands to a 
 railroad, can not recover against the company for injuries 
 resulting from a proper and reasonable use of the way for the 
 purposes of the road. Hortsman v. G. & L. B. B. Co., 18 B. Mon. 
 222. 
 
 8. A railroad company is not liable to one who has given the 
 right of way, for injuries resulting to his lands by the falling-in of 
 12 
 
162 DAMAGES. 
 
 the banks of a cut necessarily made in the construction of the 
 road. Jiortsman v. G. & L. B. R. Co., 18 B. Mon. 222. 
 
 9. If property be distrained or attached, without good cause for 
 suing out the distress or attachment, the owner may recover 
 damages ; and if the property be sold, also damages for the sale ; 
 and in such action malice need not be alleged or proved. Mitchell 
 V. Mattingly, 1 Met. 241 ; sec. 3, chap. 1, vol. 1, p. 180, Eevised 
 Statutes. 
 
 10. But in such a case, recovery can only be had for the seizure, 
 and not for the costs of the attachment. Mitchell v. Mattingly, 1 
 Met. 241. 
 
 11. A husband who remains in possession, by himself or tenant, 
 of a house belonging to his wife, after her death without issue, 
 even though his possession be ever so tortious, will not be liable to 
 the owners for the accidental destruction of the house by Are. 
 MorroiD v. Mason, 2 Met. 117. 
 
 12. Where there has been a wrongful assumption of control or 
 dominion, by one person over the slave of another, in viola- 
 tion of the rights of the owner, the wrong doer will be held 
 responsible for the consequences, which ensue during the con- 
 tinuance of the wrongful act, however extraordinary or unexpected 
 they may be. Munford v. Taylor, 2 Met. 607; King v. Shanks, 12 
 B. Mon. 410. 
 
 II. IN ACTIONS FOR TORTS. 
 
 A. In I 
 
 B. Libel and slander. 
 
 C. Trespass, and trespass on the case. 
 
 D. Against officers. 
 
 For damages resulting from negligence, see Negligence. 
 
 a. In general. 
 
 1. Where the death of the wife is instantaneous, from an injury 
 inflicted by the defendant, no recovery can be had at common law 
 by the husband. Eden v. L. & F. R. R. Co., 14 B. Mon. 208. 
 
 2. Incorporated towns are not liable, to the owners of adjacent 
 lots, for inconvenience resulting from raising the grade above, or 
 cutting it down below, such lots. Wolf v. C & L. R. R. Co., 15 B. 
 Mon. 408. 
 
 3. In an action for a fraud, if the plaintiff succeeds, he is, as a 
 general rule, entitled to recover damages commensurate with the 
 injury he has sustained. Campbell v. Sillman, 15 B. Mon. 518. 
 
DAMAGES. 16; 
 
 4. In the absence of a statute, a city is not liable for damagei 
 done to property by a mob within its limits. Ward v. City q 
 Louisville, 16 B. Mon. 193.i 
 
 5. Where the injury was willfully, or wantonly and recklessb 
 done, the jury may give exemplary damages. Kountz v. Brown 
 16 B. Mon. 583. 
 
 6. If property be hired for a specified purpose, and the hirer use 
 it for a more hazardous purpose and it is thereby lost, he will b 
 responsible for its value, as if he had wrongfully assumed contrc 
 of it. Kelly v. White, 17 B. Mon. 131. 
 
 7. "When one, who is a passenger on a street railroad, is injured b; 
 the upsetting of the car, the plaintiff is only entitled to reeove 
 compensatory damages. L. & P. JR. B. Co. v. Smith, 2 Duv. 55t 
 
 6. Libel and slander. 
 
 1. Circumstances of provocation, which are insufficient to justif; 
 may yet, by weakening the inference of malice, palliate the publ 
 cation of a libel or slander, and may operate to mitigate the dan 
 ages to be recovered for it. Duncan v. Brown, 15 B. Mon. 198. 
 
 2. If, in an action of slander, the plaintiff, for the purpose ( 
 showing malice, proves the speaking or writing of other slande: 
 ous words, actionable in themselves, the jury ought to be distinctl 
 told that they ought not to increase the damages on account i 
 those words. Letton v. Young, 2 Met. 562. 
 
 c. Trespass, and trespass on the case. 
 
 1. If a slave be engaged in robbing a hen-roost in the nigh 
 time, when it is so dark he can not be seen and known to be 
 negro, and under such circumstances as that he could not probabl 
 be apprehended, the owner, of the property being stolen, ma 
 lawfully shoot at him with the intention of wounding him, but ni 
 with the intention to kill ; but if he does kill without such intei 
 tion, he will not be responsible for the value of the slave. McClt 
 land V. Kay, 14 B. Mon. 106. 
 
 2. "Whether he would be responsible in such a case, if he ht 
 killed him intentionally. Quere. McClelland v. Kay, 14 B. Mo 
 107, 108. 
 
 3. The owner of a slave, killed by the cruel and inhuman trea 
 ment of the hirer or his overseer, may recover damages. Craig 
 Lee, 14 B. Mon. 122. 
 
 iSee now an act to indemnify citizens for property destroyed by mol 
 approved March 10, 1856. 2 Eevised Statutes, 513. 
 
164 DAMAGES. 
 
 4. The court should not intimate to the jury, whether the tres- 
 jjiiss, compluijied of was one of "enormity and magnitude;" but 
 should leave them to decide its character from the evidence. 
 Botts V. Williams, 17 B. Mon. 697. 
 
 5. Although, an admission, by the plaintiff in an action of tres- 
 pass for carrying him out of the State by force, that he had been 
 guilty of a felony in another State, did not justify the defendants, 
 who are private citizens, in removing him from the State by force 
 without a warrant, yet such admission may be given in evidence 
 in mitigation of damages. Botts v. Williams, 17 B. Mon. 697. 
 
 6. One who advised, incited, and procured a rebel force to camp 
 on the farm of another, and to consume, carry away, and destroy 
 his property, is liable to the owner for the value of the property 
 so consumed, taken away, or destroyed and for smart money, in 
 damages. Bronson v. Green, 2 Duv. 235, 236. 
 
 d. Against officers. 
 For failure to collect and return executions, see Executions: 
 
 1. A justice of the peace, acting within the limits of his juris- 
 diction, is not liable for errors of judgment, committed without 
 malice or improper design. Bullitt v. Clement, 16 B. Mon. 200. 
 
 2. A judge of an election, who is prompted by impure and corrupt 
 motives in refusing a legal vote, is liable in damages to the injured 
 party. Gaulfield v. Bulloch, 18 B. Mon. 497 ; Morgan v. Dudley, 18 
 B. Mon. 711 : Ghrisman v. Bruce, 1 Duv. 66. 
 
 3. The ten per cent, allowed county creditors on failure of the 
 sheriff to pay them, is not given in the form of interest, payable 
 annually, but by way of damages. Todd v. Caines, 18 B. Mon. 622 ; 
 Terrill Y.Cecil, 3 Mot. 348. 
 
 4. A sheriff, who takes an indemnifying bond before levying on 
 property, is bound to levy on and sell it; but if he fails, he is only 
 liable to the plaintiff for the damage actually sustained by the 
 failure to levy and sell, and may, in order to mitigate the damages 
 show that the property did not belong to the defendant in the 
 execution. Snoddy & Brdnsford v. Foster, 1. Met. 163. 
 
 5. An officer of court, who has property in his possession, under 
 process, who permits it to escape or be lost through his negligence, 
 is liable in damages to the party injured. Tudor v. JLewis, 3 Met. 
 383; 2 Mar. 567. 
 
DAMAGES. 165 
 
 III. IN ACTIONS ON CONTRACTS. 
 
 A. Sale and delivery of goods. 
 JB. Other contracts. 
 
 C. Covenants of warranty. 
 
 D. Other covenants and bonds. 
 
 a. Sale and delivery of goods. 
 The criterion of damages, for a failure to deliver hogs to the 
 plaintiif, to be slaughtered at customary rates, is the profits of 
 slaughtering after deducting expenses and pay for the trouble in 
 preparing to slaughter them. Thompson v. Jackson, Owsley & Co., 
 14 B. Mon. 115. 
 
 6. Other contracts. 
 
 1. One, who is prevented, by the default of the other party, 
 from completing work agreed to be done under a special contract, 
 may, in addition to recovering according to the agreement for the 
 work done, recover such damage as he may have sustained by 
 being prevented from completing the job. Western v. Sharp, 14 
 B. Mon. 178. 
 
 2. One, who agreed to oversee for another for a year at a fixed 
 price, and who was prevented from doing so by the other party, 
 can only recover the damages sustained, and not the full sum 
 agreed to be paid. Whitaker v. Sandifer, 1 Duv. 262 ; Chambertone 
 V. McCallister, 6 Dana, 352. 
 
 c. Covenants of warranty. 
 
 1. The sum, paid with interest from the time the purchaser ie 
 charged with hire, is the criterion of damages for a breach of a 
 covenant of warranty of title to a slave. Wood v. Wood, 1 Met. 
 518; 7 J. J. Mar. 110.' 
 
 2. The deed and warranty of one, who has exchanged lands and 
 been evicted, can not be set up against his claim to the land, given 
 in exchange for that lost ; for the restoration is not only the appro- 
 priate, but the stipulated compensation for his loss. Grimes v, 
 Bedman, 14 B. Mon. 238. 
 
 3. The criterion of recovery by the grantee on his covenant ol 
 warranty, where the widow of the grantor recovers dower, is that 
 proportion of the consideration paid for the land, which the value 
 of her life estate, in the allotment made, bears to an estate in fee 
 therein. Sill v. Golden, 16 B. Mon. 554. 
 
166 decedent's estates. 
 
 d. Other covenants and bonds. 
 
 1. One, who, pending a suit by his slave for freedom, executes a 
 bond conditioned to have the plaintiff forthcoming at a subsequent 
 term of the court, and not to send him out of the State, will, if he 
 violates the conditions of his bond, be liable, in a suit on the 
 bond, to pay the plaintiff hire after he is adjudged free. Warfield 
 V. Davis, 14 B. Mon. 43. 
 
 2. In an action on an attachment bond, the defendant is liable — 
 the debt not having been controverted, but the attachment suc- 
 cessfully disputed — for the costs, and a reasonable attorney's fee, 
 paid in contesting the attachment. Trapnall v. McAfee, 3 Met. 
 36, 37. 
 
 3. The recovery in a suit on an attachment bond should be lim- 
 ited to the damages, resulting from the operation of the attach- 
 ment. Burgen v. Sharer, 14 B. Mon. 500; Trapnall v. McAfee, 
 3 Met. 35-37. 
 
 DECEDENT'S ESTATES. 
 
 I. Verification, proof, and demand of claims against. 
 II. Preferred debts. 
 
 I. VERIFICATION, PKOOF, AND DEMAND OF CLAIMS AGAINST. 
 
 1. In an action against a personal representative, if the demand 
 be not verified as required by section 35, article 2, chapter 37, page 
 509, volume 1, Eevised Statutes, nor demand made before suit as 
 required by section 473, Civil Code, the defendant can only take 
 advantage of the neglect by affidavit and rule, before he files his 
 answer. Thomas' Ux'r v. Thomas, 15 B. Mon. 184; Sogers v. 
 Mitchell, 1 Met. 24, 25. 
 
 2. If, in response to a rule to show that he has verified, and 
 demanded his claim as required, the plaintiff fails to show a com- 
 pliance with these prerequisites, his petition should be dismissed 
 without prejudice. Thomas' Ex'r v. Thomas, 15 B. Mon. 184; 
 Rogers v. Mitchell, 1 Met. 25. 
 
 3. The petition in such a case need not allege the verification 
 and demand. Thomas' Ex'r. v. Thomas, 15 B. Mon. 183 ; Rogers v. 
 Mitchell, 1 Met. 24. 
 
 4. If no objection be taken, for the want of the proper verifica- 
 tion and demand, at or before the filing of the answer, it will be 
 an implied admission that the demand and verification had been 
 made, Thomas' Ex'r v. Thomas, 15 B. Mon. 184. 
 
decedent's estates. 167 
 
 5. A debt, created by a personal representative, need not be ver- 
 ified by the affidavit of the claimant. The receipt of the creditor 
 with proof, if contested, that the expenditure was proper, and 
 such as he had a right to make, is sufficient. Berry v. Grady, 1 
 Met. 555, 556. 
 
 6. An affidavit, which fails to state that there is no discount 
 against the demand, is defective. Trabue v. Harris, 1 Met. 598. 
 
 7. The verification, which the claimant i"s required to make, does 
 not dispense with other proof, that the account is correct and just, 
 and this proof must be made and presented to the personal repre- 
 sentative with the claim and affidavit of the creditor. Trabue v. 
 Harris, 1 Met. 599, 600. 
 
 8. The affidavit of a third person, that the account is "just, and 
 true as he verily believes," is not good. Trabue v. Harris, 1 Met. 
 601. 
 
 9. The statute, requiring a claim against a decedent to be ver- 
 ified by the affidavit of the claimant, is applicable to a demand on 
 which suit had been brought, but on which no judgment had been 
 recovered, before the death of the debtor. Where, in such a case, 
 the action is revived, and the personal representative obtains a 
 rule on the plaintiff to verify his demand, and he refuses to do so, 
 his action should be dismissed without prejudice. Matthews v. 
 Jones' Adm'r, 2 Met. 256. 
 
 10. Where suit is brought against a personal representative 
 without the requisite verification and demand, a demand made 
 afterward will not cure the omission ; and the petition should be 
 dismissed without prejudice. Rogers v. Mitchell, 1 Met. 25. 
 
 11. Where the decedent had been a guardian, and his personal 
 representative and security were sued jointly on the guardian's 
 bond, and the personal representative obtained a rule on the j)lain- 
 tift", and his petition was dismissed for want of the required verifi- 
 cation and demand — Held: That the action should not have 
 been dismissed as to the surety. Bogers v. Mitchell, 1 Met. 26. 
 
 12. An affidavit and demand, as preliminaries to a suit, are only 
 necessary when the suit is against a personal representative, 
 Rogers v. Mitchell, 1 Met. 26j but no judgment can be rendered on 
 a demand against a decedent's estate until the affidavit required by 
 section 36, article 2, chapter 37, Eevised Statutes, is made. Perry 
 V. Seitz, 2 Puv. 122. 
 
 II. PREFERRED DEBTS. 
 
 1. The estate of a ward, remaining in the hands of an insolvent 
 guardian at his death, must be paid in full before a ^ro rata distri- 
 
168 DECREE. 
 
 bution can be had between general creditors ; and creditors of the 
 ward have, in equity, a right to be substituted to the rights of the 
 ward ; if their claims are of such a character as would, had they 
 been paid by the guardian, have entitled him to a credit on the 
 settlement of his accounts. White v. Carico, 2 Met. 233, 234. 
 
 2. Though a married woman is equitably entitled to have notes, 
 executed to her by her husband in consideration of her convey- 
 ance of her land and slaves to enable him to raise money to pay 
 his debts, paid out of his estate, yet where her claim is a mere 
 equity, and there is no legal demand, to which she can be substi- 
 tuted, her right can not be enforced to the prejudice of her hus- 
 band's creditors in the settlement of his insolvent estate. Mara- 
 man v. Maraman, 4 Met. 91. 
 
 3. Such claim is not embraced by the statute, which requires 
 that, in the settlement of insolvent decedent's estates, all debts and 
 liabilities shall be of equal dignity, and be paid rateably. It does 
 not stand on the footing of even a simple contract debt. Mar- 
 aman v. Maraman, 4 Met. 92. 
 
 DECEEB. 
 See Judgment. 
 
 DEDICATIOlSr. 
 
 1. A dedication for a passway can not be presumed from the 
 fact, that the owner of the land has permitted it to be used as 
 such for many years ; unless it has been used under a claim of 
 right, and not by mere permission. Bowman v. Wickliffe, 15 B 
 Mon. 98. 
 
 2. If land be dedicated for public use as for streets, alleys, and 
 wharfs, the local public has no power to alien it or to divert it 
 from the uses of the dedication, and any conveyance, having such 
 an object in view, is void. Alves v. Henderson, 16 B. Mon. 168, 
 169 ; Covington v. McNickle, 18 B. Mon. 288. 
 
 3. That space is laid down, on the plat of a town, on a navigable 
 stream, between the town and the stream, indicating its appropri- 
 ation to public use, and a sale of lots under such plat, are circum- 
 stances from which its dedication to the public may be inferred ; 
 though the establishment, by the proprietor, of a ferry-landing 
 
DEEDS. 169 
 
 upon that space, would show a reservation, to the extent of the 
 uninterrupted use of it, for that purpose. Newport v. Taylor, 16 
 B. Mon. 803. 
 
 4. The dedication, by the proprietor, of lands, laid out as a town 
 on a navigable river, of land to be a common, confers on the 
 authorities of the town the right to build wharfs, and charge and 
 collect wharfage. Newport v. Taylor, 16 B. Mon. 804, 805. 
 
 5. Whether the legislature has power to authorize lands in a 
 town or city, dedicated to public use as streets, or as a common, to 
 be sold. Quere. Covington v. McNiehle, 18 B. Mon. 285. 
 
 6. One, who receives the title to property dedicated to public 
 use, will hold it subject to that use. Baptist Church v. Presbyterian 
 Church, 18 B. Mon. 640. 
 
 7. Any one, having an interest in property dedicated to public 
 use, may maintain an action to enforce the trust. Baptist Church 
 V. Presbyterian Church, 18 B. Mon. 641. 
 
 8. A private passway can not be created by dedication ; a public 
 highway may be. Hall v. McLeod, 2 Met. 104. 
 
 9. But, to make a valid dedication, an intention, to appropriate 
 the right to the general use of the public, must exist. "When the 
 appropriation is for the use of a particular person only, and made 
 under circumstances, which exclude the presumption that it was 
 intended to be for public use, it will not amount to a dedication. 
 Hall V. McLeod, 2 Met. 104. 
 
 DEEDS. 
 
 I. Consideration. 
 II. Acknowledgment and registration. 
 
 III. Validity. 
 
 IV. Construction and effect of. 
 
 V. Conveying lands of rnarried women. 
 
 I. CONSIDERATION. 
 
 1. The recital of the consideration of one dollar is not conclu- 
 sive, even between the parties, that no other consideration passed. 
 Such a consideration is merely nominal, and the actual considera- 
 tion paid may be proved by parole. Davenport v. Mc Campbell, 17 
 B. Mon. 42. 
 
 2. Love and affection are a sufficient consideration to uphold a 
 deed made by a wife to her husband. Todd v. WicJdiffe, 18 B. 
 Mon. 906. 
 
170 DEEDS. 
 
 3. Acknowledgment, in a deed, of the receipt of the considera- 
 tion, is only prima facie evidence of payment, and maybe rebutted 
 by proof aliunde. Gordon v. Gordon, 1 Met. 287 ; Trumbo v. Curt- 
 Wright, 1 A. K. Mar. 582 ; Gully v. Grubbs, 1 J. J. Mar. 387. 
 
 II. ACKNOWLEDGMENT AND BEGISTEATION. 
 
 1. Mortgages and other deeds of conveyance, creating liens, 
 which are not recorded, are not valid in a court of law against 
 creditors, nor against any legal right to property,^ which they 
 may, in good faith, acquire. Swigart v. Bank Ky., 17 B. Mon. 
 290. 
 
 2. Deeds could only be acknowledged before a clerk of a district 
 court, when the land lay in his district, and this only in the time 
 allowed to record them. Dickerson v. Talbott, 14 B. Mon. 62. 
 
 3. Prior to 1810, county court clerks had no power to take 
 acknowledgments of deeds to land lying out of their counties, and 
 a deed acknowledged before that time, before the clerk of one 
 county for land situated in another, is not readable in evidence as 
 a recorded instrument. Hedger v. Ward, 15 B. Mon. 114. 
 
 4. An unrecorded deed of trust will, in equity, prevail even 
 against a creditor, who has notice of it before he acquires a legal 
 right to the property or estate embraced by it. Forepaugh v. 
 Appold, 17 B. Mon. 631. 
 
 5. A deed, though acknowledged and left in the clerk's office 
 for registration, is not constructive notice to creditors or pur- 
 chasers until the tax is paid thereon. As to them the vendee has 
 but an equitable title. Phillips v. Glark, 4 Met. 352 ; sec. 32, chap. 
 24, vol. 1, p. 284, Eevised Statutes. 
 
 6. The recording of a deed executed by an attorney-in-fact, will 
 not operate as constructive notice, unless the attorney's power is 
 also recorded. Graves v. Ward, etc., 2 Duv. 301. 
 
 III. VALIDITY. 
 
 1. A sale and conveyance, by a widow, of her right of dower in 
 lands held by the alienee of her husband, will be void, unless he 
 expressly holds subject to her right. Kinsolving v. Pierce, 18 B. 
 Mon. 785. 
 
 2. A commissioner's deed does not pass the title until approved 
 by the court. Dickerson v. Talbott, 14 B. Mon. 62. 
 
 3. One, who is neither a purchaser nor creditor of the vendor 
 in a deed, can not impeach it for fraud. Phillips v. Jamison, 14 B. 
 Mon. 584. 
 
DEEDS. 171 
 
 4. The doctrine is well settled, that a variance from the true 
 name of a corporation will not vitiate a deed from or to it, if the 
 true name can be collected from the instrument, or is shown by 
 proper averments. Kentucky Seminary v. Wallace, 15 B. Mon. 
 44. 
 
 5. A deed of gift, made in 1856, and attested by one witness 
 only, is not valid. Overfield v. Sutton, 1 Met. 624. 
 
 IV. OONSTRTJCTION AND ErPECT OP. 
 
 1. If the legal title be acquired by the grantor subsequent to 
 his conveyance, it inures, by operation of law, to the benefit of 
 his grantee, so as to invest him with the legal title. Dickerson v. 
 Talbott, 14 B. Mon. 62. 
 
 2. A deed to S. W. during life, then to his heirs and executors, 
 only gives S. W. a life-estate, with fee to his heirs. Turman v. 
 White's Heirs, 14 B. Mon. 569, 570, 577, 578. 
 
 3. The rule, that if a free-hold estate be conveyed to a man, and 
 by the same conveyance an estate is limited to his heirs or the 
 heirs of his body, he will be vested with the fee, and his heirs will 
 take by descent and not by purchase, is a rule of policy and not of 
 construction, and never was in force in Kentucky. Turman v. 
 White's Heirs, 14 B. Mon. 570, 571. 
 
 4. If a sheriff's deed, to land sold by his predecessor under 
 execution, contains a recital that a certificate of purchase was pro- 
 duced, it will be prima facia evicence of the existence of such 
 certificate. Phillips v. Jamison, 14 B. Mon. 583. 
 
 5. Deeds should be so construed as to effectuate the intention of 
 the parties, to be gathered from the whole instrument, and where 
 the language of the deed is clear and susceptible of solution, 
 extraneous circumstances can not be called in aid of- the con- 
 struction. Spurrier v. Parker, 16 B. Mon. 283, 284. 
 
 6. A deed, conveying land and slaves to the grantee, to be held and 
 used by him during his life, or to be conveyed or transferred to 
 any one or more of his posterity at an earlier period, if he should 
 see proper to do so, and giving him power by will to dispose of 
 any portion of either that might remain to any one or more of his 
 posterity, gives the grantee only a life-estate. Thompson v. Vance, 
 1 Met. 674, 675. 
 
 7. A deed, by the owner of land, passes the legal title to all the 
 lands within the boundary ; though it may contain more than is 
 mentioned in the deed. Jennings v. Monks, 4 Met. 106. 
 
172 DEEDS. 
 
 8. So in a judicial sale and conveyance by commissioner of a 
 tract of land by metes and bounds as containing one hundred and 
 seventy-four acres, made in a proceeding to satisfy the debts of the 
 owner, where the tract turns out to contain two hundred and four- 
 teen acres, the deed is not void as to the surplus, but passes the 
 legal title to the whole tract. Jennings v. Monks, 4 Met. 107 ; Floyd 
 V. Adams, 1 A. K. Mar. 72. 
 
 9. If property is conveyed to a woman and such children, as 
 she then has or may thereafter have, and to the survivor or sur- 
 vivors of them, the mother will take a life-estate and the children, 
 at the death of the mother, take the estate. Sogers v. Payne, 14 
 B. Mon. 167. 
 
 10. A deed to a woman "and her bodily heirs" creates an estate 
 tail which our statute converts into a fee to the first taker. True 
 V. Nichols, 2 Duv. 547; Johnson v. Johnson, 3 Met. 332. 
 
 11. A conveyance of land by a father to his son, on the condi- 
 tion that the latter would support and maintain the wife of the 
 former, conferred on her a personal right, which after her 
 husband's death, she could release to the grantee, and thereby 
 perfect his title, or she could release him from the duty in con- 
 sideration of a conveyance of the title to her. Tanner v. Van 
 Bibber, 2 Duv. 553. 
 
 VI. CONVEYING LANDS OF MARRIED WOMEN. 
 
 1. When the wife's inheritance is conveyed by deed, in which 
 the husband alone appears as the vendor, and the wife signs the 
 deed, and on examination relinquishes her right of dower alone, 
 the deed will not be effectual to pass the interest of the wife. 
 Eedger v. Ward, 15 B. Mon. 116. 
 
 2. A married woman can not alien lands, conveyed to her 
 separate use ; although the deed, under which she holds, may, in 
 express terms, give her that right. Stuart v. Wilder, 17 B. Mon. 
 59; Hanlyv. Downing, 4 Met, 96, 97. 
 
 3. The provisions of section 20, chapter 24, p. 281, volume 1, 
 Revised Statutes, authorizing a married woman to convey any 
 real estate she may own, must be construed as applying alone to 
 her general property, as contradistinguished from that held by 
 as her separate estate. - 8tuart v. Wilder, 17 B. Mon. 58. 
 
 4. If the husband mortgage real estate, the inheritance of the 
 wife, she can not, unless he unites with her, convey the same land, 
 even to the same person. Stuart v. Wilder, 17 B. Mon. 60, 61. 
 
DEEDS OF TRrST. 173 
 
 5. A conveyance, by husband and wife, of the real estate of the 
 wife, to a third person, and by stich third person to the husband 
 on the same day, made in order to invest him with the title, is 
 valid, if made without coercion of the husband or any undue 
 influence on his part. Todd v. Wickliffe, 18 B. Mon. 906 ; Scar- 
 borough Y.Watkins, 9 B. Mon. 646. 
 
 6. Such a transaction will not be presumed unfair so as to throw 
 the burthen of proving its fairness on the husband. Todd v. Wick- 
 liffe, 18 B. Mon. 906. 
 
 7. A deed, made by a married woman in accordance with the 
 statute of 1796 (statute laws, 440), is as effectual as if she was sole. 
 Todd V. Wickliffe, 18 B. Mon. 906. 
 
 DEEDS OF TEUST. 
 See Trusts and TRrsTEES. 
 
 DEMAND. 
 For demand before suit against a personal representative, see Decedent's Estates. 
 
 1. It is not necessary to demand payment of a s^uarantor before 
 suing him on his guaranty. Lowe & Co. v. Beckwith, 14 B. Mon. 
 194. 
 
 2. A bailee, who improperly allows another to take from his 
 possession property bailed, may be sued after he has parted with 
 the possession, and no demand is necessary before suit. Easley v. 
 Easley, 18 B. Mon. 92. 
 
 3. Possession under a void deed does not entitle the holder to 
 notice to surrender before suit is brought. Covington v. McNickle, 
 18 B. Mon. 290. 
 
 4. ISTo action lies on a note for " one hundred dollars, worth of 
 sawing" until demand is made and payment in sawing refused. 
 Hawkins v. Ball, 18 B. Mon. 820. 
 
 5. Before an action can be maintained against a sheriff, constable, 
 or likeof5cer for money collected by them as such, a demand must 
 be made, whether the plaintiff resides in the same county with 
 such oflicer'or not. Huston v. Hagar, 1 Diiv. 25, 26. 
 
174 DEPOSITIONS. 
 
 DEPOSITIONS. 
 
 I. Notice. 
 II. By whom to be taken, and how transmitted. 
 
 III. Certificate. 
 
 IV. When readable in ordinary actions. 
 V. Exceptions. 
 
 VI. Mileage on failure to take after notice. 
 
 I. NOTICE. 
 
 1. A party who cross-examines a witness can not object to his 
 testimony because lie had no notice. Talbotty. Fierce, 14 B. Mon. 
 197. 
 
 2. If depositions are taken without notice, and no exceptions are 
 taken in the circuit court, it will on appeal be deemed to have 
 been waived. Wehher v. Webber, 1 Met. 20. 
 
 3. Where the witness was physically unable to attend at the 
 place specified in the notice for taking his deposition, and the exam- 
 iner posted, on the door of the room where it was to have been 
 taken, notice that he had adjourned the taking to a more conve- 
 nient place, and that the deposition would be taken the next day 
 at the substituted place, which was accordingly done — Held : The 
 deposition could be read. Price v. Gaperton, 1 Duv. 209 ; sec. 635, 
 Civil Code. 
 
 11. BY WHOM TO BE TAKEN, AND HOW TBANSMITTED. 
 
 1. A deposition, delivered to the clerk by the party on whose 
 behalf it was taken, although sealed up, should be excluded. 
 Breeding v. Stamper, 18 B. Mon. 177.^ 
 
 2. Whether a deposition, delivered to the clerk by the officer 
 taking it, should be excluded if not sealed up. Quere. Breeding 'V. 
 Stamper, 18 B. Mon. 178.2 
 
 1 By an amendment to section 646, Civil Code, approved October 3, 1861, 
 Myers' Code, section 646, page 186, depositions taken out of this State, after 
 being sealed by the officer taking them, may be delivered to the party for 
 whom they were taken, his agent, or attorney, who shall deliver them to the 
 clerk, and they may be read on the person, to whom they were delivered, mak- 
 ing oath that they have not to his knowledge been opened. 
 
 ''By an amendment to section 646, approved February 2, 1866, Myers' 
 Code, section 646, page 186, depositions, taken in the county where they are to 
 be used and delivered, by the officer taking them, to the clerk of the court, 
 need not be sealed. 
 
DEPOSITIONS. 175 
 
 III. CERTIFICATE. 
 
 No alteration or amendmeiit, in the certificate of the ofiicer 
 taking a deposition, after it has been filed, is allowable without 
 the previous leave of the court entered of record. Mall & Co. v. 
 Menfro, 3 Met. 53. 
 
 IV. WHEN READABLE IN ORDINARY ACTIONS. 
 
 1. The deposition of a witness, living in an adjoining county, 
 although he resides at a greater distance than thirty miles from 
 the court, can not be read without proof of his inability to attend, 
 Tolly V. Price, 17 B. Mon. 4il.i 
 
 2. Upon the trial of an issue out of chancery, depositions may 
 be read, unless the court otherwise directs. Savings Bank Cincin- 
 nati V. Benton, 2 Met. 243. 
 
 3. A party to an ordinary action may take the deposition of hig 
 adversary, if he choose to give it, but not otherwise ; and it will 
 then be treated as any other deposition, but will give no right tc 
 the party taking it to testify himself as to new matter stated in 
 such deposition. Musick v. Bay, 3 Met. 430, 431. 
 
 v. EXCEPTIONS TO. 
 
 1. Exceptions to a deposition, upon the ground that the witness 
 resides in the county, or within thirty miles of the court, must be 
 filed and noted on the record before the jury is sworn. Estharr 
 V. Gurd, 15 B. Mon. 105. 
 
 2. Depositions, taken in another State by a justice of the peace 
 can not be excluded by proving, by an expert, that the answers o: 
 the witness are not in the handwriting of either the witness oi 
 the justice', when the justice certifies that they were written bj 
 him. Daniel v. Toney, 2 Met. 524. 
 
 3. If exceptions are not acted on by the court below, no ques- 
 tion can be made in the court of appeals as to the competency o: 
 the witness, or the admissibility of the evidence. Corn v. Sims, c 
 Met. 397. 
 
 4. "Where a deposition had been excluded more than two yeari 
 before the trial, and without leave of the court or knowledge o: 
 the other party, withdrawn from the papers, sent to another State 
 and the officer's certificate amended, and the deposition placed ii 
 the papers of the case after the jury was sworn — Held: Tha 
 
 'By an amendment to section 614, approved January 14, 1858, Myers' Code 
 section 614, page 1Y8, the deposition of a witness, residing more than thirty 
 miles from the court, may be read whether in an adjoining county or not. 
 
176 DEPUTY. 
 
 exceiDtions, then filed, were, under the circumstances, properly- 
 sustained. Hall V. Henfro, 3 Met. 52, 53. 
 
 5. During the progress of the trial the "defendant asked to 
 read the deposition of F., but the court refused, she being in M. 
 county (that where the trial was had), as shown at the bar." 
 Held: 1. This is but the statement of a fact, and not an excejDtion 
 to the decision of the court. 2. That it was error to exclude the 
 depositions if filed before the commencement of the trial, but, as 
 there is no excejstion to the decision excluding it, the error is 
 not available for a reversal. Branson v. Green, 2 Duv. 237, 238. 
 
 VI. MILEAGE ON FAILURE TO TAKE AFTER NOTICE. 
 
 1. If an attorney, on whom notice to take depositions is served, 
 attends, and none are taken, the party, whose attorney he is, is 
 entitled to mileage ; although the clients, or some of them resided 
 at the place, where the depositions were to have been taken. Ken- 
 tucky Seminary v. Wallace, 15 B. Mon. 46. 
 
 DEPUTY. 
 
 1. A purcbase, by a deputy sheriif, at an execution sale made by 
 his co-deputy, is void. Etlinger v. Tansey, 17 B. Mon. 368, 369. 
 
 2. A merely ministerial officer may appoint a deputy, whether 
 power to do so is conferred on him by any express statutory pro- 
 vision or not. Morton v. Warring, 18 B. Mon. 84. 
 
 3. It is against the policy of the law to permit a deputy register 
 of the land office to buy land, sold by his principal, and although 
 such purchase may not be void, it can only be sustained by show- 
 ing it to have been fair, free from suspicion, and for adequate con- 
 sideration. Morton v. Warring, 18 B. Mon. 85. 
 
 4. The right of approval, and the implied right of disapproval, 
 of the appointment of a deputy sheriff, conferred by law on the 
 county court, belongs to the executive, and not the judicial, powers 
 of the court. Applegate v. Applegate, 4 Met. 237 ; Taylor v. Gom- 
 monwealth, 3 J. J. Mar. 401. 
 
 5. Mandamus from the circuit court to the county court is the 
 appropriate remedy, whereby the county court may be compelled 
 to show cause why they did not approve an appointment of a dep- 
 uty, made by the sheriJff, and qualify him. Applegate v. Applegate, 
 4 Met. 237 ; Day v. Justices of Fleming Co. Co., 3 B. Mon. 198. 
 
DESCENT AND DISTRIBUTION. 177 
 
 DESCENT AND DISTEIBTJTION. 
 
 I. Who is, and who is not entitled to take by descent. 
 II. "What is real, and what personal estate for purposes of distribution; 
 
 III. How real estate descends. 
 
 IV. How personal estate is to be distributed. 
 
 I. WHO IS, AND WHO IS NOT ENTITLED TO TAKE BY DESCENT. 
 
 1. A bastard can not take take by descent from a brother of bis 
 mother, who died after her. Allen v. Ramsey, 1 Met. 637. 
 
 2. At common law, an alien could not take land by inheritance, 
 and this law is still in force in this State, except so far as it has 
 been modified by statute, and there is no statute, enabling an un- 
 naturalized foreigner to inherit lands, except the act of 1800, 
 which enabled aliens, other than alien enemies, who had actually 
 resided in the State two years, to receive, hold, and pass any right 
 or title to land during their residence in the State. White v. White, 
 2 Met. 187, 188 ; Yeaker r. Yeaker, 4 Met. 34. 
 
 3. An alien, who has made his declaration, and taken the oath, 
 preparatory to becoming a citizen of the United States, is not 
 thereby rendered capable of taking land by descent. White v. 
 Wliite, 2 Met. 188^189. 
 
 4. As an alien- is incapable of taking land by descent, the title 
 to land owned by a decedent, leaving no heirs capable of inherit- 
 ing it, passes to the Commonwealth. White v. White, 2 Met. 189, 
 190. 
 
 11. WHAT IS EEAL, AND WHAT PERSONAL ESTATE FOR PURPOSES OP 
 
 DISTRIBUTION. 
 
 1. Land, directed by a deed of trust to be sold, will be treated, 
 from the delivery of the deed for purposes of distribution, as per- 
 sonal estate. Loughborough v. Loughborough, 14 B. Mon. 554. 
 
 2. If conversion be directed by a will, the property will be 
 treated as converted, from the death of the testator. Loughborough 
 
 V. Loughborough, 14 B. Mon. 554. 
 
 3. If the real estate of an infant be decreed to be sold, in ordei 
 to invest the proceeds in other land, and he dies, after the sale, but 
 before the money is reinvested, the money will be distributed ae 
 real estate. Collins v. Champ, 15 B. Mon. 120. 
 
 4. A widow, who renounces the provisions of her husband's will 
 has no right to have lands, directed by the will to be sold, and the 
 
 13 
 
178 DESCENT AND DISTRIBTTTION. 
 
 proceeds distributed to the devisees, treated as a personal estate, 
 and have distribution of it as such. Barnett v. Barnett, 1 Met. 
 258, 259. 
 
 5. Land devised to be sold, by executors for distribution to 
 legatees, will be treated as a money legacy ; but if the devisees 
 sell and convey the land, this will be deemed an election to take 
 it instead of its proceeds, and the widow of the purchaser will have 
 no right to have the purchase treated as a mere transfer of the 
 money legacy, and have distribution of the land as personalty. 
 Swan V. Goodwin, 2 Duv. 299. 
 
 III. HOW REALTY DESCENDS. 
 
 1. The rule in Shelby's case, that " if an estate for life be conveyed 
 to a man, and, by the same conveyance, an estate is limited to his 
 heirs or the heirs of his body, he will be invested with the fee, 
 and his heirs will take by descent, and not as purchasers," is not 
 the law in this State. Turman v. White's Heirs, 14 B. Mon. 570. 
 
 2. The separate estate of a married woman, held in trust, for 
 her, without limitation as to the use or her interest therein, will 
 pass, at her death, by descent to her heirs. Brown v. Alden, 
 14 B. Mon. 143, 144. 
 
 3. On the death of one owning land, who leaves no ether heirs 
 than a mother, and full and half brothers, the land will be distrib- 
 uted in full shares to the mother and full brothers — half shares to 
 the half brothers. Petty v. Malier, 15 B. Mon. 606. 
 
 4. If an infant dies, having title to real estate derived from the 
 father, and leaving brothers and sisters of the whole, and of the 
 half blood on the father's side, those of the whole blood are enti- 
 tled to full shares, and those of the half blood to only half shares. 
 Talhott V. Talbott, 17 B. Mon. 9. 
 
 5. The brothers and sisters of a deceased infant take by descent 
 from the infant as collaterals, and not from the ancestor as lineals. 
 Talbott V. Talbott, 17 B. Mon. 9. 
 
 6. A testator devised to his widow one-third of his lands for 
 life, and, at her death, that devised to her and his other lands to 
 go to certain devisees, some of whom were his heirs and some not 
 Held: The heirs-at-law were entitled to the land, not devised to 
 the widow, by descent, during her life, when the general devise 
 would take effect. Mbxley v. Moxley, 18 B. Mon. 174, 175. 
 
 7. Eeal estate derived by an infant, by gift, devise, or descent 
 from one of its parents, passes, on its death unmarried and with- 
 out issue, to the heirs of that parent from whom it was derived; 
 
DESCENT AND DISTRIBUTION. 179 
 
 but that held by descent from a brother or sister, passes to the 
 heirs of the infant. Driskell v. Hanks, 18 B. Mon. 863. 
 
 8. Where the wife was owner, by inheritance, of one-fourth of 
 an entire tract of land, which was conveyed to her and her 
 husband, such fourth part descended on her death to her heirs, 
 subject to the husband's curtesy. Babbit v. Scroggin, 1 Duv. 
 274. 
 
 9. A testator devised one piece of property to three sons of Gr., 
 and another piece to two of them. One of the latter died before 
 the testator, unmarried and without issue. Held: That the 
 devise to the three went in equal parts to the two survivors, and 
 the devise to the two wholly to the survivor of them. Hoskins & 
 Hughes v. Gentry, 2 Duv. 288. 
 
 IV. HOW PERSONALTY IS TO BE DISTRIBUTED. 
 
 1. If money be devised to certain children, to be paid to them 
 on their arrival at age, and one dies an infant, unmarried and 
 without issue, the share of such decedent will pass to the father 
 by descent, and not to the survivors under the will. Wallingford 
 v. i)e£eZ;, 15B. Mon. 553. 
 
 2. A husband conveyed property to a trustee for the use of his 
 wife, and, after his death, she renounced his will and claimed her 
 share of his distributable estate. Held ; She was entitled to it, 
 without taking into the account the value of the property held 
 under the deed. Worsley v. Worsley, 16 B. Mon. 472. 
 
 3. Upon the death of a trustee, holding the legal title to per- 
 sonal property, the title passes to his personal representative, who 
 holds for the benefit of those entitled under the deed. Edwards 
 V. Woolfolk, 17 B. Mon.- 380. 
 
 4. M. died, leaving a widow and one child by his last marriage, 
 and several children by a former marriage. The child by the last 
 marriage died shortly after M., in infancy, leaving her mother 
 and half brothers and sisters her only heirs. Held: The mother 
 was entitled to a double share of the infant's personal estate. 
 Wilner v. Oalvert, 1 Met. 476. 
 
 5. A widow, who renounces her husband's will, is not entitled 
 to have set apart to her the property, which, by statute, is exempt 
 from distribution in case of intestacy. Wood v. Wood, 1 Met. 516 
 517. 
 
 6. There are exceptions to the rule, that there can be no dis. 
 tribution of personalty until administration is had, and that the 
 
180 DEVISES AND DEVISEES. 
 
 administrator is a necessary party to an action for distribution. 
 Anderson v. Smith, 3 Met. 493. 
 
 7. If an intestate has been dead more than twenty years before 
 suit brought to distribute the estate, it is not necessary to have 
 administration. Anderson v. Smith, 3 Met. 493. 
 
 8. Where an intestate died, leaving his widow enciente, but no 
 children born — Held : The posthumous child surviving, that the 
 widow was entitled to the additional articles exempted from dis- 
 tribution by an act approved March 6, 1854, vol. 1, p. 248, Eevised 
 Statutes. Husbands v. Bullock, 1 Duv. 22, 23. 
 
 9. The widow of a decedent is entitled to retain a gold watch, 
 worn by her in his lifetime, as part of her paraphernalia, unless 
 there is a deficiency of assets for the payment of debts. Husbands 
 V. Bullock, 1 Duv. 23. 
 
 10. Henry Clay, by his will, bequeathed to his two sons, Thomas 
 H. and James B., a fund, and then says : " It is my will and 
 intention that the said fund, in equal portions, shall finally pass 
 to such persons as each of my said sons, as to his part, shall 
 finally direct by his last will and testament, and in default of such 
 will to their respective heirs, according to the Kentucky statute 
 of distributions." Held: That James B. having died without 
 will, his widow was entitled to one-third of the fund as distributee. 
 aay V. Glay, 2 Duv. 296. 
 
 DEVISES AND DEVISEES. 
 
 I. "What estate passes. 
 II. Contingent remainders and executory devises. 
 
 III. What persons will or may take. 
 
 IV. Residuary devises and devisees. 
 V. Void devises and limitations. 
 
 VI. Ademption of devises. 
 VII. Election. 
 VIII. Liabilities and rights of devisees. 
 IX. Construction of devises. 
 X. Devise in lieu of dower. 
 XI. Generally. 
 
 [NoTB. — Section 25, chapter 21, page 264, volume 1, Revised Statutes, 
 provides that the words "legatee" and "devisee," shall each be held to convey 
 the same idea; and the words "bequeath" and "devisee," to mean the same 
 thing; and the words "bequest" and "legacy," shall each be held to mean 
 the same thing, and to embrace either real or personal estate, or both.] 
 
DEVISES AND DEVISEES. 181 
 
 I. WHAT ESTATE PASSES. 
 
 1. If an estate he devised to E. with limitation of remainder to 
 testator's heirs in case E. should die without issue, E. will take a 
 fee subject to be defeated by his death without issue — which means 
 issue living at his death — and if he sells the property and dies 
 leaving issue, the purchasers will have a clear title. McKay v. 
 Merrifleld, 14 B. Mon. 323. 
 
 2. A testator devised to D. and her children, a tract of land; 
 at the time and at the testator's death D. had no children, but 
 after his death she had one. Held : That D. took an estate for 
 life, and her child a remainder in fee. Carr and wife v. Estill, 16 
 B. Mon. 313. 
 
 3. A testator used the following language in several clauses 
 of his will: "I give to my grandson, J., when he arrives at the 
 age of twenty-one,", etc., "as the others of my grandchildren 
 become of the age of twenty-one years, each one shall draw from 
 my estate two hundred acres of land," and directs his executors to 
 lay off four hundred acres, being two shares. "This," he says, "I 
 give to the two youngest of my grandchildren, when they become 
 twenty-one years of age," etc. Held: The grandchildren each 
 took a vested interest. Allan v. Vanmeter, 1 Met. 270, 271. 
 
 4. A devise in trust for the use of the testatrix's daughter 
 during life, and after her death for the use of the testatrix's three 
 granddaughters "and their heirs, lawfully begotten of their 
 bodies," invests the granddaughters with a remainder in fee 
 under our statute. Johnson v. Johnson, 2 Met. 334 ; sec. 8, chap. 
 80, p. 227, vol. 2, Eevised Statutes. 
 
 5. If a legacy is given to a class of persons to be paid to them 
 or to be divided between them when one shall attain a certain age, 
 or at any other definite future time, they take a vested interest 
 immediately on the testator's death. Hooker v. Gentry, 3 Met. 471. 
 
 6. After several small special legacies, a testator devised the 
 residue of his estate to be equally divided between his four 
 children, naming them; but in a codicil, he directed the part 
 coming to one of his sons not to be given up to him, but to be 
 held by testator's executors, and equally divided between the 
 children of the son and paid over to them when they arrived at 
 age. Held : That the children took an absolute estate. Walling- 
 ford v BeBell, 15 B. Mon. 553. 
 
 7. A testator says: "I will now designate the portion or tracts 
 of land allotted to my beloved wife," and then, having described 
 
182 DEVISES AND DEVISEES. 
 
 the land, he says, it " is set apart for the exclusive use of my wife, 
 to be disposed of by her in any way she may think proper, as life 
 interest, and at her death, or before, to give said land to any one 
 or more of her children as she may believe them most worthy or 
 needy." The wife survived the testator a short time, and died 
 without exercising the limited power of disposition contained in 
 the will. Seld: The wife took but a life estate with power to 
 dispose of it as prescribed by the will ; but having failed to do so, 
 it would pass under the will equally to all the devisees. Mc- 
 Gaughey's Adm'r v. Henry, 15 B. Mon. 397. 
 
 8. A devise of the "whole of my lands" will pass all the land 
 owned by the testator, although he owned land of which he had 
 no knowledge. Allan v. Vanmeter, 1 Met. 276-279; Darnall v. 
 Adams, 13 B. Mon. 273; Wheeler v. Dunlap, 13 B. Mon. 292. 
 
 III. CONTINGENT REMAINDERS AND EXECUTORY DEVISES. 
 
 1. A devise in fee to E., with limitation of remainder to testa- 
 tor's heirs in case of the death of E. without issue, is good as an 
 executory devise. McKay v. Merrifleld, 14 B. Mon. 323. 
 
 2. In such a case, if E. makes sale of the devised property, and 
 dies leaving issue, the purchaser will have a clear title. McKay 
 V. Merrifleld, 14 B. Mon. 323. 
 
 3. Sale of land made by one holding a defeasible fee, or the pos- 
 session of the vendee before the happening of the event, on which 
 the executory devise was to take effect, can not defeat the rights 
 of the executory devisee. Nunnally v. White, 3 Met. 588 ; May v. 
 HUl, 5Litt. 312. 
 
 III. WHAT PERSONS WILL, OR MAT TAKE. 
 
 1. A devise of freedom to a female slave and her children, on 
 her arrival at forty years of age, will be valid ; and although the 
 mother may die before arriving at that age, the children will be 
 free at the time when, if she had lived, she would have been forty 
 years of age. Davis v. Wood, 17 B. Mon. 93. 
 
 2. Children of a legatee, or devisee, who dies before the testator, 
 takes the estate devised in the will in their own right, under the 
 will, and not by descent from their father. Carson v. Carson, 1 
 Met. 302; sec. 1, art. 2, p. 1, and sec. 18, chap. 106, p. 461, vol. 2, 
 Eevised Statutes ; Dunlap v. Shreve, 2 Duv. 334. 
 
 3. When a legacy is given to a class of persons, all take who 
 answer the description, when it vests, and this is not prevented by 
 the fact that payment or distribution is postponed to a future day. 
 Socker v. Gentry, 3 Met. 471. 
 
DEVISES AND DEVISEES. 183 
 
 4. A testator devised part of a residuary fund to " the children 
 of his deceased sister — her granddaughter, Mrs. D., to take the 
 share that her father would take if living." The sister had three 
 children living at the publication of the will, and two dead; Mrs. 
 D. was the only child of one of them, and the plaintiif was the 
 only child of the other. It did not appear that the testator knew 
 that the other child of his sister had left a child living. Held : 
 That under the statute, the plaintiff was entitled to the share her 
 mother would have taken had she been living when the will was 
 made. Bunlap v. Bhreve, 2 Duv. 334 ; sec. 1, art. 2, pp. 1, 2, vol. 
 2, Eevised Statutes. 
 
 5. "Whether a devise to " children," as a class, unqualified by 
 the context or by extraneous facts, should now be construed as a 
 devise to " issue," " heirs," or " descendants." Quere. Dunlap v. 
 Shreve, 2 Duv. 340. 
 
 IV. EESIDUARY DEVISES AND DEVISEES. 
 
 1. Before the revised statutes took effect, a residuary devise of 
 personal estate carried, not only everything not otherwise disposed 
 of by the will, but everything that in the event turns out not to 
 be disposed of Cunningham v. Cunningham, 18 B. Mon. 22 ; Mad- 
 dox V. Allen, 1 Met. 497, 498. 
 
 2. But this rule does not apply to wills made since the Eevised 
 Statutes took effect ; but devises that lapse, or do not take effect, 
 from invalid disposition, or other cause, pass as in cases of intes- 
 tacy. Wood V. Wood, 1 Met. 515 ; sec. 20, chap. 106, p. 462, vol. 2, 
 Eevised Statutes. 
 
 V. VOID DEVISES AND LIMITATIONS. 
 
 1. If a devise be void because the first devisee is incapable of 
 taking, a devise over, depending on the death of the first devisee 
 without issue, will not take effect, and the estate, thus devised, will 
 pass to the heirs at law of the testator. Jackson v. Collins, 16 B. 
 Mon. 222, 223. 
 
 2. One claiming under a void devise may be compelled, by the 
 heir at law to whom the estate passes in that event, to relinquish 
 his claim. Taylor v. Embry, 16 B. Mon. 340, 341. 
 
 3. When a devise is made, to take effect on two alternate contin- 
 gencies, one of which is void for remoteness, and the other valid, 
 although it is void so far as it depends on the remote event, it will 
 take effect on the alternative one. Armstrong v. Armstrong 14 B 
 Mon. 346. 
 
184 DEVISES AND DEVISEES. 
 
 4. A devise to a public enemy is not void. Soskins & Sughes 
 V. Gentry, 2 Duv. 286. 
 
 VI. ADEMPTION OF DEVISES. 
 
 1. Those who claim that a testator, by selling property after the 
 making of his will, intended to adeem the legacy oj devise made 
 to one who is his heir at law, must show that such was his inten- 
 tion. Hooker v. Gentry, 3 Met. 473. 
 
 2. If, since the Eevised Statutes, property be devised to an heir 
 of the testator, and is afterward sold by him, the devisee is enti- 
 tled to the value of the devise out of the estate of the devisor, 
 unless the testator intended it as an ademption to that extent, and 
 the burden of showing such intention devolves on those claiming 
 under the will. Wickliffe v. Preston, 4 Met. 180 ; sees. 1, 2, art. 3, 
 chap. 46, pp. 2, 3, vol. 2, Eevised Statutes. 
 
 3. And this rule applies, whether the property sold be real or 
 personal. The word "conversion," as used in the statute, applies 
 alike to both species of property. Wickliffe v. Preston, 4 Met. 181. 
 
 4. That a testator sold land devised to one of his daughters, to 
 raise money to pay his debts, a part of which, amounting to more 
 than the value of the land, had been incurred in defending the 
 title to a part of the land devised to her, is not sufficient to show 
 an intention to adeem her devise to the extent of the land sold. 
 Wickliffe v. Preston, 4 Met. 184, 185. 
 
 VII. ELECTION. 
 
 A. When necessary. 
 
 B. What will be deemed an election. 
 
 a. When necessary. 
 
 1. If a husband attempts by will to dispose of the wife's interest 
 in her father's estate, which he had not reduced to possession, and 
 also gives to his wife a part of his own estate, the wife must elect 
 between the will and the law. Tomlin v. Jayne, 14 B. Mod. 162. 
 
 2. If a husband conveys property, by deed to a trustee, for the 
 benefit of his wife, and, after his death, she desires to renounce his 
 will, she may do so, and the doctrine of election does not apply to 
 her, further than that she must renounce the will within the time 
 prescribed by law. Worsley v. Worsley, 16 B. Mon. 472. 
 
 3. When a married woman and her husband sue a personal 
 representative to recover a legacy to the former, and the will, 
 under which the legacy is claimed, recognizes the existence of 
 
DEVISES AND DEVISEES. 185 
 
 some right in her to land devised to another, and provides that her 
 legacy shall be abated to the extent that she may successfully 
 assert title to the land, there is a case for an election, and she 
 should be privily examined by the chancellor or by a commis- 
 sioner, before the personal representative is ordered to pay, and 
 an election, thus made, will protect him. Kyle v. Taylor, 2 
 Met. 48. 
 
 b. What will be deemed an election. 
 
 1. An election, to take under a will, to be binding on a devisee, 
 must be made understandingly, and an election will not be pre- 
 sumed from any equivocal act not intended as an election, nor 
 from an act done in ignorance much less a mere failure to act. 
 Tomlin v. Jayne, 14 B. Mon. 162. 
 
 2. An infant can not be presumed to have elected to take under 
 a will, from the fact that her guardian received property, given 
 her by the will. Tomlin v. Jayne, 14 B. Mon. 162. 
 
 3. Bringing a suit to vacate a will is an election, not to take 
 under it. Tomlin v. Jayne, 14 B. Mon. 163. 
 
 4. One, who has, with a knowledge of her rights, held property 
 devised to her by her husband, to which she would not have been 
 entitled as doweress, and has asserted claim against a co-devisee, 
 will not be allowed to assert claim to other property, to which she 
 had the fee simple title, but which her husband had devised to 
 another. Dawson v. Says, 1 Met. 463, 464 ; Glay v. Mart, 1 
 Dana, 1. 
 
 5. If land be devised to one on condition that he pay to a third 
 person $1,000, and he pays 1500 of the amount it will be an elec- 
 tion to take the devise, and he may be compelled to pay the 
 balance. Duncan v. Prentice, 4 Met. 217. 
 
 6. When land is devised to be sold for money, and the money to 
 be paid over to a female legatee, her husband may elect to take 
 the land for her, and when both husband and wife have failed for 
 thirty years to proceed against the executor to compel a sale, it 
 will be presumed the husband had elected to take the land for his 
 wife. Swan v. Goodwin, 2 Duv. 299. 
 
 7. If devisees entitled to the proceeds of land devised to be sold 
 by executors, sell the land, it will be deemed an election to take 
 the land instead of its proceeds. Swan v. Goodwin, 2 Duv. 300. 
 
 VIII. LIABILITIES AND RIGHTS OF DEVISEES. 
 
 1. Devisees, whose devise is payable to them by a co-devisee, 
 who is executor, can not, if it be payable by him as devisee and 
 
186 DEVISES AND DEVISEES. 
 
 not as executor, recover their devise, or its value, of the sureties 
 in his executorial bond. Swims v. Lively, 14 B. Mon. 447. 
 
 2. The devisees of real estate and of slaves, specifically devised, 
 should abate, proportionately, when an abatement is necessary for 
 the payment of debts. Chambers and wife v. Davis, 15 B. Mon, 
 528. 
 
 3. A devisee, who has the property devised in possession, or 
 receives the rents and profits, is not liable to the creditors of the 
 devisor for the rents and profits. Chambers v. Davis, 17 B. Mon. 
 534. 
 
 4. Creditors have no lien on the estate of their debtor, and the 
 devisee and heir are only liable for the thing devised or descended, 
 and if it has been aliened, then for its value. Chambers v. Davis, 
 17 B. Mon. 534. 
 
 5. Whether the devisee or heir is liable to creditors, since the 
 Revised Statutes, for the rents and profits of estates devised or 
 descended. Quere. Chambers v. Davis, 17 B. Mon. 534. 
 
 6. The principle, that heirs are bound by the covenant of their 
 ancestor, is equally applicable to legatees and devisees. Nunnally 
 V. White, 3 Met. 592, 593. 
 
 7. In 1848, a testator devised to his wife, in fee, all his estate, 
 real, personal, and mixed ; in 1853, 1854, he acquired other lands, 
 and, in 1861, died without a republication of his will, and without 
 disposing of his lands acquired in 1853, 1854, and without any 
 provision for the payment of his debts. Held: On petition, by 
 the widow as administratrix, to sell the after-acquired land to pay 
 testator's debts, so as to save the personalty devised to her, that 
 the personalty must be first applied to the payment of debts, 
 unless a contrary intention was manifested by the testator. 
 Broadwell v. Broadwell, 4 Met. 291, 292. 
 
 8. A widow, who holds under her husband's will, holds as 
 devisee, and not as doweress ; and estate devised to her will be 
 liable for the payment of his debts, although the devise may he 
 of such a character as to bar her claim to dower. Chambers and 
 wife V. Davis, 15 B. Mon. 527. 
 
 9. A testator devised land to his daughter, on condition that 
 she would pay five hundred dollars each to two nephews; the 
 daughter devised the same land, and other property, to these 
 nephews, and died without having paid the legacy to them. Beld: 
 That as the legacies were a charge upon the land, the devise by 
 the daughter was a satisfaction of the money legacy, Phillips v. 
 Btites, 2 Duv. 313. 
 
DEVISES AND DEVISEES. 187 
 
 IX. CONSTRUCTION OF DEMISES. 
 See Wills. 
 
 1. A testator devised Ms estate in trust for his four children, in 
 equal parts, for their use during life, and, after their death, to 
 their children ; but if any should die, leaving no children, then 
 their part to go to the children of the others. Held : A devise to 
 the children of all as a class, and that they take per capita, and not 
 per stirpes. Walters v. Crutcher, 15 B. Mon. 10. 
 
 2. A testator devised to his wife one-third in value of his slaves, 
 with power to divide such as she saw proper between her children. 
 The widow survived the testator, but died without making any 
 disposal of the slaves. Held: That they passed under the will, 
 in equal shares, to all the children, out of whom, as a class, the 
 widow had power to select. McGaughey's Adm'r v. Senry, 15 B. 
 Mon. 399. 
 
 3. A devise of "my lands and mansion-house" will be sufficient 
 to pass all the lands of the testator. Michel v. Walker, 17 B. Mon. 
 73. 
 
 4. A testator used the following language in several clauses of 
 his will: "I give to my grandson, J., when he arrives at twenty- 
 one years of age," etc.; "as the others of my grandchildren 
 become of the age of twenty-one years, each one shall draw 
 from my estate two hundred acres of land," and directs his ex- 
 ecutors to lay off four hundred acres of land, being two shares. 
 "This," he says, "I give to the two youngest of my grandchildren 
 when they become twenty-one years of age," etc. Held: The 
 grandchildren each took a vested interest at the death of the 
 testator. Allan v. Vanmeter, 1 Met. 270, 271. 
 
 5. It will not be presumed, in the construction of a will, that 
 the testator intended to do an illegal act, when another construc- 
 tion can be given to the devise. Davis v. Wood, 17 B. Mon. 93, 
 94. 
 
 6. The law favors that construction of a devise, that will cause 
 the interest to vest and not to be contingent. Williamson v. 
 Williamson, 18 B. Mon. 375. 
 
 7. A testator, by his will, having given his son-in-law and 
 grandson one dollar each, disposed of the residue of his estate as 
 follows: " It is my wish, that all the property, that I may possess 
 at my death, be lawfully divided between my wife and my two 
 youngest children." Held: That the words "^aio/wZZi/ divided" 
 were used with reference to the estate of the devisees and not the 
 
188 DEVISES AND DEVISEES. 
 
 mode of division, and that the wife and two youngest children 
 take the property as if "the testator had died intestate leaving no 
 other heirs. Miller v. Miller, 1 Duv. 9, 10. 
 
 8. A devise of "the whole of my lands" will pass all the land 
 actually owned by the testator ; although he owned lands of which 
 he had no knowledge. Allan v. Yanmeter, 1 Met. 276-279 ; JDarnall 
 V. Adams, 13 B. Mon. 273; Wheelers. Dunlap, 13 B. Mon. 292. 
 
 9. If a qualification in the devise of a legacy is not annexed to 
 the gift but only to the time of payment, although the time of 
 enjoyment is postponed, the right vests immediately. Wallingford 
 V. DeBell, 15 B. Mon. 552, 553. 
 
 10. A devise of real estate to trustees, for the use of the testator's 
 son for life, remainder to the son's children, in fee, with permission 
 to the trustees to sell a portion of the estate to pay debts of the 
 son and buy slaves, gives the son's creditors no right to subject any 
 part of the estate to the payment of his debts. Bowan's Creditors 
 V. Bowan's Heirs, 2 Duv. 413, 414. 
 
 11. The bequest of a legacy by creditor to his debtor does not 
 release or extinguish the debt, unless there is something in the 
 will directly expressive of such an intention, or from which it can 
 be implied. Boyse v. Boyse, 2 Duv. 537. 
 
 X. DEVISES IN LIEU OF DOWER. 
 
 1. A testator gave to his wife $10,000, and to a trustee, for the 
 use of his brother, $3,000. The assets were not sufficient to pay 
 both legacies — Held : They should not abate ratably, as the 
 legacy to the widow seemed to have been given in lieu of dower, 
 but she wais entitled to be paid in full. Tevis v. McCreary, 3 Met. 
 153, 154. 
 
 2. The effect of the change, made in the law on this subject by 
 section 13, chapter 30, p. 424, volume 1, Eevised Statutes, is that 
 when a testator makes a gift to his wife, the legal presumption is 
 in the absence of any expression in the will or necessary inference 
 therefrom to the contrary, that he intends it as a part of her dow- 
 able and distributable share of his estate. Taney v. Smith, 2 
 Met. 410. 
 
 3. A devise of land to the widow of the testator for life, with 
 discretionary powers to the executors to sell the residue of the 
 estate and divide the proceeds between the children of the testator, 
 will be regarded in equity as a money legacy, and the husband of 
 a female legatee may compel the executors to sell the remainder 
 
DEVISES AND DEVISEES. 189 
 
 interest in tlie land, devised to the widow for life, in a reasonable 
 time. Swan v. Goodwin, 2 Duv. 299. 
 
 XI. GENERALLY. 
 
 1. A testator devised all his estate to his wife, for her life or 
 during her widowhood, and at her death or marriage he devised 
 all his estate to his children, but he also gave the wife power, at 
 her discretion, to dispose of any part of the estate, during the con- 
 tinuance of her interest therein. Held: On suit, by the devisees 
 after the widow's death, to recover land sold by her, that she had 
 power to sell. Morse v. Gross, 17 B. Mon. 741. 
 
 2. If one of a class, to whom a devise is made as a class, dies 
 between the vesting of the devise and the time when it is payable, 
 his share will pass to his representatives. Hooker v. Gentry, 3 
 Met. 471. 
 
 3. A contract, by which third persons undertook to hold a hus- 
 band harmless against the claim of his wife to dower, in case she 
 should survive him, passes with the land to his devisees. Gaines 
 V. Poor, 3 Met. 506. 
 
 4. A specific legacy is a bequest of a particular thing, specified 
 and distinguished from all others of the same kind. Broadwell v. 
 Broadwell, 4 Met. 291. 
 
 5. As a general rule, when real or personal estate is devised to 
 one for life, with an ulterior devise to another, the ulterior devise 
 vests on the death of the testator and takes effect in possession, 
 whenever the prior devise ceases or fails from any cause whatever. 
 So when a widow renounces provisions made for her by her 
 husband's will, property, devised to her for life, will go at once 
 to the ulterior devisee, who will be entitled to possession. Wood 
 V. Wood, 1 Met. 516. 
 
 6. A devise to several as joint tenants, some of whom die leaving 
 children after the making of the will in 1847, but before the death 
 of the testator in 1859, is within the provisions of section 1, article 
 2, chapter 46, p. 1, volume 2, Eevised Statutes, and passes on the 
 death of the testator to the heirs of such deceased devisee unless a 
 different disposition is made by the devisor. Dazey v. Killam, 1 
 Duv. 404, 405. 
 
 7. A testator devised a piece of property to three persons, and 
 another to two of them, and one of the latter died before the testa- 
 tor, intestate, and childless. Held: The part devised to the three 
 went in equal parts to the two survivors of them, and that devised 
 to the two, wholly to the survivor of them. Hoskins & Hughes v- 
 
190 DISTILLEE. 
 
 Gentry, 2 Duv. 288; sec. 1, art. 2, chap. 46, p. 1, vol. 2, Eevised 
 Statutes. 
 
 8. A conveyance of land i];i 1839 operated as a revocation of a 
 previous devise, by the grantor of the same land. Tanner and ux. v. 
 Van Bibber, 2 Duv. 553. 
 
 DISTILLER. 
 
 Distillers may sell, by the barrel, whisky of their own manu- 
 ictu 
 227. 
 
 facture without a license. Lawson v. Commonwealth, 14 B. Mon. 
 
 DISCOUISTT. 
 
 1. Set-off and discount are separate and distinct matters. The 
 first is an independent debt or demand, which the debtor has 
 against his creditor; the latter is a demand against him, arising 
 out of a partial failure of consideration, or on account of some 
 equity, arising out of the transaction on which the demand is 
 founded. Trabue v. Harris, 1 Met. 598, 599. 
 
 2. A surety, until he pays the debt of his principal, has no avail- 
 able demand which amounts to a set-off or equitable discount, and 
 the insolvency of the principal does not alter this rule. Walker v. 
 McKay, 2 Met. 295, 296. 
 
 DISTEESS EOE EENT. 
 
 As to extent of landlord's lien, and the mode of enforcing it, see Landlord 
 and Tenant. 
 
 1. There is but one mode by which a tenant or undertenant 
 may discharge the levy of a distress warrant upon his property — 
 that is by executing, with sufficient surety, a bond, to be approved 
 by the officer, to the effect that he will pay to the plaintiff the 
 amount of the rent specified in the warrant and ten per cent, 
 thereon, if the property is of the value of the rent; if not, that he 
 will pay the value thereof, and ten per cent, thereon. Grubh v. 
 McCoy, 2 Met. 487, 488; sec. 721, Civil Code. 
 
 2. A bond, stipulating that if it shall be adjudged, the property 
 is subject to the distress warrant, the obligors will pay to the 
 plaintiff the value thereof, etc., is not authorized by statute, and 
 does not release the levy, and the officer may seize the property 
 and hold it subject to the distress. Grubb v. McCoy, 2 Met. 488, 
 489. 
 
DIVOBCE. 191 
 
 DIVOECB. 
 
 For Alimony, see that title. 
 
 1. The court of appeals lias no jurisdiction to reverse a judgment 
 granting a divorce. Wilmore v. Wilmore, 15 B. Mon. 57. 
 
 The statutes in Kentucky, authorizing divorces, apply to citi- 
 zens of this State, and the causes upon which divorce is sought, 
 must have occurred in this State, or the act complained of must 
 have been cause for divorce by the laws of the State where it was 
 done. Becket v. Becket, 17 B. Mon. 374. 
 
 3. A woman, whose husband abandoned her in Ireland, will not 
 be entitled to a divorce in this State after a residence here of one 
 year, unless abandonment for one year was also cause of divorce 
 there. The abandonment must occur while the parties resided in 
 this State, or be cause of divorce in the country where it did occur. 
 Becket v. Becket, 17 B. Mon. 374, 375. 
 
 4. If a husband has no property, and fails to make suitable pro- 
 vision for his wife and children, and wastes his time, health, and 
 strength by drunkenness, the wife will be entitled to a divorce as 
 " for wasting his estate." McKay v. McKay, 18 B. Mon. 8, 9. 
 
 5. A reasonable attorney's fee should be taxed in the wife's costs, 
 when she succeeds in an action for a divorce. Williams v. Monroe, 
 18 B. Mon. 518. 
 
 6. If a divorce be sought on any other ground than adultery or 
 lewdness, a single witness is sufficient to sustain the charge. 
 Stebbins v. Stebbins, 1 Met. 477. 
 
 7. The husband is bound, in all cases, for the costs of a suit, by 
 his wife against him for divorce and alimony, including a reasona- 
 ble attorney's fee to the wife's lawyer, unless the wife be in fault 
 and have ample estate to pay the costs. Ballard v. Carpenter, 2 
 Met. 414; Meyar v. Meyar, 3 Met. 303. 
 
 8. And this liability of the husband is not avoided by the death 
 of the wife before judgment. Ballard v. Carpenter, 2 Met. 415. 
 
 9. In a suit by a wife for a divorce the court can not, on the 
 cross -petition of the husband, grant him a divorce on the ground 
 of the wife's abandonment, unless it had continued for a year 
 before the filing of his cross-petition. Zee v. Zee, 1 Duv. 197. 
 
 10. A defendant, proceeded against as a non-resident in an 
 action for a divorce, and who did not appear, may appear within 
 
192 DOWEE. 
 
 five years after the rendition of the judgment and make defense, 
 and have a retrial and the judgment set aside, if the defense is 
 sustained, even though the party obtaining the divorce had married 
 again. Meyar v. Meyar, 3 Met. 302. 
 
 11. Whether judgment can be rendered granting a divorce 
 against one constructively summoned and who does not appear. 
 Quere. Meyar v. Meyar, 3 Met. 302. 
 
 12. It has generally been considered in this country, that mar- 
 riage, though in some respects a contract, is not within the 
 constitutional inhibition against legislative acts impairing the 
 obligation of contracts, and there is nothing in the Constitution of 
 this State of 1799, to prohibit it, and a legislative divorce is valid. 
 Cabell V. Gahell, 1 Met. 326; McGuire v. McGuire, 7 Dana, 184. 
 
 DOWEE. 
 
 I. Generally. 
 II. Of what a widow may be endowed. 
 
 III. How the right to dower may be lost. 
 
 IV. How dower may be assigned. 
 
 I. GENERALLY. 
 
 1. A doweress is not entitled to back rents, even after a suit is 
 commenced for her dower. Mill v. Golden, 16 B. Mon. 554. 
 
 2. But since the Eevised Statutes, she is entitled to rent from the 
 commencement of a suit for dower. Yancy v. Smith, 2 Met. 411. 
 
 3. A sale, by a widow, of her right of dower in land held by her 
 husband's alienee, will be void, unless he expressly holds subject 
 to her right. Kinsolving v. Pierce, 18 B. Mon. 785. 
 
 4. The widow of a husband, who died before the Eevised Statutes 
 took effect, is not liable for rents for the mansion-house and plan- 
 tation until dower is assigned her. Briskell v. Hanks, 18 B. Mon. 865. 
 
 5. The interest of a widow, who has renounced her husband's 
 will, can not be increased or diminished by the will. Barnett v. 
 Barnett, 1 Met. 259. 
 
 6. A widow who renounces her husband's will, has no right to 
 have land, directed by the will to be sold and the proceeds dis- 
 tributed to devisees, treated as personal estate, and have distribu- 
 tion of it as such. Barnett v. Barnett, 1 Met. 258, 259. 
 
 7. If an estate be legally settled on a wife, before marriage, as a 
 jointure in lieu of dower, or if, after the death of her husband, she 
 
DOWER. 
 
 193 
 
 has dower allotted her, in either case, such estate would not be 
 subject to the debts of her husband. But, where she takes under 
 her husband's will, she holds the estate as devisee merely and 
 derives no right to it as widow; although the devise may have the 
 effect to bar her claim to dower. Chambers and wife v. Davis, 15 
 B. Mon. 527. 
 
 8. Where both real and personal property are mortgaged by the 
 husband, in which the wife joins, she will have a right, when after 
 the death of the husband a foreclosure is had, to have the person- 
 alty first applied to the payment of the debt and to exclude the 
 general creditors from any participation in the mortgaged person- 
 alty, until the mortgage debt is paid so as to relieve the land. 
 Harrow v. Johnson, 3 Met. 581. 
 
 9. The widow of one, whose will was made before she became his 
 wife, is not affected by the will and need not renounce it. Lough- 
 borough V. LougJmorough, 14 B. Mon. 553. 
 
 II. OF WHAT A WIDOW MAY BE ENDOWED. 
 
 1. If a husband conveys land to a trustee, to be sold for the 
 payment of his debts, and any surplus money to be held for his own 
 use, and dies before all the land is sold, his widow is entitled to 
 distribution of the surplus proceeds as though the land had been 
 sold in the lifetime of her husband. Loughborough v. Loughborough, 
 14 B. Mon. 354, 355. 
 
 2. If the land of an infant husband be decreed to be sold, that 
 the proceeds may be invested in other lands, and he dies after the 
 sale and before a reinvestment is made, leaving a widow but no 
 children, she will only be entitled to one-third of the money as 
 dower. Collins v. Champ, 15 B. Mon. 122. 
 
 3. If a husband holds land by executory contract and sells it 
 before he receives the legal title, and after receiving the legal 
 title conveys it in compliance with his contract, his widow, 
 although she did not unite in the deed, will not be entitled to 
 dower. Heed and wife v. Ford, 16 B. Mon. 117, 118 ; Gully v. Bay, 
 18 B. Mon. 113, 114. 
 
 4. The wives of surviving partners have no interest in lands held 
 as partnership stock, and the wife of a decease^ partner can have 
 none until the partnership debts are paid. Qalbraith v. Gedge, 16 
 B. Mon. 635. 
 
 5. A widow is not entitled to dower in land to which her husband 
 had merely equitable title, which he sold during his lifetime. She 
 
 14 
 
194 DOWER. 
 
 is entitled to dower in such equitable estate only as he owned at 
 his death. Gully v. Bay, 18 B. Mon. 118. 
 
 6. ]S"or in lands, sold by her husband by executory contract 
 before her marriage with him, the legal title to which he conveyed 
 after the marriage. Gully v. Ray, 18 B. Mon. 113, 114. 
 
 7. A purchaser is not estopped by the husband's deed from 
 showing the nature of his seizin, and that it was not of such a 
 character as entitled his widow to dower. Gully v. Bay, 18 B. 
 Mon. 114. 
 
 8. That a father in conveying land expressly stipulated that the 
 son's wife should not, in case she survived him, have dower in the 
 property so conveyed, is no fraud upon her rights. Thompson v. 
 Vance, 1 Met. 676. 
 
 9. Though a wife joins with her husband in a mortgage of his 
 lands, and the husband releases or conveys his equity of redemp- 
 tion, the wife will, at his death, be entitled to dower, subject to 
 the morgtage ; and if the land is sold under the mortgage, then to 
 her claim as for dower in any surplus after paying the mortgage. 
 Harrow v. Johnson, 3 Met. 581. 
 
 10. A husband, during his lifetime, conveyed property, to a trus- 
 tee, for his wife, in order to secure her a home, and then made 
 his will; after his death, the widow renounced his will and claimed 
 dower. Held: She was entitled to it. Worsley v. Worsley, 16 B. 
 Mon. 470. 
 
 11. A petition for dower must show that the land was owned by 
 the husband during coverture. Yancy v. Smith, 2 Met. 411. 
 
 III. HOW DOWER MAT BE LOST. 
 
 1. A widow, with whose assent a legislative divorce has been 
 obtained, in which she had acquiesced for thirteen years, and who, 
 at the time of divorce, had received a sum agreed upon, and sub- 
 sequently enjoyed all the privileges of a feme sole, will not be en- 
 titled to dower. Cabell v. Cabell, 1 Met. 330. 
 
 2. Any conveyance of real or personal estate, which is intended 
 by the grantor or devisor to be in lieu or satisfaction of dower, 
 will bar the wife's right of dower. Tevis v. McCreary, 3 Met. 153 ; 
 Yancy v. Smith, 2 Met. 411. 
 
 See Challenge to Fight. 
 
ELECTIONS — POLITICAL. 195 
 
 BLBCTIOK. 
 Of Bights and Remedies, see Devises and Devisees, 
 
 ELECTIONS— POLITICAL. 
 
 I. When, and how held. 
 
 II. Who is entitled to vote at. 
 
 HI. Board to compare polls, and their duties and powers. 
 IV. How, and before whom contested. 
 
 v. Powers of courts in reference to. 
 VI, Liabilities of officers of elections. 
 
 I. WHEN, AND HOW HELD. 
 
 1. Section 41, article 4 of the constitution fixes, beyond the pow- 
 er or coffltrol of the legislature, the time of holding elections for 
 judges, clerks, and marshals of police courts, which were established 
 before the adoption of the present constitution. Trustees of Oicens- 
 horo V. Webb, 2 Met. 578, 579; Sail v. Sostetter, 17 B. Moa. 786. 
 
 2. Elections for judges, clerks, and marshals of police courts 
 established prior to the adoption of the present constitution, 
 ehould be held at the same times as elections for county judges, 
 clerks, and sheriifs respectively. Trustees of Owensboro v. Webb, 
 2 Met. 578 ; sec. 41, art. 4, of the Constitution. 
 
 II. WHO IS ENTITLED TO VOTE AT, 
 
 1. Foreigners, who have resided in the State, county, and pre- 
 cinct, the length of time required by the constitution, and are 
 white males above the age of twenty-one years, are entitled to 
 vote immediately upon being naturalized. Morgan v, Dudley, 18 
 B. Mon. 724. 
 
 2. The phrase "loyal voters" is not 'equivalent to the phrases 
 "legal voters," "qualified voters;" and an allegation that one had 
 been elected by the "loyal voters," lays no foundation for proof 
 that he was duly elected. Leeman v. Hinton, 1 Duv. 41, 42; sec. 
 8, art. 2, of the Constitution ; sec. 1, art. 1, chap. 32, p. 430, vol. 1, 
 Eevised Statutes. 
 
196 ELECTIONS — POLITICAL. 
 
 . — _— ^ 
 
 III. BOARD TO COMPARE POLLS, AND THEIR DUTIES AND POWERS. 
 
 1. The board for comparing polls and issuing certificates of 
 election, is composed: First, of the county judge, clerk, and sheriff, 
 or other ofiicer acting for him at an election, or any two of them; 
 but if either is a candidate, he shall have no voice in the decision 
 of his own case. If, from any cause, two of those designated can 
 not act in whole or in part, then the two justices residing nearest 
 the court-house, shall constitute the board. Sec. 1, art. 5, chap. 32, 
 p. 436, vol. 1, Revised Statutes; Batman v. Magowan, 1 Met. 541. 
 
 2. The expression in the statute "the sheriff or other officer 
 acting for him at an election," does not mean that either of them 
 may be a member of the board, but that the sheriff shall be, 
 unless some other officer has acted for him at the election, and in 
 that case, the officer thus acting shall be a member, and not the 
 sheriff. Batman v. Magowan, 1 Met. 541. 
 
 3. If two of the members of the board are candidates, they are 
 entirely disqualified ; if only the clerk or county judge is a candi- 
 date and the sheriff is not, they may constitute a board; but 
 neither of the former can have a voice in the decision of his own 
 case. Batman v. Magowan, 1 Met. 542. 
 
 4. The persons upon whom the law imposes the duty of com- 
 paring the polls, can not excuse themselves for a failure to dis- 
 charge that duty on the ground that it has been done by others ; 
 and unless the members designated by law, are unable or legally 
 disqualified to act, those who were candidates may proceed by 
 mandamus to compel them to do their duty. Batman v. Magowan, 
 1 Met. 538. 
 
 5. The certificate issued by the board to a candidate, is conclu- 
 sive evidence that he has been elected, unless his election has been 
 contested; but is not evea prima, facie evidence of his eligibility. 
 Patterson v. Miller, 2 Met. 497. 
 
 IV. HOW, AND BEFORE WHOM CONTESTED. 
 
 1. The law devolves the duty of deciding contested elections oil 
 a board organized for that purpose, and that board alone is 
 authorized in such cases to decide who is entitled to the office, 
 and its decision is conclusive and final on questions of both law 
 and fact. Batman v. Magowan, 1 Met. 538, 539. 
 
 2. But the law has conferred on that board no power to decide 
 whether the election has been free and equal, as required by section 
 7, article 13, of the constitution; that question forms part of the 
 general jurisdiction of the circuit courts. Leeman v. Hinton, 1 
 Duv. 40. 
 
ELECTIONS — POLITICAL. 197 
 
 3. The statute regulating the mode of contesting elections, 
 requires notice to be given to him to whom the board for com- 
 paring the polls has given the certificate of election, within ten 
 days after the final action of the board; and a notice given on the 
 16th, is insufficient to contest an election, certificate of which was 
 given on the 6th. Batman v. Magowan, 1 Met. 544-548. 
 
 4. The statute confers on such boards no authority except: 1. To 
 determine whether the votes given have been correctly summed 
 up. 2. To determine the legality of the votes given. 3. To decide 
 by lot who is entitled to the office, when there is a tie between the 
 candidates receiving the highest number of votes given. 4. To 
 decide whether the candidate receiving the highest number of 
 votes is legally qualified to receive the office. 5. To order a new 
 election in case he is not qualified. Leeman v. Sinton, 1 Duv. 40; 
 sec. 8, art. 7, chap. 32, p. 444, vol. 2, Eevised" Statutes. 
 
 5. The board has no power, in any case, to declare the office 
 vacant. Leeman v. Sinton, 1 Duv. 40. 
 
 V. POWERS OF COURTS IN REFERENCE TO. 
 
 1. The courts have no power to revise the decisions of the 
 board, designated by law, to try contested election cases either 
 upon questions of law or fact. Batman v. Magowan, 1 Met. 538, 
 539; Neiocum v. Kirtley, 13 B. Mon. 517. 
 
 2. But if those, upon whom the law has imposed the duty of 
 comparing the polls, refuse or fail to act, the courts may compel 
 them to do so by a writ of mandamus. Batman v. Magowan, 1 
 Met. 540. 
 
 3. And also to award a mandamus against the persons desig- 
 nated bylaw as eonstiuting a board to try contested election cases; 
 if they fail or refuse on proper application, to organize, hear and 
 decide the case. Batman v. Magowan, 1 Met. 543. 
 
 4. The question whether an election has been "free and equal," 
 as required by section 7, article 13, of the constitution, forms part 
 of the general jurisdiction of the circuit courts. Leeman v. Hin- 
 ton, 1 Duv. 43. 
 
 YI. LIABILITIES OP OFFICERS OF ELECTIONS. 
 
 1. A judge of an election, who is prompted by impure and cor- 
 rupt motives in refusing a legal vote, is liable in damages to the 
 injured party. Oaulfield v. Bullock, 18 B. Mon. 497; Morgan v. 
 Dudley, 18 B.Jtfon. 711; Ghrisman v. Bruce, 1 Duv. 66. 
 
 2. But in order to entitle the plaintiff to recover in such a case, 
 it must appear by allegation and proof, that one judge and the 
 
198 ENTRY — RIGHT OF. 
 
 sheriff, or both judges, concurred in refusing the vote. Morgan v. 
 Dudley, 18 B. Mon. 712. 
 
 3. That the defendant, as judge of an election, knowingly and 
 willfully refused the plaintiff's vote, is a good cause of action. 
 Morgan v. Dudley, 18 B. Mon. 713; Caulfield v. Bulloch, 18 B. 
 Mon. 497. 
 
 4. When one legally qualified to vote, and who is known to the 
 judges to be a legal voter, is, without excuse, denied the right to 
 vote, he is entitled to recover damages against the officers who 
 refused his vote. Ghrisman v. Bruce, 1 Duv. 69. 
 
 ENTET— POECIBLB. 
 
 See Forcible Entry and Detainer. 
 
 ENTEY— EIGHT OF. 
 
 1. The statute, relating to forcible entry and detainer, does not 
 affect the common law right of entry, when exercised in a peace- 
 able manner, except so far as the statute itself furnishes a remedy 
 to regain the possession. One having a right of entry, who makes 
 an entry pursuant to that right, can only be removed by a writ 
 of forcible entry and detainer. Tucker v. Phillij>s, 2 Met. 418; 
 Tribble v. Frame, 7 J. J. Mar. 604. 
 
 2. One, who could have maintained an action to recover posses- 
 sion of land, may enter and take possession. Tucker v. PMllips, 
 2 Met. 418. 
 
 ENTET AND SUEVET. 
 See Land. 
 
EQUITY. 199 
 
 EQUITY. 
 
 I. General principles. 
 
 II. When equity will take jurisdiction. 
 III." When equity will not take jurisdiction. 
 IV. Belief against judgments, and proceedings at law. 
 
 V. Limitation, how applied in equity. 
 
 For mode and grounds of transferring actions from equity to law, and vice 
 
 versa, see Practice in the Circuit Courts. 
 For proceedings on issues out of equity, and trial of questions of fact in causes 
 
 transferred from the ordinary to the equity docket, see Jury Trials. 
 
 I. GENERAL PRINCIPLES. 
 
 1. As a general rule, equity will not compel a creditor to sur- 
 render funds in his hands to an assignee of his debtor, or to another 
 creditor, until his own debt is paid. Jackson, Cox & Co. v. JSal- 
 loway, 14 B. Mon. 136. 
 
 2. The elder equity will have precedence in contest between two 
 equities otherwise equal. Dorsey v. Eeese, 14 B. Mon. 158 ; Newhy 
 & Taylor v. Hill & Milton, 2 Met. 533 ; Forepaugh v. Appold, 17 
 B. Mon. 631; 8wigert v. Bank Kentucky, 17 B. Mon. 290; Stephens 
 V. Benton, 1 Duv. 116. 
 
 3. The chancellor will not dispossess one, who entered under 
 claim of title on land claimed by infants, pending their suit for a 
 sale of the lands, and compel him, as a lis pendens purchaser, to 
 surrender his title to the purchaser at the decretal sale. Glarkson 
 V. Barnett, 14 B. Mon. 166. 
 
 4. Pre-existing principles and practice of courts of equity on 
 the subject of bills of review, have not been changed by the Code 
 of Practice. Bush v. Madeira, 14 B. Mon. 213. 
 
 5. Equity will turn away from one whose prayer is unconscien- 
 tious. Shortridge v. Bartlett, 14 B. Mon. 251. 
 
 6. A wife may, in an original suit for that purpose, have the 
 proceeds of the sale of her lands settled upon her as a substantial 
 right. Moore v. Moore, 14 B. Mon. 261. 
 
 7. The creditors of a deceased insolvent debtor may surcharge a 
 settlement of his accounts as guardian, made with the county 
 court. Alsop's Creditors v. Barhee and wife, 14 B. Mon. 525. 
 
 8. Equity will not allow a party to take advantage of his own 
 fraud, and protect himself under the statute of frauds. Langhorn 
 y. Payne, 14 B. Mon. 635 ; Martin v. Martin, 16 B. Mon. 14, 15. 
 
200 EQUITY. 
 
 9. A. purchased the lands of 0. at decretal sale for C.'s benefit, 
 and offered to alloW him to redeem, but being unable to do so, D. 
 proposed to A. and C. that he would advance the money to A. for 
 C, and allow him to redeem, and with this understanding, and 
 for the purpose of enabling C. to redeem, A. transferred the pur- 
 chase to D., who refused to allow 0. to redeem*- SsM •■ He 
 might redeem on equitable terms. Martin v. Martin, 16 B. Mon. 
 14, 15. 
 
 10. A court of equity will sometimes refuse its aid to a party 
 plaintiff, when it would give it to the same party as a defendant. 
 Wright v. Arnold, 14 B. Mon. 643-645. 
 
 11. It is an established rule of equity, that things shall be con- 
 sidered as done, which ought to have been done. Collins v. Champ's 
 Heirs, 15 B. Mon. 122. 
 
 12. The chancellor has no power, on the death of a donee of a 
 discretionary power before the power is executed, to assume to act 
 in the place of the donee in execution of the power; but will divide 
 the subject j9er copiYa among all of the class out of which the donee 
 had a discretion to choose. McG-aughey's Adm'r v. Henry, 15 
 B. Mon. 398; Flint v. Spurr, 17 B. Mon. 515, 516. 
 
 13. If land be sold for more money than is due, and the plain- 
 tiff buys, eqviity will hold him a trustee for the defendant for the 
 excess. Walker and wife v. McKnight, 15 B. Mon. 478, 479. 
 
 14. If one co-tenant appropriates to his own exclusive use and 
 occupancy a definite part of the common property, and enough 
 remains to satisfy the interest of other tenants, he will not be dis- 
 turbed. Aloes V. Town of Henderson, 16 B. Mon. 165. 
 
 15. A remote purchaser of land, held under a defective convey- 
 ance from a married woman, is entitled to be paid for his lasting 
 and valuable improvements, whatever they have enhanced the 
 vendible value of the land, subject to a deduction for rent after the 
 death of the husband. Thomas v. Thomas' Ex' rs, 16 B. Mon. 425,426. 
 
 16. If a creditor has a lien on two funds, and another has a lien 
 of a younger date on one of them, the latter will have a right in 
 equity to have the fund, on which he has no lien, applied to the 
 payment of the first creditor. Swigert v. Bank Ky., 17 B. Mon. 285. 
 
 17. If one creditor seeks the aid of a court of equity to reach a 
 fund in the hands of another creditor, the latter will not be com- 
 pelled to surrender the fund until his own debt is paid out of it. 
 Swigert v. Bank Ky., 17 B. Mon. 288. 
 
 18. An equity, asserted by the plaintiff, will not be allowed to 
 
EQUITY. 201 
 
 prevail against an equal equity, asserted by the defendant. Swi- 
 gert v. Bank Ky., 17 B. Mon. 288. 
 
 19. Although mortgages and other conveyances creating liens, 
 unless recorded, are not valid in a court of law, against creditors, 
 nor against any legal right to the property, which they may ac- 
 quire in good faith ; yet, in a court of equity, where all are assert- 
 ing and relying in mere equity, this doctrine has no application. 
 Swigertv. Bank Ky., 17 B. Mon. 289, 290. 
 
 20. If the same property be used by two persons, they must con- 
 tribute to its necessary improvement and repairs according to their 
 respective interests. Kennedy v. City of Covington, 17 B. Mon. 584. 
 
 21. An unrecorded deed of trust or mortgage will prevail against 
 a creditor, who has notice of it before he acquires a legal right to 
 the property or estate embraced by it. Forepaugh v. Appold, 17 
 B. Mon. 631. 
 
 22. As a general rule, debts of a mortgagee, who has more than 
 one security, will be thrown upon all his sureties rateably pari 
 passu according to their value, and thus leave the residue of each 
 to satisfy other incumbrancers to whom it is specially mortgaged. 
 Logan v. Anderson, 18 B. Mon. 121. 
 
 23. If the value of lands of the wife sold by the husband has 
 been expended on other lands of the wife, and her heirs, on failing 
 to recover the land sold on account of assets received from the 
 father, sue the executor and other heirs of the father for the value 
 of the land thus lost, they will be charged with the enhanced value 
 of the other lands of their mother, produced by the expenditure 
 and improvements. Todd v. Todd, 18 B. Mon. 166. 
 
 24. If one, having an equitable title to land, assents to its pur- 
 chase by another from a third person, he will not be permitted to 
 assert his equity against him. Breeding v. Stamper, 18 B. Mon. 178. 
 
 25. The rights and interests of infants are under the special care 
 of courts of equity, whose duty it is to vacate every judgment by 
 which injustice is done them. Newland v. Gentry, 18 B. Mon. 6J1. 
 
 26. The general rule is that the chancellor will consider every- 
 thing done in disobedience of his process as not done at all, or will 
 undo it if necessary to afford the proper relief. Jones v. Lusk, 2 
 Met. 358. 
 
 27. A court of equity has power, pending an action to test the 
 validity of a mortgage said to have been made in violation of the 
 statute of 1856, to order the sale of personal property embraced in 
 the mortgage, without an allegation that it would be illegally 
 
202 BQUITT. 
 
 disposed of, or would not be forthcoming to answer the judgment. 
 Terrill v. Jennings, 1 Met. 459. 
 
 28. A parole gift of land is not void, and although it will not be 
 enforced by the positive action of the chancellor, the duties and 
 equities growing out of it are recognized, and will be sufficient to 
 rebut any demand of the donor inconsistent with them. Ford v. 
 Mlingwood, 3 Met. 363. 
 
 29. If a man is silent when he ought to speak, equity will debar 
 him from speaking when conscience requires him to be silent. 
 Phillips V. Clark, 4 Met. 352. 
 
 30. If one, having claim to property, stands by and sees another 
 putting on it valuable improvements, he will not be allowed to set 
 up his title to defeat the lien of the mechanic for the price of his 
 work and materials. Phillips v. Clark, 4 Met. 352. 
 
 31. Although executors may have full discretionary power to 
 sell real estate, its sale may be decreed by the proper court, with 
 the assent of the executors, on the application of those entitled to 
 the proceeds. Bobinson v. Redman, 2 Duv. 86. 
 
 32. Where land was devised to be sold, and the proceeds distrib- 
 uted among several persons, all of whom sold and conveyed the 
 land, the sale will be regarded in equity as an election to take the 
 land, and the widow of the purchaser can not have it treated as 
 personal property, and have distribution of it as such. Swan v. 
 Goodwin, 2 Duv. 300. 
 
 II. WHEN EQUITY WILL TAKE JUEISDICTION. 
 
 1. The holder of the title of the tenant for life can not oust the 
 chancellor of jurisdiction to decree partition among the remainder- 
 men, and control the possession, by claiming to hold adversely. 
 Phillips V. Johnson, 14 B. Mon. 176. 
 
 2. An equitable action is the proper mode of establishing a right 
 to a street in a town. Trustees of Lebanon v. Forest, 15 B. Mon. 
 171, 172. 
 
 3. Equity will compel one, claiming .under a void devise, to 
 relinquish his claim to those entitled. Taylor v. Embry, 16 B. 
 Mon. 340, 341. 
 
 4. Equity will take jurisdiction to quiet the possession of one 
 whose right has been established at law, and when the disturbance 
 complained of is done under claim of right, and on that account 
 threatens to be frequent and vexatious, it furnishes the more 
 appropriate and efficient redress. Newport v. Taylor, 16 B. Mon. 
 780. 
 
EQUITY. 203 
 
 5. Courts of equity have jurisdiction to prevent the removal of 
 property, on which the plaintiff has an equitable lien, by one who 
 seeks its removal under execution against the common debtor. 
 Phillips V. Winslow, 18 B. Mon. 447, 
 
 6. The chancellor has power, under the Code of Practice, to 
 vacate a decree procured by fraud, after the expiration of the 
 term at which it was rendered. Newland v. G-entry, 18 B. Mon. 
 670, 
 
 7. If, through a mistake of law or fact, an instrument, entered 
 into in execution of a previous agreement, fails to contain the 
 agreement as intended, a court of equity will compel a party 
 refusing to carry out the agreement as it was intended. Scales v. 
 Ashbrook, 1 Met. 361, 362. 
 
 8. Pending a suit in equity, in the names of four distributees 
 against the administratrix, who was insolvent, and her three sure- 
 ties, one of whom was a non-resident and had no property in this 
 State, one of the sureties paid to two of the distributees one 
 thousand dollars, and received from them a bond to indemnify 
 him against his liability as surety. The other surety was ignorant 
 of this fact until after judgment had been rendered against him 
 and his co-surety in favor of the four distributees, each for three 
 hundred dollars, and executions issued, when he filed his petition 
 and obtained an injunction, claiming that the judgment should be 
 credited by the amount received by the two distributees of his 
 co-surety. Seld : That the indemnity having been procured by 
 the other by his own means, he was not entitled to have the 
 credit. But, inasmuch as the one-half of the judgment was due 
 from the two distributees on their bond to indemnify the surety, 
 and the plaintiff was entitled to recover the same sum of his 
 co-sxirety, if he paid the judgment, that the chancellor should do 
 full justice to all the parties by perpetually enjoining the collection 
 of the shares of the two distributees, and requiring the plaintiff 
 to pay the other two. Johnson v. G-ivens, 3 Met. 92-94. 
 
 9. If a petition to enforce a resulting trust, fails to state facts, 
 entitling the plaintiff to the relief sought, but shows the plaintiff 
 furnished the money with which the purchase was made, and the 
 prayer is for general relief, the plaintiff should have judgment for 
 the money. Graves v. Graves, 3 Met. 169. 
 
 10. A court of equity has power, on the petition of wards, who 
 are hired out by their guardian in violation of his trust and duty, 
 to grant relief. Glinkenbeard_ v. CUnkenbeard, 3 Met. 332 ; Graham 
 V. Kinder, 11 B. Mon. 62. 
 
204 EQUITY. 
 
 11. An agreement, by a husband, to transfer a note to the 
 separate use of his wife, in consideration that she would release 
 her potential right of dower in real estate sold by him, may be 
 specifically enforced in equity. Ward v. Orotty, 4 Mot. 61 ; Mar- 
 shall V. Hutchison, 5 B. Mon. 298; McGoun v. Letcher, 8 B. Mon. 
 320. 
 
 12. Antenuptial executory contracts between husband and wife, 
 to be performed during marriage, though annulled at law by the 
 marriage, may be enforced in equity. Maraman v. Maraman, 4 
 Met. 87. 
 
 III. WHEN EQUITY WILL NOT TAKE JURISDICTION. 
 
 1. In an action, brought for distribution, it is not competent, 
 under the Code of Practice, for a defendant, by cross-petition, to 
 attack the will. Sanders v. Sanders, 17 B. Mon. 13. 
 
 2. But, whether since the amendment of the Code, allowing 
 cross-petitions by the defendant against the plaintiffs, or a co-de- 
 fendant, one having a right to contest a will by petition in equity, 
 may not do so by cross-petition in an action for distribution under 
 the will. Quere. Sanders v. Sanders, 17 B. Mon. 12, 13. 
 
 3. One who avows himself a participant in a transaction savor- 
 ing strongly of fraud, will not be relieved in a court of equity. 
 Hildeburn v. Brown, 17 B. Mon. 783. 
 
 4. Equity will not marshal securities, when in aiding one incum- 
 brancer it would injure another, or trench upon the rights or 
 operate to the prejudice of the party entitled to a double fund. 
 Logan v. Anderson, 18 B. Mon. 119. 
 
 5. If one creditor has a lien on several funds and another on only 
 one of them, the first will not be compelled to credit his demand 
 with the amount realized out of the funds, on which he has an 
 exclusive lien, and only take his jyro rata share with the other on 
 the balance due, but will be entitled to his pro rata share on the 
 whole debt out of this fund. Logan v. Anderson, 18 B. Mon. 119, 
 120. 
 
 6. Original proceedings in equity to set aside wills admitted to 
 probate are now only allowable in two classes of cases. 1. To 
 impeach the final decision of the circuit court afa.rming an order 
 of probate upon any ground that would give jurisdiction to a court 
 of equity over any other judgment at law. 2. In behalf of non- 
 residents or others interested in the probate, who were not parties 
 to the proceeding by actual appearance or personal service of pro- 
 cess. Sughey v. Sidwell, 18 B. Mon. 260. 
 
EQriTY. 205 
 
 7. The general power, formerly possessed by courts of equity, 
 to sell the real estate of infants even to pay for necessary im- 
 provements, has been taken away by statute. Barrett v. Churchill, 
 18 B. Mon. 391; sec. 2, art. 3, chap. 86, p. 304, vol. 2, Eevised Stat- 
 utes. 
 
 8. Equity will not take jurisdiction to abate a nuisance, unless 
 the case is clearly and satisfactorily made out. Dumesnil v. Dupont, 
 18 B. Mon. 804. 
 
 9. The mere possibility that injury may result, to those living 
 near by, from the erection of a powder house, will not authorize 
 its suppression. Dumesnil v. Bupont, 18 B. Mon. 807. 
 
 10. A court of equity will not interfere to relieve a mortgagor 
 from the effects of his own fraud, nor will it aid the mortgagee in 
 securing the enjoyment of the mortgaged property. Brookover v. 
 Hurst, 1 Met. 668, 669. 
 
 11. Insolvency, in order to give the chancellor jurisdiction to 
 decree priority of payment in favor of partnership creditors, 
 must be evidenced by judgment and execution return of "no prop- 
 erty" against one or more of the partners. Jones v. Lusk, 2 Met. 
 361. 
 
 12. The mere allegation that a firm, or the members composing 
 it, are unable to pay their debts, whether joint or individual, nor 
 the apprehension of firm creditors, that the parties will use the 
 firm effects to pay their individual debts, will confer on the chan- 
 cellor jurisdiction to assume the control and settlement of the firm. 
 Jones V. Lusk, 2 Met. 361. 
 
 IV. RELIEF AGAINST JUDGMENTS AND PROCEEDINGS AT LAW. 
 
 1. One, who, having an equitable defense, permits judgment to 
 go against him, by default, upon a legal demand, may obtain 
 relief in equity against the judgment. Dorsey v. Beese, 14 B. 
 Mon. 157.1 
 
 2. One, having a valid legal defense, but who, when his plea is 
 rejected, withdraws his defense and resorts to equity for relief, will 
 not be heard. Shortridge v. Bartlett, 14 B. Mon. 251. 
 
 3. When it was agreed that mutual demands of the parties 
 should be set off, and one party sues and obtains judgment, equity 
 will enjoin the judgment and enforce the agi'eement. Lansdale v. 
 Mitchell, 14 B. Mon. 350. 
 
 'Declared not to be authority in Ghinn v. Mitchell, 2 Met. 99. 
 
206 EQUITY. 
 
 4. Equity will relieve against a bond taken under coercion by 
 an offtcer, who has levied on property exempt from execution. 
 Perry v. Rensley, 14 B. Mon. 476, 476. 
 
 5. Payment in full is a legal and not an equitable defense, and 
 must be pleaded at law, and is not, of itself, grounds for relief in 
 equity against a judgment at law. Lillard v. Turner, 16 B. Mon. 
 376. 
 
 6. A claim for usury against a non-resident plaintiif, who has 
 recovered judgment, may be set off in equity against the judgment, 
 but is no ground for a simple modification of the judgment. Moss 
 V. Rowland, 1 Duv. 322 ; Chinn v. Mitchell, 2 Met. 96. 
 
 7. Section 14 of the Civil Code was adopted as an amendment at 
 the session of 1853, 1854, and took effect July 1, 1854, after the 
 -decision in Dorsey v. Reese, 14 B. Mon. 157, which recognized an 
 equitable defense after judgment, though existing and known prior 
 to the judgment. That case does not now apply to the question. 
 Chinn v. Mitchell, 2 Met. 95. i 
 
 8. That the vendor of laid is insolvent, and has no title to the 
 land, is sufiicient grounds for enjoining a judgment against the 
 vendee for the purchase-money, although the time for conveying 
 the land may not have arrived. Kelly v. Kelly, 2 Duv. 364. 
 
 V. LIMITATION AND LAPSE OF TIME. 
 
 1. Willful ignorance, or that which results from negligence and 
 the want of that degree of vigilance which the law requires, will 
 not prevent the operation of the statute of limitation. L. L., F.& 
 M. Ins. Go. V. Page & Richardson, 17 B. Mon. 451. 
 
 2. At law, limitation begins to run from the perpetration of the 
 fraud; in equity, from its discovery. Ellis v. Kelsoe, 18 B. Mon. 
 300; Bakers. Grundy, 1 Duv. 283. 
 
 3. If the case be one of concurrent jurisdiction at law or in 
 equity and the remedy is barred at law, it will be barred in equity. 
 L. L., F. & M. Ins. Co. v. Page & Richardson, 17 B. Mon. 453. 
 
 4. A suit, by wards against their guardian, after a lapse of 
 nearly forty -five years after his appointment and twenty -five years 
 after all the plaintiffs had arrived at full age without an attempt 
 to account for the delay, presents a case of such inexcusable laches, 
 
 ^But see Hill v. Paulding, 1 Duv. 219, where it was held, that one, sued 
 at law on notes given for the price of land sold hy parole, could not, if in pos- 
 session, rely as a defense, on the want of written evidence of the contract j but 
 must resort to equity for a rescission and enjoin the judgment on the notes. 
 
ESTATE FOE LIFE. 207 
 
 a demand so stale and antiquated, as to require the chancellor to 
 refuse relief. Birchy. Funk, 2 Met. 546. 
 
 ESCHEAT. 
 
 1. An alien can not take the title to land by descent, and as the 
 title must rest somewhere on the death of one having no kindred 
 capable of inheriting, it will vest in the Commonwealth. White v. 
 White, 2 Met. 189, 190. 
 
 2. Where, for want of kindred capable of taking by descent, 
 lands eschewed to the Commonwealth, the kindred, who were dis- 
 abled from taking because they were aliens, can not acquire title 
 by subsequent naturalization. White v. White, 2 Met. 190. 
 
 ESCEOW. 
 
 1. Writings, which are delivered to a third person to be held 
 until the happening of some event, until they are executed by 
 additional obligors, are regarded as escrows. Willett v. Parker, 2 
 Met. 613. 
 
 2. If a surety signs and delivers a note to his principal, to be 
 keld until it is signed by another surety, it is not an escrow, and 
 if the principal delivers it to the obligee before it is signed by the 
 other surety, it will be valid and binding on those who have signed 
 it. Millett V. Parker, 2 Met. 613, 614; Taylor v. Oraig,2J. J. Mar. 
 462 ; Bank Commonwealth v. Curry, 2 Dana, 142. 
 
 3. A note, executed by a surety and delivered to the obligee, 
 who promised that the note should not be obligatory, unless 
 another would sign it as surety, is not an escrow. Murphy v. 
 Subble, 2 Duv. 249, 250 ; Subble v. Murphy, 1 Duv. 280. 
 
 ESTATE FOE LIFE. 
 
 1. A devise of the rents and profits of land for life is substantially 
 an appropriation of the land itself. Williamson v. Williamson, 18 
 B. Mon. 384. ' ^ 
 
 2. And if such an estate is devised to the separate use of a mar- 
 ried woman, its conveyance by her is prohibited by section 17, 
 article 4, chapter 47, p. 28, volume 2, Eevised Statutes. Williamson 
 
 Williamson, 18 B. Mon. 384. • 
 
208 ESTATES TAIL. 
 
 3. One, who claims a life estate in personal property which he 
 has held in possession for five years, will be protected by limitation 
 in his life estate. Burns v. Ray, 18 B. Mon. 403. 
 
 4. A widow, in possession of land as dower, will be presumed to 
 hold consistently with her title. Driskel v. Hanks, 18 B. Mon. 
 864; Fmser v. Naylor, 1 Met. 695. 
 
 ESTATES TAIL. 
 
 1. An estate tail will not be raised by implication upon the 
 words "dying without issue," whether the first devise was for life 
 or in fee, or without additional words, or whether it devise land or 
 slaves, or personally, or all, by the same words. Daniel v. Thomp- 
 son, 14 B. Mon. 696. 
 
 2. The words "if he die without issue, or without leaving issue 
 or heirs of his body," or other words of similar import, are to be 
 interpreted according to their plain, popular, and natural meaning, 
 as referring to the time of the person's death, unless the contrary 
 intention is plainly expressed or is necessary to carry out its 
 undoubted purpose. Daniel v. Thompson, 14 B. Mon. 708. 
 
 3. A devise of land to A., in fee, limited by the words " if he die 
 without a lawful heir begotten of his body," is not an estate tail, 
 and A. takes a defeasible fee, subject to be defeated by his dying 
 without such heir living at his death. Daniel v Thompson, 14 B. 
 Mon. 707. 
 
 4. A devise to the three granddaughters of the testatrix and the 
 "heirs of their bodies, legally begotten," creates an estate tail 
 which our statute converts into a fee. Johnson v. Johnson, 2 Met. 
 334; Brown v. Alden, 14 B. Mon. 144; True v. Nichols, 2 Duv. 547; 
 Lackland v. -Downing, 11 B. Mon. 33; Prescott v. Prescott, 11 B. 
 Mon. 58; sees. 8, 9, chap. 80, p. 227, vol. 2, Eevised Statutes. 
 
 5. A deed conveying land to "S. W., during his life and then to 
 his heirs or executors," only gives S. W. a life estate, with fee to 
 those who are his heirs at his death, and they take as purchasers 
 under the deed, and not by descent, from S. W. Turman v. 
 Whites, 14 B. Mon. 570-579. 
 
 6. The rule in Shelby's case, in which it was held that if a free- 
 hold (estate for life) be conveyed to a man, and by the same 
 conveyance an estate is limited to his heirs, or the heirs of his 
 bodj^ he will be vested with a fee or inheritance, and his heirs 
 
ESTOPPEL. 209 
 
 will take by descent and not by purchase, is not a rule of property 
 in this State. Turman v White, 14 B. Mon. 570, 571. 
 
 ESTOPPEL. 
 
 I. By matters of record. 
 II. By deeds and other writings. 
 
 III. By matters en pais. 
 
 IV. Equitable estoppels. # 
 
 [JSToTE. — By section 13, chapter 80, page 229, volume 2, Revised Statutes, 
 heirs are not permitted to recover land which their ancestor had warranted, 
 and which does not exceed thft assets received from him hy descent, devise, 
 or distribution, though they may have superior title. Por this subject, see 
 Heirs and Warranty. "l 
 
 I. BY MATTERS OP RECORD. 
 
 1. An assignee in bankruptcy, who comes into a State court by 
 answer and cross-bill, and submits his rights to be heard without 
 first objecting to the jurisdiction, is estopped afterward to question 
 it. Pindle's Assignee r. Vimont, 14 B. Mon. 405. 
 
 2. One, sued in this State, on the record of a judgment recovered 
 in another State by the plaintiff, as executor, is estopped by the 
 record to deny that the plaintiff is such executor. Wayland v. 
 Porterfield, 1 Met. 640. 
 
 11. BY DEEDS AND OTHER WRITINGS. 
 
 1. The deed and warranty of one who has exchanged lands with 
 another, can not be set up as an estoppel to defeat his claim to 
 have restitution of the land given in exchange after his eviction 
 from that he received. Grimes v. Bedman, 14 B. Mon. 238. 
 
 2. A void contract will not create an estoppel. Payne v. Yan- 
 dever, 17 B. Mon. 20 ; Ashby v. Woolfolk, 3 Met. 542. 
 
 3. An obligor in a joint and several note, will not be estopped 
 by the writing, to show aliunde that he is merely security. 
 Emmons v. Overton, 18 B. Mon. 648 ; Lewis v. Harbin, 5 B. Mon. 
 564. 
 
 4. Eeceipts and other writings, which only acknowledge the 
 existence of a fact, as the payment of money, are susceptible of 
 explanation, and may be contradicted by witnesses. Gordon v. 
 Gordon, 1 Met. 288; Olay v. Clay, 3 Met. 552. 
 
 5. A defendant in an execution, who has, by writing, given up 
 for sale, under the execution, land on which he had previously 
 
210 ESTOPPEL. 
 
 created an incumbrance by mortgage, is not estopped, by the sur- 
 render, to set up the mortgage to defeat the purchaser's right to 
 have an absolute title to the land under his purchase. Forest v. 
 Phillips, 2 Met. 196-198. 
 
 6. When a writing expresses no consideration, neither party is 
 estopped to show what the consideration was. Steadman v. 
 Guthrie, 4 Met. 154. 
 
 7. One, who had executed his notes for land, and afterward, to 
 enable his vendor to sell them, executed a paper reciting the pur- 
 chase and notes, and that he "expected to pay them when they 
 fell due," and " we have no offsets, nor will have, on these notes," 
 is estopped, when sued by the assignor, to plead that he had 
 acquired no title by his purchase. Wells v. Lewis, 4 Met. 272. 
 
 8. A defendant, who surrenders land in writing, to be sold 
 under a void execution, is not estopped to controvert the title of 
 the purchaser. Geoghegan v. Ditto, 2 Met. 436. 
 
 9. A writing was in these words: "We, the undersigned, agree 
 to guarantee the depositors of W. B. 0. in the payment in full of 
 their demands against said C, on account of money deposited 
 with him. We have entire confidence in his ability to meet every 
 demand." In an action against the ■ guarantors, the petition 
 alleged that public confidence in C. was impaired, and the guar- 
 anty was executed in consideration that the plaintiff and other 
 depositors would forbear to withdraw their deposits, and would 
 permit C. to, keep and use the same during the panic, or until he 
 could conveniently pay them, and to prevent a run on him, and 
 for the purpose of sustaining his credit. Held: The plaintiff was 
 not estopped from relying on the alleged consideration, which is 
 not inconsistent with the writing, and that the writing does not 
 estop either party from showing the consideration on which it was 
 founded. Steadman v. Guthrie, 4 Met. 154. 
 
 10. A railroad company made a mortgage to secure four hundred 
 bonds for one thousand dollars each. By mistake four hundred 
 and twenty bonds were issued and sold. A certificate was attached 
 to each bond, showing that it was secured by mortgage, and that 
 the amount of bonds, issued and to be issued, was not to exceed 
 four hundred thousand dollars. The holders of the twenty extra 
 bonds bought them in ignorance of the overissue. Held: That 
 the company is estopped to deny that the twenty extra bonds 
 were secured by the mortgage. Stephens v. Benton, 1 Duv. 
 114. 
 
ET CETERA. 211 
 
 III. BT MATTERS EN PAIS. 
 
 1. A purchaser from the husband, who entered under the title 
 of the wife, can not deny her title. Hedger v. Ward, 15 B. Mon. 
 115. 
 
 2. Whether one, who has participated as a stockholder in a 
 corporation, in the election of directors, will be allowed to ques- 
 tion its legal existence. Quere. H. & W. B. B. Co. v. JJeavell, 16 
 B. Mon. 363. 
 
 3. If a mortgagor, after a decree of foreclosure, procures a 
 creditor to buy his equity of redemption in the mortgaged prop- 
 erty, and agrees that he may hold it as indemnity, not only for 
 the sum at which it is purchased, but for other debts due him, he 
 will be estopped to deny that his equity of redemption was subject 
 to sale under execution. Swigert v. Bank Ky., 17 B. Mon. 283, 
 284. 
 
 4. A landlord, who had no title to the leased premises, will not 
 be entitled to the benefit of a purchase made by his tenant of the 
 real owner. Hodges v. Shields, 18 B. Mon. 831, 832; Swan v. 
 Wilson, 1 A. K. Mar. 73, 5 J. J. Mar. 104. 
 
 5. A party is estopped to deny the validity of the title under 
 which he entered and claims to hold possession. Woolfolk v. 
 Ashhy, 2 Met. 289. 
 
 6. If land is levied on under execution, with the assent of the 
 defendant, who had but an equitable title, he will be estopped 
 to deny the purchaser's title. Moore v. Simpson, 3 Met. 351, 
 352. 
 
 7. The receipt by stockholders, in a corporation, of illegal divi- 
 dends declared, will not estop them from afterward contesting the 
 legality of the dividends. L. L., F. & M. Ins. Co. v. Page & Rich- 
 ardson, 17 B. Mon. 443. 
 
 IV. EQUITABLE ESTOPPEL. 
 
 Equitable, like legal, estoppel bind privies in estate. Stephens 
 v. Benton, 1 Duv. 115. 
 
 ET CETEEA. 
 
 1. And so forth, ijnplies some other necessary matter. A mort- 
 gage, executed by a railroad company, was made under authority 
 of a resolution of the board of directors, which authorized a 
 mortgage of "the road, and its property, etc.," and the mortgage 
 
212 EVICTION. 
 
 executed was of the "railroad, with all its rights and privileges." 
 Held: The directors must have used "etc." in the resolution for 
 some purpose, and as there was nothing to which it could apply, 
 except the franchises of the road, there was authority under the 
 resolution to embrace them in the mortgage. B. <Ss L. B. It. Co. v. 
 Metcalfe, 4 Met. 210, 211. 
 
 2. Whether such would have been the case, if there had been 
 several things to either of which "etc." might have been designed 
 to apply. Quere. B. & L. B. B. Go. v. Metcalfe, 4 Met. 211. 
 
 EVICTION. 
 
 1. A judgment of eviction does not change the possession, unless 
 it is executed and actual eviction had. Petty v Malier, 15 B. 
 Mon. 603. 
 
 2. The seizure of a horse branded "U. S.," by a piilitary officer, 
 as the property of the United States, is not a legal eviction. 
 Plummer v. Newdigate, 2 Duv. 3. 
 
 3. The Government's right of eminent domain is not such a title 
 paramount, as that the seizure or voluntary enlistment of a slave, 
 in the armj' of the United States, without compensation to the 
 owner, will be a legal eviction of the hirer. Hughes v. Todd, 2 
 Duv. 190, 191. 
 
 EVIDENCE. 
 
 I. Judicial notice. 
 II. Presumptions. 
 
 III. Burden of proof. 
 
 IV. Production of evidence. 
 
 V. Best, and secondary evidence. 
 VI. Competency of evidence. 
 VII. Documentary evidence. 
 VIII. Quantum, and effect of, evidence. 
 
 IX. Proof without allegation. See Allegation and Proof. 
 X. Evidence in criminal prosecutions. 
 
 I. JUDICIAL NOTICE. 
 
 1. Judicial notice may be taken of the character of the Ohio 
 river. Thurman v. Morrison, 14 B. Mon. 370. 
 
 2. The court of appeals will take judicial notice of an act of the 
 legislature creating a corporation, if it was relied on in the court 
 
EVIDENCE. 213 
 
 below, whether it was embraced in the bill of exceptions or not. 
 Lackey v. R. & L. T. B. Go., 17 B. Mon. 47, 48. 
 
 3. The courts will take judicial notice of the day of the week, 
 on a given day in the month. Wile v. Sweeney, 2 Duv. 162. 
 
 4. The courts will not take judicial notice of a regulation of the 
 United States Treasury Department, by which treasury notes, 
 made payable to a disbursing officer, are not to become obligatory 
 on the Government until indorsed by him. More v. Worthington, 
 2 Duv. 308. 
 
 II. PRESUMPTIONS. 
 
 1. If a deed made by a sheriff for land sold by his predecessor, 
 recites that a certificate of purchase, given by the former sheriff, 
 was produced, the recital will be prima facie evidence that a cer- 
 tificate was given, and produced to him. Phillips v. Jamison, 14 
 B. Mon. 583. 
 
 2. No presumption of the settlement of individual demands will 
 arise from the execution of a note by one of the parties to the other 
 as administrator. Jones v. Everman, 15 B. Mon. 633. 
 
 3. A remote purchaser of land, held under a defective convey- 
 ance from a married woman,- will not be charged with notice of her 
 title, from a mere defect in the clerk's certificate to her deed, so as 
 to defeat his claim for lasting and valuable improvements. Thomas 
 V. Thomas, 16 B. Mon. 425. 
 
 4. The chancellor will not presume that a conveyance by a wife 
 to her husband, made through a third person, is fraudulent, so as 
 to require of the husband proof of its fairness. Todd v. Wickliffe, 
 18 B. Mon. 908. 
 
 5. The attestation of a subscribing witness to a will, will, if the 
 witness be dead, be presumed to have been made according to the 
 statute. Tudor v. Tudor, 17 B. Mon. 390. 
 
 6. "When nothing appears in the record to show the age of an 
 infant defendant, or whether he had a guardian or not, and the 
 sheriff returns the process as executed by delivering a copy to the 
 infant, it will be presumed he did his duty, and that the infant 
 had no guardian. Webber v. Webber, 1 Met. 20, 21 ; Bridges v. Hidge- 
 ley, 2 Litt. 396. 
 
 7. A person, once judicially found to be a lunatic, will be pre- 
 sumed to continue so ; but this presumption may be rebutted by 
 oral testimony. Glark v. Trail, 1 Met. 39. 
 
 8. But the inquest is conclusive evidence of lunacy at the time. 
 aark V. Trail, 1 Met. 40. 
 
214 EVIDENCE. 
 
 9. It will be presumed that the register of the land office did 
 whatever it was his duty to have done, before selling lands held 
 under head-right claims, under the act of December 20, 1800, for 
 installments due the State. Vincent v. Eaves, 1 Met. 250 ; Hickman 
 V. Skinner, 3 Mon. 211. 
 
 10. The common law will be presumed to be in force in a sister 
 State of the Union, unless the contrary be made to appear. Miles 
 V. Collins, 1 Met. 311, 312. 
 
 11. It will be presumed by the State courts, that a district court 
 of the United States had jurisdiction of a case, when the pleadings 
 state facts showing such jurisdiction. Hunt v. Orwig, 17 B. 
 Mon. 85. 
 
 12. The presumption of notice, arising from the recording of a 
 voluntary conveyance, will not be sufScient to defeat the title of 
 a subsequent purchaser for a valuable consideration. In such a 
 case, there must be actual notice. JEJnders v. Williams, 1 Met. 353 ; 
 LewisY.Love, 2 B. Mon. 345. 
 
 13. If a deposition be certified by one styling himself a commis- 
 sioner to supply the lost records of a court, it must be presumed 
 that he had been regularly appointed. Green v. Stevens, 2 
 Duv. 421. 
 
 III. BURDEN OP PEOOF. 
 See Allegation and Proof. 
 
 1. If the treatment of a slave be such that it results in his death, 
 or permanent injury, the bailee, who inflicts the punishment, must 
 show that he was justifiable. Craig v. Lee, 14 B. Mon. 123. 
 
 2. If both parties claim under the same vendor, he who has the 
 elder has the better title ; and the junior vendee, if he relies on the 
 fraudulent character of the first sale, must prove that he paid a 
 valuable consideration. Edwards v. Bullard, 14 B. Mon. 291. 
 
 3. If the judgment of a court of limited jurisdiction be relied 
 on, it must be shown that the court had jurisdiction. Hunt v. 
 Orwig, 17 B. Mon. 85. 
 
 4. But, if it appears from the record of such court that it had 
 jurisdiction, it will be sufficient. Hunt v. Orwig, 17 B. Mon. 85. 
 
 5. If a conveyance, by a wife to her husband, be attacked as 
 fraudulent, fraud will not be presumed, but must be proved. TodA 
 V. Wickliffe, 18 B. Mon. 908. 
 
 6. The burden of showing fairness in a voluntary conveyance, 
 as against a purchaser for a valuable consideration, without jDotice, 
 is on the voluntary grantee. Enders v. Williams, 1 Met. 353. 
 
EVIDENCE. 215 
 
 7. One alleged to be an alien, who denies it, but admits he is of 
 foreign birth, must prove his naturalization. White v. White, 2 
 Met. 190. 
 
 8. In an action to recover property, alleged to belong to the 
 plaintiff, and to have been unlawfully taken from him by the de- 
 fendant, if the latter admits the taking, but denies the plaintiff's 
 title, and asserts title himself, the burden of proof is on the defend- 
 ant. Vance V. Vance, 2 Met. 582; see. 347, Civil Code; Caskey 
 V. Lewis, 15 B. Mon. 31. 
 
 9. Allegations in an answer, of new matter, not constituting a 
 counter-claim or set-off, should be considered as controverted with- 
 out a denial, and must be proved by the defendant. Fahnestock 
 V. Bailey & Varnon, 3 Met. 51 ; Mitchison v. Foster, 3 Met. 325 ; 
 Graves v. Ward, etc., 2 Duv. 304. 
 
 10. When, in an action on an insurance policy, the defense re 
 lied on was misrepresentation of the habits of the insured at its 
 date, and that his death was caused by intemperance, the defend- 
 ant holds the affirmative, and must make out the defense by proof. 
 N. Y. L. Ins. Go. v. Graham, 2 Duv. 506. 
 
 11. "When a passenger on a street railroad is shown to have been 
 injured by the upsetting of the car, the law presumes it was negli- 
 gently done, and the burden of showing the absence of negligence 
 is on the defendant, i. & P. B. E. Co. v. Smith, 2 Duv. 558. 
 
 12. The plaintiff, in an action against one constructively sum- 
 moned, sought to enforce his vendor's lien on land sold to the de- 
 fendant, and averred in his original petition that one-half of the 
 purchase-money had been paid, and filed a deed signed by himself, 
 but which had never been delivered, which recited the same fact. 
 By an amended petition, subsequently filed, he averred that no part 
 of the money had been paid. Held: The allegations in the amend- 
 ed petition did not overcome the admission in the original petition 
 and the recital in the deed, and that it was error to give judgment 
 for the whole without proof of the mistake, or an allegation that 
 it could not be established otherwise than by the defendant. Jack- 
 son V. Speed, 2 Duv. 428. 
 
 13. The execution of a will with the requisite solemnities, is 
 presumptive evidence that the testator knew its contents, and that 
 it conformed to his intention, and those who seek to avoid it on 
 the ground that it makes a disposition of the testator's properly of 
 which he, at the time, was not fully apprised, must show the fact 
 by proof aliunde. Sechrest v. Fdwards, 4 Met. 168; Shanks y. 
 Christopher, 3 A. K. Mat. 144. 
 
216 EVIDENCE. 
 
 IV. PRODUCTION OP EVIDENCE. 
 For mode of procuring attendance of witness, see Witness, 
 
 1. The court may compel one, not a party, to produce deeds, un- 
 der which either party claims title, at the instance of the party 
 whose deeds he holds. Dickerson v. Talbott, 14 B. Mon 66. 
 
 2. Deeds and other writings, not relied on as evidence of indebt- 
 edness, but to be used merely as evidence on the trial, may be pro- 
 duced on the trial and read, if properly proven, without having 
 been previously filed. Haney v. Tempest, 3 Met. 97. 
 
 3. But bonds, bills, notes, or other writings, sued on as evidence 
 of indebtedness, must be filed with the petition. Dodd v. King, 1 
 Met. 431. 
 
 4. If no title papers are referred to in a petition to recover real 
 estate, no rule should be granted against the plaintiff to file his 
 title papers; and it is error to dismiss his petition on his failure to 
 comply with such a rule. Buggies v. Moore, 18 B. Mon. 824. 
 
 V. BEST AND SECONDAET EVIDENCE. 
 
 1. A party can not use, as evidence, a copy of a deed, not legally 
 recorded, without first showing that he had, in good faith, used 
 diligence to procure the original without success. Dickerson v. 
 Talbott, 14 B. Mon. 67. 
 
 2. Strictly, a plaintiff, who is executor, should make an aifidavit 
 that he had been unable to find an original deed, alleged to be lost, 
 among the papers of his testator in order to lay a foundation for 
 using a copy, but where his agent, who had prepared the suit, 
 proves that he had examined the testator's papers, and failed to 
 find it, it will be sufficient. Dickerson v. Talbott, 14 B. Mon. 67. 
 
 3. Old records, though not such as by law furnish conclusive 
 evidence of the execution of the original, if kept by accredited 
 officers, may be proven as conducing, in connection with other cir- 
 cumstances, to prove the execution of the original. Dickerson v. 
 Talbott, 14 B. Mon. 69. 
 
 4. A purchaser of land at sheriff's sale, having shown the judg- 
 ment, and execution, levy, sale, and purchase, may show, by other 
 evidence, that the land in contest was the land sold. Phillips v. 
 Jamison, 14 B. Mon. 583. 
 
 5. The testimony of a witness, given on a former trial between 
 the same parties or others identified with them in interest, is admis- 
 sible as secondary evidence on a subsequent trial, if the witness 
 can not be produced. Payne v. Price, 16 B. Mon. 101 ; Thompson 
 V. Blackwell, 17 B. Mon. 623. 
 
EVIDENCE. 217 
 
 6. The testimony, given by witnesses in the county court on a 
 motion to probate a will, will not, if the will be rejected, be com- 
 petent on the trial of an appeal in the circuit court from the order 
 rejecting the will under the provisions of section 40, chapter 106, 
 p. 469, volume 2, Revised Statutes ; but will be competent as sec- 
 ondary evidence, if the witness can not be produced. Thompson 
 V. Blackwell, 17 B. Mon. 623; Payne v. Price, 16 B. Mon. 101; 
 Singleton v. Singleton, 8 B. Mon. 368. 
 
 7. It is not necessary that a witness, introduced to prove what 
 was stated by a deceased witness on a former trial, should be able 
 to state his exact words. It will be sufficient if he can give the 
 substance of what he said. Thompson v. Blackwell, 17 B. Mon. 
 623, 624. 
 
 8. If the books, containing the records of the proceedings of a 
 corporation, be lost, their contents may be proved by parole. Gom'rs 
 Sinking Fund v. Bank Ey., 1 Met. 185, 186. 
 
 VI. COMPETENCY. 
 
 A. Generally. 
 
 B. Opinions. 
 
 C. Parole evidence to vary or explain writings. 
 D. Admissions and declarations. 
 
 a. Generally. 
 
 1. It is competent to prove the laws of another State by the 
 parole testimony of lawyers of that State, who make copies of the 
 printed laws a part of their depositions. The provisions of section 
 25, chapter 35, p. 470, volume 1, Eevised Statutes, and the act 
 approved March 10, 1856, volume 1, p. 470, Eevised Statutes, are 
 only cumulative. Biesenthall v. Williams, 1 Duv. 329. 
 
 2. In an action of slander, for charging the plaintiff with hav- 
 ing committed perjury — plea of justification — proof of the plain- 
 tiffs character is admissible. Smith v. Lovelace, 1 Duv. 215. 
 
 3. Proof of the reiteration of the same, or other defamatory 
 words, between the uttering of the words sued for, and the com- 
 mencement of the suit, is admissible to show the malignity with 
 which the words charged were spoken. Smith v. Lovelace, 1 Duv. 
 215. 
 
 4. If proof of the contents of a writing be admitted without 
 object, it is entitled to the same weight as the writing itself Stern 
 V. Freeman, 4 Met. 315. 
 
 5. In a contest in regard to the validity of a will, evidence of the 
 good character of the testator's children is not admissible to show 
 
218 EVIDENCE. 
 
 a want of rational motive for their exclasion from an equal share 
 of his estate, and therefore a lack of testamentary capacity. Tudor 
 V. Tudor, 17 B. Mon. 387, 388. 
 
 6. A statement in a notarial protest of the reasons given by the 
 treasurer of the United States, for refusing payment of a treasury 
 note, is not competent evidence in an action to recover the nominal 
 value of the note from one of whom the plaintiff received it. 
 Moore v. Worthington, 2 Duv. 308. 
 
 7. The evidence of witnesses given in the circuit court on the 
 trial of an appeal from an order of the county court admitting a 
 will to probate, and which was preserved in a bill of exceptions, 
 is not admissible on a subsequent trial of an issue out of chancery, 
 in a case brought by persons not parties to the original proceed- 
 ings. The provisions of the statute of 1797, section 15 (2 Statute 
 Laws, 1544), refers to the certificate of the oaths of witnesses on 
 the original hearing in the county court. Payne v. Price, 16 
 B. Mon. 99. 
 
 b. Opinions. 
 
 1. In an action for the non-delivery of goods cast overboard in 
 the Mississippi, if the defense be that it was necessary to avoid 
 the loss of the boat and cargo, it is competent to prove, by wit- 
 nesses skilled in the navigation of the river, and to whom the facts 
 of the particular case are known or hypothetically stated, their 
 opinion of the practicability of relieving the boat, and saving her 
 by other means than a jettison. Bently v. Bustard, 16 B. Mon. 
 693. 
 
 2. Mere professional opinions upon questions of art or science, 
 to be admissible, must be predicated upon, and relate to, the facts 
 proved in the case. Champ v. Gommonwealth, 2 Met. 27. 
 
 3. The opinions of witnesses, derived from a comparison of the 
 disputed signature with the signature of the same party to the 
 pleadings, is competent evidence on a plea of non est factum. 
 Northern Bank v. Buford, 1 Duv. 339. 
 
 c. Parole evidence to vary or explain writings. 
 
 1. Unless there is an allegation of fraud or mistake, parole 
 evidence is inadmissible to vary the terms of a written contract or 
 to show that it was conditional, if by its terms it purports to be 
 absolute. Wight v. S. B. B. Co. and Allen v. Same, 16 B. Mon. 6. 
 
 2. When the language of deeds or other writings is susceptible 
 of a clear solution, no resort can be had to extraneous testimony to 
 illustrate it. Spurrier v. Parker, 16 B. Mon. 284, 
 
EVIDENCE. 219 
 
 3. If a written contract be incomplete in itself, parole evidence 
 may be admitted to show other terms or conditions not expressed 
 in the writing. Western v. Pollard, 16 B. Mon. 320. 
 
 4. Stipulations of a bond for the conveyance of land can not be 
 enlarged by parole testimony. Sibbard v. Smith, 17 B. Mon. 54. 
 
 5. The recital of the consideration of one dollar in a deed is 
 not conclusive evidence, even between the parties, and the actual 
 consideration may be proved by parole. DavenpoH v. Mc Campbell, 
 17 B. Mon. 42. 
 
 6. Extrinsic evidence can only be admitted to aid the construc- 
 tion of a will .when there is a latent ambiguity, which arises only 
 when there are two or more objects, persons, or things, to each of 
 which the terms of the will, though not embracing all, are equally 
 applicable. Mitchell v. Walker, 17 B. Mon. 66. 
 
 7. A vendor, when sued by a remote vendee on his covenant of 
 warranty, can not show by parole that the consideration was dif- 
 ferent from that expressed in his deed, or that the deed was 
 procured by fraud; otherwise, if the action be by his immediate 
 vendee. Sunt v. Orwig, 17 B. Mon. 85. 
 
 8. Parole evidence is not admissible to show that words used by 
 a testator, to which the law attaches a particular meaning, were 
 used by him in a different or popular sense. Allan v. Yanmeter, 
 1 Met. 277 ; Jackson v. Payne, 2 Met. 570. 
 
 9. But extrinsic evidence may be used to identify the person or 
 thing intended by the testator or to determine the quantity of 
 interest given by his will. Allan v. Vanmeter, 1 Met. 277. 
 
 10. When the words used to describe the subject of the gift 
 comprehends several objects, parole evidence is inadmissible to 
 exclude one or more of these. Allan v. Vanmeter, 1 Met. 279; 
 Mitchell V. Walker, 17 B. Mon. 66. 
 
 11. Acknowledgment, in a deed, of the receipt of purchase- 
 money is only prima facie evidence of payment and may be 
 rebutted by proof aliunde. Gordon v. Gordon, 1 Met. 287 ; Trumbo 
 V. Oartright, 1 A. K. Mar. 582 ; Gully v. Grubbs, 1 J. J. Mar. 387. 
 
 12. Eeceipts and other Writings, which only acknowledge the 
 existence of a fact, such as the payment of money, are susceptible 
 of explanation and may be contradicted by witnesses. Gordon v. 
 Gordon, 1 Met. 288; Olay v. Clay, 3 Met. 552. 
 
 13. If personal property be sold and a bill of sale given, reciting 
 the sale and containing a warranty of soundness and of title, but 
 which is silent as to the time and manner of payment, and time 
 
220 EVIDENCE. 
 
 and place of delivery, parole testimony is competent to prove an 
 agreement, made at the time, as to the time of delivery and pay- 
 ment. Woodcock V. Farrel, 1 Met. 440. 
 
 14. One, claiming land under a sheriff's sale and deed, may show 
 by proof, other than that contained in the sheriff's return, that 
 the land was levied on and sold and purchased by him. Phillips 
 V. Jamison, 14 B. Mon. 583. 
 
 15. Parole testimony is competent to prove that one of the 
 obligors in a joint and several note is merely a surety. Emmons 
 V. Overton, 18 B. Mon. 648; Lewis v. Harbin, 5 B. Mon. 564. 
 
 16. Parole evidence is admissible to prove that persons, who 
 indorsed a note in blank before its delivery to the obligee, did so 
 with the intention or for the purpose of enabling the obligor to 
 have it discounted in bank, or to guarantee its payment. Kellogg v. 
 Dunn, 2 Met. 216; Levi v. Mendell, 1 Duv. 80; Needham v. Page, 
 3 B. Mon. 466. 
 
 17. Upon the delivery of goods to the agent of a common car- 
 rier, he filled the blank in a printed receipt prepared by the com- 
 pany, stipulating against liability beyond the sum of fifty dollars. 
 The goods were delivered by the consignor's agent, who did not 
 read or understand the conditions in the receipt, and did not sign 
 a printed indorsement accepting the conditions, and the consignor 
 never saw the receipt until after the goods were lost. Held: That 
 it was competent to prove by the agent of the consignor, that he 
 did not read, or understand, and did not accept the condition 
 limiting the liability of the carrier. Adams Express Co. v. Nock, 
 2 Duv. 563. 
 
 d. Admissions and declarations. 
 
 1. The statements, made by one in possession, are evidence as to 
 the manner in which he held, and the extent of the rights of those 
 under whom he claims. Young v. Adams, 14 B. Mon. 132. 
 
 2. Recitals, in a conveyance from a fraudulent vendor to a second 
 vendee, that the latter deed was made for valuable consideration, 
 are not competent evidence against the fraudulent vendee in a 
 contest with the second vendee. Edwards v. Ballard, 14 B. Mon. 
 290. 
 
 3. The declarations of a slave, made to the attending physician 
 of the nature, extent, and duration of the disease under which she 
 was then laboring, are competent evidence, when a question of 
 soundness is at issue, but declarations, as to a former sickness, are 
 not admissible. Allen v. Vancleave & Kelso, 15 B. Mon. 242. 
 
EVIDENCE. 221 
 
 4. When the acts of an agent will bind hie principal, his repre- 
 sentations, respecting the subject-matter, will also bind him if 
 made at the same time and constituting a part of the res gestce. 
 a & L. B. B. Go. V. Ingles, 15 B. Men. 641. 
 
 5. To instruct tbe jury, that evidence of conversations between 
 the witness and party alone, if uncorroborated, is the weakest testi- 
 mony held competent by law, is erroneous if there be corroborative 
 testimony. Western v. Pollard, 16 B. Mon. 321. 
 
 6. A statement made by a party, when proven, is not only com- 
 petent, but when satisfactorily proven is convincing testimony. 
 There is a distinction between the proof of an admission and the 
 admission when proved. Botts v. Williams, 17 B. Mon. 697; Higgs 
 V. Wilson, 3 Met. 338. 
 
 7. Statements, made by a vendor after sale of the property, are 
 not competent evidence against the vendee to prove fraud in the 
 sale. Short v. Tinsley, 1 Met. 401. 
 
 8. Statements as to his indebtedness, made by a vendor previous 
 to a sale which is attacked as fraudulent as to creditors, are not ad- 
 missible against the vendee. Short v. Tinsley, 1 Met. 401. 
 
 9. Parole declarations by a testator are not sufficient to make 
 that a will which otherwise would not be a will. Maxwell v. 
 Maxwell, 3 Met. 108; Dougherty v. Dougherty, 4 Met. 28, 29. 
 
 10. The declarations of a party, made while in possession of 
 slaves, as to the ownership, is competent evidence against one from 
 whom he received, and with whose consent he held, them. Hooker 
 V. Gentry, 3 Met. 470. 
 
 VII. DOCUMENTAET EVIDENCE. 
 
 A. General, 
 
 B. Records. 
 
 C. Authentication. See Authentication, 
 
 D. Affidavits. See Affidavits. 
 
 E. Private writings, and proof of, 
 
 a. General, 
 
 1. Eecitals, in a deed made by the register of the land office to 
 land of non-residents sold for taxes, are, so far as they show com- 
 pliance by him with the requisitions of the law in reference to the 
 sale, proof of the facts stated ; but a recital, that the land conveyed 
 is part of a particular survey, is not evidence of that fact. Mor- 
 ton V. Warring, 18 B. Mon. 83. 
 
222 EVIDENCE. 
 
 2. One, claiming land under a sheriff's sale and deed, may show 
 by the recital in his deed of the fact, that a certificate of purchase 
 given by the predecessor of the sheriff, who made the deed, was 
 produced when the deed was made, and the facts of levy, sale, and 
 purchase by him, of the land described in the deed. Fhillips v. 
 Jamison, 14 B. Mon. 583. 
 
 3. Old records, though not such as by law furnish conclusive 
 evidence of the execution of the originals, if kept by an accredited 
 officer, may be proven as conducing, in connection with other cir- 
 cumstances, to prove the execution of the originals. Dickerson v. 
 Talbott, 14 B. Mon. 69. 
 
 4. The journals of the proceedings of a city council must show 
 that an ordinance reported had been passed, and if they do not, 
 it can not be proved by parole. Covington v. Ludlow, 1 Met. 298. 
 
 5. If the records of a corporation be lost, their contents maybe 
 proved by parole. Com'TS Sinking Fund v. Northern Bank, 1 Met. 
 185. 
 
 6. A recital of payment, in a writing evidencing the sale of 
 property which remained in the possession of the vendor, is no 
 evidence of the fact of payment, against strangers. Oldham v. 
 McClanahan, 2 Duv. 417. 
 
 b. Records. 
 
 1. A sheriff's return on an execution, that he had paid the money 
 to the plaintiff, is no evidence of the fact. Walker and wife v. 
 McKnight, 15 B. Mon. 478. 
 
 2. If the judgment of a court of limited jurisdiction be relied 
 on, it must be shown that the court had jurisdiction. Hunt v. 
 Orwig, 17 B. Mon. 85. 
 
 3. Judgments of the courts of a sister State having jurisdiction, 
 are conclusive of the rights of the parties, unless obtained by 
 fraud, or on constructive service. Rogers v. Rogers, 16 B. Mon. 
 378. 
 
 4. The entry, by a clerk, of any matter of which he is requirde 
 by law to keep a record, is conclusive evidence, of its truth, in 
 all collateral proceedings. (Jreew v. (^ooiZrom, 4 Met. 278 ; Taylor 
 V. Commonwealth, 3 Bibb, 356. ^ 
 
 5. An entry, by the clerk of a circuit court, in the execution 
 book, that an execution had been delivered to the sheriff, can not 
 be impeached by parole testimony, in a motion against the sheriff 
 for not returning an execution. Such entry is conclusive in all 
 
EVIDENCE. 223 
 
 collateral proceedings. Green v. Goodrum, 4 Met. 275-279 ; Tay- 
 lor V. Commonwealth, 3 Bibb, 356. 
 
 6. The return of a sheriff on a fi. fa., that it had been replevied 
 with a named person as security, is prima facie evidence that such 
 person was surety. Newton v. Prather, 1 Duv. 101. 
 
 7. A paper found in the record of a case, purporting to be a de- 
 cree for the sale of land, but which had never been entered or 
 noticed in the record as rendered, or indorsed in any manner tend- 
 ing to show that it had been filed as a part of the record, is wholly 
 invalid as a decree, and can not be established as such by parole 
 testimony. Raymond v. Smith, 1 Met. 67. 
 
 8. A judgment obtained against the personal representative 
 alone, is not evidence in an action against one, to whom it is 
 alleged the decedent had fraudulently conveyed his property, to 
 subject that property to the satisfaction of the judgment, for any 
 other purpose than to prove its own existence, and an ineffectual 
 effort to collect the debt from the personal representative. Alexan- 
 der & Lancashire v. Quigley, 2 Duv. 406. 
 
 e. Private writings, and proof of. 
 
 1. If a witness testifies to having seen an original deed, which 
 has never been recorded, in the hands of the grantee, and that he 
 had heard the grantor say he had made such a deed, and that he 
 believes a paper shown to him is a true copy of the original, it 
 will be sufficient proof that it is a copy. Bickerson v. Talhott, 
 14 B. Mon. 69. 
 
 2. A deed fifty years old, which is produced by the heirs of the 
 grantee, may be admitted in evidence without having been re- 
 corded or proven. Hedger v. Ward, 15 B. Mon. 115. 
 
 3. A deed, which is void, may be read by a defendant to show 
 his boundary and extent of possession. Sedger v. Ward, 15 B. 
 Mon. 115. 
 
 4. The mere reference, in pleadings, to papers alleged to be 
 libelous, does not make them evidence, or authorize their being 
 read to the jury, without proof of their execution. Duncan v. 
 Brown, 15 B. Mon. 197. 
 
 5. A letter, purporting to have been written by the plaintiff, 
 can not be read in evidence against him without proof of its ex- 
 ecution. McGlain v. JEstham, 17 B. Mon. 155. 
 
 6. The plaintiff, in an action against a non-resident, need not 
 prove the execution of the note sued on. G-ill v. Johnson, 1 Met. 
 651 ; Barrett v. Coburn, 3 Met. 516. 
 
224 EVIDENCE. 
 
 VIII. QUANTUM, AND EFFECT OF, EVIDENCE. 
 
 1. The admission of a vendee, that he is unable to pay his debts, 
 if not disproved, will be sufflcient to establish the vendor's right 
 to stop goods in transit, and to give him a lien superior to that of 
 prior attaching creditors. Secomb, Voories & Go. v. Nutt, 14 B. 
 Mon. 326. 
 
 2. In order to vitiate a patent, issued on a survey of an entry 
 made west of the Tennessee river prior to 1792, on a military 
 warrant, the evidence must show conclusively that the survey is 
 variant from the survey. Ashbrook v. Quarles, 15 B. Mon. 24. 
 
 3. It is necessary, in order to establish a right of way by pre- 
 scription, that its use and enjoyment should have been claimed as 
 a matter of right, and not by mere permission of the owner of the 
 land, which he might withdraw at pleasure. Bowman v. Wiekliffe, 
 15 B. Mon. 99. 
 
 4. The execution of a note to an administrator is prima facie 
 evidence that its consideration was assets of the intestate. Jones 
 V. Everman and wife, 15 B. Mon. 633. 
 
 5. Whether the Code of Practice has made any change in the 
 rule that two witnesses, or one witness and strong corroborating 
 circumstances, are necessary to overcome the sworn statements of 
 an answer in equity. Quere. Nixon v. Jack, etc., 16 B. Mon. 
 181 ; Albro V. Lawson, 17 B. Mon. 644.i 
 
 6. In an action for breach of marriage contract^ it is not suiEcient 
 to show that there has been, on the part of the male, a course of 
 particular attentions evidencing affections, but the circumstances 
 must be such as to satisfy the jury that a serious proposition to 
 marry had been made and accepted. Burnham v. Cornwell, 16 B. 
 Mon. 288. 
 
 7. In an action on a lost note, the defendant pleaded nan est 
 factum, proof, by one witness, of the execution of the note — Held: 
 Sufficient to entitle the plaintiff to recover. Albro v. Lawson, 
 17 B. Mon. 644. 
 
 8. A statement made by a party, when satisfactorily proven, is 
 convincing testimony. Botts v. Williams, 17 B. Mon. 697 ; Riggs 
 V. Wilson, 3 Met. 338. 
 
 9. Judgment, discharging an attachment on motion on the 
 merits, is conclusive evidence that good cause did not exist for 
 suing it out. Mitchell v. Mattingly, 1 Met. 241. 
 
 1 But see Enders v. Williams, 1 Met. 365. 
 
EVIDENCE. 225 
 
 10. A plea of nul tiel record, to an action on a judgment of a 
 court of another State in the Union, is not sustained by a slight 
 difference in two copies of the same record on file in the case. 
 Miles y. Collins, 1 Met. 311. 
 
 11. The testimony of one witness is sufficient to maintain the 
 plaintiff's claim, although denied in an answer sworn to by the 
 defendant. Enders v. Williams, 1 Met. 355. 
 
 12. "When the matter to be proved was that a lunatic had a 
 family at the time of a decretal sale, a statement of a witness that 
 "she had a family until she became insane, and for several months 
 afterward," is not sufficient. The witness should state the facts 
 on which he bases his opinion that she had a family. Woolfolk 
 V. Ashby, 2 Met. 290, 
 
 13. Fifteen or sixteen plaintiifs, claiming to be the heirs-at-law 
 of A., instituted suit to recover possession of land. The proof 
 showed that the ancestor left eleven children, and that the plain- 
 tiffs and another were her children and heirs-at-law. Held: Ifot 
 to authorize the court in an instruction to assume the heirship as 
 proven. Woolfolk v. Ashby, 2 Met. 290. 
 
 14. Proof of the laws of another State by the parole testimony 
 of respectable lawyers, who incorporate in their depositions copies 
 from the printed volumes of those laws, is sufficient. The pro- 
 visions of section 25, chapter 35, p. 470, volume 1, Eevised Statutes 
 and the act of March 10, 1856, p. 470, volume 1, Eevised Statutes, 
 authorizing the reading of the laws of such State, printed under 
 its authority, are merely cumulative. Beisenthall v. Williams, 1 
 Duv. 329. 
 
 15. The plaintiff, in an action of slander, must prove substan- 
 tially the same words alleged. It is not sufficient to prove words 
 of the same effect or import, or conveying the same idea. Taylor 
 V. Moran, 4 Met. 138. 
 
 16. The evidence to establish a local custom, at variance with 
 the general laws of the country, must show it to be of such age, 
 uniformity of observance, certainty, and fixedness of character, 
 and of such notoriety, that a jury would feel clear in saying it 
 was known to the party sought to be affected by it. Caldwell, 
 Hunter & Co. v. Dawson, 4 Met. 125 ; Huston v. Peters, 1 Met. 
 562. 
 
 17. The mere fact that a horse is branded with the letters "U. 
 S.," does not, per se, prove the title to be in the United States. 
 Plummer v. Newdigate, 2 Duv. 3. 
 
 16 
 
226 EVIDENCE. 
 
 18. On a motior to re-enter of record a judgment, the record of 
 whicli had been destroyed, the deposition of the clerk of the 
 court proving the existence, terms, and destruction of the judg- 
 ment, is sufficient. Green v. Stevens, 2 Duv. 421. 
 
 19. Possession by a United States quartermaster of a stolen horse, 
 and the branding and sale of him by such officer, can not nega- 
 tive the superior title of the owner, manifested by undisputed 
 proof of ownership. Basset v. Green, 2 Duv. 561 ; Porter v. Botts, 
 2 Duv. 366. 
 
 X. EVIDENCE IN CRIMINAL PROSECUTIONS. 
 
 A. Generally. 
 
 JB. Threats. 
 
 C. Dying declarations. 
 
 Z>. Insanity. 
 
 E. Confessions and declarations. 
 
 F. Character of deceased. 
 
 G. Professional opinions. 
 
 a. Generally. 
 
 1. If a person or thing necessary to be mentioned in an indict- 
 ment be described with unnecessary particularity, the description 
 must be proved as laid. Clarkr. Commonwealth, 16 B. Mon. 213. 
 
 2. On the trial of one, indicted for receiving stolen goods know- 
 ing them to be stolen, evidence that other stolen goods were found 
 in the possession of the defendant, is admissible for the purpose of 
 showing a guilty knowledge. Devoto v. Commonwealth, 3 Met. 418. 
 
 3. It is not competent, on the trial of one indicted for challeng- 
 ing to fight a duel, to prove by a witness the rules of the code duello. 
 Whether the code itself if produced would be admissible. Quere 
 Moody V. Commonwealth, 4 Met. 4. 
 
 4. When papers, charged to have been a challenge, were in the 
 possession of one absent in the army in time of war, it is compe- 
 tent to prove their contents by printed copies which had been 
 published. Moody v. Commonwealth, 4 Met. 4. 
 
 5. The certificate of the secretary of state of the State of Ohio 
 is admissible to show that a bank, whose notes the prisoner is 
 charged with altering, was incorporated. Mount v. Commonwealth, 
 1 Duv. 92. 
 
 6. It is competent, on the trial of one indicted for tendering in 
 payment an altered bank note knowing it to have been altered, to 
 prove, in order to establish a guilty knowledge, that the defendant 
 at or about the same time tendered in payment another altered 
 
EVIDENCE. 227 
 
 bank note, similar in character to that mentioned in the indict- 
 ment. Mount V. Commonwealth, 1 Duv. 91. 
 
 7. On the trial of one indicted for an illegal escape from the 
 penitentiary, a certified copy of the judgment of the circuit 
 court, sentencing the defendant, is competent to prove that he was 
 legally in custody, without a transcript of the whole record, 
 Hudgens v. Commonwealth, 2 Duv. 239. 
 
 b. Threats. 
 
 1. If the deceased be proved to have made threats against the 
 accused, and those threats are shown to have been communicated 
 to him before the killing, it is competent for the accused to prove 
 other threats; although he can not show that they were commu- 
 nicated to him. Cornelius v. Comm.onwealth, 15 B. Mon. 545, 546. 
 
 2. If several persons combine to act in concert in case of a hostile 
 meeting with the accused, and a meeting takes place and one of 
 them is killed by the accused, he may give in evidence what any 
 of those combining said in reference to their designs against him. 
 Cornelius v. Commonwealth, 15 B. Mon. 546. 
 
 3. It is competent, for one indicted for malicious shooting with 
 intent to kill, to prove that a son of the person wounded, who was 
 in the room where the shooting occurred when accused entered it 
 and ran out and immediately returned about the time of the shoot- 
 ing with a loaded pistol which he snapped at accused, had made a 
 contingent threat against accused. Mapp v. Commonwealth, 14 
 B. Mon. 623. 
 
 c. Dying declarations. 
 The dying declarations of one wounded, if made in extremis and 
 under a solemn sense of impending dissolution, as to the person by 
 whom and the circumstances of his injury, are admissible in a 
 prosecution for a homicide. Walston v. Commonwealth, 16 B. Mon. 
 34; Adwell v. Commonwealth, 17 B. Mon. 317. 
 
 d. Insanity. 
 
 1. The law presumes all men to be sane, and if one, charged 
 with a felony, relies for his defense on insanity, it must be proved 
 to the satisfaction of the jury; to warrant an acquittal, it is not 
 sufficient that from the evidence there is a rational doubt of his 
 sanity. Graham v. Commonwealth, 16 B. Mon. 595. 
 
 2. If the evidence of insanity strongly preponderates, the pre- 
 sumption of sanity is rebutted; and the jury should not find the 
 
228 EVIDENCE. 
 
 accused guilty, because there is a rational doubt whether he was 
 or not insane. Smith y .Commonwealth, 1 Duv. 228. 
 
 3. The presumption of sanity is as necessary and universal as the 
 presumption of innocence, and the same amount of proof is required 
 to rebut the one as the other. Graham v. Commonw'lth, 16 B. Mon.594. 
 
 4. It is not necessary, in order to sustain a plea of moral insanity, 
 to prove that such insanity had manifested itself in former acts of 
 a similar character, or like nature, of the offense charged. Scott 
 V. Commonwealth, 4 Met. 229. 
 
 e. Confessions and declarations. 
 
 1. No act or declaration, of one of several defendants jointly 
 indicted, done or made subsequent to the oflFense charged, can be 
 given in evidence against the other defendants. Thompson v. 
 Commonwealth, 1 Met. 18. 
 
 2. A negro indicted for murder committed by the administra- 
 tion of strychnine, on being told that she should be pardoned by 
 the governor if she would tell all about it, among other things 
 told where a phial containing strychnine could be found under a 
 rock in the corner of the fence near the house of the deceased. 
 The phial was found without difficulty at the place thus described. 
 Held: The accused's statement could be proved against her. 
 Jane v. Commonwealth, 2 Met. 31, 32. 
 
 3. Confessions, obtained from a prisoner through the influence of 
 hope or fear, are not admissible in evidence against him. Rutherford 
 V. Commonwealth, 2 Met. 391. 
 
 4. A prisoner in custody, charged with murder, said to the 
 officer having him in charge that "he had no fear," and asked 
 what he thought — to which the officer replied, that if he could prove 
 one or two important facts he would get clear. On the prisoner 
 asking what they were, the officer replied, that if he would show 
 where he was the night before, and that he had had no money 
 transaction with the deceased on the day before, he would get 
 clear. The prisoner then said he had had no money transaction 
 with the deceased. The proof on the trial tended to show that the 
 prisoner had, on the day after the murder, in his possession, 
 money which the deceased had the day before. Held: The con- 
 fession was inadmissible. Rutherford v. Commonwealth, 2 Met. 392. 
 
 5. Whether declarations, made by a person not then suspected 
 and before any search was made, accounting for his possession of 
 goods, which he is afterward charged with having stolen, are 
 admissible in his favor. Quere. Tipper v. Gommonwealth,lM.etll. 
 
EVIDENCE. 
 
 229 
 
 6. On the trial of one indicted for a felony, a confession of 
 another, jointly indicted with him, is not admissible. Hudson v. 
 Commonwealth, 2 Duv. 531. 
 
 7. Where confessions are made to the officers of the law by 
 ignorant and timid persons, under advice that it would be the best 
 thing they could do for their safety, such confessions ought not to 
 be admitted in evidence against them. Hudson v. Commonwealth, 
 2 Duv. 532. 
 
 8. Whether, in view of all the facts and circumstances attending 
 the confession, it was voluntarily, or was induced by duress, is a 
 question of law for the court. Hudson v. Commonwealth, 2 Duv. 
 531. 
 
 9. On the trial of one jointly indicted with another for obtaining 
 money under false pretenses, a confession made by such other 
 after the fact, is not competent evidence against the defendant, 
 there being no proof of a combination to prosecute indefinitely 
 that sort of business. Jones v. Commonwealth, 2 Duv. 554. 
 
 10. Confessions made by a prisoner of feeble mind, in the pres- 
 ence of a tumultuous mob which was threatening to hang him, is 
 not convincing testimony of his guilt. Butler v. Commonwealth, 2 
 Duv. 435, 436. 
 
 11. The declarations of a party accused in his own favor, are 
 not admissible in his defense, unless part of the res gestce. Tipper 
 V. Commonwealth, 1 Met. 11. 
 
 /. Character of the deceased. 
 Evidence of the violent and bloodthirsty temper of the deceased 
 and that he constantly carried concealed deadly weapons, may, 
 under certain circumstances, be given by the defendant. Payne 
 V. Commonwealth, 1 Met. 379. 
 
 g. Professional opinions. 
 
 1. After three witnesses had given their opinions on a question 
 of science, all to the same effect, and it was announced by the 
 Commonwealth that the facts thus proved would not be contro- 
 verted by proof, or in argument before the jury, it was not an 
 abuse of discretion to refuse to allow a fourth witness to prove 
 the same facts. Champ v. Commonwealth, 2 Met. 26, 27. 
 
 2. Mere professional opinions upon questions of art or science 
 must be predicated upon, and relate to, facts proved in the ca use 
 Champ V. Commonwealth, 2 Met. 27. 
 
230 EXAMINING COURTS. 
 
 EXAMHSraSTG COUETS. 
 
 WHO MAY HOLD, AND POWERS OF. 
 
 A, To examine persons charged with felony. 
 
 B. To examine persons charged with misdemeanor. 
 
 a. To examine persons charged with felony. 
 
 1. A county judge had no power, under the act approved March 
 11, 1851, to examine and hold to bail one charged with a felony. 
 Bowman v. Commonwealth, 14 B. Mon. 391. 
 
 2. But by sections 23 and 46, Criminal Code, he now has power. 
 Commonwealth v. Cummings, 18 B. Mon. 29. 
 
 3. Judges of county courts, judges of city or police courts, and 
 chairmen of the trustees of towns are each authorized to hold 
 examining courts ; but it requires two justices of the peace to con- 
 stitute a court to hold to bail or commit one charged with a felony. 
 Commonwealth v. Cummings, 18 B. Mon. 28 ; sees. 23, 46, 66, Crim- 
 inal Code ; Bevell v. Pettit, 3 Met. 318. 
 
 4. An examining court has no power, during the progress of the 
 examination, to admit to bail, or release from custody, one charged 
 with a felony. Commonwealth v. Moore, 3 Met. 477, 478 ; sec. 49, 
 Criminal Code.i 
 
 6. To examine persons charged with misdemeanor. 
 A single justice of the peace has power to examine and hold to 
 bail one charged with a misdemeanor. Tharp v. Commonwealth, 
 3 Met. 413 ; sees. 23, 46, Criminal Code ; Commonwealth v. Yanen, 
 2 Duv. 375. 
 
 'It i8 now otherwise when the offence charged is hailahle at all. Act 
 approved March 8, 1867, Session Acts, 83. 
 
EXECUTIONS. 231 
 
 BXECTJTIONS. 
 
 I. Execution of fieri facias. 
 II. Venditioni exponas. 
 
 III. Execution against the person. 
 
 IV. Kedemption of property sold under /i. fa. 
 
 I. EXECUTION OF FIERI FACIAS. 
 
 A. When it may issue. 
 
 B. To whom to be directed. 
 
 C. What real property may be levied on under. 
 
 D. What personal property may be levied on under. 
 
 E. Partnership^ and joint property. 
 
 F. Property exempt from levy. 
 
 G. Liens. 
 
 H. Levy and custody. ^ 
 
 /. Sales. 
 K. Satisfaction. 
 
 L. Return. 
 M. When quashed. 
 
 N. Remedy for wrong use of. 
 
 a. When it may issue. 
 
 1. A judgment does not abate by the deatb of the plaintiff, and 
 his personal representative may have execution issued by filing 
 with the clerk an affidavit stating the plaintiffs death, and the 
 name of his personal representative, and a certificate of his qual- 
 ification. Morgan v. Winn, 17 B. Mon. 244 ; sec. 432, Civil Code. 
 
 2. No execution can issue on a replevin bond taken for six 
 months. Geoghegan v. Ditto, 2 Met. 437, 438. 
 
 3. The death of a part of the defendants does not prevent the 
 issue of an execution to operate against the survivors, and this 
 applies to executions on lost judgments. Fleece v. Goodrum, 1 
 Duv. 308. 
 
 4. A court, whose records have been destroyed, may, on motion 
 upon notice and sufficient evidence, supply the record of a lost 
 judgment, and award execution thereon. Fleece v. Goodrum, 1 
 Duv. 308; Suggett v. Bank Ey., 8 Dana, 201. 
 
 5. The death of the plaintiff does not abate either the judgment 
 or execution ; but it suspends all further proceedings until admin- 
 istration is granted, and the clerk makes the proper indorsement, 
 as provided in sections 432, 433, 434, Civil Code ; Yenable v. Smith, 
 1 Duv. 196. 
 
232 EXECUTIONS. 
 
 6. No execution should be issued on a lost replevin bond, against 
 the surety, unless the bond was destroyed before the surety was 
 released by law. Farrow v. Orear, 2 Duv. 264. 
 
 b. To whom to be directed. 
 
 1. Executions, issued on judgments, in cases in which the sum- 
 mons were served by the jailor or coroner, must be directed to the 
 officer who served the summons. Boaz v. Wail, 2 Met. 246, 247 ; 
 sec. 9, art. 3, chap. 91, p. 350, vol. 2, Eevised Statutes.^ 
 
 2. If an execution be placed in the hands of A. as deputy for Q., 
 and Q. dies during the lifetime of the execution, arid H. is ap- 
 pointed his successor, and A. his deputy, and M. succeeds H. and 
 A. his deputy, it is the duty of A., who levied the execution during 
 the term of H., and sold the property levied on under a venditioni 
 issued during the term of M., to have made the levy and sale as 
 deputy of Q., and for any delinquency or misconduct the repre- 
 sentative and sureties of Q., and not those of H. or M., are liable. 
 Hamilton v. Vail, 2 Met. 512, 513; sec. 23, art. 1, chap. 91, p. 344, 
 vol. 2, Eevised Statutes ; Oolyer v. Higgins, 1 Duv. 7. 
 
 c. What real property may be levied on under. 
 
 1. The mortgagor's equity of redemption in mortgaged lands, 
 which descends to his heirs, is legal assets in their hands, and is 
 subject to sale under execution against the heirs on a judgment 
 for debts of the ancestor. Brace v. Shaw, 16 B. Mon. 78. 
 
 2. Where a defendant in an execution shall have owned the 
 legal title in any real or personal estate, and have created a bona 
 fide incumbrance on it before an execution has created a lien 
 thereon, the defendant's interest in such property may be levied 
 on and sold, subject to such incumbrance. Forest v. Phillips, 2 
 Met. 196; sec. 1, art. 15, chap. 36, p. 488, vol. 1, Eevised Statutes. 
 
 3. Whether a mortgagor's equity of redemption may be levied 
 on after a decree of foreclosure. Quere. Swigert v. Bank of Ken- 
 tucky, 17 B. Mon. 283. 
 
 d. What personal property may be levied on under. 
 
 1. If the husband have possession of a slave, the separate estate 
 of his wife, without intermission for five years, and the character 
 of his holding be not declared by writing, duly recorded, it will 
 
 'This has heen changed by statute, and all executions on judgments of cir- 
 cuit or chancery courts must he directed to the sheriff, unless he is interested; 
 Myers' Supplement, pages 214, 215. 
 
EXECUTIONS. 233 
 
 te subject to the payment of his debts. McGlanahan v. Beasley, 
 
 17 B. Men. 115. 
 
 2. If personal property be held by the loanee more than five 
 years, without record evidence of the loan, the property will be 
 subject to sale under execution against the loanee. Neal v. Elliott, 
 
 18 B. Mon. 610; and it does not matter whether the possession is 
 adverse or amicable. Snoddy & Bransford v. Foster, 1 Met. 162. 
 
 3. Property held by a defendant in execution, as trustee, under 
 a will and a decree of a court, in Virginia, neither of which has 
 been recorded here, will be subject to the execution. Kay v. 
 Tydings, 3 Met. 530. 
 
 e. Partnership and joint property. 
 
 1. The right of an execution creditor of one of the partners to 
 subject to sale under execution, his interest in the partnership 
 property is unquestionable. Watson v. Gabby, 18 B Mon. 663. 
 
 2. If, in such a case, the other partner claims the whole as 
 necessary to pay partnership creditors, he must resort to a court 
 of equity to ascertain the balances and enforce his lien. Watson v. 
 G-abby, 18 B. Mon. 664. 
 
 3. A court of law can not, on a motion for judgment on a bond 
 given to suspend the sale of partnership property under an execu- 
 tion against one of the partners, hear and determine the state of 
 the partnership accounts. Watson v. Gabby, 18 B. Mon. 663, 664. 
 
 /. Exemption. 
 
 1. If property, exempt from execution, be levied on under execu- 
 tion and a delivery bond taken, equity will relieve against it. 
 Perry v. Heusby, 14 B. Mon. 475. 
 
 2. The only horse of a practicing physician, who is not a house- 
 keeper, with a family, is not exempt from execution. Gunn v. 
 Gudehus, 15 B. Mon. 450, 451. 
 
 g. Liens. 
 
 1. The death of the plaintiff does not abate an execution in the 
 hands of the proper oflScers, nor destroy any lien created, either 
 by a levy of the execution, or on account of its being in his hands 
 for collection. Morgan v. Winn, 17 B. Mon. 244. 
 
 2. The lien created by the levy of an execution will be extin- 
 guished by a sale of the property under the execution, although 
 the sale be void. Etlinger v. Tansey, 17 B. Mon. 368, 369. 
 
 3. When the execution of a writ of fi. fa. is arrested by injunc- 
 tion or supersedeas, the levy is released, and the lien created there- 
 
234 EXECUTIONS. 
 
 by is discharged. Kieth v. Wilson, 3 Met. 205; Lockridge v. Big. 
 gerstaff, 2 Duv. 282; Flowers v. Fletcher, Pr. Dec. 265. 
 
 h. Levy and custody. 
 
 1. A sheriff, who takes an indemnifying bond before levying an 
 execution, is bound to levy it and sell the property. Snoddy & 
 Bransford v. Foster, 1 Met. 163. 
 
 2. When the execution of a fi. fa. is arrested by injunction or 
 supersedeas, it is the duty of the sheriff to return to the defendant 
 any property siezed under it. Kieth v. Wilson, 3 Met. 205. 
 
 3. The execution of a bond by tenant, or undertenant, whose 
 property has been levied on under a distress warrant, which the 
 ofSoer had no authority to take, and which is not enforcible, does 
 not release the levy, and the officer may peaceably repossess him- 
 self of it; although he may have returned the warrant before he 
 does so. Grubb v. Mc Coy, 2 Met. 487. 
 
 4. It is not the duty of the sheriff, iji levying on the mortgagor's 
 equity of redemption in land, to set out the amount of incum- 
 brance, or the value of the estate to be sold. Brace v. Shaw, 16 
 B. Mon. 80. 
 
 5. The execution of a bond, by the claimants of property levied 
 on, does not prevent the levy of the same execution on other prop- 
 erty. Southern Bank Ky. v. White and McMahan, 1 Duv. 291 ; 
 sec. 718, Civil Code. 
 
 i. Sales. 
 
 1. One, purchasing land under execution against a tenant for 
 life, will hold subject to the title of the remainder-men. Phillips 
 V. Johnson, 14 B. Mon. 174. 
 
 2. Sheriff's sale of mortgagor's equity of redemption gives the 
 purchaser a right to possession as against the mortgagor ; although 
 the sheriff may have failed to take the bond required by the stat- 
 ute for the security of the mortgagee. Mercer v. Tinsley, 14 B. 
 Mon. 274. 
 
 3. A sheriff 's sale will not be void unless he sells more land than 
 is necessary to pay the debt, or there is no judgment, or the exe- 
 cution varies substantially from the judgment. Walker v. Mc- 
 Knight, 15 B. Mon. 476. 
 
 4. The sale will be valid, though part of the debt is paid, unless 
 the payment constitutes part of the judgment, or is indorsed on 
 the exeeation. Walker v. MoKnight, 15 B. Mon. 476. 
 
EXECTJTIONS. 235 
 
 5. A sale of the mortgagor's equity of redemption will not be 
 aifected by his failure to set out in the levy the amount of incum- 
 brance or the value of the estate to be sold. Brace v. Shaw, 16 B. 
 Mon. 80. 
 
 6. A slight discrepancy between the judgment and execution 
 will not render the sale void. Brace v. Shaw, 16 B. Mon 80. 
 
 7. If the sheriff sells property under execution on a credit, and 
 takes bonds, the creditor receives the bonds in satisfaction of his 
 judgment, and the purchaser can not quash the bonds if the con- 
 sideration fails ; but must look to those who passed to him the de- 
 fective consideration. EtUnger v. Tansey, 17 B. Mon. 368, 369. 
 
 8. A purchase, by a deputy sheriff at a sale made by his co- 
 deputy, is void. EtUnger v. Tansey, 17 B. Mon. 368, 369. 
 
 9. A sheriff's sale will be set aside when there is great inadequacy 
 of price and circumstances tending to show a fraudulent collusion. 
 Burne v. Bay, 18 B. Mon. 404. 
 
 10. A sale of land, under an execution issuing on a forthcoming 
 bond, taken under an execution issued on a replevin bond, will be 
 void. Ditto V. Creoghegan, 1 Met. 174. 
 
 11. If a sheriff, having levied on personal property in conjunc- 
 tion with a constable who had executions against the same defend- 
 ant, gives up the property to the defendant to be sold, to prevent 
 a sacrifice by the officers, and levies the execution on land and sells 
 it, the sale will be valid. Jones v. Luslc, 2 Met. 362, 363. 
 
 12. A sale of land, surrendered by the defendant in writing, to 
 be sold under a void execution, is void. Geoghegan v. Ditto, 2 Met. 
 436, 437. 
 
 13. A sale of property, under a venditioni, which issued on an 
 execution which had been stayed by supersedeas or injunction, is 
 void. Kieth v. Wilson, 3 Met. 205. 
 
 14. A sheriff, who levies an execution, may sell the property 
 after the return day of the execution, and after he has returned it 
 and gone out of office, without a venditioni. Colyer v. JEiggins, 1 
 Duv. 7. 
 
 15. A sale of land under execution, on any other than the first 
 day of a circuit or county court of the county where the land lies, 
 is void unless consented to by the defendant. Wile v. Sweeny, 2 
 Duv. 162, 163; sec. 2, art. 13, chap, 36, p. 482, vol. 2, Eev. Statutesj 
 6 B. Mon. 115; 13 B. Mon. 507. 
 
236 EXEoriiONS. 
 
 k. Satisfaction. 
 
 1. If property is sold under execution and bonds taken for the 
 amount, it will be a satisfaction of the judgment and execution, 
 though the sale be void, and confer no title on the purchaser. 
 Etlinger v. Tansey, 17 B. Mon. 366. 
 
 2. Payment to a sheriif after the return day of an execution, 
 but while it yet remained in his hands, will be a satisfaction of the 
 execution, although it had not been levied. James v. Yates, 3 Met. 
 346; sec. 37, art. 2, chap. 91, p. 346, vol. 2, Eevised Statutes.' 
 
 3. "Where the surety in an execution sold to the sheriif, at a 
 stipulated price, a horse and other property, the price to be 
 credited on the execution, the plaintiff in the execution acquiesc- 
 ing in the arrangement, the principal debtor was entitled to a 
 credit pro tanto. Banta v. Snapp, 2 Duv. 98. 
 
 I. Return. 
 
 1. The law provides two distinct remedies against constables 
 for a failure to return executions by return day, besides rendering 
 him liable for the amount of the execution. One for ten per cent. 
 for a failure for ten days, and the other for thirty per cent, for a 
 like for thirty days. Judy v. Howard, 2 Met. 46. 
 
 2. The fact that the plaintiff in an execution consented, without 
 consideration, to allow a constable to retain money collected on an 
 execution, will not justify his failure to return the execution as 
 required by law, nor exonerate him from the penalty imposed by 
 statute. Judy v. Howard, 2 Met. 45, 46. 
 
 3. The plaintiff in an execution may, although the debt has 
 been paid him by the defendant, recover of the sheriff and his 
 sureties, thirty per cent, on the amount of the execution for his 
 failure to return it in thirty days after the return day. Sanders 
 V. Bank Ky., 2 Met. 329.2 
 
 4. A sheriff, who accidentally mislaid an execution after it was 
 replevied with good security, and on that account failed to return 
 it within thirty days of the return day, is not liable for the debt 
 and thirty j?er cent, for such failure. Shippen v. Gurry, 3 Met. 185, 
 186; Michison v. Foster, 3 Met. 325; Waring v. Thomas, 1 Litt. 
 253; Bassett v. Bowmar, 3 B. Mon. 328. 
 
 ' Overruling a dictum in Chinn v. Mitchell, and deciding the law as ruled 
 in Rudd S; Ferguson v. Johnson, 5 Litt. ] 9 ; Stephens v. Boswell, 2 J. J. Mar. 
 29, on this point, have been changed by the Revised Statutes. 
 
 ' Modified by statute, to not less than ten nor more than one hundred 
 dollars, at the discretion of the court. Myer's Supplement, p. 213. 
 
EXECUTIONS. 237 
 
 5. If a sheriff levies and returns an execution, and then goes 
 out of office and qualifies anew and receives a venditioni on the 
 former execution, and fails to return it and is sued on his last 
 bond, no recovery can be had on the bond; but nominal damages 
 may be recovered against him alone independent of the bond. 
 Colyer v. Higgins, 1 Duv. 7, 8. 
 
 6. A sheriff, though out of office, may, on leave of the court, 
 amend his return on an execution. Newton v. Prather, 1. Duv. 
 102, 103. 
 
 7. One, claiming land under a sheriff's sale, may show by 
 proof other than the return of the sheriff, that the land was levied 
 on, and sold, and purchased by him. Phillips v. Jamison, 14 B. 
 Mon. 583. 
 
 8. A statement in the return on an execution, that the money 
 had been paid to the plaintiff, is not evidence of the fact. Walker 
 V. McEnight, 15 B. Mon. 478. 
 
 9. Sheriffs are liable to a fine of fifty dollars for failing to return 
 an execution issued on a judgment in an action by ordinary pro- 
 ceedings on the return day, but their sureties are not liable. Dep. 
 Bank, Gynthiana v. Glenn, 1 Met. 588, 589. 
 
 10. If the defendant has property in the county, out of which 
 only a part of the amount of the execution could have been made, 
 and the sheriff fails to return it without reasonable excuse for 
 thirty days after the return day, he and his sureties will be liable 
 for the whole amount of the execution and thirty per cent, thereon. 
 Goodrum v. Boot, 2 Met. 428, 429; sec. 4, art. 18, chap. 36, p. 493, 
 vol. 1, Eevised Statutes. 
 
 11. If a mortgagor's equity of redemption be sold under execu- 
 tion and the plaintiff in execution buys it and the amount of his 
 bid is credited on the execution, and by subsequent proceedings 
 the mortgagee and execution purchaser, cause the property to be 
 sold, and it fails to sell for enough to pay the mortgage debt and 
 the amount bid by the execution creditor, and ten per cent, 
 thereon, the creditor will have no right to reduce the credit on 
 the execution pro tanto by obtaining judgment against the debtor 
 for the deficit. Cov. & Cin. Bridge Go. v. Walker, 2 Duv. 151. 
 
 m. When quashed. 
 An execution, which issued on a replevin bond taken in virtue 
 of a judgment rendered after the death of the original plaintiff, 
 in favor of his administrator, without service of the order of revi- 
 vor, should be quashed on motion of the defendant. Amyx v. 
 Smith, 1 Met 531, 532. 
 
238 EXECUTIONS. 
 
 n. Bemedy for wrong use of. 
 See Bonds, Indemnifying. 
 
 1. An indemnifying bond, taken before making a levy, will be 
 a bar to a suit, either against the sheriff or the plaintiff in the 
 execution, for seizing the property. The action must be on the 
 bond. Ounn v. Gudehus, 15 B. Hon. 450, 451. 
 
 2. To entitle an officer to protection against the consequences of 
 any -violation of the rights of others, in a levy or sale under ex- 
 ecution, he must comply strictly with the statute by taking and 
 returning an indemnifying bond with good security. Green v. 
 Sackley, 3 Met. 389; sec. 711, Civil Code. 
 
 II. VENDITIONI EXPONAS. 
 
 1. Writs of venditioni exponas confer no new authority on the 
 officer to whom they are directed, but only require him to do that 
 which he was authorized to do by the former execution. Kieth v. 
 Wilson, 3 Met. 204 ; Golyer v. Higgins, 1 Duv. 7 ; Cox v. Joiner, 4 
 Bibb, 94. 
 
 2. No venditioni can issue, commanding the sale of property, 
 which had been levied on under a _/?. fa., which was enjoined or 
 superseded after the levy. Kieth v. Wilson, 3 Met. 205, 206. 
 
 3. No venditioni is necessary to authorize the sale of property 
 levied on under a fi. fa., which has been returned. Colyer v. 
 Higgins, 1 Duv. 7. 
 
 4. When an execution has been levied and then enjoined, the 
 plaintiff, on a dissolution of the injunction, can not take a ven- 
 ditioni and sell the property levied on, but must take new execu- 
 tion of fi. fa. Lockridge v. Biggerstaff, 2 Duv. 282; Kieth v. Wilson, 
 3 Met. 205. 
 
 HI. EXECUTION AGAINST THE PERSON. 
 
 1. An execution against the person of the defendant in a civil 
 action, in which he had been arrested and held to bail, which 
 commanded the sheriff to take the body of the defendant and 
 have him before the judge of the court, "to satisfy and pay to the 
 Commonwealth of Kentucky the sum of one hundred and twenty- 
 five dollars, with interest," etc., "which was lately in our said 
 court adjudged against him for debt, in favor of J. B. A.," etc., is 
 not in form, and is invalid and insufficient to fix the liability of 
 bail on a return of "not found." Abbott v. Daniel, 3 Met. 342. 
 
 2. That an execution against the body of the defendant, who 
 was held to bail in a civil action, had been returned before the 
 
EXECUTORS AND ADMINISTRATORS. 239 
 
 return day, will not exonerate the bail. Jones v. Bunn, 2 Met. 
 492 ; sec. 200, Civil Code. 
 
 3. The statute does not require the return of an execution 
 against the body of one held to bail in a civil action, to be made 
 in twenty days after judgment, but that it should be placed in the 
 hands of the sheriff in that time, in order not to release the bail. 
 Allcorn v. Tuggle, 3 Met. 537; sec. 198, Civil Code. 
 
 IV. REDEMPTION OP PROPERTY SOLD UNDER PI. PA. 
 
 1. A replevin bond was taken for more than was due, and under 
 an execution, issued on the bond, the land of the surety was sold 
 for less than two-thirds of its value, and the plaintiff purchased — 
 Held: The surety should be allowed to redeem after the ex- 
 piration of a year. Myers v. Williams, 1 Duv. 356. 
 
 2. The purchaser of a lot under execution, for less than one- 
 fourth its value, agreed with the defendant in the execution to 
 release to him whenever he would reimburse the amount paid. 
 The defendant sold the lot afterward. Held : The purchaser had 
 a right by substitution to redeem. Dupuy v. McMillen, 2 Duv. 
 555. 
 
 EXBCUTOES AND ADMINISTEATOES. 
 
 I. General principles. 
 II. Appointment. 
 
 III. Assets. 
 
 IV. Care and management of estate. 
 V. Account and distribution. 
 
 VI. Sale of real estate under power in wills. 
 VII. Foreign executors and administrators. 
 For payment of debts, preferred debts, verification, and demand, see Decedents' 
 
 Estates. 
 Tor payment of legacies, see Devises and Devisees. 
 
 I. GENERAL PRINCIPLES. 
 
 1. A judgment in favor of an intestate does not abate with his 
 death; but his administrator may have execution issued by filing 
 with the clerk an affidavit, stating the plaintiff's death, and the 
 name of his personal representative, and also filing a certificate of 
 his qualification. Morgan v. Winn, 17 B. Mon. 244. 
 
 2. Upon the death of a trustee, holding the title to personal 
 property, the title passes to his personal representative, who holds 
 for the benefit of those entitled under the trust. Edwards v. 
 Woolfolk, 17 B. Mon. 380. 
 
 3. Personal property, specifically devised, goes to the executor 
 at the testator's death. Hasleyy. Easlsy, 18 B. Mon. 91. 
 
240 EXECUTORS AND ADMINISTRATORS. 
 
 4. An administrator of an administrator has a right to settle 
 with the county court the accounts of his intestate as administra- 
 tor, and the estate in the hands of the administrator, reduced to 
 money in his lifetime, does not pass to an administrator de bonis 
 non of the first intestate. Thomas v. Thomas, 1 Met. 53. 
 
 5. An administrator has no power to bind the estate of his intes- 
 tate for fees, agreed to be paid to counsel for prosecuting one who 
 murdered his intestate. Lusk v. Anderson, 1 Met. 429. 
 
 6. The principle, that a personal representative is regarded in 
 equity as a trustee for creditors and others interested in the estate, 
 that the assets are trust funds for their benefit, and that a court of 
 equity will take jurisdiction in favor of a creditor, who has not 
 even obtained a judgment at law, not only to compel a discovery, 
 but also to render the personal representative liable for waste or 
 maladministration, does not apply to an action against a person 
 who has ceased to be the personal representative of the intestate, and 
 which seeks no discovery of assets. Young v. Duhme, 4 Met. 243, 244. 
 
 7. An executor brought suit in equity to subject the land of a 
 debtor of the testator to the payment of the debt, pending which 
 the land was sold under a decree in favor of the debtor's vendor, 
 for a balance of the purchase-money, and the executor bought it. 
 He afterward sold and conveyed the land to a stranger for more 
 than enough to reimburse what he had paid, and to satisfy the 
 debt due his testator. Seld : That he was bound to apply so much 
 of the proceeds as would pay the debt due his testator to its pay- 
 ment, but he was not bound for the overplus. Longest v. Tyler 
 
 1 Duv. 194. 
 
 8. The appointment of a debtor as executor or administrator 
 suspends the right of action ; but it will revive again on his ceas- 
 ing to be the personal representative without paying the debt, or 
 charging himself with it in his fiducial accounts. Bush v. Bush, 
 
 2 Duv. 275. 
 
 II. APPOINTMENT. 
 
 1. When there are no assets in this State, of a decedent whore- 
 sided at the time of his death in another State, the county courts 
 of this State have no jurisdiction to appoint an administrator. 
 Thumb V. Gresham, 2 Met. 308. 
 
 2. That the decedent owned land in the county where adminis- 
 tration was granted will not confer jurisdiction. Thumb v. 
 Qresham, 2 Met. 308. 
 
 3. Original administration can not now be granted after twenty 
 years from the death of the intestate. Anderson v. Smith, 3 Met. 493. 
 
EXECUTOUS AND ADMINISTRATORS. 241 
 
 III. ASSETS. 
 
 1. Notes, executed to an administrator as such, may, if uncol- 
 lected and undisposed of by him in his lifetime, become assets in 
 the hands, either of his administrator, or the administrator de 
 bonis non. Should there be a conflict between them, the one or the 
 other will be entitled according to the result of the inquiry, 
 whether the first administrator had become beneficially entitled 
 to them as a creditor of the estate, or by charging himself with 
 them in a settlement of the estate. Maraman v. Trunnell, 3 Met. 
 147; Jones V. Everman, 15 B. Mon. 633; Williams v. Collins, 1 
 B. Mon. 61. 
 
 2. The execution of a note to one as administrator is prima facie 
 evidence that its consideration was assets of the intestate. Jones 
 V. Overman, 15 B. Mon. 633. 
 
 3. An executor or administrator can not recover of the widow a 
 gold watch worn by her in the lifetime of her husband, unless it 
 is necessary to pay debts. Susbands v. Bullock, 1 Duv. 23, 24. 
 
 IV. CARE AND MANAGEMENT OF ESTATE. 
 
 A. General powers of executors and administrators. 
 
 B. Rights and duties of. 
 
 C. Responsibilities of. 
 
 D. Actions by, and against. 
 
 a. General powers of executors and administrators. 
 Executors, to whom land is devised to be sold for the pay- 
 ment of debts, have power to assign a part of it to the widow for 
 dower in consideration of her releasing the residue, which, being 
 fairly done, will bind the creditors and heirs. That the widow 
 got a good bargain would not enable the creditors to set it aside, 
 even though the circumstances might be such as to render the 
 executor personally liable. Harrow v. Johnson, 3 Met. 582. 
 
 b. Bights of. 
 
 1. A surviving husband is entitled as administrator to the sep- 
 arate personal estate of the wife, held by her or by a trustee for 
 her use, unless otherwise provided by the deed creating the estate. 
 Browrh v. Alden, 14 B. Mon. 146. 
 
 2. An executor may make a note his own by charging himself 
 with it in a settlement of his accounts. Jones v. Everman, 15 
 B. Mon. 633. 
 
 17 
 
242 EXECUTORS AND ADMINISTRATORS. 
 
 3. The common law right of retainer by an administrator for 
 debts due him by the intestate is not destroyed, though it has been 
 modified by the statute declaring all debts of equal dignity. 
 Berry v. Graddy, 1 Met. 557, 558. 
 
 4. An administrator may retain money due him from his intes- 
 tate, though it be due upon a contract not enforceable because it is 
 within the statute of frauds and perjuries. Berry v. Graddy, 1 
 Met. 557, 558. 
 
 c. Responsibilities of. 
 
 1. Devisees, who are executors, will not be responsible as execu- 
 tors for their failure to do that which is required of them by the 
 will, not as executors, but as devisees. Sims v. Lively, 14 B. Mod. 
 447. 
 
 2. An executor, who has qualified under awill regularly probated, 
 and proceeded in good faith to pay legacies under it, will not be 
 responsible for the sums thus legally disposed of before legal notice 
 that it is contested, if the will is afterward annulled. Jones v. 
 Jones, 14 B. Mon. 471, 472. 
 
 3. But, he will be responsible after he has actual notice of the 
 contest; and the service of a summons, in an action to contest the 
 will, will be sufficient notice. Jones v. Jones, 14 B. Mon. 473. 
 
 4. If a will be admitted to probate, and afterward contested, the 
 executor will be responsible, after notice of the contest, for all dis- 
 positions of the estate depending for validity on the will alone. 
 Crow V. Crow, 14 B. Mon. 478. 
 
 5. An executor is not liable to the creditors of the testator for 
 the rent of the land devised, which had been in the possession of 
 the devisees. Chambers v. Davis, 17 B. Mon. 534. 
 
 6. Executors and administrators may submit matters of dispute 
 to arbitration by agreement out of court, and will only be respon- 
 sible for loss arising from their fault or neglect. Overly v. Overly, 
 1 Met. 121 ; sec. 499, Civil Code. 
 
 7. If a testator be security for a debt, and his executors, by fraud 
 or neglect, fail to make the debt out of the principal, they will be 
 liable to the legatees for indemnity. Tuggle v. Gilbert, 1 Duv. 
 340.. 
 
 8. If an administrator uses assets otherwise than in paytoeut 
 of the debts of his intestate, he will be liable to one who has 
 obtained judgment against him, unless their misapplications were 
 produced by th e fraudulent agency of the party complaining of the 
 devastavit. McCalla v. Patterson, 18 B. Mon. 210. 
 
EXECUTORS AND ADMINISTRATORS. 243 
 
 d. Actions by and against. 
 
 1. An executor, who is directed to rent property, may maintain 
 an action in his own name to quiet the possession and to prevent 
 its use from being interfered with or its value impaired. Newport 
 V. Taylor, 16 B. Mon. 782. 
 
 2. A return of nulla bona, upon a judgment against an adminis- 
 trator, is not necessary to enable a creditor to maintain an action 
 for a devastavit. McCalla v. Patterson, 18 B. Mon. 209. 
 
 3. An administrator or his sureties may, when sued on their 
 bond for a failure to satisfy a judgment against the former, show 
 that he had fully administered the assets in his hands, when the 
 judgment was rendered, or they may limit the recovery to the 
 amount of assets then in his hands. Mc Calla v. Patterson, 18 B. 
 Mon. 210. 
 
 4. That there remains ample real estate of the decedent for the 
 satisfaction of the claim of the party suing for a devastavit, is not 
 a good defense. McGalla v. Patterson, 18 B. Mon. 211. 
 
 5. If an administrator fails to prosecute or defend an action in 
 good faith, an heir, or distributee, or the husband of such heir or 
 distributee, has a right, on making affidavit of the fact, to prose- 
 cute or defend. The a«t of February 23, 1846, is not repealed by 
 the Eevised Statutes. Lusk v. Anderson, 1 Met. 428, 429 ; Gibson v. 
 Higden, 15 B. Mon. 209. 
 
 6. A purchaser at an administrator's sale can not, when sued 
 for the price of the property, rely, by way of counter-claim, on the 
 fact that one of the administrators had converted a part of the 
 property to his own use after the sale. Phillips v. Keifer, 2 Met. 
 479. 
 
 7. Ordinarily, a creditor must first have the amount of his debt 
 ascertained by a judgment against the personal representative 
 before he can proceed for a devastavit, either against him or his 
 sureties. Lee v. Waller, 3 Met. 63. 
 
 8. One, who has obtained a judgment against his debtor and a 
 return of nulla bona, may proceed in equity to have a demand, due 
 his debtor from the estate of a decedent, applied to the payment of 
 his demand, and if he succeed in establishing the demand, and 
 obtains judgment, which he is unable to collect out of assets in the 
 hands of the administrator, and he can prove a devastavit, he 
 should then have a joint judgment against the executor; and 
 his sureties to be levied, first, of estate of the executor, if 
 
244 EXECUTORS AND ADMINISTKATORS. 
 
 sufficient, and if not, then of the estate of the surety. Lee v. Waller, 
 3. Met. 64. 
 
 9. An administrator de bonis non may sue, in his own name as 
 administrator, on notes, payable to a former administrator as such, 
 which have come to his hands as assets of the estate. Maraman 
 V. Trunnell, 3 Met. 147, 148. 
 
 10. Upon the marriage of an administratrix, she ceases to be the 
 personal representative of the intestate, and an action against her 
 after that event will not lie to establish a debt against the estate 
 and to test the question of assets to discharge the debt. Young v. 
 Duhme, 4 Met. 243; sec. 16, art. 1, chap. 37, p. 500, vol. 1, Eevised 
 Statutes. 
 
 11. Before a creditor can maintain an action on an administra- 
 tor's bond against him and his sureties, he must obtain a judgment 
 against the personal representative for his debt, and fix upon him 
 assets sufficient to discharge the debt or a part of it. Young v. 
 Duhme, 4 Met. 244. 
 
 12. It is error to render judgment, even by default, in favor of 
 heirs and distributees against an administrator for the amount in 
 his hands without requiring a refunding bond. Mountjoy v. Pearce, 
 4 Met. 98; Prewett v. Prewett, 4 Bibb, 266; Whiter. Clark, 7 Men. 
 643; Shirley v. Mitchell, 3 J. J. Mar. 684; sec. 471, Civil Code. 
 
 13. If a debtor be appointed executor or administrator, and he 
 charges himself in his fiducial accounts with the debt, it will be a 
 cancelment of his individual liability. Bush v. Bush, 2 Duv. 275. 
 
 V. ACCOUNT AND DISTRIBUTION. 
 
 A. Who may require. 
 
 B. Defective vouchers. 
 
 C. Compensation. 
 
 a. Wlio may require. 
 
 An administrator, having in his hands funds belonging to 3 
 minor, who is a non-resident, may be compelled to pay them over 
 to a guardian, appointed by proper authority in the State of his 
 residence, upon the guardian showing, by record, evidence that he 
 had given bond. Martin v. McDonald, 14 B. Mon. 548. 
 
 b. Defective vouchers. 
 
 If, upon the trial of exceptions to a settlement made by per- 
 sonal representatives, the claimant of an item be examined as a 
 witness, and states the facts required by law to be stated in an 
 
EXECUTORS AND ADMINISTRATORS. 245 
 
 affidavit before claims are paid, it will be sufficient, though no 
 such affidavit had been previously made. Overly v. Overly, 1 Met. 
 122. 
 
 c. Compensation. 
 
 1. An executor who is indebted to his testator's estate, is not 
 entitled to commission on the amount he thus owed and which he 
 had disbursed to those to whom it was due under the will. Worsley 
 V. Worsley, 16 B. Mon. 472. 
 
 2. The allowance to an adminstrator is within the discretion of 
 the court. Five per cent, is the usual allowance, and when an 
 allowance is made by the court below', it will not be disturbed by 
 the court of appeals, unless the discretion of the lower court has 
 obviously been abused. Cabell v. Cabell, 1 Met. 334. 
 
 VI. SALE OF REAL ESTATE UNDER POWER IN WILLS. 
 
 1. If an executor be empowered by will to sell land on a credit 
 of twelve months, and he sells it on a credit of only six months, 
 if the sale is fair, and the price adequate, this variance from the 
 terms prescribed will furnish no grounds to set aside the sale after 
 the land has been paid for, and conveyed to the purchaser. Bich- 
 ardson v. Jfayden, 18 B. Mon. 256. 
 
 2. "When power is given to two executors to sell land, and both 
 qualify and continue in office, a sale by one is void. If one vacates 
 his office, the power devolves upon the other. Wells v. Lewis, 4 
 Met. 271; sec. 9, art. 1, chap. 37, p. 499, vol. 1, Eevised Statutes; 
 Ralbert v. Grrant, 4 Mon. 582. 
 
 3. One executor, who has renounced his office, may unite with 
 another who has not, in the sale and conveyance of real estate in 
 execution of a joint discretionary power. Bobinson v. Bedman, 2 
 Duv. 86. 
 
 VII. FOREIGN ADMINISTRATORS. 
 
 1. A foreign administrator, who has removed to this State, may 
 be required by the courts here to pay over to those entitled, assets 
 in his hands, received in the State where he qualified. Manion v. 
 Titsworth, 18 B. Mon. 597; Baker v. Smith, 3 Met. 265. 
 
 2. But his liability is to be determined by the laws of the State 
 where he qualified. Manion v. Titsworth, 18 B. Mon. 597. 
 
 3. A non-resident executor of a non-resident decedent, suing 
 here on a judgment obtained by him in another State, in his 
 capacity of executor, need not file here letters testamentary, nor 
 "-xecute the bond required by statute to pay debts due to creditors 
 
246 EXECUTORS AND ADMINISTRATORS. 
 
 here. The debt due to the testator is merged in the judgment in 
 favor of the executor. Wayland v. Porterfield, 1 Met. 640. 
 
 4. No action can be maintained in this State by a creditor of the 
 intestate against an administrator, who qualified in another State, 
 and still resides there. Baker v. Smith, 3 Met. 265. 
 
 EXCHANGE OP LANDS. 
 
 1. If one was evicted from land received in exchange, he had a 
 right, by the ancient law of exchange, to re-enter, which gave him 
 title. Grimes v. Bedman, 14 B. Mon. 237. 
 
 2. If deeds of exchange, each contain special covenants to re- 
 cover in case of the loss of the land received by either, the right 
 of the heirs of one, claiming title under their mother, will not be de- 
 feated by showing estate equal to the value of the land descended 
 to them from the grantor. Grimes v. Bedman, 14 B. Mon. 237. 
 
 EXEMPTION— 
 
 From Execution, see Execution. 
 
 From Distribution, see Descent and Distribution. 
 
 FAILUEE TO PLEAD. 
 
 See Judgment. 
 
 FALSE IMPEISONMENT. 
 See Damages, and Fugitives from Justice. 
 
 FALSE PEETENSES. 
 See Criminal Law. 
 
 FEMES COVEET. 
 See Married Women. 
 
 FELONY. 
 See Criminal Law. 
 
PINAL ORBEES. 247 
 
 FBEEIES. 
 
 1. The State of Kentucky can not control the transportation of 
 persons and property across the Ohio hy persons authorized to do 
 so by the laws of States on the other side. Newport v. Taylor, 16 
 B. Mon. 784. 
 
 2. The laws of Congress, requiring steamboats to obtain a license, 
 does not apply to steam ferryboats used for ferrying across the 
 Ohio river. Newport v. Taylor, 16 B. Mon. 799. 
 
 3. A steamboat, licensed by the United States, has no right to 
 interfere with a ferry across i*3 Ohio river, established by the 
 States bordering on the river. Newport v. Taylor, 16. B. Mon. 801. 
 
 4. A license from the United States to a coasting vessel confers 
 no right to transport passengers from this side of the Ohio to the 
 other without a license from the State of Kentucky. Newport v. 
 Taylor, 16 B. Mon. 808, 809. 
 
 5. The owner of a private ferry, who notoriously undertakes, 
 for hire, to convey across the river all persons indifferently, with 
 their horses and carriages, is liable as a common carrier for prop- 
 erty received for transportation and lost. Sail & Co. v. Benfro, 3 
 Met. 54; Bohertson v. Kennedy, 2 Dana, 430. 
 
 6. The keeper of a public ferry is not responsible for the loss of 
 stock being ferried if the loss results from the restiveness or vic- 
 iousness of the animal lost, or of other animals on the boat at the 
 same time, belonging to the same owner. Hall & Co. v. Benfro, 3 
 Met. 54, 55. 
 
 7. The keeper of a public ferry can not limit his liability as a 
 common carrier by a special contract, Hall & Co. v. Benfro, 3 
 Met. 55.' 
 
 PIJSTAL OEDBES. 
 
 1. A final order either terminates the action itself, decides some 
 matter litigated by the parties, or operates to divest some right in 
 such a manner as to put it out of the power of the court, making 
 the order after the expiration of the term, to place the parties in 
 their original condition. M. &L. B. B. Co. v. Punnett, 15 B. Mon. 
 48; Applegate v. Applegate, 4 Met. 236. 
 
 2. A judgment for a debt and to sell attached property to satisfy 
 it, is a final order. Talbott v. Pierce, 14 B. Mon. 200, 201. 
 
 ' See Adams Express Co. v. Nock, 2 Duv. 564. 
 
248 FINAL ORDERS. 
 
 3. An order of the circuit court, remanding a case to the county 
 from which it had been brought by a change of venue, is not a 
 final order, and can not be appealed from. Turner v. Browder, 18 
 B. Mon. 826, 827. 
 
 4. An order dissolving an injunction is not a final order. Bod- 
 man V. Forline, 2 Met. 325, 326. 
 
 5. An order, directing the proceeds of attached property to be 
 paid to a particular creditor, is a final order over which the court 
 has no power after the expiration of the term, except in the mode 
 mentioned in sections 373, 580, or 581, or for some of the causes 
 enumerated in sections 369 or 579 of the Civil Code. Eocker v. 
 Gentry, 3 Met. 469, 470 ; Willis v. Valletta, 4 Met. 196. 
 
 6. Anorder, confirming a sale made under a judgment of the court, 
 is final and can not be set aside after the expiration of the termi 
 unless the sale was void, when it may be disregarded. Magowan 
 \. Pennebaker, 3 Met. 502; Barrett v. Churchill, 18 B. Mon. 390; 
 Todd V. Dowd, 1 Met. 281 ; Carpenter do Grigsby v. Strothers, 16 
 B. Mon. 295. 
 
 7. The circuit courts have no power after the expiration of the 
 term to vacate or modify a judgment or final order, except in the 
 mode and on the grounds specified in the Civil Code. McManama 
 V. Garnett, 2 Met. 517; sees. 579-581, Civil Code. 
 
 8. Kor can the court, by adjourning the regular to a special 
 term, retain control over its orders so as to set them aside at the 
 special term. McManama v. Garnett, 2 Met. 518. 
 
 9. A judgment, to be final, must not merely decide that one of 
 the parties is entitled to relief of a final character, but must give 
 that r el ief by its own force, or be enforceable for that purpose with- 
 out further action by the court or process of contempt. Bondurant 
 V. Apperson, 4 Met. 32; Hanson v. Bowyer, 4 Met. 109. 
 
 10. An order, discharging an attachment for defects in the affi- 
 davit, is not a final order. Leet v. Lockett, 4 Met. 56; Sanson v. 
 Bowyer, 4 Met. 109; Talhott v. Pierce, 14 B. Mon. 195. 
 
 11. An order of the county court refusing to qualify a person as 
 deputy sheriff, is not a final order. Applegate v. Applegate, 4 
 Met. 237. 
 
 12. A decree is not final, even though execution be awarded 
 when the true amount to be made by the execution is to be deter- 
 mined by future inquiry. Tuggle v. Gilbert, 1 Duv. 340, 341. 
 
 13. Final orders of the Louisville Chancery Court can not he 
 set aside by the chancellor after sixty days from the time they are 
 made. Magowan v. Pennebaker, 3 Met. 502. 
 
FIXTURES. 249 
 
 14. Although a court can not, at a subsequent term, revoke or 
 correct an order merely erroneous, yet it may and should disre- 
 gard its own order, if it is void. Jones & Kelly v. Commonwealth, 2 
 Duv. 82. 
 
 15. When, in an equitable action, an issue of fact has been referred 
 to a jury and a verdict found, and a motion for a new trial has been 
 overruled, the court has no power, at a subsequent term, to disre- 
 gard the finding of the jviry and find the issue the other way. 
 Moore v. Shepherd, 2 Duv. 131. 
 
 16. An order, overruling a motion to discharge an attachment, 
 is not a final order. Overly v. Gay, 17 B. Mon. 146. 
 
 17. An order taking a petition for confessed, is only interlocu- 
 tory, and does not prevent the filing of an answer at any time 
 before the cause is submitted for decision. Alexander & Lancashire 
 V. Quigley, 2 Duv. 402. 
 
 PIXTUEBS. 
 
 1. Questions respecting the right to fixtures arise in three classes 
 of cases: 1. Between heir and executor; and then the rule obtains 
 with most rigor in favor of the inheritance and against the right 
 to consider as personal chattels anything aflSxed to the freehold. 
 2. Between the executor of a tenant for life and the remainder-man, 
 or reversioner ; and here the right to fixtures is considered more 
 favorable to the executor. 3. Between landlord and tenant ; and 
 here the claim to have articles considered as personal property is 
 received with the greatest latitude and indulgence, and the excep- 
 tions in favor of fixtures for trade is still broader. Johnson v. 
 
 Wiseman, 4 Met. 359. 
 
 2. The strict rule as to fixtures, that applies between executor 
 and heir, applies equally between vendor and vendee, and mort- 
 gagor and mortgagee. Johnson v. Wiseman, 4 Met. 359. 
 
 3. Where a party purchased property, and while a lien yet re- 
 mained for an unpaid balance of purchase-money, mortgaged the 
 property to a third person, and it was afterward sold to discharge 
 the lien for purchase-money, and bought by the mortgagee — Held: 
 That chandeliers and gas fixtures, put in the house after the orig- 
 inal purchase, passed to the purchaser at the decretal sale as fix- 
 tures. Johnson v. Wiseman, 4 Met. 362, 363. 
 
250 rORCIBLE ENTRY AND DETAINER. 
 
 POECIBLB BNTEY AND DETAINEE. 
 
 I. When, and by whom the action may be maintained. 
 II. Who may issue, and try warrant of. 
 
 III. Proceedings in actions of. 
 
 IV. Traverse, and proceeding thereon. 
 
 I. WHEN, AND BY WHOM THE ACTION MAY BE MAINTAINED. 
 
 1. If one, in the possession of land, be ousted by the forcible 
 entry of another, and the one thus ousted afterward enters forcibly 
 and retains possession, forcible entry and detainer may be main- 
 tained against him. Hunt v. Wilson, 14 B. Mon. 46. 
 
 2. The statute relating to forcible entries and detainers does not 
 aifect the common law right of entry, when exercised in a peace- 
 able manner, except so far as the statute itself furnishes a remedy 
 to regain the possession ; and a person having a right of entry, 
 who makes an entry in pursuance of that right, can only be 
 removed by a writ of forcible entry and detainer. Tucker v. Phil- 
 lips, 2 Met. 418; Trihble v. Frame, 7 J. J. Mar. 604. 
 
 3. Forcible entry and detainer can not be maintained, unless 
 it appears on the face of the warrant in some way that the relation 
 of landlord and tenant exists between the plaintiff and the tenant 
 alleged to have been in the possession at the time of the entry or 
 between the plaintiff and defendant. Powers v. Sutherland, 1 
 Duv. 151, 152; sec. 500, Civil Code; Goldsberry v. Bishop, 2 Duv. 
 144. 
 
 II. WHO MAY ISSUE, AND TRY WARRANT OP. 
 
 1. A warrant of forcible entry and detainer can only be issued 
 by a justice of the peace, and one issued by a county judge, and 
 all steps taken under it, are void. Johnson y. Ermine, 3 Met. 252 ; 
 sec. 502, Civil Code.i 
 
 2. A police judge, who, by the terms of the act, creating the 
 office, has "concurrent jurisdiction with justices of the peace in 
 all civil actions," has jurisdiction in cases of forcible entry and 
 detainer. Cessna v. Stedman, 1 Duv. 189. 
 
 III. PROCEEDINGS IN ACTIONS OF. 
 
 1. The provisions of sections 500-518, Civil Code, inclusive, 
 regulating proceedings in cases of forcible entry and detainer, are 
 
 ^By an amendment to section 502, Civil Code, county judges have same 
 power on this subject as justices of the peace. 
 
FORFEITURE. 251 
 
 substantially tlie same as the statute of 1810. Statute Laws, 715; 
 Belcher v. Barrett, 4 Met. 308. 
 
 2. The only inquiry, upon a warrant for a forcible entry, is, 
 whether the defendant entered upon land which, at the time of 
 the entry, was in the actual possession of the plaintiff, and the 
 defendant can not justify by showing he had the title or right of 
 entry. Hunt v. Wilson, 14 B. Mon. 46. 
 
 3. Strict technical precision is not required in verdicts and pro- 
 ceedings in cases of forcible entry and detainer. Belcher v. Barrett, 
 4 Met. 308. 
 
 IV. TRAVERSE, AND PROCEEDINGS THEREON. 
 
 1. A judgment, on the finding of a jury in a case of forcible 
 entry and detainer, is not necessary to enable the adverse party to 
 maintain a traverse. Belcher v. Barrett, 4 Met. 308. 
 
 2. On a traverse of the finding, in a case of forcible entry and 
 detainer, the court has power to quash a defective warrant. 
 Powers V. Sutherland, 1 Duv. 152. 
 
 3. Where the traverser of an inquest of forcible entry and de- 
 tainer fails to appear, either by himself or counsel, on the calling 
 of the cause for trial, the court may render judgment in favor of 
 the traversee, although the latter may not have joined issue on 
 the traverse. Dibble v. Porter, 1 Duv. 191 ; sec. 513, Civil Code. 
 
 FOEFBITUEB. 
 
 For forfeiture of tail, see Bail. 
 
 1. Prior to 1825, the failure of a non-resident to list his lands 
 for taxation did not, ipso facto, divest him of title, without ofSce 
 found ; otherwise since. Harlan v. Seaton, 18 B. Mon. 327. 
 
 2. The Commonwealth has a right, by suit, to recover from the 
 winner money or property won on an election, two-thirds of 
 which are for the benefit of common schools. Love v. Harris, 18 
 B. Mon. 125. 
 
 3. When a horse was stolen from the owner, and used by the 
 wrongful taker in aid of the rebellion, and captured by the United 
 States forces while being so used, the title was not divested nor 
 the property forfeited. Nor would the subsequent inspection and 
 sale of the horse by a United States quartermaster divest the 
 title, but the owner may recover it from the purchaser. Porter v. 
 Botts, 2 Duv. 366. 
 
252 FORMER ADJUDICATION. 
 
 4. Before the property of a citizen can be forfeited, because of 
 its having been used in aid of the rebellion, it must be judiciously- 
 ascertained, either that it was so used with the owner's consent, 
 or that the owner had himself engaged in the rebellion, or had 
 aided or abetted it. Porter v. Botts, 2 Duv. ?68. 
 
 5. Military officers of the United States had no right to con- 
 demn or confiscate the property of citizens, and their action in 
 this regard would not divest the title. Porter v. Botts, 2- Duv. 
 368. 
 
 6. The act of Congress, approved July 17, 1862, entitled "An 
 act to suppress insurrection, to punish treason and rebellion, to 
 seize and confiscate the property of rebels, and for other pur- 
 poses," is unconstitutional so far as it authorizes the confiscation 
 of the property of citizens as a punishment for treason and other 
 crimes, by a proceeding in rem, without presentment or indict- 
 ment, and without arrest or summons of the owner. Norris v. 
 Doniphan, 4 Met. 400, 401. 
 
 FOEMEE ADJUDICATION. 
 
 1. One, whose name appears in an order of the county court, as 
 moving a continuance in a will cause, at one term, but never 
 appears again, in any manner, in the cause during a long course of 
 litigation in the circuit court, and court of appeals, is not thereby 
 concluded from afterward contesting matters settled in that case. 
 Hamilton v. Berry, 14 B. Mon. 38. 
 
 2. That the matters, set out in the petition of the husband and 
 wife, had been before litigated in an action in the name of the wife 
 alone, is a bar to the action. Hawkins v. Lambert, 18 B. Mon. 
 107. 
 
 3. A plaintiff, who could only recover in an action for work and 
 labor done, by denying a special contract set up by the defendant, 
 can not, after that issue is found in his favor, set up the same 
 special contract, and recover on that. Hanley v. Foley, 18 B. Mon. 
 521. 
 
 4. If, in an action for the recovery of real estate, the plaintiff 
 claims damages for the withholding of possession, and there is a 
 finding, it will be a bar to a subsequent action for rents. Walker 
 v. Mitchell, 18 B. Mon. 546. 
 
 5. Whether an infant defendant, who had, by guardian ad litem, 
 made his answer a cross-petition, would • be barred in an action, 
 
rOKMER ADJUDICATION. 253 
 
 after his majority, from setting up the same matter against the 
 same person. Quere. Enders v. Williams, 1 Met. 357. 
 
 6. A party, who has been before the court of appeals with his 
 case, can not afterward maintain a bill of review to correct errors, 
 patent on the record, which were or might have been assigned 
 before. Mitchell v. Berry, 1 Met. 609. 
 
 7. An erroneous judgment, sustaining a demurrer to an indict- 
 ment for a misjoinder of offenses, will not be a bar to a subsequent 
 prosecution. Commonwealth v. Anthony, 2 Met. 403, 404. 
 
 8. In order to constitute a former judgment a bar to another 
 suit, founded on the same cause of action, it must appear to have 
 been a decision on its merits. That the petition, in the former 
 case, had been adjudged defective, and dismissed on demurrer, is 
 no bar to a subsequent suit on the same cause of action. Bii'ch v. 
 Funk, 2 Met. 547. 
 
 9. A fine for a breach of the peace, assessed under the statute 
 for suppressing riots, routs, and unlawful assemblies, and breaches 
 of the peace, is a bar to a subsequent indictment against the 
 same party for an assault and battery. Commonwealth v. Foster, 
 3 Met. 1. 
 
 10. The surety of a tavern-keeper, who was no party to a pro- 
 ceeding against the latter for a breach of his bond, is not bound by 
 the judgment of conviction, and may, when summoned to show 
 cause against a judgment against him for the amount of the fine, 
 dispute, and have retried the alleged breach. Margoley v. Common- 
 wealth, 3 Met. 406. 
 
 11. Where three makers of a note are sued, and summons served 
 on two, and judgment against them, which they afterward replevy, 
 the other defendant, as to whom the cause had been continued, can 
 not rely on the judgment and replevy in bar of a recovery against 
 him. The rule on this subject has been changed by section 399, 
 Civil Code. Burrus v. Anderson, 3 Met. 500. 
 
 12. The dismissal of one of the causes of action in a cross-bill, 
 with an express reservation as to all other matters, is not a bar to 
 such other matters when set up and relied upon in another action. 
 Harrow v. Johnson, 3 Met. 581. 
 
 13. In 1858, P., then auditor, obtained a judgment against a sheriff 
 and his sureties for over six thousand dollars, "being the balance 
 of revenue due from said sheriff for the year 1857." In 1863, G., 
 the successor of P., made a motion, in the same court, against the 
 same defendants for another judgment on an account revised and 
 changed so as to show a large;: balance for the same year. Held : 
 
254 PRATJD AND FRAUDULENT CONVEYANCES. 
 
 The latter motion was barred by the judgment of 1858. Hobson 
 V. Commonwealth, 1 Duv. 174, 175. 
 
 14. The pendency of an action against a sheriff and his sureties, 
 for a failure to collect an execution, and for a false return, is no 
 bar to a motion against them for his failure to return the execution 
 within thirty days after the return day. Sanders v. Bank Ky., 2 
 Met. 330. 
 
 15. That an action is pending in equity, to enforce a lien for a 
 balance of purchase-money due on land, is no bar to an action at 
 law, to recover judgment on the note secured by the lien. Julian 
 V. Pilcher, 2 Duv. 254. 
 
 16. M. was indicted, tried, convicted, and sentenced to the peni- 
 tentiary ; the judgment was appealed from, the indictment held 
 defective, and a subsequent indictment having been found the 
 defendant pleaded the former conviction. Held: The plea was 
 not good. Mount v. Commonwealth, 2 Duv. 94. 
 
 FEAJ^CHISE. 
 See CoapOKATioNS. 
 
 FEAUD AND PEAUDULENT CONVEYANCES. 
 
 I. What Is fraudulent as between the parties. 
 II. What is fraudulent as to creditors and purchasers. 
 
 III. Praud committed by fiduciaries. 
 
 IV. Belief against fraud. 
 
 I. WHAT IS FRAUDULENT AS BETWEEN THE PARTIES. 
 
 1. So much of a tract of land was decreed to be sold as would 
 pay a sum named in the decree, but by an arrangement between 
 the defendant's agent and a third person, it was agreed that if he 
 could buy the whole tract at the sum named in the decree, he 
 would pay to the defendant a named sum in excess of that. It 
 did not appear that this arrangement was known to the commis- 
 sioner, or that any other person was thereby prevented from bid- 
 ding — Held : That the arrangement was not fraudulent. Simral 
 V. Jacobs, 14 B. Mon. 511, 512. 
 
FRAUD AND PRATIDULENT CONVEYANCES. 255 
 
 2. A transfer by a distributee of his share of an estate, made to 
 the administrator shortly after his majority, at a very inadequate 
 price, is fraudulent. Wright v. Arnold, 14 B. Mon. 646. 
 
 3. In order to render representations, which turn out to be 
 untrue, fraudulent, they must have been known to be untrue at 
 the time they were made. Campbell v. Millman, 15 B. Mon. 
 517. 
 
 4. The chancellor will not presume that a conveyance by a wife 
 to her husband, through a third person, was fraudulent. Todd v. 
 Wickliffe, 18 B. Mon. 908. 
 
 5. For facts and circumstances deemed sufScient to show that a 
 deed was procured by fraud, see Cabell v. Cabell, 1 Met. 335. 
 
 6. A conveyance made by an unmarried w(iman pending a 
 treaty for marriage, if communicated to the intended husband at 
 any time before the marriage ceremony is performed, will not be 
 fraudulent as to the husband. Cheshire v. Payne, 16 B. Mon. 629. 
 
 7. For the facts relating to the manner in which a decree was 
 obtained, which was held to be fraudulent, see Baker v. Ghrundy, 
 1 Duv. 282. 
 
 8. A considerable over-estimate of the value of property, or the 
 attempt to insure that which is not in existence, will, if the facts 
 be concealed, be fraudulent, and render the policy void. Protection 
 Ins. Go. V. Hall & Gideon, 15 B. Mon. 429. 
 
 9. A false representation may not be fraudulent. It is not actu- 
 ally fraudulent to affirm as true that which is believed to be true. 
 The malus animus is the essential and distinctive element of actual 
 fraud. Warren v. Barker & Co., 2 Duv. 156. 
 
 II. WHAT IS ERATTDrLENT AS TO CREDITORS AND PURCHASERS. 
 
 A. In general. 
 
 B. Voluntary conveyances. 
 
 C. Mortgages, unrecorded deeds, and deeds of trust. 
 
 D. Collusion between the debtor and one or more creditors to defraud others. 
 
 E. Sales of chattels remaining in possession of the vendor. 
 
 a. In general. 
 1. If an absolute conveyance be made, and a secret trust reserved 
 for the benefit of the vendor, it is one of the strongest evidences if 
 it is not of the very essence of, fraud. Bibb v. Baker, 17 
 B. Mon. 307. 
 
256 rRATJD AND FEATJDULENT CONVEYANCES. 
 
 2. A deed, made by an embarrassed debtor, conveying every 
 article of bis property to a relative, and postponing the payment 
 of one-half of the price for five years, and not disclosing the resi- 
 due of the consideration, is fraudulent as to creditors. Bihh v. 
 Baker, 17 B. Mon. 305. " 
 
 3. The tendencj' of modern decisions is to leave the question of 
 fraud open to investigation, to be determined by all the facts 
 which tend to show the actual intention of the parties. The 
 doctrine of constructive fraud is not favorably received. Enders 
 V. Williams, 1 Met. 352. 
 
 4. If land be conveyed to an agent, which was paid for with 
 the money of his principal, it will be subject to the debts of the 
 latter. Nixon v. Jack, etc., 16 B. Mon. 183. 
 
 b. Voluntary conveyances. 
 
 1. A voluntary conveyance is fraudulent as to antecedent credi- 
 tors, but is only so as to subsequent creditors, when made with a 
 fraudulent intent. Enders v. Williams, 1 Met. 350 ; 3 J. J. Mar. 
 290 ; 5 J. J. Mar. 555 ; 4 Dana, 253. 
 
 2. There is a difference between a voluntary conveyance to the 
 grantor's children and to strangers. In the former case, where 
 there is no actual fraudulent intent, and the gift is a reasonable 
 advancement to the child, considering the donor's condition in 
 life, and there is ample estate left unincumbered for the payment 
 of debts, then the conveyance will be valid against antecedent 
 creditors. Enders v. Williams, 1 Met. 351 ; Trimble v. Ratliff, 9 B. 
 Mon. 514. 
 
 3. Purchasers have a higher equity than creditors, and a volun- 
 tary conveyance is fraudulent without actual notice. Enders v. 
 Williams, 1 Met. 251-253. 
 
 4. The burden of showing fairness in voluntary conveyances, as 
 against purchasers for a valuable consideration, without actual 
 notice, is on the voluntary grantee. Enders v. Williams, 1 Met. 
 353; Love v. Lewis, 2 B. Mon. 345. 
 
 5. Constructive notice, arising from the recording of a volun- 
 tary conveyance, will not defeat the title of a purchaser for a 
 valuable consideration, who had not actual notice. Enders v. 
 Williams, 1 Met. 353. 
 
 6. A deed of gift, made in 1856, and attested by one witness 
 only, is not valid. Overfleld v. Sutton, 1 Met. 624. 
 
 7. A voluntary conveyance by a debtor, though void as to 
 demands existing at the time of the deed, is not void on that 
 
FRAUD AND FRAUDITLENT CONVEYANCES. 257 
 
 account alone as to subsequent creditors. Todd v. Hartley, 2 Met. 
 207. 
 
 8. A voluntary conveyance is void as to that part of a debt due 
 to the creditor at the date of the deed, but valid as to that created 
 afterward, when the convej^ance was made without any fraudulent 
 intent. Todd v. Hartley, 2 Met. 207, 208. 
 
 9. A voluntary conveyance is good against a subsequent pur- 
 chaser with actual notice. HJarle v. Couch, 3 Met. 450 ; Enders v. 
 
 Williams, 1 Met. 353. 
 
 10. A conveyance, though voluntary, is not, on that account 
 alone, void as to subsequent creditors. Hurdt v. Courtenay, 4 Met. 
 143; sec. 2, chap. 40, vol. 1, p. 546, Eevised Statutes. 
 
 11. Where a husband was largely indebted, about the time of 
 making a conveyance to his wife, beyond his estate and means — 
 Held : Fraudulent as to subsequent creditors. Hurdt v. Courtenay, 
 4 Met. 143-145. 
 
 c. Mortgages, unrecorded deeds, and deeds of trust. 
 
 1. A mortgage to secure creditors is not per se fraudulent. Bull, 
 etc., V. Harris, etc., 18 B. Men. 201. 
 
 2. A conveyance, by one partner to another of his interest in 
 the partnership effects in order to secure the payment of partner- 
 ship debts and to prevent his individual creditors fi-om diverting 
 the partnership property from the payment of partnership liabili- 
 ties is not fraudulent. Talbott v. Pierce, 14 B. Mon. 198. 
 
 3. That a deed of trust stipulated that the trustee should sell 
 the property conveyed for a iair and reasonable price is no limita- 
 tion on his power, and no evidence of a fraudulent intent in the 
 execution of the deed. My, Clapp, etc. v. Hair, etc., 16 B. Mon. 
 238. 
 
 4. That the maker of a deed of trust for the payment of certain, 
 creditors stipulated that any surplus, remaining after payment of 
 these debts, should be returned to him is not evidence of a fraudu- 
 lent intent. Ely, Clapp, etc. v. Hair, etc., 16 B. Mon. 240. 
 
 5. Power giving to trustees in a deed conveying property for 
 the payment of the grantor's debts, to compromise debts owing by 
 him, does not show the deed to be fraudulent. White v. Monsarrat, 
 18 B. Mon. 814. 
 
 d. Collusion between debtor and one or more creditors to defraud others. 
 1. A mortgage secretly made and kept from record by an 
 arrangement between the mortgagor and the mortgagee, will not 
 18 
 
258 FRAUD AND FRAUDULENT CONVEYANCES. 
 
 be allowed to prevail against a general assignment for the benefit 
 of all the mortgagor's creditors. Hildehurn v. Brown, 17 B. Men. 
 782, 783. 
 
 2. When the drawee of a bill, which had been made for his 
 accommodation, after making an assignment for the- benefit of all 
 his creditors, delivered it in payment to one of them, who received 
 it with notice of the assignment — Held: The payment was fraud- 
 ulent as to the other creditors and also as to the drawer. Thomp- 
 son V. Poston, 1 Duv. 393. 
 
 e. Sale of chattels remaining in possession of the vendor. 
 
 1. That a party purchased and paid for property, and left a part 
 of it with his vendor until the next day in order to procure a con- 
 venient w&,y of removing is not per se fraudulent. Taylor v. Smith, 
 17 B. Mon. 541. 
 
 2. If personal property be sold at a fixed price, to be paid at a 
 future day, and possession given to the vendor, but until paid for 
 the title to remain in the vendee, the title does not vest in the 
 vendee until the price is paid, and the statute against fraudulent 
 conveyances will not protect an innocent purchaser. Patton v. 
 McCane, 15 B. Mon. 558. 
 
 3. A sale of growing crop of tobacco, made in August, the seller 
 to retain, cultivate and deliver it to the purchaser on the first of 
 the next March, is not constructively fraudulent as to creditors or 
 subsequent purchasers, merely because the seller retained posses- 
 sion. Robins v. Oldham, 1 Duv. 29; Gummins v. Griggs, etc., 2 
 Duv. 87. 
 
 4. "When there is an absolute sale of personal property, then 
 susceptible of a delivery, the possession must be taken by the 
 purchaser, or the sale is fraudulent per se as to creditors ; other- 
 wise, if the thing be then incapable of delivery.. Mobinsv. Oldham, 
 1 Duv. 29. 
 
 5. An absolute bill of sale of personal property, unless it bo 
 accompanied by the possession of the vendee, is fraudulent as to 
 
 ^ the creditors of the vendor, and the rule will not be changed if 
 the vendor and vendee reside together. Jarris v. Davis, 14 B. 
 Mon. 532, 533. 
 
 6. An absolute sale of personal property, not accompanied by the 
 possession, is fraudulent per se. But a conveyance, by deed of 
 trust for the payment of debts, is not an absolute sale, and it will 
 not of itself, be fraud if the possession remains with the vendor, 
 Lyon V. Fields, 17 B. Mon. 548, 549. 
 
FRAUD AND FRAUDULENT CONVEYANCES. 259 
 
 7. An absolute conveyance of personal property, whether by 
 sale or gift, and whether recorded or not, when the possession 
 remains with the grantor or donor, is fraudulent as to creditors 
 and purchasers. Enders v. Williams, 1 Met. 360. 
 
 8. But the possession of the father is the possession of his infant 
 child residing with him. Enders v. Williams, 1 Met. 350 ; Ken- 
 ningham v. McLaughlin, 3 Mon. 30; Forsythe v. Kneakbaum., 7 
 Mon. 97. 
 
 9. The doctrine, that an absolute sale of personal property 
 without a change of possession is per se fraudulent as to creditors 
 of the vendor, should not be extended beyond cases to which it has 
 hitherto been authoritatively extended. Short v. Tinsley, 1 Met. 
 405 ; Daniel v. Morrison, 6 Dana, 185. 
 
 10. Where a buggy and harness were bought at a commissioner's 
 sale, and were left by the purchaser in the possession of the former 
 owner, who afterward exchanged the buggy for another which 
 he repaired and used as his own — Held : Proof that the property 
 was his. Miles v. Edelen, 1 Dav. 270. 
 
 III. FRAUD COMMITTED BY FIDUCIARIES. 
 
 1. The doctrine of constructive fraud operates to prevent infi- 
 delity or spoliation in a class of cases embracing executors and 
 trustees, in which there may be temptation to, and facilities for, 
 rapacity and injustice. Longest v. Tyler, 1 Duv. 193. 
 
 2. A transfer, by a distributee to the administrator, of his dis- 
 tributable share of the estate, the amount of which was known to 
 the administrator, will, if the price be grossly inadequate, be fraud- 
 ulent. Wright v. Arnold, 14 B. Mon. 646. 
 
 3. It is the duty of a guardian to pay to his ward money in his 
 hands beloBging to him, and not to buy-out the ward's interest in 
 the estate; and if he does so at an inadequate price, the contract 
 will be deemed fraudulent. Wright v. Arnold, 14 B. Mon. 646. 
 
 IV. RELIEF AGAINST FRAUD. 
 
 A. As to creditors. 
 
 B. As between the parties. 
 
 a. As to creditors. 
 1. "When a security or a conveyance is set aside in equity as 
 constructively fraudulent, it is upheld in favor of one, not guilty of 
 any actual fraud, to the extent of actual consideration, and vacated 
 only as to the excess. Short v. Tinsley, 1 Met. 404. 
 
260 FRAUD AND FEAUDULENT CONVEYANCES. 
 
 2. An innocent vendee of personal property, the sale of which 
 was held constructively fraudulent because the possession remained 
 with the vendor, will be allowed a lien for the security of his pur- 
 chase-money. Short V. Tinsley, 1 Met. 406. 
 
 b. As between the parties. 
 
 1. A deed, though fraudulent, is good between the parties,- and 
 can only be impeached by creditors or purchasers. Phillips v. 
 Jamison, 14 B. Mon. 584. 
 
 2. One, who has committed a fraud, can not protect himself 
 under the statute of frauds and perjuries. Langhorn v. Payne, 14 
 B. Mon. 635. 
 
 3. A vendor of land, adversely held, is liable to his vendee for 
 any fraudulent representations in regard to the possession of the 
 the land. Graves v. Leathers, 17 B. Mon. 669. 
 
 4. One, who avows himself a participant in a transaction savor- 
 ing strongly of fraud, will not be relieved in a court of equity 
 Hildehurii v. Brown, 17 B. Mon. 783. 
 
 5. If a fraudulent deed be set aside on the application of credit- 
 ors, the vendee can not recover of the vendor the price paid for it. 
 Smead,Gollard & Hughes v. Williamson, 16 B. Mon. 533. 
 
 6. A fraudulent grantee, who has received a conveyance, and 
 possession of property conveyed, to defraud creditors, may hold it 
 against the grantor; and if the grantor gets possession, he may 
 recover it. Bibb v. Baker, 17 B. Mon. 307, 308 ; Brookover v. Hurst, 
 1 Met. 668, 669. 
 
 7. A court of equity will not interfere to relieve a mortgagor 
 from the consequences of his own fraud, nor will it aid the mort- 
 gagee in securing the enjoyment of the mortgaged property. 
 Brookover v. Hurst, 1 Met. 668, 669. 
 
 8. An agent is individually liable for a fraud committed by him, 
 although he acted throughout as agent. Campbell y. Hillman, lb' 
 B. Mon. 515. 
 
FKAUDS AND PERJURIES — STATUTE OF. 261 
 
 PEAUDS AND PEEJUEIES— STATUTE OF. 
 
 I. What is a sufficient signing. See Wills. 
 II. What cases are within the statute. 
 III. When contracts within the statute are available as a defense. 
 
 II. WHAT CASES ARE WITHIN THE STATUTE. 
 
 A. In general. 
 
 B. Ratification of contracts made in infancy. 
 
 C. To answer for the debt, etc., of another. 
 
 D. For the sale of real estate. 
 
 E. Agreements not to be performed within a year. 
 
 F. Loan, and possession by one who is not owner. 
 
 a. In general. 
 
 1. A verbal, antenuptial contract, in reference to the property of 
 the wife, is within the statute. Potts v. Merrett & Potts, 14 B. Mon. 
 407. 
 
 2. A debtor conveyed lands to his creditor, and took a power of 
 attorney authorizing him to sell, and also a deed of defeasance, 
 by which the creditor undertook to reconvey whatever land re- 
 mained after the payment of his debts. Before the debts were all 
 paid, the creditor died ; when, by consent, a decree was procured to 
 sell the land to pay the balance due. By a parole agreement be- 
 tween the debtor and administratrix of the creditor, she was to 
 buy all the land at the decretal sale, and hold it on the same terras 
 that her intestate had held it. Held: That this agreement was 
 not within the statute, and after the payment of the debts the 
 debtor was entitled to a reconveyance of whatever land remained. 
 Langhorn v. Payne, 14 B. Mon. 635. 
 
 3. One who purchased land at a decretal sale, at about one-third 
 its value, stated that he made the j)urchase for the benefit of 
 the defendant, and being applied to by a brother of the defend- 
 ant, received his money and transferred his purchase to the brother, 
 with the understanding that he was to hold it for the defendant. 
 The land was subsequently conveyed to the transferee, who refused 
 to allow the defendant to redeem. Held : That to allow him to 
 hold the land Would be to convert the statute of frauds into an 
 instrument of fraud and oppression, and that the land might be 
 redeemed on equitable terms. Martin v. Martin, 16 B. Mon. 14, 15. 
 
 4. It is not necessary to the validity of a written contract that 
 it should express a consideration; it may be proved when neces- 
 
262 FRAUDS AND PERJURIES — STATUTE OF. 
 
 sary, or disproved by parole or other evidence. Steadman v. Guth- 
 rie, 4 Met. 153; sec. 1, chap. 22, p. 264, vol. 1, Eevised Statutes. 
 
 b. Ratification of contract made in infancy. 
 
 1. Does section 1, chapter 22, page 264, volume 1, Eevised Stat- 
 utes, which declares that "no action shall be brought to charge 
 any person upon a promise to pay a debt, contracted during infan- 
 cy, or a ratification of a contract or promise made during infancy, 
 unless the promise or ratification, or some memorandum or note 
 thereof be in writing," apply to such a promise to perform a con- 
 tract not for the payment of a debt made during infancy, or an 
 acknowledgment by the defendant, that after coming of age he 
 had performed an act of ratification ; or to such acts of ratifica- 
 tion as a refusal, by a defendant after coming of age, to rescind a 
 contract made during infancy, when applied to for that purpose 
 by the other party? Stern v. Freeman, 4 Met. 314. 
 
 2. A writing, showing that one had performed an act ratifying 
 a contract made by him when in infancy, is as effective as one 
 containing an express ratification. Stern v. Freeman, 4 Met. 315, 
 316. 
 
 3. When a writing, addressed to one other than the plaintiff, is 
 relied on, not as constituting a ratification, or containing a prom- 
 ise, but merely as evidence of a ratification previously made by 
 the defendant, it is entitled to the same weight as if it had been 
 addressed to the plaintiff. Stern v. Freeman, 4 Met. 315, 316. 
 
 4. If, in an action on a note, the defendant pleads that it was 
 executed while he was an infant, the plaintiff need not reply, or 
 amend his petition in order to prove and avail himself of a subse- 
 quent ratification. Stern v. Freeman, 4 Met. 313. 
 
 c. To answer for the debt of another. 
 
 1. No judgment can be rendered on a promise to answer for the 
 debt of another, unless it appears to have been in writing. Smith 
 V. Fah, 15 B. Mon. 445, 446; Hocker v. Gentry, 3 Met. 474. 
 
 2. A parole promise by a third person, that if the plaintiff, 
 who had sued out and levied an attachment, and thereby secured 
 his debt, would discharge the attachment and release the property, 
 he would pay one-half of the debt sued for, is within the statute, 
 and can not be enforced. Leiber Griffin & Go. v. Levy, 3 Met. 294. 
 
 3. A promise, made to a debtor by a third person, on sufficient 
 consideration to pay a debt or hold the debtor harmless against 
 it, is not within the statute as being a promise to pay the debt of 
 
FRAUDS AND PERJURIES — STATUTE OP. 263 
 
 another. That provision of the statute only applies to a promise 
 to one to whom another is bound. North v. Robinson, 1 Duv. 73. 
 
 4. Our statute of frauds embraces every case of false representa- 
 tion respecting the credit or identity of another, which is untinged 
 by fraud, and no action can be maintained on it unless it is in 
 writing; but it is otherwise if the representation be actually 
 fraudulent. Warren v. Barker & Co., 2 Duv. 156. 
 
 d. For the sale of real estate. 
 
 1. A contract, by which one person agrees to buy land for 
 another, is within the statute. Hooker v. Gentry, 3 Met. 474; Par- 
 ker V. Bodley, 4 Bibb, 102; Griffin v. Coffee, 9 B. Mon. 452. 
 
 2. A parole promise to convey land is not void, and the contract 
 can not be rescinded by the vendee, if the vendor is willing to 
 to convey. Cheshire v. Payne, 16 B. Mon. 630; Hill v. Spalding, 1 
 Duv. 219 ; Harrow v. Johnson, 3 Met. 583. 
 
 3. The law will not permit a plaintiff to take advantage of the 
 statute of frauds, for the purpose of committing a fraud on the 
 defendant. Harrow v. Johnson, 3 Met. 583; Martin v. Martin, 16 
 B. Mon. 14, 15; 3 Mon. 170; 2 J. J. Mar. 2^; 4 J. J. Mar. 570. 
 
 4. A contract for the sale of standing trees, in contemplation of 
 their immediate separation from the soil, is not within the statute 
 relating to contracts for the sale of land. Byasse v. Reese, 4 Met. 
 373; Gain j. McGuire, 13 B. Mon. 340. 
 
 5. A parole agreement by an executor to whom land had been 
 devised to be sold for the payment of debts, to give the widow of 
 the testator a part of the land for life, in consideration of a release 
 by her of dower in the residue, is not void; and if the widow be in 
 possession, she can not be disturbed. Harrow v. Johnson, 3 Met. 583. 
 
 6. A vendor who sues on notes given for the purchase-money of 
 land sold by parole, will be entitled to judgment on tendering a 
 good title. Hill v. Spalding, 1 Duv. 219, 220. 
 
 7. A sale of land under the judgment of a court is not within 
 the statute, and no written memorandum is necessary to the 
 validity of the sale. Watson v. Violett, 2 Duv. 333. 
 
 e. Agreements not to be performed within a year. 
 1. B. induced G., who had married his niece, not to remove to 
 Mistissippi, as he had intended, and promised, in consideration that 
 he would not move, but buy a farm and remain in Kentucky, to give 
 him five thousand dollars toward paying for the farm. B. subse- 
 quently paid two thousand dollars of the money, and died without 
 
264 
 
 FRAUDS AND PERJURIES — STATUTE OP. 
 
 paying the residue or executing a written promise to do so, and Gr. 
 administered on his estate. Held: That although the agreement 
 not being to be performed within a year, was within the statute, 
 yet, there being enough to pay the debts, G. might retain the 
 balance due him. Berry v. Graddy, 1 Met. 557, 558. 
 
 2. A verbal agreement not to be performed within a year is 
 valid for many purposes, though no action can be maintained to 
 enforce it. Berry v. Graddy, 1 Met. 557, 558. 
 
 /. Loan, and possession by one who is not owner. > 
 
 1. If personal property be held by the loanee more than five 
 years without record evidence of the loan, purchasers from him 
 will acquire a valid title, and the property will be subject to sale 
 under execution against the loanee. Neal v. Elliott, 18 B. Mon. 
 610. 
 
 2. But when the possession of the loanee is less than five years, 
 the purchaser acquires no title; and can not make up the statutory 
 bar by adding the time of his own possession to that of the loanee. 
 NealY. Miott, 18 B. Mon. 610. 
 
 III. WHEN CONTRACTS WITHIN THE STATUTE ARE AVAILABLE AS A 
 
 DEFENSE. 
 
 1. A verbal agreement not to be performed within the year, 
 may be a valid defense, and one, having in his hands as adminis- 
 trator money belonging to his intestate, may, if the intestate owed 
 him on such an agreement, hold as much as is equal to his debt, 
 other creditors having been first paid. Berry v. Graddy, 1 Met. 
 557, 558. 
 
 2. A widow, who is in possession of land set apart to her as 
 dower by the executor, who had power to sell the testator's lands 
 for the payment of debts, may hold it, although the agreement by 
 which she holds it is in parole. Harrow v. Johnson, 3 Met. 583. 
 
 3. A vendee, who is sued on notes given for the price of land 
 bought by a verbal contract, can not, if he is in possession of the 
 land, defeat a recovery on the ground that the contract of sale 
 was not in writing, but his possession will uphold the action. 
 mil V. Spalding, 1 Duv. 217-219. 
 
 4. In such a case, the vendee's only remedy is by a suit in 
 equity for a rescission and restitution of any money he may have 
 paid ; and if, in such a suit, a valid title can not be had, he will 
 be entitled to a rescission, and a perpetual injunction against the 
 judgment for the purchase-money ; but if a valid title be ten- 
 dered, it will defeat his action. Hill v. Spalding, 1 Duv. 219. 
 
GAMING. 265 
 
 GAMING. 
 
 I. Gaming contracts. 
 II. The offense of gaming. 
 
 III. Permitting gaming. 
 
 IV. Setting up tables, machines, etc., used in gaming. 
 V. Eecovery of money bet and lost in gaming. 
 
 I. GAMING CONTRACTS. 
 See Contracts, sub-title Validity. 
 
 II. THE OFFENSE OF GAMING. 
 
 1. A bet on the result of an election is not gaining within the 
 meaning of the statute. Love v. Harris, 18 B. Mon. 125. 
 
 2. The betting of treats, cigars, etc., on games of chance, is 
 gaming within the meaning of the statute ; the amount or value 
 of the thing played for is not material. Marston v. Commonwealth, 
 18 B. Mon. 491. 
 
 3. The statute of 1858, sections 1, 2, chapter 42, volume 1, p. 
 572, Eevised Statutes, defines an offense consisting of two degrees : 
 1. Against ' any white person, who shall play with any negro or 
 mulatto any game whatever, whereby money or other thing of 
 value is bet, won, or lost; and, 2. Against any white person, who 
 shall play at any such game with a negro or mulatto, whether 
 anything be bet, won, or lost, or not; and in order to convict of 
 the first offense, it is only necessary to show that money or other 
 thing of value was bet, won, or lost, without regard to the amount 
 or value. Commonwealth v. Garland, 3 Met. 480. 
 
 ni. PERMITTING GAMING. 
 
 1. A person, who knowingly permits games, at which liquor, 
 cigars, or treats, are won and lost, to be played in his house, 
 subjects himself to the penalty denounced by section 10, chapter 
 42, p. 565, volume 1, Eevised Statutes. Marston v. Commonwealth, 
 18 B. Mon. 491. 
 
 2. One, who permits gambling or betting on a bagatelle table, 
 or other machine or contrivance, in his house, or on his premises, 
 though they are ordinarily used for amusement only, will he 
 liable for permitting gaming. Bitte v. Commonwealth, 18 B. Mon. 
 41. 
 
266 
 
 GAMING. 
 
 IV. SETTING UP TABLES, MACHINES, ETC., USED IN BETTING. 
 
 1. In order to convict one of setting up, exhibiting, or keeping 
 "a gaming table, machine, or contrivance used in betting," it must 
 be shown that the table, machine, or contrivance set up by the 
 defendant was such as is ordinarily used for gambling purposes. 
 Bitte V. Commonwealth, 18 B. Mon. 41. 
 
 2. A bagatelle table, chess, or backgammon boards, or dominoes, 
 is not such a table, machine, or contrivance, as is referred to in 
 the statute. Ritte v. Commonwealth, 18 B. Mon. 41. 
 
 3. A coffee-house keeper, who sets up a faro bank in his coffee- 
 house, is liable to indictment and punishment, and it would seem 
 that to set it up in a house convenient thereto, would be within 
 the statute. Buford v. Commonwealth, 14 B. Mon. 27. 
 
 4. "When a faro-bank is proven to have been set up in a house, 
 over which the defendant had control, the law presumes it was 
 done by his permission. Buford v. Commonwealth, 14 B. Mon. 28 ; 
 sec. 7, chap. 42, p. 564, vol. 1, Eevised Statutes. 
 
 5. A tavern-keeper who, in good faith, rents a room in his house 
 to be used as a bed-room, over which he has no control, is not 
 responsible, if, without his knowledge, it is used by a lessee of his 
 tenant to set up a faro bank. Commonwealth v. Watson, 2 Duv. 
 408. 
 
 v. RECOVERY OF MONEY BET AND LOST IN GAMING. 
 
 1. The statute, authorizing money or property lost at gaming to 
 be recovered back of the winner, secures to the loser and his 
 creditors the right to sue for the lost money or property for five 
 years, and the exclusive right to do so for six months, after which 
 any other person may sue, and the one first suing has the prefer- 
 ence. Barnes v. Turner, 4 Met. 117. 
 
 2. If the loser or his creditors sue, the recovery will only be for 
 the amount lost, and will be for the sole benefit of the loser or his 
 Creditors whichever sues. If any other person sues, the recovery 
 will be treble the amount won, one-half for the use of the plaintiff, 
 and the other for the Commonwealth. Barnes v. Twrner, 4 Met. 117. 
 
 3. If one, having a right to sue for money lost at gaming, before 
 any suit is brought, settles the matter with the winner by private 
 arrangement, in good faith, and not as a device to avoid the statute, 
 such settlement will be a valid defense to a suit by a stranger. 
 Barnes v. Turner, 4 Met. 117. 
 
 GAENISHEB. 
 
 See Attachment. 
 
GirTS. 267 
 
 GIFTS. 
 
 1. Gifts inter vivos. 
 II. Gifts causa mortis. 
 
 I. GIFTS INTER VIVOS. 
 
 1. A father conveyed to his son a tract of land in consideration 
 that the son would support him, and pay to his grandson six hun- 
 dred dollars; subsequently the father agreed to release his son from 
 his obligation to support him, and to pay the six hundred dollars, in 
 consideration that the son would convey back to him a part of 
 the land. Held: On suit by the grandson that the gift having 
 been executed, the donor had no power to revoke it, and that the 
 plaintiff must recover. Gault v. Trumbo, 17 B. Mon. 684. 
 
 2. A parole gift of land is not void, and although it will not be 
 enforced by the positive action of the chancellor, the duties and 
 equities growing out of it are recognized, and will be sufS.cient to 
 rebut* any demand of the donor inconsistent with them. Ford v. 
 Ellingwood, 3 Met. 363. 
 
 3. A father wrote to his son, saying; " If you will settle yourself 
 on the Gayer farm, you may have it." The son took possession, 
 and cleared and improved the land. The father was then worth 
 thirty -five thousand dollars, and had six children ; the Gayer farm 
 contained four hundred and thirty-three acres, and was worth 
 seven or eight dollars per acre. Fourteen or fifteen years after- 
 ward, the father died, and the other children and a second wife, to 
 whom the father was married after the date of the letter to the 
 son, sued for dower and partition of the "Gayer farm," with other 
 lands. Held: The son was entitled to hold the land, accounting 
 for its value at the time he received it, as an advancement. Ford 
 V. Ellingwood, 3 Met. 363, 364. 
 
 4. It is necessary to the validity of a gift inter vivos, that there 
 should be a delivery to the donee, and that the property in the 
 thing given should immediately pass and be irrevocable by the 
 donor. Knott v. Hogan, 4 Met. 102; Duncan v. Duncan, 5 Litt. 12. 
 
 5. Money was loaned and a note taken, payable twelve months 
 after date, and the obligee at the same time executed to the obligor 
 a paper stipulating in substance, that if she died before the note 
 was collected, it should be surrendered by her executor without 
 being collected as she intended it as a gift. Held: This was not 
 a valid gift. Knott v. Hogan, 4 Met. 100-102; Duncan v. Duncan, 
 
268 GRAND JURT. 
 
 5 Litt. 12; Walden v. Dixon, 5 B. Mon. 170; Brown v. Brown, 4 B. 
 Mon. 538. 
 
 6. W. sold land to H. which waB, by agreement, conveyed to the 
 wjfe and children of the latter. The consideration of the sale was 
 an assumed claim of H. to a slave in Virginia. It turned out that 
 the claim of H. was of no value — Held: That, as between the 
 creditors of H. and his wife, the land was a substantial gift by W. 
 to them. Hanhy v. Logan, 1 Duv. 242 ; Doyle v. Harper, 1 Dana, 536. 
 
 II. GIFTS CAUSA MORTIS. 
 
 1. A promissory note, payable to the donor, is a proper subject of 
 a gift causa mortis, and will pass by delivery without an assign- 
 ment ; and in such a case, the wife may be the donee. Turpin v. 
 Thompson, 2 Met. 421. 
 
 2. A father, in his last illness and in contemplation of death, 
 which ensued in a few days, executed a writing, giving specific 
 portions of his estate to certain children and grandchildren and 
 deliver the writings to two sons, whom he charged with the exe- 
 cution of the trust, and to whom he also delivered the property 
 given. Held: It was a valid gift cawsa mortis. Kemper y. Kemper, 
 1 Duv. 402. 
 
 GEAISTD JUET. 
 
 1. The Summoning of bystanders as grand jurors is a duty, in 
 the performance of which the accused in a criminal cause is en- 
 titled to the services of the sheriiF, or of the coroner when there is 
 no sheriff, and if bystanders, summoned by one appointed by the 
 court for the purpose, compose part of the grand jury, the indict- 
 ment should be quashed. Commonwealth v. Graddy, 4 Met. 223. 
 
 2. Section 194 of the Criminal Code, which authorizes the court 
 to designate some officer or person other than the sheriff to sum- 
 mons jurors, relates to petit, and not to grand, jurors. Gommon- 
 wealth V. Graddy, 4 Met. 224. 
 
 3. When the grand jury is composed of jurors, selected by com- 
 missioners as directed by the Eevised Statutes, the court say they 
 incline to the opinion, that the summoning of them, by a person 
 other than the sheriff or coroner, would not be a substantial error. 
 Commonwealth v. Graddy, 4 Met. 224. 
 
 4. It is the duty of the grand jury to report on cases submitted 
 to them ; and if they fail to do so, the defendant should be discharged 
 and his surities released, unless the court, for good cause shown, 
 should otherwise direct. Bion v. Commonwealth, 1 Duv. 236. 
 
GUARANTY. 269 
 
 GEOWING CEOP. 
 
 [Note. — Whether the sale of growing crop not yet matured, is fraudulent 
 as to creditors and purchasers, see Fraud and Fraudulent Conveyances.^ 
 
 If one obtains restitution of premises held by another, whose 
 possession was lawful, and takes possession of and appropriates the 
 growing crop, he will be liable for its value. Tinsley v. Tinsley, 
 15 B. Mon. 460, 461. 
 
 GUAEANTY. 
 
 I. Generally. 
 II. Continuing guaranties. 
 III. Limited guaranties. ' 
 
 IV. Notice of acceptance. 
 
 I. GENERALLY. 
 
 1. Courts are inclined to give guaranties a liberal, rather than a 
 restricted, construction. Lowe & Co. v. Beckwith, 14 B. Mon. 188. 
 
 2. If a guarantor takes a mortgage for his indemnity, the holder 
 of the debt guaranteed may proceed to subject the mortgaged pro- 
 perty to the payment of the debt, and the guarantor being made a 
 party, the mortgage may be foreclosed, although he does not ask 
 it. Gofn'rs Sinking Fund v. Northern Bank Ky., 1 Met. 191. 
 
 3. When a guaranty is designed only for Such as forbear to with- 
 draw their deposits from a banker, and is executed in consideration 
 of such forbearance, to be given by the several depositors, it is not 
 necessary, in order to render the guarantors liable to such as do 
 forbear, that all should have done so. Steadman v. Guthrie, 4 
 Met. 155, 156. 
 
 4. If a guaranty is given in consideration, that the several 
 depositors would forbear to demand their deposits, the giving of 
 forbearance is a sufficient consideration to uphold the undertak- 
 ing of the guarantors. Steadman v. Guthrie, 4 Met. 155, 156. 
 
 5. If the consideration for a guaranty is the giving of forbear- 
 ance to a banker during a panic, or until he can conveniently 
 pay, his failure a few days afterward dispenses with the necessity 
 for further forbearance, and the forbearance until that time is a 
 sufficient consideration to support the contract. Steadman v, 
 Guthrie, 4 Met. 156. 
 
 6. If one, who signs his name in blank on a note, intends to 
 become bound as a guarantor, there is an implied authority to a 
 
270 
 
 GUARANTY. 
 
 holder to write words of guarantee above his name. "Whether he 
 intended to be bound as a guarantor may be proved by parole 
 testimony. Levi v. Mendell, 1 Duv. 80. 
 
 7. The assignment of a note on which a guaranty is indorsed, 
 only passes to the assignee an equitable title to the guaranty. 
 Levi V. Mendell, 1 Duv. 79. 
 
 8. Where a guaranty is to pay a debt, or in case of default of 
 the principal debtor the guarantor will perform his undertaking, 
 there is no obligation on the debtor to demand payment of the 
 principal. Lowe & Co. v. Beckwith, 14 B. Mon. 190. 
 
 II. CONTINUING GUARANTIES. 
 
 A guaranty contained these words : "J. B. M. being about to 
 commence retailing dry goods, I hereby undertake and contract 
 with L. & Co., to become responsible to them for the amount of 
 any bill, or bills, of merchandize sold by them to M., agreeably to 
 the terms of sale agreed upon by the parties, without requiring 
 L. & Co. to prosecute suit against said M. therefor." Held: This 
 was a continuing guaranty. Lowe & Co. v. Beckwith, 14 B. Mon. 
 188. 
 
 III. LIMITED GUARANTY. 
 
 Although the words "any goods" in a guaranty may import, 
 when unqualified by any restriction, goods bought at any time, to 
 any amount ; yet, if it clearly appears from the whole paper that 
 the guarantor was not to be liable beyond a given sum for any 
 goods sold at any time, the guaranty will be limited to that amount 
 for goods sold at any and all times. Wilde & Co. v. Haycraft, etc. 
 2 Duv. 309. 
 
 IV. NOTICE OP ACCEPTANCE. 
 
 1. One, who gives a continuing guaranty and is notified of its 
 acceptance, has no right to notice of successive sale. Lowe & Go. 
 V. Beckwith, 14 B. Mon. 190. 
 
 2. Notice to a guarantor of the failure of the principal to pay 
 when the debt falls due, and demand of pajmient of the guarantor, 
 are not necessary. Lowe & Co. v. Beckwith, 14 B. Mon. 194. 
 
 3. When an offer is made to guarantee a debt for which another 
 is primarily liable, in consideration of some act to be performed 
 by the creditor, mere performance of the act is not sufficient to 
 fix the liability of the guarantor, but the creditor must notify him 
 of his acceptance of the offer or of his intention act upon it. Stead- 
 man V. Guthrie, 4 Met. 197; Eincheloe v. Holmes, 7 B. Mon. 5; Bell 
 & Terry v. Kellar, 13 B. Mon. 381 ; Lowe & Co. v. Beckwith, 14 B. 
 Mon. 184. 
 
GUARDIAN AND WAED. 271 
 
 4. A guarantor of a note payable at a specified time and place, 
 is not entitled to notice of non-payment. Levi v. Mendell, 1 Duv. 
 81.. 
 
 GUAEDIAN AD LITEM. 
 
 See Infants. 
 
 GUAEDIAN AND "WAED. 
 
 1. Appointment and removal of guardians. 
 II. Kelation of guardian and ward. 
 
 III. Liabilities of guardians. 
 
 IV. Fraud and undue influence of guardian. 
 V. Eights of foreign guardians. 
 
 I. APPOINTMENT AND REMOVAL OF GUARDIANS. 
 
 1. A contract, by whicli a guardian agrees to resign his office 
 that the other contracting party may be appointed, in order to 
 get control of the person and estate of the ward, is against public 
 policy and void. Cunningham v. Cunningham, 18 B. Mon. 24, 
 25. 
 
 2. The county courts have power to appoint guardians to 
 minors, who are free persons of color. Clinkenbeard v. Clinken- 
 beard, 3 Met. 331. 
 
 3. Th^ same order of precedence, in the right to be appointed 
 guardian, applies in the case of free children of color as in other 
 cases. Clinkenbeard v. Clinkenbeard, 3 Met. 331. 
 
 4. A guardian, who acquires or claims an interest antagonistic 
 to that of his ward, or fails to perform all his duties as guardian, 
 or does other things, which show him to be unsuited to a faithful 
 discharge of his trust, should be removed. Windsor v. McAtee, 2 
 Met. 432, 433. 
 
 5. iNo person, other than a parent, can appoint a guardian by 
 will ; section 2, article 1, chapter 43, p. 574, vol. 1, Eevised Statutes. 
 But any other testator may appoint a trustee to take charge of a 
 bequest made to infants. Bush v. Bush, 2 Duv. 271. 
 
 II. RELATION OF GUARDIAN AND WARD. 
 
 1. A note, payable to the guardian of an infant, will not be 
 saved from the running of the statute of limitations by the in- 
 fancy of the ward. Edwards v. Woolfolk, 17 B. Mon. 381 ; Cole- 
 man V. Walker, 3 Met. 67. 
 
272 GTTARDIAN AND WAED. 
 
 2. A court of chancery has power, on the application of wards 
 who are hired out by their guardian, in violation of his duty, to 
 grant relief Glinkenbeard y. Clinkenbeard, 3 M.et. ciii2; Graham y. 
 Kinder, 11 B. Mon. 62. 
 
 3. A ward will not be bound, as by election to take under a will, 
 by the fact that the guardian received property given the ward 
 by the will. Tomlin v. Jayne, 14 B. Mon. 163. 
 
 III. LIABILITIES OF GUARDIAN. 
 
 A. Generally. 
 
 B. Settlement of accounts, 
 
 a. Generally. 
 
 1. Where th« penalty in a guardian's bond was less than the 
 amount due to the ward, when the breach of the bond occurred — ■ 
 Held: The sureties in the bond were liable to the ward for in- 
 terest, on the amount of the penalty, from the date of the breach 
 until it was paid, and that a breach occurred on the failure of the 
 guardian to pay on the arrival of the ward at full age. Carter v. 
 Thorn, 18 B. Mon. 619, 620. 
 
 2. A guardian, appointed in Kentucky, will, with his sureties, 
 be liable to the ward for money received by the guardian in 
 another State. McDonald v. Meadows, 1 Met. 508, 509. 
 
 3. The mother of wards can not recover of the guardian, who 
 had hired them out, the proceeds of their hire. Clinkenbeard v. 
 Glinkenbeard, 3 Met. 332. 
 
 4. A guardian who permits the funds of his ward to become 
 intermingled with his own, will be responsible if the fund is lost, 
 Clay V. Clay, 3 Met. 552; Jennings v. Davis, 5 Dana, 133. 
 
 5. If a guardian loan the funds of his ward without exacting 
 security, he is liable for any loss that may occur ; although the 
 person to whom it was loaned was then reputed solvent and had 
 considerable estate. Clay v. Clay, 3 Met. 553, 554. 
 
 6. One who received money for his late ward, a few days after 
 the guardianship ceased, the ward continuing to be one of his 
 household, and he still retaining the practical relation of curator, 
 will not be protected by the statute of limitations, against the claim 
 of the ward for the money. Hayden v. Stone, 1 Duv. 398. 
 
 b. Settlement of accounts. . 
 1. A settlement, made by a county court with a guardian, may, 
 if his estate be insolvent, be surcharged . by his creditors in a suit 
 
GUARDIAN AND WAED. 273 
 
 for the settlement of his estate. Alsop's Creditors v. JBarbee and 
 wife, 14 B. Men. 525. 
 
 2. A guardian may, under peculiar circumstances, be allowed to 
 charge his ward, who has lived in his family, for board and lodging, 
 deducting therefrom whatever the labor of the ward may have 
 been worth. Alsop's Creditors v. Barbee and wife, 14 B. Mon. 526. 
 
 3. If the guardian has a large interest with his ward in a slave, 
 and sell the slave, he should be charged with the value of the 
 ward's interest, and compound interest at biennial rests, and not 
 with the annual hire and interest on that. Alsop's Creditors v. 
 Barbee and wife, 14 B. Mon. 528. 
 
 4. The estate of a ward, remaining in the hands of an insolvent 
 guardian at his death, must be paid in full before a pro rata divis- 
 ion can be had among the general creditors; and creditors of the 
 ward have a right, in equity, to be substituted to the rights of the 
 ward, if their claims are of such a character as, had they been 
 paid by the guardian, would have entitled him to a credit on the 
 settlement of his accounts. White v. Carico, 2 Met. 233, 234. 
 
 5. If a guardian makes an assignment in trust for the benefit of 
 all his creditors alike, the ward will not be entitled, under the 
 statute of 1856, to be paid in full. Hampton v. Morris & Eodman, 
 2 Met. 338. 
 
 6. Only current interest should be charged against a guardian 
 after his ward arrives at full age. Clay v. Clay, 3 Met. 555. 
 
 7. When the domestic services of a female ward are worth as 
 m.uch as her board, nothing should be allowed the guardian on 
 that account. Nov will the law imply a legal liability for board 
 after the ward arrives at full age. Hayden v. Btone, 1 Duv. 
 400. 
 
 8. It is too late for a guardian, for the first time, to ask compen- 
 sation for his services, on filing a bill of review, when no claim 
 had been set up in the original case, and no exceptions made to the 
 commissioner's report for not allowing compensation. Johnson v. 
 Chandler, 15 B. Mon. 591. 
 
 IV. FRAUD AND UNDUE INFLUENCE OF GUARDIAN. 
 
 1. A guardian, who was also administrator of the estate of his 
 ward's ancestor, will not be permitted to hold the interest of his 
 ward, which he bought shortly after the ward arrived at age, at a 
 greatly inadequate price. Wright v. Arnold, 14 B. Mon. 646. 
 
 2. Courts of equity view with jealousy all contracts made be- 
 tween parties occupying fiducial relations ; and in such case, the 
 
 19 
 
274 
 
 HABEAS CORPUS. 
 
 onus of proving fairness lies on the fiduciary, and lie must show 
 the utmost fairness. Richardson v. Spencer, 18 B. Mon. 465. 
 
 3. A receipt, given by a ward to his guardian, very shortly after 
 the former arrived at full age, will not be allowed in a court of 
 equity, to constitute an absolute bar, when the ward was ignorant 
 of his rights, and would thereby be deprived of what is justly 
 due him. Clay v. Clay, 3 Met. 552. 
 
 V. EIGHTS OF FOREIGN GUARDIANS. 
 
 1. A foreign guardian, who shows by record evidence that he 
 has qualified in another State, and given bond, and that his ward 
 resides where he qualified, may compel a guardian of the same in- 
 fant in this State to pay over to him money belonging to their 
 ward. Martin v. McDonald, 14 B. Mon. 548. 
 
 2. A foreign guardian, who has given ample bond, will be enti- 
 tled to recover from the administrator of his ward's ancester, money 
 due the ward in this State, and may remove it to the State where 
 the ward resides. Bates v. Culver, 17 B. Mon. 162, 163. 
 
 3. A guardian, appointed for a ward then residing in this State, 
 whose ward has, with his knowledge or consent, been removed 
 from the State, will be compelled, on the application of a guardian 
 appointed in the State of the ward's new domicil, to surrender, 
 for removal to the latter place, any estate in his hands. Bwayzee v. 
 Miller, 17 B. Mon. 565, 566. 
 
 HABEAS COEPUS. 
 
 No appeal lies to the court of appeals from an order made on the 
 hearing of a writ of habeas corpus. Weddington v. Sam. Sloan, 15 
 B. Mon. 153. 
 
 HABEEE FACIAS POSSESSIONEM. 
 
 To turn out the defendant and put the plaintiff in possession 
 under circumstances which indicate, beyond a reasonable doubt, 
 that the latter can not remain in possession even for a day, with- 
 out imminent peril of great bodily injury or perhaps loss of life, but 
 must, to avoid such hazard, immediately abandon the possession to 
 the defendant, who stands ready to re-enter and does re-enter, 
 on the same day, is not a complete execution of the -writhabere facias; 
 
HEIRS. 275 
 
 and, on the fact being made to appear, the court should award an 
 alias writ; even though the officer had indorsed the first writ 
 "executed." Gresham v. Thum, 3 Met. 287, 288. 
 
 HEIES. 
 
 I. Who are heirs, and how they take. 
 II. Their rights and liabilities. 
 III. "When "heirs" is a word of limitation, and when a word of purchase. 
 
 I. WHO ARE HEIRS, AND HOW THEY TAKE. 
 
 1. The word "heirs," in its strict technical sense, denotes the 
 person on whom, at the death of the ancestor, the law casts the 
 inheritance. Williamson v. Williamson, 18 B. Mon. 367. 
 
 2. The brothers and sisters of a deceased infant take by descent 
 from the infant as collaterals and not from the ancestor as lineals. 
 Talbott V. Talbott, 17 B. Mon. 9. 
 
 3. A testator devised to his widow one-third of his lands for life ; 
 and, at her death, that devised to her with his other lands to go to 
 certain devisees, part only of whom were his heirs at law — Held : 
 That during the lifetime of the widow the heirs at law took that 
 part of the land devised to those, who were not heirs by descent. 
 Moxley v. Moxley, 18 B. Mon. 174, 175. 
 
 4. The word "heirs," when used alone by a testator, without any 
 other expression going to show that it was not used in its legal 
 sense, must be understood as being so used by him. Williamson v. 
 Williamson, 18 B. Mon. 371 ; Allen v. Vanmeter, 1 Met. 277. 
 
 5. The words "heirs of the body" embrace descendants existent 
 at every period ; the word "children'' is generally held only to 
 embrace immediate descendants. Johnson v. Johnson, 2 Met. 335; 
 Churchill V. Churchill, 2 Met. 469. 
 
 6. The words "if he die without issue," or "without leaving 
 issue or heirs of his body," or words of similar import, are tobe 
 interpreted according to their plain, popular, and natural meaning 
 as referring to the time of the person's death, unless the contrary 
 intention is plainly expressed in the will, or is necessary to carry 
 out its undoubted purj)ose. Daniel v. Thompson, 14 B. Mon. 672. 
 
 7. The term "heirs" in a will should be interpreted according to 
 the subject-matter when there is no other clue to its interpretation. 
 If the subject be realty, the term should be understood in its tech- 
 nical import; and if the subject be personalty, the same term should 
 
276 HEIRS. 
 
 be held as importing distributee, or successor. Clay v. Glay^ 2 
 Duv. 296. 
 
 8. The successors to personal estate can not take as " heirs " in the 
 technical sense. Clay v. Clay, 2 Duv. 296. 
 
 II. THEIR RIGHTS AND LIABILITIES. 
 
 1. The heirs of one, who warrants the title to land, can not re- 
 cover the land thus warranted, although they may hold a better 
 title than that held by the ancestor, if they have received from 
 such ancestor by devise, descent or distribution assets or estate 
 equal to the value of the land. Grimes v. Bedman, 14 B. Mon. 236 ; 
 Todd V. Todd, 18 B. Mon. 166; Nunnally v. White, 3 Met. 590; sec. 
 18, chap. 80, p. 229, vol. 2, Eevised Statutes ; Lane v. Berry, 2 Duv. 
 283. 
 
 2. If a husband and wife convey lands, the inheritance of the 
 wife, and after their death the heirs of the wife, who are also 
 heirs of the father, sue for the land but fail to recover because 
 they have received assets from the estate of their father equal to 
 the value of the land, it will be regarded in equity as a substantial 
 breach of the covenant of warranty, which, being satisfied by the 
 heirs, will entitle them to recover the amount of the executor of 
 their ancestor. Todd v. Todd, 18 B. Mon. 166. 
 
 3. Heirs have a right to be made parties in a suit against the 
 personal representative of their ancestor on a note, when it 
 appears either that the personal representative can not or will not 
 make defense. Gibson v. Higdon, 15 B. Mon. 209; Lusk Y.An- 
 derson, 1 Met. 428. 
 
 4. An heir-at-law may compel one, claiming under a void devise, 
 to release his claim. Taylor v. Emhry, 16 B. Mon. 340, 341. 
 
 5. Heirs are not liable on their ancestor's covenant of warranty, 
 unless there are no assets or not enough in the hands of his per- 
 sonal representative. Hill v. Golden, 16 B. Mon. 555. 
 
 6. If the value of the lands of the wife, sold by the husband, has 
 been expended on other lands of the wife and her heirs, on failing 
 to recover the land on account of assets received from the father, 
 sue the executor and other heirs of the father by another wife for 
 the value of the land thus lost to them, they will be charged with 
 the enhanced value of the other lands produced by the expendi- 
 ture and improvements. Todd v. Todd, 18 B. Mon. 166. 
 
 7. A personal judgment can not be rendered against heirs on 
 their failure to plead without an averment of assets descended. 
 
HEIES. 277 
 
 The judgment should be to be levied, etc. Anderson v. Bellis, 2 
 Duv. 388. 
 
 III. WHEN " HEIES " IS A WORD OP PURCHASE, AND WHEN OP 
 LIMITATION. 
 
 1. The word "heirs," in a deed of trust conveying property for 
 the separate use of a married woman, can not be construed to 
 mean anything more than a conveyance of the legal title. Brown 
 V. Alden, 14 B. Mon. 143. 
 
 2. A deed, conveying land to " S. W. during his life, and then to 
 Ms heirs or executors," only gives to S. W. a life estate with fee to 
 those who are his heirs at his death, and they take as purchasers 
 under the deed and not by descent from S. W. Turman v. White's 
 Heirs, 14 B. Mon. 570-579. 
 
 3. The rule in Shelby's case in which it was held, that if a free- 
 holder (estate for life) be conveyed to a man, and by the same con- 
 veyance an estate is limited to his heirs or the heirs of his body, 
 he will be vested with a fee or inheritance, and his heirs will take 
 by descent and not by purchase, is not a rule of property in this 
 State. Turman v. White's Heirs, 14 B. Mon. 570, 571. 
 
 4. The phrases "heirs of the body," "heirs lawfully begotten of 
 the body," and other similar expressions are appropriate words of 
 limitation, and must be construed as creating an estate tail, which 
 our statute converts into a fee simple, unless there is something 
 else in the writing, from which it can be reasonably inferred that 
 the words were used in a sense differing from their legal and tech- 
 nical signification. Johnson v. Johnson, 2 Met. 333 ; Brown v. Alden, 
 14 B. Mon. 144 ; True v. Nichols, 2 Duv. 547 ; Lackland v. Down- 
 ing, 11 B. Mon. 33; Prescott v. Preseott, 10 B. Mon. 58; sees. 8, 9, 
 chap. 80, p. 227, vol. 2, Eevised Statutes. 
 
 5. A testator devised to his daughter all his real and personal 
 estate, and then adds : "In case my daughter should change her 
 name by marriage, the title of the land and one-half the negroes 
 above named do not pass to her husband, but I reserve the same 
 to her and her heirs only ; yet, her husband may have the use of 
 the same so long as they live together." Held: That the daughter 
 took a fee simple, and not an estate for life, in the event of her 
 marriage. Henry v. Gonterman, 1 Met. 467-469. 
 
 6. A devise of land to A. in fee limited by the words " if he die 
 without lawful heir begotten of his body," is not an estate tail, and 
 A. takes a defeasible fee subject to be defeated by his dying with- 
 out such heirs living at his death. Daniel v. Thompson, 14 B. 
 Mon. 707. 
 
278 HOLIDAY. 
 
 HIGHWAYS. 
 
 See EoADS. 
 
 HOLIDAY. 
 
 The holiday mentioned in sections 732, 733, Civil Code, is a 
 day dedicated by usage to amusement and festivity, such as the 
 4th of July, and Christmas, and does not include Sunday. Moore 
 V. Hagon, 2 Duv. 438. 
 
 HOMICIDE. 
 See Criminal Law. 
 
 HOESE STEALING. 
 See Criminal Law. 
 
 HUSBAND AND WIFE. 
 
 I. Eights and liabilities of husband. 
 II. The wife's equity. 
 
 III. Survivorship. 
 
 IV. Dealings between husband and wife. 
 V. Separate maintenance. See Alimony. 
 
 VI. Disabilities of coverture. 
 VII. General estate of the wife, and for what it may be made liable. 
 VIII. Separate estate of the wife. 
 
 IX. Suits by and against husband and wife. 
 X. Conveyances by husband and wife. 
 
 I. RIGHTS AND LIABILITIES OF HUSBAND. 
 
 1- A husband has no right, by will, to dispose of his wife's in- 
 terest, in her father's estate, not reduced to possession in his life- 
 time. Tomlin v. Jayne, 14 B. Mon. 162. 
 
 2. A husband may maintain a civil action for an injury to the 
 person of the wife, and for the loss of her society and assistance 
 from the time of the injury to her death; but if her death be 
 
HUSBAND AND WIPE. 279 
 
 instantaneous no recovery can be had. Eden v. L. & F. B. JR. Co., 
 14 B. Mon. 208. 
 
 3. The assent of the husband to the making of a will by the 
 wife is no liiore than a waiver of his right as her administrator. 
 George v. Bussing, 15 B. Mon. 564. 
 
 4. And his assent may be revoked at any time before the pro- 
 bating of the will. George v. Bussing, 15 B. Mon. 563. 
 
 5. A husband who has permitted his wife to deal with others as 
 if she were sole, can not present obstacles to the collection of the 
 wife's debts, and the subjecting of her separate property, on the 
 faith of which she obtained credit, to their payment. Lillard v. 
 Turner, 16 B. Mon. 374.1 
 
 6. The husband may, during coverture, release or assign the 
 wife's choses in action, but if the consideration be illegal (as to 
 forbear to prosecute the husband for felony) the release will be 
 invalid. Manion v. Titsworth, 18 B. Mon. 602. 
 
 7. The law of the matrimonial domicile is the rule which de- 
 termines the rights of both husband and wife to movable prop- 
 erty owned by either at the time of marriage. Townes v. Durbin, 
 3 Met. 357; Beard v. Basije, 7 B. Mon. 148. 
 
 8. A husband, who, without resorting to a court of equity, has 
 obtained possession of the wife's estate, consisting entirely of cash, 
 thereby acquires a complete legal title to it, and the wife has no 
 equity which can be enforced, jffart v. Courtenay, 4 Met. 143. 
 
 9. The husband can not create a mechanic's lien on the lands of 
 his wife. Pell v. Cole, 2 Met. 254 ; 12 B. Mon. 91. 
 
 10. Pending an action against a female for the recovery of per- 
 sonal property, she married, and the marriage being suggested of 
 record, judgment was rendered against both husband and wife for 
 the amount claimed, without allegation or proof that the husband 
 had received any property by the marriage. Held: The judgment 
 was wrong. Husbands y. Bullock, 1 Duv. 22; sec. 3, art. 2, chap. 
 47, p. 10, vol. 2, Eevised Statutes. 
 
 II. THE wipe's equity. 
 
 A. As between her and her husband. 
 
 B. As between the wife and her husbands creditors and purchasers of her prop- 
 
 erty. 
 
 a. As between her and her husband. 
 1. If a husband buys in an adverse claim to the lands of the 
 wife, it will inure to her benefit. But if the wife only has title to an 
 
280 
 
 HUSBAND AND WIFE. 
 
 undivided part of a tract of land, and the husband buys in the 
 other part, it will not inure to her benefit. Young v. Adams, 14 
 B. Mon. 131. 
 
 2. A wife has, at any time before her husband has collected 
 money due for a sale of her lands made by her and her husband, a 
 right to have the money settled upon her. Moore v. Moore, 14 B. 
 Mon. 260. 
 
 3. A transfer, by the husband of the wife's chose in action, of 
 which he has the right to immediate possession, will not defeat her 
 right to a settlement. Wright v. Arnold, 14 B. Mon. 642 ; Lynn v. 
 Bradley, 1 Met. 235. 
 
 4. If a husband buys land with funds derived from a sale of the 
 wife's slaves sold by him and his wife, and takes a conveyance to 
 himself, he will not hold it in trust for her or her heirs. Hocker v. 
 Gentry, 3 Met. 474, 475; sec. 2, art. 2, chap. 47, p. 9, vol. 2, Eevised 
 Statutes. 
 
 5. If a slave be advanced to the wife by her father, on payment 
 by the husband of a part of the value of the slave, the interest of 
 the husband in the slave will bear the same proportion to that of 
 the wife, that the amount paid by him bore to the value of the 
 slave. Tharp v. Tharp, 3 Met. 375, 376. 
 
 6. A husband, who, without resorting to a court of equity, obtains 
 possession of the wife's money, thereby acquires a complete legal 
 right to it, and the wife has no enforceable equity. Sart v. Cour- 
 tenay, 4 Met. 143. 
 
 7. Money due on account of the sale of the wife's lands, may, 
 any time before it is received by the husband, be subjected to the 
 wife's equitable right to a settlement. Moore v. Moore, 14 B. Mon. 
 260. 
 
 8. That the husband was dealt with and obtained credit on the 
 faith that the proceeds of land and slaves of the wife sold by her 
 and her husband belonged to him, does not, so far as he and his 
 representatives are concerned, constitute a defense against a recov- 
 ery by her of a note, executed by him to her, in consideration that 
 she would convey the property for his benefit. Nor does the fact, 
 that the proceeds of the property were used in paying store 
 accounts contracted by her and in purchasing a carriage for her 
 and by her direction, constitute a defense against such recovery. 
 Maramnn v. Maraman, 4 Met. 90. 
 
 9. Sales or conveyances, made by a husband to defraud or hinder 
 his wife, are void as to purchasers from him who had notice. 
 
HUSBAND AND WIFE. 281 
 
 Williams v. Gooch, 3 Met. 490; sec. 12, art. 3, chap. 47, p. 22, vol. 
 2, Eevised Statutes. 
 
 10. It is the duty of a husband to hold possession of his wife's 
 lands in a manner consistent with her title, and he will be pre- 
 sumed to do so, unless the contrary is made to appear. Young v. 
 Adams, 14 B. Mon. 131. 
 
 b. As between the wife and her husband's creditors and purchasers of 
 
 her property. 
 
 1. The wife's equitable right, to a settlement out of the proceeds 
 of the sale of her lands, continues as to creditors of the husband, so 
 long as the money remains in the hands of the purchasers. Moore 
 V. Moore, 14 B. Mon. 262. 
 
 2. The doctrine is well settled, that coverture will not constitute 
 an excuse for conduct, which in other persons would, as regards 
 purchasers for a valuable consideration, be deemed unjust and 
 fraudulent. Wright v. Arnold, 14 B. Mon. 643; Davis v. Tingle, 8 
 B. Mon. 543. 
 
 3. If a wife be present and assent to a sale by her husband of her 
 interest in her father's estate, it will defeat her equity to a settle- 
 ment, when she comes, as a plaintiif, to ask it of the chancellor. 
 Wright v. Arnold, 14 B. Mon. 643. 
 
 4. The wife's slaves can not be subject to the husband's debts ; 
 although there may be no record evidence of her title. Wheeler 
 V. Jennings, 16 B. Mon. 481. 
 
 5. When a slave is advanced by a father to a married daughter, 
 on the husband of the latter paying apart of the value of the slave, 
 if the husband dies insolvent his creditors will be entitled to have 
 the slave sold and subject an amount equal to that paid for the 
 slave, by the husband, to the payment of their debts. Tharp v. 
 Tharp, 3 Met. 375, 376. 
 
 6. Creditors of the husband can not subject the estate of the 
 wife, which is occupied by the wife as a home, to the payment of a 
 sum equal to the value of necessary improvements put on it by the 
 husband to render it suitable for a residence. Robinson y. Huff- 
 man and wife, 15 B. Mon. 82, 83. 
 
 7. A married woman, who, during coverture, makes a defective 
 conveyance of her lands and after the death of her husband sues for 
 and recovers the land from a remote purchaser, who had no actual 
 notice of the defect, must pay him, for his lasting and valuable 
 improvements, a sum equal to the increase in the value of the land 
 produced by the improvements, less the value of the rents after 
 
282 HUSBAND AND WIFE. 
 
 the death of the husband. Thomas v. Thomas' Ex'rs, 16 B. Mon. 
 425, 426. 
 
 8. A married woman, who releases her potential right of dower 
 in consideration that her husband would transfer to her separate 
 use one of the notbs for the purchase -money of the land released, is 
 entitled to hold it against the subsequent creditors of the husband, 
 and she may hold the value of her potential right of dower against 
 his prior creditors. Ward v. Crotty, 4 Met. 61. 
 
 9. Though a married woman is equitably entitled to have notes, 
 which were executed by her husband to her in consideration of her 
 conveyance of her land and slaves for his benefit, paid out of his 
 estate, yet her claim is but a mere equity, and where there is no 
 legal demand, to which she can be substituted, it can not be en- 
 forced to the prejudice of her husband's creditors in the settlement 
 of his insolvent estate. Maraman v. Maraman, 4 Met 91. 
 
 10. A wife will not be liable, after the death of her husband, for 
 money furnished her by him out of partnership funds, for her 
 temporary purposes. Alexander v. Smith, 2 Duv. 519. 
 
 11. Slaves bought by a husband, with money received from the 
 estate of the wife's father, were the property of the husband, and 
 liable to his debts. Alexander v. Smith, 2 Duv. 519. 
 
 12. A wife, who united with her husband in the sale of her lands 
 and with him executed a bond and put the purchaser in possessioD, 
 can not, if sued by the purchaser to compel a conveyance, recover 
 rents in the absence of grounds for an equitable settlement. Smith 
 v. Long, 1 Met. 487, 488. 
 
 13. A chose in action, which has accrued to the wife during 
 coverture and which the husband may reduce to immediate pos- 
 session, may be subjected to the payment of his debts in a proceed- 
 ing against the husband and wife as non-residents. Tobin v. Dixon 
 and wife, 2 Met. 423. 
 
 14. In such a case, the wife may interpose and establish her 
 right to an equitable settlement, but it does not devolve on the 
 creditor to allege that there are no grounds for a settlement, or 
 that she has no such right. Tobin v. Dixon, 2 Met. 423. 
 
 15. Where, in pursuance of an antenuptial parole contract, the 
 husband bought land with the wife's money and had it conveyed 
 to her, the creditors of the husband can not subject the land 
 to the payment of their debts. Hall and wife v. Light, Barrett & 
 Co., 2 Duv. 359. 
 
 16. A release, by the wife of her potential right of dower, forms 
 a valuable consideration sufficient to sustain a settlement upon her 
 
HUSBAND AND WIFE. 283 
 
 by her hmsband, even against his creditors. Ward v. Crotty, 4 
 Met. 60. 
 
 17. Where the right of the wife to land or slaves has been convert- 
 ed into a demand for money, to which, if recovered, her husband 
 would be entitled, if the husband warranted the title and there has 
 been a breach of his covenant, the money demand is barred by his 
 covenant. Nunmlly v. White, 3 Met. 594. 
 
 18. If an insolvent husband be induced by the fact, that he had 
 received money belonging to his wife by descent, to convey prop- 
 erty to her, the conveyance will not be valid against his creditors. 
 Hart V. Courtenay, 4 Met. 143. 
 
 19. Creditors of an insolvent husband can not, in equity, subject 
 to the payment of their debts land purchased by the husband in 
 his own name, and paid for by a credit on his wife's distributable 
 share of her father's estate, until an equitable settlement is made 
 on her. Sims v. Spalding, 2 Duv. 121. 
 
 III. SURVIVORSHIP. 
 
 1. The absolute separate estate of the wife in personalty passes 
 on her death to her husband as administrator or survivor, and this 
 whether the property be given directly to the wife, or to another 
 for her use without words of exclusion. Brown v. Alden, 14 B. 
 Mon. 146. 
 
 2. Although the intention, to exclude the husband from any 
 interest in the separate estate of the wife during coverture, be 
 manifested, yet, if there is no manifestation of a purpose to exclude 
 his marital rights after her death, they will attach, after that event, 
 during the life of the husband. Brown v. Alden, 14 B. Mon. 145. 
 
 3. Since the statute of 1846 for protecting the rights of married 
 women, the husband has an estate for life in the slaves of the wife, 
 whether there is issue of the marriage or not. Brown v. Alden, 14 
 B. Mon. 152. 
 
 4. If parties, in contemplation of marriage, enter into a contract 
 by which the wife secures to her separate use, to the exclusion of 
 her husband, all the property she then owned and also power to 
 dispose of it, as if she were unmarried, but dies without executing 
 the power, the husband, if he survives her, will have the same 
 rights as if no such contract had been made. Hart v. Soward, 14 
 B. Mon. 303. 
 
 5. If a deceased husband failed during his life to reduce to pos- 
 session an antenuptial right of the wife, it will survive to her. 
 Bice V. Thompson, 14. B. Mon. 379. 
 
284 
 
 HUSBAND AND WIPE. 
 
 6. If a wife be entitled as survivor of her mother to a fund, which 
 her husband fails to reduce to possession, and she marries a second 
 time and dies, the second husband will be entitled to the fund 
 as survivor, administrator or distributee. Bice v. Thompson, 14 B. 
 Mon. 379, 380. 
 
 7. A transfer, by the husband of the wife's chose in action, of 
 which he has a right to immediate possession, will defeat her right 
 of survivorship. Wright v. Arnold, 14 B. Mon. 642; Lynn v. 
 Bradley, 1 Met. 235. 
 
 8. But if the husband has no right, or the chose in action is not 
 susceptible of being reduced to immediate possession, his transfer 
 is void, and will not defeat the wife's right to recover it, if she 
 survives the husband. Lynn v. Bradley, 1 Met. 235. 
 
 9. If a wife, having a vested right to a legacy, dies before it is 
 payable, the husband becomes equitably entitled to it; and if there 
 are no demands against the estate of the wife, he may recover it of 
 her administrator. Duncan v. Prentice, 4 Met. 217. 
 
 10. The husband is entitled as administrator, or as survivor of 
 his deceased wife, to her interest in personalty held by a doweress 
 at the death of the wife. Anderson v. Smith, 3 Met. 493. 
 
 IV. DEALINGS BETWEEN HUSBAND AND WIPE. 
 
 1. The rule, applicable to transactions between guardian and 
 ward, trustee and cestui que trust, and attorney and client, which 
 requires the utmost fairness to be shown, does not apply to 
 dealings between husband and wife. Todd v. Wickliffe, 18 B. 
 Mon. 906. 
 
 2. A gift of a note causa mortis, by a husband to his wife, is 
 valid. Turpin v. Thompson, 2 Met. 421. 
 
 3. A contract by a husband, before marriage or afterward, 
 when living in amity with his wife, to pay an allowance for her 
 support, if at any future time she should separate from him, is 
 against public policy and void. Gaines v. Poor, 3 Met. 506. 
 
 4. But such a contract, made in contemplation of an immediate 
 separation, is not against public policy. Gaines v. Poor, 3 Met. 
 506, 507. 
 
 5. A conveyance to a wife by her husband, without the inter- 
 vention of a trustee, though void at law, may be enforced in 
 equity. Maraman v. Maraman, 4 Met. 87; Ward v. Crotty, 4 
 Met. 60. 
 
 6. As a general rule, wherever a contract would have been good 
 at law, if it had been made with a trustee for the wife, it will be 
 
HUSBAND AND WIFE. 285 
 
 sustained in equity, when made between husband and wife with 
 each other, without the intervention of a trustee, if it does not 
 affect the rights of third persons. Maraman y. Maraman, 4 Met. 
 89. 
 
 7. If, in consideration of a conveyance by a married woman, of 
 her land and slaves, for the benefit of her husband, he agrees to 
 pay her their value for her separate use, and there is no trustee, 
 her equitable right to the money will not be defeated. Maraman 
 V. Maraman, 4 Met. 89. 
 
 8. In such a case, equity will, if necessary, make her husband 
 her trustee. Maraman v. Maraman, 4 Met. 89. 
 
 9. Although there are cases, in which a court of equity will 
 lend its aid in the adjustment of conflicting claims arising between 
 husband and wife with respect to their property, it is the policy of 
 the law, founded on a just regard to the sanctity and repose of 
 domestic life, rather to restrict than to enlarge this right. Matson 
 V. Matson, 4 Met. 265. 
 
 10. Love and affection are a sufficient consideration to uphold a 
 deed made by a wife to her husband, in pursuance of an ante- 
 nuptial contract. Todd v. Wickliffe, 18 B. Mon. 906. 
 
 11. A conveyance, made by husband and wife to a third person, 
 of real estate of the wife, and by such person on the same day to 
 the husband, in order to invest him with the legal title, is valid if 
 fairly obtained. Todd v. Wickliffe, 18 B. Mon. 906 ; Scarborough 
 v. Watkins, 9 B. Mon. 546. 
 
 VI. DISABILITIES OP COVERTURE. 
 
 1. If the husband mortgage real estate, the inheritance of the 
 wife, she can not, unless he unites with her, convey the same land 
 even to the same person. Stuart v. Wilder, 17 B. Mon. 60, 61. 
 
 2. A married woman can not, without the assent of her husband, 
 assign a note which belonged to her before marriage. Turpin v. 
 Thompson, 2 Met. 422. 
 
 3. No personal judgment can be rendered against a married 
 woman, even for necessaries furnished her. Sweeney v. Smith, 15 
 B. Mon. 327. 
 
 4. A woman is not liable, after the death of her husband, for the 
 breach of a covenant of warranty in a deed made by her and her 
 husband during coverture. Falmouth Bridge Go. v. Tibbatts, 16 B. 
 Mon. 642; Bobbs v. King, 2 Met. 141; Nunnally v. White, 3 Mel 
 593. 
 
286 HirSBAND AND -WIFE. 
 
 5. The disability of coverture can not be added to that of infancy 
 to prolong the statutory saving against the legal effect of the lapse 
 of time. Martin v. Letty, 18 B. Mon. 581; Manion v. Titsworth, 
 18 B. Mon. 601 ; Finley v. Patterson, 2 B. Mon. 78. 
 
 6. Under the law in force in 1843, a married woman had no 
 power to make a contract respecting personal property. Ashby v. 
 Woolfolk, 3 Met. 541; Jjynn v. Bradley, 1 Met. 235 ; Sord v. Hard 
 5 B. Mon. 81. 
 
 7. Section 49 of the Civil Code gives a married woman no right 
 to sue in her own name alone, in any case in which she could not 
 have sued before by the intervention of a next friend. Matson v. 
 Matson, 4 Met. 264. 
 
 8. A married woman, living with her husband, can not maintain 
 an action against him to recover the possession of slaves, her sepa- 
 rate property, without some other grounds of relief than that he has 
 the possession and refuses to surrender them to her. Matson v. 
 Matson 4 Met. 265. 
 
 9. The slaves of a married woman could only be conveyed in 
 the mode prescribed for the conveyance of her real estate. Allen 
 V. Shortridge, 1 Duv. 35 ; Johnson and wife v. Grreen, 17 B. Mon. 
 122; Johnson and wife v. Jones, 12 B. Mon. 329, 330. 
 
 10. A married woman, whose husband is insolvent, and an hab- 
 itual drunkard, and makes no provision for the support of his 
 family, may sue alone to enforce a trust created for her ^benefit. 
 Berry jr. Norris, 1 Duv. 303. 
 
 11. A married woman may, with the assent of her husband, 
 dispose of her real or personal estate by will, and may make a 
 will in pursuance of a power given her for that purpose, but the 
 verbal assent of the husband will not enable her to make a valid 
 will of real estate. George v. Bussing, 15 B. Mon, 563-565. 
 
 12. The will of a married woman is not effectual to pass per- 
 sonal estate, to which the husband had title when the will was 
 made, even though he assented to the making of the will. George v. 
 Bussing, 15 B. Mon. 565. 
 
 13. A parole sale, by a married woman, of slaves acquired by her 
 since 1846, is void. Thomas v. Hall, 2 Duv. 233. 
 
 VII. GENERAL ESTATE OF THE WIPE, AND FOE WHAT IT MAY BE MADE 
 
 LIABLE. 
 
 1. Property conveyed to a married woman by an ordinary deed, 
 not to be held as her separate estate, is liable for such debts, evi- 
 denced by a writing signed by her and her husband, as she may 
 
HUSBAND AND WIFE. 287 
 
 contract for necessaries for herself and family, her husband includ- 
 ed. Burgen v. Forsythe, 17 B. Mon. 555. 
 
 2. A house, such as is suited to the position, estate, and family 
 of the wife for a residence, is "necessary," within the meaning of 
 the statute, to which a liberal construction should be given. Bur- 
 gen Y. Forsythe, 17 B. Mon. 556. 
 
 3. That the object and interest of a feme covert, in executing with 
 her husband a note for necessaries, was to charge her separate 
 estate with its payment, which fact was known to the payee, can 
 not prevent her general estate from being subjected to the pay- 
 ment of the debt. Marshall v. Miller, 3 Met. 335. 
 
 4. The term "necessaries," as used in section 1, article 2, chapter 
 47, page 8, volume 2, Eevised Statutes, should receive a liberal 
 construction, and be held to embrace such things as the family, in- 
 cluding the husband, ought to have, considering its social position 
 and the estate of the wife. Burgen v. Forsythe, 17 B. Mon, 555; 
 Pell V. Cole, 2 Met. 253. 
 
 5. But where it is not made to appear that a house, built on 
 lands of the wife, was necessary for the comfort and shelter of the 
 family, nor that such an outlay comported with the estate of the 
 wife, her general estate can not be subjected to its payment. Pell 
 V. Oole, 2 Met. 253, 254. 
 
 6. If a married woman contract debts generally, without doing 
 any act indicating an intention to charge her separate estate (cre- 
 ated prior to 1846), a court of equity will not direct an appropri- 
 ation of the estate for their payment. Burch v. Breckinridge, 16 
 B. Mon. 487. 
 
 7. Plank and lumber, which are necessary to repair the fencing 
 and buildings, including the dwelling-house situated on the lands 
 of the wife, to prevent their falling into ruins, and for the com- 
 fortable and proper use and enjoyment of the land and houses, are 
 "necessaries," for which the general estate of married women is 
 made liable, and, if evidenced by a writing signed by the husband 
 and wife, will bind her estate. Marshall v. Miller, 3 Met. 334, 
 335. 
 
 8. Land, conveyed to a married woman for her separate use, and 
 not to be subject to the debts of her husband, may be charged by 
 the wife and sold to pay debts, contracted by the husband and 
 wife, evidenced by their note. Sweeney v. Smith, 15 B. Mon. 327. 
 
 9. A married woman has a right to charge her separate estate 
 created in 1842, by her separate note, and the execution of the 
 note will be evidence of an intention to charge it, and a court of 
 
288 HUSBAND AND WIFE. 
 
 equity will subject it to the payment of the note. I/illard v. Turner, 
 16 B. Mon. 376.' 
 
 10. The execution, by a married woman, of a note or bond, or 
 the indorsing of a bill of exchange, will be evidence of an intention 
 to charge her real estate; but her personal estate may be charged 
 by such acts and circumstances as show an intention on her part 
 to charge it. Burch v. Breckinridge, 16 B. Mon. 487, 488. 
 
 11. Separate estate in a married woman, created in 1842, confers 
 on her power to deal with it as if she were sole. The right she 
 acquires to property under the statute to protect the rights of 
 married women, confers on her no such power. lAllard v. Turner, 
 16 B. Mon. 376. 
 
 VIII. SEPARATE ESTATE OF THE WIFE. 
 
 A. Generally. 
 
 B. Powers of the wife to alien or charge her separate estate. 
 
 C. Sale under judgment or by trustee. 
 
 a. Generally. 
 
 1. The separate estate of a married woman is that alone of which 
 she has the exclusive control, independent of her husband, and the 
 proceeds of which she may dispose of as she pleases. All her real 
 estate does not belong to her as her separate property. Petty v. 
 Malier, 14 B. Mon. 247. 
 
 2. The rents and profits of the lands of the wife are not separate 
 estate for her exclusive use and subject to her exclusive control 
 without regard to the circumstances of herself and her husband 
 and family. Smith v. Jjong, 1 Met. 488. 
 
 3. In order to create a separate estate in a married woman, an 
 intention to do so should be clearly expressed in the instrument, 
 and language should be used clearly expressing the exclusion 
 of the husband, or else it should contain some direction, with 
 respect to the enjoyment of the estate, wholly incompatible with 
 any right in him to control it in any manner. Johnson Y.Ferguson, 
 2 Met. 508 ; Toombs v. Stone, 2 Met. 521. 
 
 • The facts stated in this case, and in the case of Sweeney v. Smith, 15 B. 
 Mon. 327, do not clearly show that the estate, in contest in those cases, was 
 " separate estate '' within the meaning of the Revised Statutes, hut it may he 
 inferred they were not. If they were, then these cases are both in conflict 
 with Daniel v. Robinson, 18 B. Mon. 306 ; Williamson v. Williamson, 18 B. 
 Mon. 385 ; Stacker v. Whitloek, 3 Met. 244 ; and Hanly v. Downing, 4 Met. 96, ,97, 
 in which it was — Held: That a married woman can not, since the Eevised 
 Statutes, alien or charge her separate estate whether created before or after 
 those Statutes took effect. 
 
HUSBAND AND WIFE. 289 
 
 4. A deed, the habendum of which is in these words, does not 
 invest the wife with a separate estate: "To have and to hold the 
 said tract or parcel of land with its appurtenances unto the said 
 party and to her heirs and assigns to their only proper use, benefit, 
 and behoof forever." Johnson v. Ferguson, 2 Met. 506. 
 
 5. A deed conveyed land in trust for "the use, and benefit, 
 and support " of the wife and her children " to have use and enjoy 
 every part and parcel, to be controlled by her for her comfort and 
 support, and for the support and education of her children." Held: 
 It created a separate estate. Toombs v. Stone, 2 Met. 521. 
 
 6. The provision of the Eevised Statutes, concerning estates held 
 in trust, has no application to separate estates of married women. 
 Toombs V. Stone, 2 Met. 521, 522. 
 
 7. If a husband conveys property to a trustee, to be held and the 
 proceeds paid to his wife, who lives apart from him, it will be held 
 to be a separate estate. Gaines v. Poor, 3 Met. 508. 
 
 8. No particular form of words is necessary to create a separate 
 estate in a married woman. Any words clearly showing an inten- 
 tion to do so are sufficient. Hutchison v. James, 1 Duv. 76. 
 
 9. The right of a married woman, to separate estate in personal 
 property, is a modern, but well-settled, principle of equity, appli- 
 cable to every case where property is conveyed to the separate use 
 of the wife. Brown v. Alden, 14 B. Mon. 145. 
 
 10. If notes are executed by a husband to his wife, it is not 
 necessary, in order to give her a right to the money for her sepa- 
 rate use, that the notes should so express it. Maraman v. Maraman, 
 4 Met. 89. 
 
 11. A married woman m.ay, with the assent of her husband, 
 with money due to her in her own right and which has not been 
 reduced to possession, buy personal property to be held as her 
 separate estate. McClannahan v. Beasley, 17 B. Mon. 114; Tinsley 
 Y. Boll, 2 Met. 510. 
 
 b. Powers of the wife to alien or charge her separate estate. 
 
 1. Since the Eevised Statutes, a married woman can not alien 
 or charge her separate estate, whether acquired before or after 
 their adoption. Daniel v. Bobinson, 18 B. Mon. 306 ; Williamson 
 v. Williamson, 18 B. Mon. 385 ; Hanly v. Downing, 4 Met. 96, 97 ; 
 Stacker v. Whitlock, 3 Met. 244. 
 
 2. The separate estate of a married woman is not liable for. 
 debts created by her for necessaries for herself and family, and 
 
 20 
 
290 HUSBAND AND WIPE. 
 
 evidenced by writing signed by her and her husband. Toombs v. 
 Stone, 2 Met. 522 ; Marshall v. Miller, 3 Met. 335, 336. 
 
 3. A married woman can not alien a life estate in lands devised 
 to her separate use. Williamson v. Williamson, 18 B. Men- 
 384. 
 
 4. Nor can she alien real estate, conveyed to her separate use, 
 although the deed under which she holds may, in express terms, 
 give her that right. Stuart v. Wilder, 17 B. Mon. 59 ; Hanly v. 
 Downing, 4 Met. 96, 97. 
 
 5. The provision of the Eevised Statutes on conveyances, which 
 authorizes a married woman to convey any real estate she may 
 own, must be construed as applying alone to her general estate, as 
 contradistinguished from her separate estate. Stuart v. Wilder, 
 17 B. Mon. 58. 
 
 6. A married woman may dispose of her separate estate by will, 
 and, with the assent of her husband, dispose of personal estate by 
 wjll, but verbal assent by the husband is not sufficient to enable 
 t]|e wife to make a valid will, disposing of her real estate. George 
 \. 'Bussing, 15 B. Mon. 563-565. 
 
 e. Sale under judgment, or by trustee. 
 
 1. A decree for the sale of land, held in trust for the separate 
 use of a married woman, is void, if rendered without the appoint- 
 ment and report of commissioners, showing the value of her estate, 
 the annual profits thereof, and that her interest requires a sale to 
 be made. Badford v. Chamberlain, 4 Met. 238 ; Bacon v. McDowell 
 1 Duv. 75. 
 
 2. The provisions of section 17, article 4, chapter 47, p. 28, vol. 
 2, Eevised Statutes, which prohibit a married woman from incum- 
 bering or selling her separate estate, do not apply to a trustee to 
 whom such estate is conveyed for the separate use of a married 
 woman, and the rights and powers of trustees, with reference to 
 such estates, are not affected by the statute. Dewis v. Harris, 4 
 Met. 356, 357. 
 
 3. Where the original petition, by the husband, for the sale of 
 the wife's real estate, misdescribed the land sought to be sold, and 
 was answered by the wife, and commissioners appointed, who 
 reported, and a judgment and sale had, and afterward the petition 
 and judgment were so amended, by interlineation, as to describe 
 the property accurately, but the wife never answered the petition 
 as amended, and no new report of commissioners was had — Held : 
 The judgment aad sale wore void. Bacon v. McDowell, 1 Duv. 74. 
 
HUSBAND AND WIFE. 291 
 
 4. Where land, purchased and paid for by the husband, was, at 
 his instance, conveyed to the separate use of his wife during her 
 life, and at her death to revert to the heirs of the husband, 
 but she to have power to sell and convey the land at any 
 time, and make as perfect title as if she owned it in fee — Held: 
 That as the husband was the donor, his consent to a sale thus 
 expressed in the deed authorized the wife to sell and convey it. 
 Dent V. Breckinridge, 1 Duv. 246 ; sec. 17, art. 4, chap. 47, p. 28, 
 vol. 2, Eevised Statutes. 
 
 IX. STtlTS BY AND AGAINST HUSBAND AND WIFE. 
 
 1. A husband and wife can not relitigate in their joint names the 
 same matter, which had been before litigated in the name of the 
 wife alone. Hawkins v. Lambert, 18 B. Mon. 106. 
 
 2. It is not necessary, in an action against the husband and wife 
 on a contract made by the latter dum sola, to aver that the former 
 has received property by the latter. Beaumont v. Miller, 1 Met. 70. 
 
 3. But the judgment against the husband should be to be levied 
 of property that had or might come to him by his wife. Beaumont 
 V. Miller, 1 Met. 70, 71. 
 
 4. The husband is a necessary party to a suit against a married 
 woman on a contract made before marriage. Beaumont v. Miller, 
 1 Met. 70; sec. 49, Civil Code; Fultz v. Fox, 9 B. Mon. 502. 
 
 5. A married woman may sue for a settlement in her own name 
 alone. Wright v. Arnold, 14 B. Mon. 642.i 
 
 6. A married woman can not sue without joining her husband 
 with her, to recover land not held by her for her separate use, free 
 from his control. Petty v. Malier, 14 B. Mon. 247. 
 
 X. CONVEYANCES BY HUSBAND AND WIFE. 
 
 1. To enable a wife to convey her lands, she must unite with 
 her husband, in a deed containing apt words of grant, and pur- 
 porting to be a conveyance by her as well as by her husband. 
 Hedger v. Ward, 15 B. Mon. 117. 
 
 2. The deed of a married woman, made in accordance with the 
 statute of 1796 (Statute Laws, 440), is as effectual as if she had 
 been sole. Todd v. Wickliffe, 18 B. Mon. 917. 
 
 3. Since the statute of 1846, to protect the rights of married 
 women, a feme covert can not divest herself of title to slaves except 
 in the mode prescribed in the statute for the conveyance of her 
 real estate. Wood v. Wood, 1 Met 517. 
 
 1 Moore v. Moore, 14 B. Mon. 260, is referred to by the court ia this case as 
 having settled this question; but it will be found on an examination of that 
 case, that the husband was dead before the suit was brought. 
 
292 IDIOTS AND LUNATICS. 
 
 4. A mortgage, executed by a married woman jointly with her 
 husband, conveying lands, of which she was the legal owner, to 
 secure a debt of her husband, is valid and binding upon her. 
 Smith V. Wilson, 2 Met. 235 ; Johnson v. Ferguson, 2 Met. 505. 
 
 5. A conveyance made in 1843, by husband and wife, of the 
 latter's interest in remainder in slaves, and personalty held by a 
 doweress for life, is void as to the wife. That she received part of 
 the purchase-money will not operate as an equitable estoppel, but 
 she should be required to refund the purchase-money and interest. 
 Ashby V. Woolfolk, 3 Met. 541, 542. 
 
 6. The certificate of a clerk, showing that a married woman 
 had acknowledged a deed, is evidence that the acknowledgment 
 had been taken in the form prescribed by law. Allen v. Shoriridge. 
 1 Duv. 35; sec. 22, chap. 24, p. 282, vol. 1, Revised Statutes. 
 
 7. When the certificate shows the acknowledgment was made 
 in the presence of the husband, it will for that reason alone be 
 invalid. Allen v. Shortridge, 1 Duv. 36. 
 
 IDIOTS AND LUNATICS. 
 
 1. An inquest of lunacy, although conclusive evidence of the 
 condition of the party at its date, is only prima facie evidence of 
 his condition at a subsequent period. Clark v. Trail, 1 Met. 39. 
 
 2. But there is no rule of evidence which requires an inquest 
 to rebut the presumption that a person once found to be of un- 
 sound mind continues so ; but it may he rebutted by oral evidence. 
 Clark V. Trail, 1 Met. 40. 
 
 3. If the statute of limitations begins to run, a subsequent state 
 of insanity will not stop it ; but it will continue to run until the 
 bar is complete. There is no difference in this respect between 
 disability from insanity and from any other cause. Clark y. Trail, 
 1 Met. 40, 41. 
 
 4. If one who is insane when his right acci'ues, is afterward 
 restored, and continues sane for a sufl&cient time to look into his 
 affairs, and to institute an action to recover his rights, the statute of 
 limitations will begin to run against him. Clark v. Trail, 1 Met. 41, 
 
 5. Whether, in such a case, the party had been restored and 
 continued sane long enough to look into his affairs, and institute an 
 an action, are questions of fact for the jury. Clark v. Trail, 1 Met. 41. 
 
 6. A sale, under the act of 1831, of the land of a lunatic who 
 had a family, is void. Woolfolk v. Ashby, 2 Met. 290, 
 
INDICTMENTS AND PRESENTMENTS. 293 
 
 IMPEOVEMEISTTS. 
 See Eents and Improvements. 
 
 INDICTMENTS AND PEESENTMENTS. 
 
 I. Generally. 
 II. Formal averments. 
 
 III. Name of defendant. 
 
 IV. Grounds upon whicli an indictment may be quashed. 
 V. For betting on elections. 
 
 VI. Carrying concealed deadly weapons. 
 VII. Challenging to figbt. 
 VIII. Bribery. 
 
 IX. Forgery and counterfeiting. 
 X. Gaming, and permitting gaming. 
 XI. Murder. 
 XII. Larceny. 
 
 XIII. Obtaining money under false pretenses. 
 
 XIV. Perjury and false swearing. 
 XV. Setting up faro bank, etc. 
 
 XVI. Eobbery. 
 XVII. Permitting disorderly house. 
 XVIII. Shooting at another with intent to kill. 
 XIX. Shooting with malice. 
 XX. Tippling-house. 
 XXI. Permitting unlawful voting. 
 XXII. Peddling. 
 
 I. GENERALLY. 
 
 1. The fifth article of the Amendments to the Constitution of 
 the United States, which declares that " no person shall be held to 
 answer for a capital or otherwise infamous crime, unless on a pre- 
 sentment or indictment of a grand jury," etc., has no application 
 to prosecutions in the State courts. Jane v. Commonwealth, 3 
 Met. 22. 
 
 2. Where exceptions and provisos are contained in distinct 
 clauses of a statute, it is not necessary to aver in the indictment 
 that the defendant does not come within the exception or to nega- 
 tive the provisos. Commonwealth v. McClanahan, 2 Met. 10. 
 
 3. An indictment must set forth the offense with such certainty 
 as to apprise the defendant of the nature of the accusation, upon 
 which he is to be tried and to constitute a bar to any subsequent 
 
294 INDICTMENTS AND PRESENTMENTS. 
 
 prosecution for the same offense. Commonwealth v. Perrigo, 3 
 Met. 5. 
 
 4. The facts necessary to constitute the offense must be alleged. 
 It is not sufficient that the essential facts may be inferred from 
 those stated. Taylor v. Commonwealth, 1 Duv. 161. 
 
 5. The destruction of an indictment does not abate the prosecu- 
 tion. Commonwealth v. Keger, 1 Duv. 241. 
 
 6. There is no misjoinder of offenses in an indictment containing 
 three co)^t8 against five persons, in the first of which all are 
 charged jointly with murder, and in the second, one is charged 
 with the killing, and the others with advising and counseling him 
 to murder, and in the third another is charged in like manner with 
 the murder, and the others with counseling, etc. Thompson v. 
 Commonwealth, 1 Met. 15. 
 
 7. An indictment, charging that the defendant "unlawfully 
 exhibited a theatrical performance," is not good. It should aver 
 the facts showing it to be unlawful. Pike v. Commonwealth, 2 
 Duv. 89. 
 
 8. The Criminal Code dispenses with form, and requires sub- 
 stance only in indictments ; and what is now substance at common 
 law is substance under the Code. Rhodus v. Commonwealth, 2 
 Duv. 159. 
 
 II. FORMAL AVERMENTS. 
 
 1. It is not necessary in a presentment for selling liquor, to add 
 to the name of the defendant his occupation, estate, or degree as 
 yeoman, laborer, etc. Commonwealth v. Bucker, 14 B. Mon. 229; 
 Commonwealth v. Harvey, 16 B. Mon. 2. 
 
 2. An indictment, for an offense prohibited by statute, need not 
 conclude "against the form of the statute." Commonwealth v. Ken- 
 nedy, 15 B. Mon. 533. 
 
 III. NAME OF THE DEPENDANT. 
 
 The omission of the Christian name of the defendant does not 
 vitiate the indictment. Commonwealth v. Kelcher, 3 Met. 485, 486; 
 sees. 124^129, Criminal Code. 
 
 IV. GROUNDS UPON WHICH AN INDICTMENT MAT BE SQUASHED. 
 
 1. No defect, which does not tend to prejudice the substantial 
 rights of the defendant on the merits, will vitiate an indictment. 
 Commonwealth v. Kennedy, 15 B. Mon. 533. 
 
 2. If bystanders, summoned by one appointed by the court to 
 summon grand jurors, compose a part of the grand jury, the 
 
INDICTMENTS AND PRESENTMENTS. 295 
 
 indictment should be quashed. Commonwealth v. Graddy, 4 Met. 
 223. 
 
 v. FOR BETTING ON ELECTIONS. 
 
 In an indictment for betting on the election of a particular 
 individual, it is necessary to aver that he was a candidate, or 
 expected to be voted for, or in some way proposed for election. 
 Commonwealth v. Shouse, 16 B. Mon. 329. 
 
 VI. CARRYING CONCEALED DEADLY WEAPONS. 
 
 An indictment, which describes the weapon charged to have 
 been carried, and charges it to have been a deadly weapon, and to 
 have been carried eoncealed, is good. Commonwealth v. McClana- 
 han, 2 Met. 9, 10. 
 
 VII. CHALLENGING TO FIGHT. 
 
 1. It is not necessary, in an indictment for challenging to fight 
 a duel, to allege that a paper, copied into the indictment, and 
 averred to have been intended by the party giving it as a chal- 
 lenge, was so understood by the parties. Moody v. Commonwealth, 
 4 Met. 3. 
 
 2. Where the answer to a note, averred to have been a challenge, 
 and which refers to a named person as the friend of the party 
 challenging, who would receive and answer all communications from 
 the party challenged though signed by one other than the chal- 
 lenged party, which is copied into the indictment and averred to 
 have been an acceptance, fixes the time and terms of meeting, the 
 indictment need not aver that the notes were intended as a chal- 
 lenge and acceptance. Heffren v. Commonwealth, 4 Met. 5, 6. 
 
 VIII. BRIBERY. 
 
 An indictment for bribing a voter, which shows who was 
 bribed, for what purpose and consideration, that the bribe was 
 eftectual, the amount of the bribe, and who advanced it, the occa- 
 sion on which it was given, and that it was accepted, is good. 
 Commonwealth v. Stevenson, 3 Met. 228, 229. 
 
 IX. FORGERY AND COUNTERFEITING. 
 
 1. An indictment, for uttering or paying out forged or counter- 
 feit bank notes, which fails to allege that the bank, by which the 
 notes purport to have been issued, was incorporated, is fatally 
 defective. Kennedy v. Commonwealth, 2 Met. 37, 38. 
 
 2. An indictment, for tendering in payment an altered bank 
 bill, which fails to set out the denomination, or date, or number of 
 the bill, or to give such other description as would distinguish it 
 from any other bill of the same bank, is defective. Mount v. 
 
296 INDICTMENTS AND PRESENTMENTS. 
 
 Commonwealth, 1 Duv. 91 ; Gommonweatlh v. White, 18 B. Mon. 
 493 ; Commonwealth v. Perrigo, 3 Met. 5. 
 
 X. GAMING, AND PERMITTING GAMING. 
 
 1. A charge in an indictment, that the defendant suffered cer- 
 tain named persons to play, in a house, or on premises, under his 
 control, a game of cards, at which money or property was won 
 and lost, is insufficient for uncertainty. Commonwealth v. Perrigo, 
 3 Met. 6. 
 
 2. An indictment, averring that money or property was won 
 and lost, is good without an averment that it was bet. Buford v. 
 Commonwealth, 14 B. Mon. 26. 
 
 XI. MURDER. 
 
 An indictment, which charges that the defendant, "on De- 
 cember 24, 1857, did willfully and maliciously, and with malice 
 aforethought, kill and murder one J. P., by administering to her 
 a deadly, and corrosive, and destructive poison, called strychnine, 
 from the effects of which the said J. P. died," is not defective in 
 failing to aver that she died within a year and a day, nor for want 
 of a charge that the-poison was administered with malice, or that 
 the defendant had knowledge of the poisonous qualities of the 
 ' drug. Jane v. Commonwealth, 3 Met. 20. 
 
 XII. LARCENY. 
 
 An indictment, charging that the defendant took and carried 
 away "one lot of treasury notes, called greenbacks, the issue of 
 the treasury of the United States of America, and one lot of Ken- 
 tucky bank notes, and fifteen dollars in gold coin," is not good, 
 because it does not sufficiently notify the defendant of the facts to 
 be proved, nor describe the thing alleged to have been stolen. 
 Mhodus V. Commonwealth, 2 Duv. 159, 160. 
 
 XIII. OBTAINING MONEY, ETC., UNDER FALSE PRETENSES. 
 
 An indictment, for obtaining money or goods under false 
 pretenses, must contain all the material facts and circumstances 
 necessary to be proved on the trial, in order to convict, and these 
 facts and circumstances must be proved as laid. Qlackan & Corne- 
 lius v. Commonwealth, 3 Met. 234 ; sec. 123, Criminal Code. 
 
 XIV. PERJURY AND FALSE SWEARING. 
 
 An indictment, charging the defendant with having s«worn 
 falsely to a material allegation in a petition to set aside a judgment 
 rendered against him by default, is good. Commonwealth v. Powell, 
 2 Met. 13. 
 
INDICTMENTS AND PRESENTMENTS. 297 
 
 XV. SETTING UP FARO BANKS, ETC. 
 
 1. It is not necessary, in an indictn^ent against a coffee-house 
 keeper for setting up a faro bank, to aver that he was licensed. 
 Buford V. Commonwealth, 14 B. Mon. 27. 
 
 2. ISoT to aver that it was set up in the house in which the 
 coffee-house was kept. Buford v. Commonwealth, 14 B. Mon. 27. 
 
 XVI. ROBBERY. 
 
 An indictment, charging the defendant with having taken a 
 mare, the property of E., " in his presence and against his will, by 
 putting him in fear of some immediate injury to his person," is 
 good as an indictment for robbery. Commonwealth v. Brooks, 1 
 Duv. 151. 
 
 XVII. PERMITTING DISORDERLY HOUSE. 
 
 An indictment, charging that the defendant did " suffer and 
 permit an indecent and disorderly house to be kept on his planta- 
 tion," is defective in not averring that the house was kept by the 
 defendant, or that he had leased it to another, knowing the pur- 
 pose for which it was to be used, or that it was in the occupation 
 and control of the defendant. Taylor v. Commonwealth, 1 Duv. 161. 
 
 XVIII. SHOOTING AT ANOTHER WITH INTENT TO KILL. 
 
 It is unnecessary, in an indictment for unlawfully shooting at 
 another with intent to kill, to allege that it was done with malice. 
 Bobinson v. Commonwealth, 16 B. Mon. 616 ; sec. 1, art. 17, chap. 
 28, p. 397, vol. 1, Eevised Statutes. 
 
 XIX. SHOOTING WITH MALICE. 
 
 An indictment for malicious shooting need not aver that the 
 person shot " did not die thereby," nor need it aver that the pistol, 
 with which it was done, was " loaded with leaden bullet or other 
 hard substance." Burns v. Commonwealth, 3 Met. 15. 
 
 XX. TIPPLING-HOUSES. 
 
 1. An indictment for keeping a tippling-house is good without 
 an averment that the defendant had no license to retail liquors. 
 Commonwealth Y. Allen, 15 B. Mon. 1, 2 ; Commonwealth v. Harvey, 
 16 B. Mon. 2. 
 
 2. An indictment, charging that the defendant did unlawfully 
 sell whisky, brandy, and other spiritous liquors, is too general. 
 Commongiealth v. White, 18 B. Mon. 493. 
 
 XXI. PEDDLING. 
 
 An indictment for peddling, which charges that\the defendant 
 "did peddle and sell," in the county of M., buggiefe and pleasure 
 
298 INFANTS AND INFANCY. 
 
 carriages, not having a license to peddle the same, and said articles 
 not being the products or manufacture of the State of Kentucky, 
 is not good. The particular acts relied on should be specified. 
 Commonwealth v. Dudley, 3 Met. 221, 222. 
 
 XXII. PERMITTING UNLAWFUL VOTING. 
 
 An indictment charging that the defendant, as one of the judges 
 of an election " knowingly and unlawfully " received the vote of 
 one not entitled to vote, is sufficient without averring whether the 
 sheriif or the other judge was in favor of, or opposed to, allowing 
 the illegal vote to be cast. Gommonwealth v. Gray, 2 Duv. 373. 
 
 INDOESEMBNTS. 
 See Bills op Exchange and Promissory Notes. 
 
 INFANTS AND INFANCY. 
 
 I. Liabilities of infants. 
 
 II. Of the protection of the rights and interest of infants. 
 
 III. Suits by and against infants. 
 
 IV. Saving in favor of infants in Statute of Limitation. See Limitations. 
 V. Sale of infant's real estate. 
 
 I. LIABILITIES OF INFANTS. 
 
 A. On contracts. 
 
 B. For torts. 
 
 a. On contracts. 
 
 1. An infant, who pays in advance for his board and tuition at 
 a public school, may recover pro tanto for time lost on account of 
 sickness; although the rules expressly stipulate that nothing shall 
 be refunded for lost time. Slaughter v. Morgan, 1 Met. 30. 
 
 2. An infant is liable for necessaries furnished him. Sams v. 
 Stockton & Curtis, 14 B. Mon. 234, 
 
 3. A wedding suit, sold an infant about to marry, if such as is 
 suitable to his situation and condition in life, is necessary, and he 
 will be responsible. Sams v. Stockton & Curtis, 14 B. MoIj. 234. 
 
 4. When a party voluntarily contracts with an infant, the latter 
 may avail himself of his disability and avoid the contract, if not for 
 necessaries. Watson v. Gross, 2 Duv. 148. 
 
INFANTS AND INFANCY. 299 
 
 6. But when the contract is entered into by the adult by the 
 compulsion of the infant, the law will not permit the latter to avoid 
 it on the ground of infancy. Watson v. Gross, 2 Duv. 148. 
 
 6. Entertainment, furnished by an inn-keeper to an infant with- 
 out any knowledge that it is improper for him to do so, is neces- 
 sary, and the price may be recovered on that ground. Watson v. 
 Cross, 2 Duv. 148. 
 
 7. An inn-keeper has a lien on the baggage of his infant guest 
 for the price of his entertainment. One who furnishes money to 
 procure necessaries which he actually buys with the money, may 
 recover the money by substitution to the rights of him who fur- 
 nished the necessaries. Watson v. Cross, 2 Duv. 149. 
 
 b. For torts. 
 Infants are liable, like adults, for their tortious acts, and an 
 infant father of a bastard child is liable for its support as though 
 he were adult. Chandler v. Commonwealth, 4 Met. 68. 
 
 II. OF THE PROTECTION OF THE RIGHTS AND INTERESTS OF INFANTS. 
 
 1. The probable sacrifice of the interest of infants will not be 
 grounds for making a distinction in their favor, where none is 
 made by the statute. Brace v. Shaw, 16 B. Mon. 81. 
 
 2. The rights and interests of infants are under the special care 
 of courts of equity, whose duty it is to vacate every judgment by 
 which injustice is done them. Newland v. Gentry, 18 B. Hon. 671. 
 
 III. SUITS BY AND AGAINST INFANTS. 
 
 A. By infants. 
 
 B. Against infants. 
 
 C. Service of process against infants. 
 
 a. By infants. 
 
 1. Valid grounds for vacating a judgment against infants may be 
 presented as well before as after their arrival at full age. Newland 
 V. Gentry, 18 B. Mon. 671. 
 
 2. "Whether an infant, who was a defendant and had by guardian 
 ad litem made his answer a cross-petition, would, in a suit for the 
 same matter against the same person after his majority, be barred 
 by his cross-petition. Quere. Enders v. Williams, 1 Met. 357. 
 
 h. Suit against infants. 
 1. An infant defendant, coming of age after answer by a guar- 
 dian ad litem but before decree, may answer for himself. Mitchell 
 V. Berry, 1 Met. 620. 
 
300 INFANTS AND INPANCT. 
 
 2. Before judgment can be rendered against an infant, charged 
 as the father of a bastard child, a guardian ad liteWu must be 
 appointed to defend for him. Chandler v. Commonwealth, 4 Met. 
 70. 
 
 3. The answer of an infant by guardian ad litem should not be 
 rejected because it was not presented in proper time. Beverly v. 
 Perkins, 1 Duv. 253. 
 
 4. Infants, made defendants in one suit, but not served with pro- 
 cess, actually or constructively, though plaintiffs, without next 
 friend or guardian, in another suit consolidated with it, will not 
 be bound by the judgment. Bush v. Bush, 2 Duv. 270. 
 
 c. Service of process against infants. 
 
 1. Process against infants under fourteen years of age must be 
 served on the infants, and the father or guardian, and if neither of 
 these can be found, then upon the mother, or any white person 
 having control of the infant, or with whom he resides. Lloyd v. 
 McCauley, 14 B. Mon. 543. 
 
 2. Whether process, executed by an officer on an infant and 
 mother, is good without it, show that neither father nor guardian 
 could be found. Quere. JJloyd y. McCauley, li^. Mon. M3. 
 
 3. But it would not be good, if made by any other person than 
 an officer, unless it appeared, from the return, that neither father 
 nor guardian could be found. Lloyd v. McCauley, 14 B. Mon 
 543. 
 
 4. "Where there is nothing in the record to show the age of an 
 infant, or whether he had a guardian or not, and the sheriff returns 
 the process as executed by delivering a copy to the infant, he will 
 be presumed to have done his duty, and the service will be suffi- 
 cient. Webber v. Webber, 1 Met. 21. 
 
 5. "Where infants are defendants, and the service of process 
 would be illegal, if they were under fourteen, the question of their 
 age should be submitted to the jury for a special verdict, and if 
 they find them under fourteen, the action should be dismissed 
 without prejudice. Beverly v. Perkins, 1 Duv. 253. 
 
INFANTS AND INFANCY. 301 
 
 V. SALE OP infant's REAL ESTATE. 
 
 A. Oenerally. 
 
 B. Town lots. 
 
 O. The petition. 
 
 D. Appointment and report of commissioners. 
 
 E. Bond of guardian. 
 
 F. Setting aside, or confirming sale. 
 
 a. Generally. 
 
 1. That the land, sought to be sold by the guardian of infants, 
 does not belong exclusively to them but after-born children, of the 
 father who is living, will have an interest, does not prevent its 
 being sold ; the proceeds to be reinvested in land to be held for the 
 same uses and trusts as the property sold. Bell v. Clark, 2 Met. 
 575 ; sec. 2 ; act to amend chap. 86, p. 314, vol. 2, Eevised Statutes. 
 
 2. Under the statute, authorizing the sale of infant's real estate, 
 the chancellor has jurisdiction to order the sale of any interest of 
 an infant in such estate, whatever the character of that interest, 
 or in whatever manner held. A contingent remainder, or an 
 interest in the nature of an executory devise, may be sold. Nutter 
 V. Bussdl, 3 Met. 165, 166 ; sec. 1, art. 3, chap. 86, p. 304, vol. 2, 
 and sec. 13, chap. 21, p. 262, vol. 1, Eevised Statutes. 
 
 3. So much of the real estate of an infant heir, or devisee, as 
 may be necessary to pay the debts of the ancestor, or devisor, may 
 be sold in a proceeding to settle the decedent's estate ; but if more 
 than is necessary for that purpose be sold, the judgment and sale 
 are void, unless the requirements of the statute relating to the 
 sale of infant's lands have been complied with. Gill v. Givin, 4 
 Met. 198. 
 
 4. Whether a judgment, in such a case, to sell so much of the 
 lands of an infant as would pay a given sum, adjudged to be diie 
 by the ancestor, or devisor, would be void if the debt was errone- 
 ously adjudged due. Quere. Gill v. Givin, 4 Met. 199. 
 
 5. The word void as used in the statutes, authorizing the sale of 
 infant's real estate, and in the decisions of the court of appeals 
 upon these statutes, should be construed as meaning voidable only. 
 Thornton v. McGrath, 1 Duv. 352. 
 
 6. The general power, formerly possessed by courts of equity, to 
 sell the real estate of infants, even to pay for necessary improve- 
 ments, has been taken away by statute. Barrett v. Churchill, 18 
 B. Mon. 391. 
 
302 INFANTS AND INFANCY. 
 
 b. Town lots. 
 
 1. Before a sale can be made of infants' lands situated in a town 
 or city, under section 543, Civil Code, it must be proven that a 
 division would greatly impair the value, and some one must be 
 appointed to take care of the interest of the infants, whose shares 
 are not to be paid, but to remain a lien on the land. Barber v. 
 Hopewell, 1 Met. 263. 
 
 2. Proceedings under section 543, Civil Code, for the sale of a 
 town lot held by tenants in common, some of whom are infants, 
 are not void because the court failed, before ordering the sale, to 
 direct that the infants' share of the purchase-money should not be 
 paid, but remain a lien on the land until bond was executed by a 
 guardian. Todd v. Dowd, 1 Met. 284 ; Bohinson v. Bedman, 2 
 Duv. 83. 
 
 3. Mere irregularities in proceedings to sell real estate, consist- 
 ing of town lots held by, or in trust for, co-parcenors, joint-tenants, 
 or tenants in common, some of whom are infants, will not vitiate 
 the sale, though they may be of such a character as to render the 
 judgment erroneous. Bobinson v. Bedman, 2 Duv. 83. 
 
 4. Chapter 86, Revised Statutes, has no application to the sale of 
 infants' real estate consisting of town lots. Bobinson v. Bedman, 
 2 Duv. 84. 
 
 5. When city or town lots held by, or in trust for, infants or 
 married women, have been sold under the provisions of section 
 543, Civil Code, without the orders in the judgment required by 
 that section, the court should allow the purchaser to elect to retain 
 the money at interest as a lien ; and if he elects not to retain it, 
 it should be invested or loaned out under the control of the court. 
 Bobinson v. Bedman, 2 Duv. 85. 
 
 6. When it appears by the petition of adult tenants in common 
 against infants, that a town lot, sought to be sold, is not divisible 
 without greatly impairing its value, the court has jurisdiction to 
 order a sale, and the judgment will not be void, and its propriety 
 can not be questioned, collaterally by the purchaser, in response 
 to a rule to pay the purchase-money. Todd v. Dowd, 1 Met. 284. 
 
 7. After the sale made in such a case is confirmed, the court has 
 no power, at a subsequent term, to go behind that order and re- 
 vise its proceedings. Todd v. Dowd, 1 Met. 284. 
 
 c. TJie petition. ' , 
 
 1. The fact that infants are made plaintiffs, with their statutory 
 guardian, in a petition for the sale of their landsj will not vitiate 
 
INFANTS AND INFANCY. 303 
 
 the proceedings. Carpenter & Grisghy v. Strothers, 16 B. Mon. 
 295. 
 
 2. If infants be defendants in a proceeding to sell land, in which 
 they own an interest, their interest can not be sold until their 
 guardians have filed answers stating the same facts required in the 
 petition of the guardian of those who are made plaintiffs and 
 commissioners have reported as required by law. Carpenter & 
 Grigsby v. Strothers, 16 B. Mon. 296 : Wyatt v. Mansfield, 18 B. Mon. 
 
 781. 
 
 d. Appointment and report of commissioners. 
 
 1. "Until commissioners have been appointed, and report the 
 " net value of the infant's real and personal estate, and the annual 
 profits thereof," the court has no jurisdiction to decree a sale of 
 their lands. The law in this respect must be strictly complied 
 with or the judgment will be void. Carpenter & Grigsby v. Strothers, 
 16 B. Mon. 296; Barrett v. Churchill, 18 B. Mon 389; Wyatt y. 
 Mansfield, 18 B. Mon. 781, 782; Woodcock v. Bowman, 4 Met. 41. 
 
 2. The report of the commissioners must show that the proper- 
 ty named in the report is all the infants have, and that their in- 
 terest requires a sale. An opinion that it will redound to their 
 benefit is not sufficient. Wells v. Cowherd, 2 Met. 516; Mattingly 
 V. Beed, 3 Met. 525; Bell v. Clark, 2 Met. 574. 
 
 3. The order appointing commissioners should direct them to 
 report whether the interest of the infants requires a sale to be 
 made, and an order directing them to report whether a sale would 
 redound to their interest, is not good. Mattingly v. Beed, 3 Met. 
 525. 
 
 4. A statement in the report that the infants have no other es- 
 tate in the county, known to the commissioners, is not good. 
 Bell V. Clark, 2 Met. 574, 575. 
 
 5. The court has no right to appoint commissioners to report 
 the value of infant's estate, and whether their interest requires a 
 sale of their real estate until after the petition of the guardian is 
 filed. Mattingly v. Beed, 3 Met. 526. 
 
 6. "Whether a defective order, appointing commissioners to 
 value the estate of infants, will be cured by a report such as the 
 law requires. Quere. Woodcock v. Bow7nan, 4 Met. 42, 43. 
 
 7. The record of proceedings for the sale of infant's real estate 
 must show that commissioners, to value their estate, were sworn ; 
 otherwise the court will have no jurisdiction. Watts v. Pond, 4 
 Met. 62.1 
 
 I Thornton v. McQrath, 1 Dur. 353, is in direct conflict with this case, but 
 dpes not refer to it. 
 
304 INFANTS AND INFANCY. 
 
 8. Althougk it may not appear from the record that the com- 
 missioners to value infant's estate were sworn, it can not be pre- 
 sumed that they, in fact, were not sworn. Thornton v. McGrath, 
 1 Duv. 353. 
 
 e. Bond of guardian. 
 
 1. That the guardian executed bond after judgment for the sale 
 of infant's real estate is not sufficient. Wyatt v. Mansfield, 18 B. 
 Mon. 781 ; Barber v. Hopewell, 1 Met. 262 ; Carpenter & Grigsby v. 
 Strothers, 16 B. Mon. 296; Barrett v. Churchill, 18 B. Mon. 391; 
 Magowan v. Way, 1 Met. 425. 
 
 2. The bond required to be given before judgment is rendered 
 for the sale of infant's real estate, must be in accordance with the 
 statute, and a bond stipulating for a faithful performance of all the 
 guardian's duties under the statute, is expressly required, and a 
 bond stipulating that the guardian will " well and truly perform 
 the decree of said court in the premises, and shall from time to 
 time obey all orders which may be made in the premises, and shall 
 faithfully collect and disburse all monies arising from the sale of 
 said property, as the same shall become due," is defective, and a 
 judgment for a sale under it is void. Wells v. Cowherd, 2 Met. 516, 
 517. 
 
 3. A recital in the judgment, that the guardian had given bond 
 as required, authorizes the inference that it was given before or 
 simultaneously with the judgment, although dated the day after. 
 Thornton v. McGrath, 1 Duv. 353. 
 
 /. Setting aside or confirming the sale. 
 
 1. A purchaser of infants' lands at decretal sale may, in response 
 to a rule to pay the purchase-money, move to quash his bonds, 
 which should be done, if the requisites of the statute have not 
 been complied with. Barrett v. Churchill, 18 B. Mon. 391. 
 
 2. That infant defendants, who had been summoned, had not 
 answered before judgment to sell, renders the judgment erroneous, 
 and it may for that be reversed, but it is not on that account void. 
 Thornton v. McGrath, 1 Duv. 354. 
 
 3. The acts of 1861, 1862, Myers' Supplement, pp. 423-425, au- 
 thorizing the confirmation of defective sales of infants' real estate, 
 do not operate to impair the obligation of contracts, or to divest 
 vested rights, and are constitutional. Thornton v. McGrath, 1 
 Duv. 354, 355. 
 
 4. After the sale of infants' town lots, in a proceeding under 
 .section 543, Civil Code, is confirmed, the court has no power, at &■ 
 
INJUNCTION. 305 
 
 subsequent term, to go behind that order and revise the proceed- 
 ings. Todd V. Bowd, 1 Met. 284 ; sec. 579, Civil Code. 
 
 5. The court of appeals having held a sale of infants' real estate 
 void, and directed the circuit court to vacate the judgment and 
 sale, and all proceedings under either, the guardian of the infants 
 before an entry of the mandate in the circuit court filed a petition, 
 alleging that the sale was beneficial to the infants, and asking its 
 confirmation. Held: That the confirmation was proper under the 
 acts of 1861, 1862. Myers' Supplement, 424, 425 ; Woodcock v. 
 Bowman, 2 Duv. 510. 
 
 INJUNCTIOlsr. 
 
 1. The mode of obtaining an injunction has been changed by 
 the Code of Pi'actice, but when obtained it has the same effect it 
 formerly had. Keith v. Wilson, 3 Met. 206. 
 
 2. If it be agreed between the parties that their mutual claims 
 shall be set off against each other, and one of them, in violation of 
 the agreement, sues and obtains judgment, the judgment may be 
 enjoined, and the contract specifically executed by the chancellor. 
 Lansdale v. Mitchell, 14 B. Mon. 350. 
 
 3. An injunction will not be granted to stay proceedings, in an 
 action in this State, to await the decision of a suit in another 
 State, that the party asking it may ascertain whether he will have, 
 on account of its result, other claims against his adversary here, 
 who is not a party to the foreign suit. Glark v. Finnell, 16 B. 
 Mon. 337, 338. 
 
 4. That a debt has been paid in full is not sufiicient ground 
 upon which to enjoin a judgment at law. It is a complete legal 
 defense, and should have been made at law. Lillard v. Turner, 
 16 B. Mon. 376 ; Ghinn v. Mitchell, 2 Met. 95, 96. 
 
 5. An injunction may be granted when the defendant is doing 
 that which might produce great or irreparable injury to the plain- 
 tiff or inconvenience to the public. Phillips v. Winslow, 18 B. 
 Mon. 448. 
 
 6. A separate suit can not be maintained to procure an injunc- 
 tion or attachment to prevent the sale er removal of property, in 
 contest in another action pending in another county. Moore v. 
 Shepherd, 1 Met. 100. 
 
 7. A judgment, rendered in an action in which the sheriff is a 
 plaintiff, will, if the process was served by the sheriff, be invalid 
 
 21 
 
306 
 
 INSTRUCTIONS. 
 
 and its execution may be resisted by injunction. Knott v. Jarboe, 
 1 Met. 506, 507 ; sec. 737, Civil Code ; 3 Mar. 536. 
 
 8. Where a judgment palpably erroneous was burned, with the 
 entire record, and the defendant had sued out execution, and had 
 it levied on the plaintiff's property, whereby the plaintiff was 
 Jikely to sustain irreparable injury, the plaintiff is entitled to an 
 injunction until he can supply the lost record, and present it to 
 the court of appeals for reversal. Deshong v. Gain, 1 Duv. 309, 
 310. 
 
 9. An injunction arrests the execution of afi.fa., though levied, 
 and releases the levy and discharges the lien created by it, not- 
 withstanding the injunction maybe adjudged to have been wrong- 
 fully sued out. Keith v. Wilson, 3 Met. 205 ; Lockridge v. Bigger- 
 staff, 2 Duv. 282. 
 
 10. A plaintiff, whose execution has been levied and then en- 
 joined, should, on a dissolution of the injunction, take out new fi. 
 fa., and not a venditioni exponas. Lockridge v. Biggerstaff, 2 Duv. 
 282. 
 
 11. That the vendor of land is insolvent, and has no title to the 
 land, is suflScient grounds for enjoining a judgment against the 
 vendee, on a note for the purchase-money, although the time for 
 conveying the land has not arrived. Kelly v. Kelly, 2 Duv. 
 364. 
 
 12. "Where a judgment on a note given for land was obtained in 
 the quarterly court, a suit for an injunction should be brought in 
 that court (section 314, Civil Code), and as the case would then 
 involve the title to land, it should be transferred to the circuit 
 court. Kelly v. Kelly, 2 Duv. 364 ; sec. 25, Civil Code. 
 
 INSANITY. 
 See Idiots and Lunatics and Ckiminal Law. 
 
 INSTEUCTIONS. 
 
 For instructions in criminal proceedings, see Criminal Law. 
 
 1. An instruction hypothecated on a fact which the jury are not 
 warranted in finding from the evidence, is erroneous. Burnham v. 
 Cornwall, 16 B. Mon. 288; McClain v. Estham, 17 B. Mon. 156; 
 Bibh V. Summers, 17 B. Mon. 306 ; Pro. Ins. Co. v. Hall & 
 15 B. Mon. 430. 
 
INSTRUCTIONS. 307 
 
 2. To instruct the jury that " conversations had between the wit- 
 ness and the party alone, when uncorroborated by other proof or 
 circumstances, is the weakest evidence held competent by law,'' is 
 erroneous if there be corroborating evidence or circumstances. 
 Western v. Pollard, 16 B. Mon. 321. 
 
 3. It is not proper for the court to give a peremptory instruc- 
 tion to the jury to find a particular fact, if there be any evidence 
 to prove contrary facts. Merritt v. Pollys, 16 B. Mon. 356 ; Slaugh- 
 ter V. Morgan, 1 Met. 29. 
 
 4. "Where there is proof tending to show that the act complained 
 of in an action was willfully or wantonly and recklessly done, it is 
 not improper to tell the jury that they may give exemplary dam- 
 ages. Kountz V. Brown, 16 B. Mon. 586. 
 
 5. It is improper for the court to tell the jury that the evidence 
 preponderates in favor of one side of the case, if there has been any 
 evidence tending to establish an opposite conclusion, although it be 
 so slight that it would not sustain a verdict ; the evidence must be 
 left to be weighed by the jury. Thompson v. Thompson, 17 B. 
 Mon. 28. 
 
 6. A party has no right upon his own evidence alone, or upon 
 his own and his adversaries, to ask a peremptory instruction, 
 unless the evidence consists of record or uncontested official docu- 
 ments. Thompson v. Thomas, 17 B. Mon. 28. 
 
 7. In an action of slander, it is the province of the court to tell 
 the jury what words are slanderous. Estham v. Gurd, 15 B. Mon. 
 105, 106. 
 
 8. It is not error to refuse to instruct the jury on an abstract 
 question which the evidence does not conduce to prove. Tudor v. 
 Tudor, 17 B. Mon. 392. 
 
 9. It is erroneous to instruct the jury that they 'must find a 
 particular fact from a part only of the evidence. Adwell v. Common- 
 wealth, 17 B. Mon. 320. 
 
 10. "When the plaintiff has made out a prima facie right to 
 recover, it is erroneous to give a peremptory instruction to find 
 against him. Easley v. Easley, 18 B. Mon. 93. 
 
 11. It is erroneous to instruct the jury to find that a note sued 
 on had been executed when its execution has not been denied, as a 
 condition on which they should find for the plaintiff. Orth & 
 Wallace v. Clutz, 18 B. Mon. 226. 
 
 12. It is error to instruct the jury about a matter not in issue. 
 L. & N. B. B. Go. V. Thompson, 18 B. Mon. 744. 
 
308 INSTRUCTIONS. 
 
 13. A party can not complain that the court failed to interpret 
 to the jury words used by himself in an instruction asked for and 
 given, unless he had asked the court for such explanation, and the 
 court refused to give it. Chiles v. Brake, 2 Met. 154. 
 
 14. Where a local custom, at variance with the general law of 
 the land, is relied on by either party, the court should instruct the 
 jury as to the character of custom which would be available. 
 Huston, etc. v. Peter Hardin, etc., 1 Met. 561, 562. 
 
 15. Whether a fact alleged in the petition is material to the 
 matters in issue, and whether it has been denied in the answer 
 are questions for the court, and the court should inform the jury 
 what facts should be considered as true under the pleadings. 
 Allard v. Smith, 2 Met. 301 ; Hall & Co. v. Benfro, 3 Met. 55. 
 
 16. Fifteen or sixteen plaintiffs, claiming to be the heirs-at-law 
 of A., instituted an action to recover the possession of land. 
 Evidence that the ancestor left eleven children, and that the plain- 
 tiffs and one other were her children and heirs, did not authorize 
 the court in instructing the jury to assume the heirship of the 
 plaintiffs as proved. Woolfolk v. Ashhy, 2 Met. 290. 
 
 17. An instrjiction " that if the jury think the plaintiff ought to 
 recover, they have a right each to set down the sum he believes 
 ought to be recovered by the plaintiff, and add them all together 
 and find the twelfth part in damages, if they think proper to do 
 so," is erroneous. Allard v. Smith, 2 Met. 300. 
 
 18. An instruction that the jury must disregard every fact sworn 
 to by a witness who has sworn falsely to one material fact is 
 erroneous. Letton v. Young, 2 Met. 565 ; Hall & Co. v. Benfro, 3 
 Met. 55. 
 
 19. So it is error to instruct the jury that they have a right to 
 disregard all the testimony of a witness, if they believe, from the 
 evidence, that he had sworn to any fact which was untrue. Hall 
 & Co. V. Benfro, 3 Met. 55, 56. 
 
 20. Wo instruction should be given based on a ground of defense 
 not set up in the answer. Bay v. Sellers, 1 Duv. 256. 
 
 21. When the evidence sustaining the plaintiff's claim is uncon- 
 tradicted, it is not erroneous to instruct the jury to find for the 
 plaintiff, if they believe the evidence. Spalding v. Bull, 1 Duv. 
 312. 
 
 22. It is error to instruct the jury, that they must believe all 
 that was said by the defendant, in a conversation proved by the 
 plaintiff. Smith v. Northern Bank Ky., 1 Met. 579, 580. 
 
INSTJUANCE. 
 
 309 
 
 INSUEANOB. 
 
 I. "What will avoid a policy. 
 
 II. Liability of insurers. 
 III. Duty of assured. 
 IV". What interest is insurable. 
 
 V. Contribution between insurers of tbe same property. 
 
 I. WHAT WILL AVOID A POLICT. 
 
 1. If the assured overvalues the property insured to an extent, 
 that could not reasonably result from a difference of opinion 
 between men as to the value of the property, or the subject insured 
 be not in existence, and the fact be not disclosed, either will avoid 
 the policy. Pro. Ins. Co. v. Hall & Gideon, 15 B. Mon. 430. 
 
 2. The charter of an insurance company, provided that every 
 person obtaining insurance, thereby became a member of the com- 
 pany, during the continuance of his policy, and liable for his pro- 
 portion of the losses, incurred while he remained a member ; that 
 his interest, in the land on which the buildings insured are situ- 
 ated, should be pledged to the company, which should hold a lien 
 on the same ; that policies should be deemed valid in all cases, 
 where the assured had an unincumbered fee simple title to the 
 buildings insured, and the land covered by them, but if the assured 
 had a less estate, then the policy to be void, unless the true title of 
 the party was expressed in the policy. The plaintiff took out a 
 policy in his own name on buildings belonging to his wife, which 
 fact was neither stated in the policy nor disclosed to the insurer. 
 Held: The policy was void. Eminence Ins. Co. v. Jessee, 1 Met. 
 526-528. 
 
 3. A policy, void as to a part of the property insured because 
 the assured had no insurable interest in it, is aot thereby rendered 
 void as to any other property secured by the same policy, in which 
 he had such interest. Phmnix Ins. Co. v. Lawrence, 4 Met. 14. 
 
 4. A stipulation in a policy, that if articles enumerated are kept 
 in the building with the goods insured, that so long as they are 
 kept, the policy shall cease, and be of no effect, does not render 
 the policy void upon the articles being kept ; but only suspends it 
 during the time they are kept. Phxnix Ins. Co. v. Lawrence, 4 
 Met. 17. 
 
 5. Nor does the keeping of such articles, when the policy was 
 obtained, render it void, unless the fact was concealed from the 
 insurers. Phoenix Ins. Co. v. Lawrence, 4 Met. 17. 
 
310 INSTJBANCB, 
 
 II. LIABILITIES OF INSURERS. 
 
 1. If property is insured in several companies, and none of the 
 policies contain stipulations as to the distribution of any loss that 
 may occur, the assui-ed may recover all the loss not exceeding the 
 policy of any one of the insurers, or if he recovers part of one, he 
 may recover the balance of the. other without reference to their 
 respective shares. Oromie v. Ky. & Lou. Ins. Co., 15 B. Mon. 436. 
 
 2. If the insurer have a knowledge, derived from the customs of 
 the place where the insurance is made, of the interest and property 
 intended by the assured to be covered by the policy, the conse- 
 quences of a failure to make the policy unambiquous should fall 
 upon the insurer. Jackson & Co. v. JStna Ins. Co., 16 B. Mon. 2C2. 
 
 3. If property, covered by insurance, be sold to be delivered, 
 and paid for at a future day, but before delivery and payment it is 
 destroyed by fire, and the policy contains a proviso that " any 
 change of title," shall render the policy void, the vendor may still 
 recover the value of the property of the insurer. Jackson & Co. 
 V. Mna Ins. Co., 16 B. Mon. 267, 269, 273. 
 
 4. If a policy, by which a steamboat is insured, contains a stipu- 
 lation, expressly exonerating the company from liability arising 
 from the bursting of boilers, and a boiler bursts and the boat be 
 consumed by fire resulting therefrom, the insurer will not be liable- 
 Motitgomery v. F. Ins. Co., 16 B. Mon. 442. 
 
 5. If property insured be levied on by an officer, but remains in 
 the possession of the assured and is burned, the insurers will be 
 liable. So if conveyed by deed of trust for the benefit of creditors , 
 Phoenix Ins. Co. v. Lawrence, 4 Met. 15. 
 
 HI. DUTY OF THE ASSURED. 
 
 All the facts, necessary to enable the insurers to estimate the 
 value of the risk, should be communicated by the assured. Pro. 
 Ins. Co. V. Sail & Gideon, 15 B. Mon. 431. 
 
 IV. WHAT MAY BE INSURED. 
 
 Builders, whose compensation depends on the completion of the 
 building, have an insurable interest in it. Pro. Ins. Co. v. Hall & 
 Gideon, 15 B. Mon. 430. 
 
 V. CONTRIBUTION BETWEEN INSURERS OF THE SAME PROPERTY. 
 
 If property be insured in several companies and destroyed, and 
 one of them pays the whole loss, it may recover of the others their 
 respective shares. Oromie v. Ky. & Lou. Ins. Co., 15 B. Mon. 436. 
 
INTERROGATORIES. 311 
 
 INTBEBST. 
 
 . See UsTJKY. 
 
 1. To enable a corporation to recover ten per cent, for the non- 
 payment of stock subscribed as called for, it must be shown that 
 the requisitions of the charter have been pursued. Lackey v, B. 
 & L. T. M. Co., 17 B. Mon. 51. 
 
 2. In an action on a contract, the court may, if a specific sum is 
 claimed and not denied, give judgment, by way of damages, for 
 interest on the amount claimed from the bringing of the suit. 
 Frances v. Frances, 18 B. Mon. 61. 
 
 3. When a guardian's bond was for $1,000, and the amount due 
 the ward exceeded that sum, interest was given against the sureties 
 on the amount of the bond from the time the ward arrived at age. 
 Carter v. Thorn, 18 B. Mon. 619. 
 
 4. Interest, due at the time of judgment, may be added to the 
 principal, and judgment given for the whole. Kelly v. Smith, 1 
 Met. 318; sec. 6, chap. 53, p. 65, vol. 2, Eevised Statutes. 
 
 5. Interest should not be decreed against a personal representa- 
 tive, directed to invest a legacy, until he had a reasonable oppor- 
 tunity to do so; unless he is shown to have realized interest on it 
 Xyle V. Taylor, 2 Met. 49, 50. 
 
 6. Judgment, for interest in an action of slander, is erroneous. 
 Adams v. Rankin, 1 Duv. 59; see. 6, chap. 53, p. 65, vol. 2, Eevised 
 Statutes. 
 
 7. Where a will directs the payment of a legacy out of a speci- 
 fied fund, and if that should prove insufficient, the deficiency to be 
 raised, after the widow's death, out of funds devised to her for life, 
 the legacy will not carry interest after a year from the testator's 
 death, the time of payment being fixed within the meaning of the 
 statute. Page v. Miller, 2 Duv. 168 ; Lasley v. Lasley, 1 Duv. 118. 
 
 INTBEEOGATOEIBS. 
 
 1. A defendant is not bound to answer an interrogatory, in the 
 plaintifi"8 petition, not founded on some material allegation. Bur- 
 nett, etc. V. Garnett, etc., 18 B. Mon. 71. 
 
312 ISSUE. 
 
 2. No judgment can be rendered because of the failure of the 
 defendants to answer an interrogatory, contained in the body of 
 the petition, not founded on some material allegation. Burnett, etc. 
 V. Garnett, etc., 18 B. Mon. 71. 
 
 3. Answers to interrogatories contained in a pleading, in order 
 to be read as a deposition, must be authenticated as required by the 
 code. Ford v. Thompson, 1 Met. 585. 
 
 ISSUE. 
 See Hbies. 
 
 The words "dying without issue," are now construed as import- 
 ing a failure of issue at the death of the first devisee and not an 
 indefinite failure. Armstrong v. Armstrong, 14 B. Mon. 344; McKay 
 V. Merrifield, 14 B. Mon. 323. 
 
 JAILOE. 
 
 1. A county court has no power to suspend or remove a jailor 
 from office, and section 9, article 2, chapter 91, page 34, volume 2, 
 Eevised Statutes, which attempts to confer such power, is uncon- 
 stitutional. l/Owe V. Commonwealth, 3 Met. 239, 240. 
 
 2. Jailors may be removed by judgment of the circuit court, on 
 indictment for any of the offenses enumerated in section 36, 
 article 4, of the constitution. JJowe v. Commonwealth, 3 Met. 
 240. 
 
 3. A contract by a prisoner, who is sick in jail, to pay the jailor 
 for extra services and attentions beyond those required by law of 
 the jailor, is not void as against public policy. Trundle v. Biley, 
 17 B. Mon. 400. 
 
 JOINT TENANTS AND TENANTS IN COMMON. 
 
 1. One, owning an undivided interest in a tract of land, may 
 recover it against one in possession who claims the whole. Young 
 v. Adams, 14 B. Mon. 128 ; Russell v. Marks, 3 Met. 46. 
 
JOINT TENANTS AND TENANTS IN COMMON. 313 
 
 2. The possession of one tenant in common is the possession of 
 all, unless there be an actual ouster or something equivalent 
 thereto. Young v. Adams, 14 B. Mon. 129. 
 
 3. If one tenant in common appropriates to his exclusive use, 
 by improvement and occupation, a specific portion of the common 
 lands, and enough remains outside of the part so appropriated to 
 satisfy the claim of the other co-tenants, he will not be disturbed. 
 Alves V. Town of Henderson, 16 B. Mon. 165. 
 
 4. Two, out of eight tenants in common, have no right, in an 
 action for mesne profits, to recover damages for the whole injury 
 done to the land of all. Masterson v. Hagan, 17 B. Mon. 334. 
 
 5. The entry of one joint tenant upon land is not adverse, but 
 inures to the benefit of all, unless accompanied by some open and 
 public act denying their right, and of which they are informed. 
 Gossom V. Donaldson, 18 B. Mon. 239. 
 
 6. But one, who enters as a co-tenant, and subsequently claims 
 adversely by open and public acts, asserting claim to all the land, 
 will be entitled to the benefit of the statute of limitations from the 
 time his adverse holding commenced. Gossom v. Donaldson, 18 
 B. Mon. 241. 
 
 7. The infancy of one co-tenant, when the right of all accrued 
 by descent, prevents limitation from running, and saves the right 
 of all. Harlan v. Seaton, 18 B. Mon. 326 ; May's Heirs v. Bennett, 
 4 Litt. 314. 
 
 8. If B. enter as tenant of A. and P., and, on an order from A. 
 alone to abandon possession so far as his interest goes, he abandons 
 the whole possession to T., P. will not be affected thereby, and T. 
 will, at most, only be entitled to hold jointly with P. Tucker v. 
 Phillips, 2 Met. 419, 420. 
 
 9. "When one, of several joint owners of land, takes into his 
 possession separate parcels of the land, and the land is thus 
 separately held and claimed during many years, the presumption 
 arises that a partition had been made between the parties. Russell 
 V. Marks, 3 Met. 45. 
 
 10. One joint owner of land, having it in his possession, and 
 holding and claiming it as his own, adversely to the rights of the 
 other joint owners, and in such manner as to apprise them of the 
 adverse character of his possession, for a period of twenty years, 
 thereby acquires a separate right to it available against his co- 
 tenants and all other persons. Bussell v. Marks, 3 Met. 45, 
 46. 
 
314 
 
 JOINTURE. 
 
 11. If a tenant in common, owning three-fifths of several slaves, 
 emancipate them by his will, it is a conversion by the testator, and 
 deprives his co-tenants of their right to the slaves, and converts 
 it into a money demand against his estate. Nunnally v. White, 3 
 Met. 593 ; Tom Davis v. Tingle, 8 B. Mon. 544. 
 
 JOINTUEB. 
 
 1. The law relating to jointure has not been changed by the 
 Eevised Statutes, and property, settled on the wife by the husband 
 in his lifetime, will not be a bar to dower, unless it be expressed 
 to be in lieu of dower. Yancy v. 8mith, 2 Met. 409, 410. 
 
 2. Any conveyance or devise of real or personal estate, which is 
 intended by the grantor or devisor to be in lieu or in satisfaction 
 of dower, must be deemed a conveyance or devise by way of 
 jointure. Tevis v. McGreary, 3 Met. 153; Yancy v. Smith, 2 Met. 
 410. 
 
 3. A testator gave to his widow ten thousand dollars, and to a 
 trustee for the use of his brother three thousand dollars. On the 
 settlement of his estate, the assets were not sufficient to pay both 
 legacies. Seld : They should not abate rateably ; but that the 
 legacy to the widow appearing to be in lieu of dower, she was 
 entitled to the full amount. Tevis v. Mc Creary, 3 Met. 153, 154. 
 
 JOINDEE OF ACTIONS. 
 
 1. A. hired a negro to B. and B. again hired the same slave to 
 C, by whose cruel treatment the slave died. Held : That A. and 
 B. might unite an action for the hire and an action for the recovery 
 of the value of the slave for the benefit of A. Carney v. Walden, 
 16 B. Mon. 398. 
 
 2. The plaintiff may unite, in his petition for the recovery of 
 real property, his claim for rents and damages, or he may bring a 
 separate action for the latter. Walker v. Mitchell, 18 B. Mon. 646. 
 
 3. But if damages be claimed in the action for the land and there 
 is a finding, it will be a bar to any subsequent action for the same 
 matters. Walker v. Mitchell, 18 B. Mon. 546. 
 
 4. In an action for the recovery of specific personal property, 
 the plaintiff can not unite a cause of action arising on contract for 
 the payment of money. McKee v. Pope, 18 B. Mon. 555. 
 
JOINDER OF ACTIONS. 
 
 315 
 
 5. All objections to a misjoinder of causes of action must be taken 
 in the circuit court, or they will be deemed to have been waived. 
 McKee v. Pope, 18 B. Mon. 555; Wilson v. Thompson, 1 Met. 127, 
 128; Bandall v. Shropshire, 4 Met. 328; sec. 161, Civil Code. 
 
 6. If causes of action are improperly joined, the only appropriate 
 mode of making the objection is by motion to strike out before 
 filing answer, and if not so taken, the objection is waved. Hancock 
 V. Johnson, 1 Met. 245; sees. 113, 114, Civil Code. 
 
 7. When, however, the petition contains but one cause of action, 
 and an amended petition is offered, which would, if filed, create a 
 misjoinder, the objection is sufficiently taken by an exception to 
 the filing. Hancock v. Johnson, 1 Met. 245. 
 
 ~S. "Where several causes of action against different persons are 
 improperly joined, and only part of the defendants served in the 
 county, and those served out of the county are not affected by the 
 cause of action against those served in it, the failure of those 
 served in another county to appear and object to the misjoinder 
 and jurisdiction, is nofa waiver of these objections. Bandall v. 
 Shropshire, 4 Met. 329. 
 
 9. A cause of action against a corporation can not be united in 
 the same petition with a cause of action against the individuals 
 composing the corporation. Hancock v. Johnson, 1 Met. 246, 247. 
 
 10. Several joint owners of a single tract of land may bring a 
 joint action against several persons, each of whom holds a separate 
 parcel of the land, and who have no joint possession. Woolfolk v> 
 Ashby, 2 Met. 288, 289. 
 
 11. An action for malicious arrest can not be joined, though in 
 separate paragraphs, with an action for slander. Dragoo v. Levi, 
 2. Duv. 520. 
 
 12. "Where there is a misjoinder of actions, the plaintiff may, on 
 motion, be required to elect which he will prosecute, and on his 
 failure to do so, the court should strike out one of the causes ; and 
 if the plaintiff should then refuse to proceed, the petition should 
 be dismissed. Dragoo v. Levi, 2 Duv. 520. 
 
 13. Sections 111-114 inclusive, refer to causes of action existing 
 at the commencement of the suit, and not to such as arise subse- 
 quently. Taylor v. Moran, 4 Met. 130. 
 
 14. A joint action may be brought against several signers of a 
 contract for the payment, by each, of one hundred dollars. Wilde 
 & Co. V. Hay craft, etc., 2 Duv. 311. 
 
316 
 
 JUDGMENTS. 
 
 JUDGMElsTTS. 
 
 I. Generally. 
 II. Eifect of judgments. 
 
 III. Judgments by default. 
 
 IV. Judgments on verdicts. 
 
 V. Abatement and revivor of judgments. 
 VI, Form of judgments. 
 VII. Proceedings to enforce judgments. 
 VIII. ^Foreign judgments. 
 
 IX. Discharge and satisfaction of judgments. 
 X. Lost judgments. 
 
 I. GENERALLY. 
 
 1. A paper found in the record of a case, purporting to be a 
 decree for the sale of land, but which had never been entered or 
 noticed on the record as rendered or indorsed in any manner, 
 tending to show that it had been filed as a part of the record, is 
 wholly invalid as a decree, and can not be established as such by 
 parole testimony. Raymond v. Smith, 1 Met. 67. 
 
 2. A judgment, in favor of one who had no right to sue, can not 
 be sustained. Petty v. Malier, 14 B. Mon. 247. 
 
 3. A decree is a judgment, and the provisions of the Code of 
 Practice, concerning judgments, apply to decrees. Suifhesy. Shreve, 
 3 Met. 548; sec. 397, Civil Code. 
 
 II. EFFECT OF JUDGMENTS. 
 
 1. If a judgment for the sale of infant's real estate be void, the 
 circuit court has a right, after the confirmation of the sale, to dis- 
 regard the whole proceedings and declare the judgment void, and 
 quash the bonds of the purchaser. Carpenter & Grigshy v. Strothers, 
 16 B. Mon. 295 ; Jones & Kelly v. Commonwealth, 2 Duv. 81. 
 
 2. Although a judgment be against the defendants in the plural, 
 if only one be served with process, it will be regarded only as a 
 judgment against him who was served, unless the others have 
 appeared in the action. Kountz v. Brown, 16 B. Mon. 585; Waller 
 V. Martin, 17 B. Mon. 188; Clark, etc. v. Finnel, 16 B. Mon. 334. 
 
 3. A judgment in favor of the personal representation of the 
 original plaintiff, who died pending the action, will be void unless 
 the order of revivor was served on the defendant. Amyx v. Smith, 
 1 Met. 531, 532. 
 
JUDGMENTS. 317 
 
 ■1. So long as a judgment of a court of competent jurisdiction 
 remains in full force, unreversed and unsuspended, the party, 
 against whom it was rendered, is bound to obey it, even though it 
 be erroneous. Kay v. Kean, 18 B. Mon. 847. 
 
 5. Judgment, discharging an attachment on a hearing on the 
 merits, is conclusive evidence that good cause did not exist for 
 suing i.t out. Mitchell v. Mattingly, 1 Met. 242. 
 
 6. Judgments, rendered on service of process by a special bailiff 
 of the marshal of Louisville Chancery Court, is void, unless he 
 made affidavit of the time and manner of service. Lloyd v. 
 McCauley, 14 B. Mon. 542, 543. 
 
 7. An assignee of notes given for the price of land, is not con- 
 cluded by a judgment in an action to which he was no pai'ty, 
 adjudging the sale, in consideration of which the notes were given, 
 to be fraudulent. Doyle v. Armstrong, 2 Duv. 536. 
 
 8. A judgment against a personal representative will not be 
 conclusive against those to whom the decedent had conveyed prop- 
 erty which is sought, on the ground of fraud, to be subjected to 
 the payment of the judgment. Aliter, if the judgment had been 
 against the decedent himself. Alexander & Lancashire v. Quigley, 
 2 Duv. 404. 
 
 9. A void judgment should be disregarded. Jones & Kelly v. 
 Commonwealth, 2 Duv. 82. 
 
 II. JUDGMENT BY DEFAULT. 
 
 1. Judgment can not be taken by default, and without proof in 
 an action for damages, on an attachment bond. Burgess v. Jacobs, 
 14 B. Mon. 521. 
 
 2. Where there is an insufficient answer in an action at law on 
 a merchant's account for a specific sum, the court may give judg- 
 ment for the amount without a jury. Frances v. Frances, 18 
 B. Mon. 60, 61 ; Marr v. Prather, 3 Met. 197. 
 
 3. If, in an action on an account, which is referred to, and filed 
 with the petition, the amount claimed in the petition differs from 
 that stated in the account, the judgment should be for the amount 
 of the account. Frances v. Frances, 18 B. Mon. 61. 
 
 4. No judgment can be rendered because of the failure of the 
 defendant to answer an interrogatory, contained in the body of the 
 petition, not founded on some material allegation. Burnett v. Gar- 
 nett, 18 B. Mon. 71. 
 
 5. If a demurrer be sustained to an answer, and the defendant 
 refuses to plead further, judgment may be rendered by the court, 
 
318 ■ JUDGMENTS. 
 
 without a jury, as in case of default, and if the petition does not 
 furnish data BufRcient to ascertain the amount, and it can be ascer- 
 tained from evidence in the record, it may be done. Lambert v. 
 .Zigraham, 15 B. Mon. 270. 
 
 6. Judgment can not be rendered on promises within the statute 
 of frauds whore the promises do not appear to have been in writ- 
 ing, even though the defendant fails to answer and rely vn the 
 statute. Smith v. Fah, 15 B. Mon. 445, 446. 
 
 7. In an action on an account, if the defendant fails to plead, 
 judgment may be rendered by the court without proof. Harris v. 
 Bay, 15 B. Mon. 630; Mills v. Brown, 2 Met. 406; Frances v. 
 Frances, 18 B. Mon. 60. 
 
 8. But, allegations of value or amount of damages, can not be 
 taken as true, in actions ex delicto, because of a failure to answer. 
 Daniel v. Judy, 14 B. Mon. 394; Sloan v. Sloan, 2 Met. 341 ; Mead 
 V. Nevill, 2 Duv. 281. 
 
 9. On a motion against a sheriff and his sureties, for failing to 
 pay a county creditor, the facts stated in the notice can not be 
 taken as true on their failure to appear and plead, but must be 
 proved. Todd v. Gaines, 18 B. Mon. 621, G22 ; Terrill v. Cecil, 3 
 Met. 348 ; Thompson v. Healy, 4 Met. 258, 259; Farrow v. Orear, 2 
 Duv. 263. 
 
 10. Matters pleaded in avoidance, and not constituting a counter- 
 claim, or set-off, can not be taken as true because they are not 
 denied. Ashhy v. Woolfolk, 3 Met. 542. 
 
 11. Every material allegation of new matter, in an answer 
 relating to a set-off, or counter-claim, which is not denied must be 
 taken as true on the trial. Taylor & So7is v. Stowell, Chamberlain 
 & Co., 4 Met. 177, 178; Sloan v. Sloan, 2 Met. 341. 
 
 12. Unless a written answer is made, in an action on a forfeited 
 recognizance, the proof of facts relied on to defeat or suspend the 
 action will be unavailing. Brown v. Commonwealth, 4 Met. 222. 
 
 13. An allegation, in a petition on a note given by the defendant 
 as agent or trustee, that he intended to become personally liable, 
 can not be taken as true by a failure to deny it in the answer. 
 Lewis V. Harris, 4 Met. 355. 
 
 14. If, one indicted for a misdemeanor fails to appear and answer, 
 judgment may be rendered by default. Commonwealth v. Cheek, 
 1 Duv. 27; sees. 158-171, Criminal Code, inclusive. 
 
 15. A pleading, setting out a counter-claim, and filed as the 
 answer and cross-petition of the defendants, although signed and 
 
JUDGMENTS. 319 
 
 verified by one not a party to the suit, must be regarded as a 
 counter-claim ; and if not replied to, its allegations must be taken 
 as true. Lyle & Euhank v. Poynter, 1 Duv. 357, 358. 
 
 16. No judgment can be rendered on a cross-petition, by one 
 defendant against another, without service of process or a personal 
 appearance, and any judgment so rendered is void. Miller & Rice 
 V. Cravens, 2 Duv. 246. 
 
 17. No personal judgment can be rendered against heirs, on their 
 failure to plead, for a debt of their ancestor, without an averment 
 that assets had descended to them. Anderson v. Bellis, 2 Duv. 388. 
 
 18. According to the common law, the failure, in an answer, to 
 deny one material allegation was not treated as an admission of 
 its truth unless the alleged fact was either charged, or presumed to 
 be within the respondent's knowledge. The object of section p3 
 of the Civil Code was only to change the law in this particular. 
 Fritz V. Ttidor, 2 Duv. 174. 
 
 19. When a reply is unnecessarily filed, and denies only a part 
 of the fact alleged in the answer the facts not denied which do not 
 constitute a set-off, or counter-claim, can not, on that account, be 
 taken as true. Graves v. Ward, etc., 2 Duv. 304. 
 
 IV. JUDGMENTS ON VERDICTS. 
 
 1. If the verdict of the jury be against several, and there is no 
 proof to uphold it as to one, the court may j)ut the plaintiff to an 
 election to dismiss as to him, or to submit to a new trial as to all ; 
 and if the plaintiff elects to dismiBS as to the one, the court may 
 then render judgment on the verdict against the balance. Shelton 
 V. Sarlow, 15 B. Mon. 549, 550. 
 
 2. If, upon the statement in the pleadings, the plaintiff is entitled 
 to a judgment, the court ought, on his motion, to render judgment 
 for him ; notwithstanding the verdict of the jury is against him. 
 Lindsey v. Rutherford, 17 B. Mon. 249 ; sec. 416, Civil Code. 
 
 3. No judgment can be rendered by the court on a simple ver- 
 dict for the defendant in an action for the recovery of personal 
 property, of which the plaintiff has obtained possession by an 
 order of delivery, for the value of the property as fixed by the 
 court from the proof in the cause. Young v. Parsons, 2 Met. 499, 
 500 ; sec. 360, Civil Code. 
 
 4. In an action on a note, where the only defense is a plea of 
 usury, if the jury find " for the plaintiff" simply, the court should 
 render judgment for the debt and interest. Cooper v. Poston, 1 
 Duv. 94 ; sec. 416, Civil Code. 
 
320 JUDGMENTS. 
 
 5. A verdict on an issue out of equity is entitled to the same 
 weiglit as in an action at law. Moore v. Shepherd, 2 Duv. 131. 
 
 V. ABATEMENT AND UEVIVOB, OF JUDGMENTS. 
 
 1. A judgment does not abate by the death of the plaintiff and 
 his administrator may have execution issued by filing with the 
 clerk a certificate of his qualification, and affidavit of the death of 
 the plaintiff, stating the name of his personal representative. 
 Morgan v. Winn, 17 B. Mon. 244 ; sec. 432, Civil Code. 
 
 2. The death of the plaintiff does not abate either the judgment 
 or the execution, but it suspends all further proceedings, until ad- 
 ministration is granted, and the clerk makes the proper indorse- 
 ments as provided in sections 432-434, Civil Code. Longest v. 
 Tyler, 1 Duv. 195. 
 
 3. The provisions of the code, concerning the revivor of judg- 
 ments, applies to all judgments, whether rendered before or after 
 the code took effect. Hughes v. Shreve, 3 Met. 548. 
 
 VI. EORM OP JUDGMENTS. 
 
 1. In an action against husband and wife on the contract of the 
 latter made dum sola, the judgment against the husband should be 
 to be levied of property that had or might come to him by his 
 wife. Beaumont v. Miller, 1 Met. 70, 71 ; Fultz v. Fox, 9 B. Mon. 
 502. 
 
 2. The payee of a note, dated and due in 1858, in which it is 
 stipulated that the amount is to be paid in coin, is not entitled to 
 any other judgment than that to which he would have been 
 entitled if the note had been simply for dollars. Johnson v. Vick- 
 ers, 1 Duv. 267; Smith v. Dilland, 2 Duv. 152. 
 
 3. It should not be left to the commissioner to fix the time of a 
 decretal sale. The court should fix the time by at least some 
 general designation — such as the first day of a circuit or county 
 court. Perry v. Sietz, 2 Duv. 124; sec. 253, Civil Code. 
 
 4. Judgment in an action against heirs, for a debt of the ances- 
 tor, should be to be levied of assets, etc., unless there is an aver- 
 ment that assets had descended. Anderson v. Bellis, 2 Duv. 388. 
 
 VII. PROCEEDINGS TO ENFORCE JUDGMENTS. 
 
 1. An assignee, having both a personal judgment and a judgment 
 to sell property, on which he holds a lien, may proceed, at the 
 same time, both by execution on the judgment in personum and a 
 sale under the judgment in rem. Chambers v. Keene, 1 Met. 294, 
 295. 
 
JUDGMENTS. 321 
 
 2. A claim by the defendant in tlie judgment against the plain- 
 tiff for usury, which existed when the judgment was rendered, is 
 not sufficient grounds for a simple modification of the judgment; 
 but the subsequent non-residence of the plaintiff will give a court 
 of equity jurisdiction to set off the usury against the judgment. 
 Moss V. Bowla'nA, 1 Duv. 322. 
 
 3. Upon the return of an execution *'no property found," two 
 distinct modes of proceeding are allowed the plaintiff to subject 
 money or property owing to the defendant or held by others for 
 him : 1. By an action in equity, for the discovery of money choses 
 in action or other property belonging to the defendant and for 
 subjecting it to the payment of plaintiff's debt; 2. By general 
 attachment, which may be had without afiS-davit or bond. Smith 
 V. apwer, 3 Met. 173; Lewis v. Quinker, 2 Met. 286, 287. 
 
 4. A -creditor who has a return of nulla bona against his debtor, 
 and institutes a suit in equity to subject choses in action or other 
 property of his debtor, acquires a lien by the service, on the defend- 
 ant, of a summons with the object of the action indorsed on it. 
 Huffman v. Thomas, 2 Duv. 105, 106. 
 
 5. A judgment creditor, having an execution returned "no proj)- 
 erty found," may institute an action by equitable proceedings in 
 the court, from which the execution issued, or in the court of any 
 coanty in which the defendant resides, or is summoned, and have 
 any interest in land legal or equitable, belonging to him, situated 
 in any county, subjected to the payment of the judgment at law. 
 Nixon V. Jack, etc., 16 B. Mon. 181. 
 
 6. In a proceeding by attachment on a return of "no property," 
 it is not necessary to aver that the judgment is unpaid. Lemis v. 
 Quinker, 2 Met. 286. 
 
 7. The provisions of section 13 of the act of 1796 (1 Statute 
 Laws, 443), and section 13, chapter 80, page 230, volume 2, Eevised 
 Statutes, subjecting trust estates to the payment of the liabilities 
 of the cestui que trust, are similar in effect, and estate devised 
 to a trustee to be used as he may deem best for the comfortable 
 support of the cestui que trust, may be subjected by equitable 
 proceedings to the satisfaction of a judgment after a return of "no 
 property found." Samuel v. Salter, 3 Met. 262; Eastland v. Jordan, 
 3 Bibb, 186; Ooshy v. Ferguson, 3 J. J. Mar. 264; Pope v. Elliott, 8 
 B. Mon. 61 ; Johnson v. Ellis, 12 B. Mon. 483. 
 
 8. The provisions of the Code, regulating proceedings and 
 attachments on bills for discovery and subjection of property after 
 a retui'n of "no property" on an execution, do not apply to a peti- 
 
 22 
 
322 
 
 JtTDGMENTS. 
 
 tion in equity for the subjection of an equity known and described, 
 or for enforcing an equitable lien. Parsons v. Meyhurg, 1 Duv. 
 206. 
 
 9. Upon the return of an execution issued by a justice of the 
 peace, " no property found," the plaintiff brought a suit in equity 
 to subject a tract of land belonging to the defendant to which he 
 held the legal title. Held : That the circuit court had no jurisdic- 
 tion. The plaintiff should have procured an execution from the 
 circuit court in the mode pointed out in section 474, Civil Code, 
 and subjected the land under the execution. Weatherford v. Myers, 
 2 Duv. 91. 
 
 10. One having a judgment against a personal representative, 
 and a return of nulla bona, who seeks to subject property conveyed 
 by the decedent, on the ground of fraud in the conveyance, must 
 state in his petition the facts constituting the original cause of 
 action. Alexander & Lancashire v. Quigley, 2 Duv. 404. 
 
 VIII. FOBEIGN JUDGMENTS. 
 
 Judgments of the courts of a sister State, having jurisdiction, 
 are conclusive of the rights of the parties, when sued on in this 
 State, unless procured by fraud or upon constructive service of 
 process. Sogers v. Rogers, 15 B. Mon. 378. 
 
 IX. DISCHARGE AND SATISFACTION OF JUDGMENTS. 
 
 1. A defendant in a judgment and execution, who was only a 
 surety for a co-defendant, and who does not unite in replevying 
 the debt, is discharged by the replevin from all liability on the 
 judgment. Hoskins v. Parsons, 1 Met. 253. 
 
 2. The sale of property under execution, and the execution by 
 the purchaser of bonds for the purchase-money, satisfies the judg- 
 ment. Etlinger v. Tansey, 17 B. Mon. 366. 
 
 3. Payment to a sheriff of the amount of judgment after the 
 return -day of the execution, but while it yet remains in his hands 
 is a satisfaction of the judgment. James v. Yates, 3 Met. 346. 
 
 X. LOST JUDGMENTS. 
 
 A court, whose records have been destroyed, may, on motion 
 upon notice and sufficient evidence, supply the record of a lost 
 judgment, and award execution thereon. Fleece v. Goodman, 1 
 Duv. 308; Suggett v. Bank Ky., 8 Dana, 201. 
 
JUDICIAL OFFICERS. 323 
 
 JUDICIAL DECISIONS. 
 
 1. The judicial decisions of the courts of one State of the Union 
 can not be revised by the courts of another State. Rogers v. Rogers, 
 15 B. Mon. 379. 
 
 2. When a judicial discretion is given to an inferior court, its 
 exercise can not be controlled by mandamus, although it may 
 have been improperly exercised. Louisville v. McKean, etc., 18 
 B. Mon. 17. 
 
 3. A county court and city council have a discretion in granting 
 tavern license, but it is a judicial and not an arbitrary discretion. 
 Louisville v. McKean, 18 B. Mon. 15. 
 
 4. A judicial ofilcer is not liable to an action for a mere error of 
 judgment, honestly and innocently made in a judicial decision. 
 Morgan. V. Dudley, 18 B. Mon. 711; Oaulfield v. Bullock, 18 B. Mon. 
 496 ; Gregory v. Broion, 4 Bibb, 28. 
 
 5. A sheriif, who acts as umpire in deciding upon the legality of 
 a vote, acts in a judicial capacity. Morgan v. Dudley, 18 B. Mon. 
 712. 
 
 6. The naturalization of a foreigner, under the laws of Congress, 
 is a judicial act. Morgan v. Dudley, 18 B. Mon. 715. 
 
 JUDICIAL OFFICEES. 
 
 1. A judge of an election, who is prompted by impure and cor- 
 rupt motives in refusing a legal vote, is liable to the injured party 
 for damages. Oaulfield v. Bullock, 18 B. Mon. 497; Morgan v. 
 Dudley, 18 B. Mon. 711 ; Chrisman v. Bruce, 1 Duv. 66. 
 
 2. No action can be maintained against a person, acting judi- 
 cially, for acts within the limits of his jurisdiction, although his 
 acts are illegal or erroneous, unless he acted from corrupt motives. 
 ReviU V. Pettit, 3 Met. 319 ; Morgan v. Dudley, 18 B. Mon. 712 ; 
 Gregory v. Brown, 4 Bibb, 28. 
 
 3. But when a person, having a limited judicial authority, does 
 an act beyond the scope of that authority, he is liable as a tres- 
 passer to a party thereby injured. Revill v. Pettit, 3 Met. 319. 
 
 4. A judicial officer of any grade, who shall, in the exercise of 
 his functions, knowingly and willfully render a decision, which is 
 
324 jrCICIAL SALES. 
 
 contrary to law, and which violates a right, or inflicts an injury, 
 must be presumed to have acted under the influence of bad motives. 
 Chrisman v. Bruce, 1 Duv. 68, 69. 
 
 JUDICIAL SALES. 
 
 1. If, by mistake in a judicial sale, more land is sold than was 
 sujiposed or intended, the purchaser will be answerable for the 
 excess as if the sale had been private. Dawson v. Goodwin, 15 B. 
 Mon. 441. 
 
 2. So much of a tract of land was decreed to be sold, as would 
 pay aB amount named in the decree. By an arrangement between 
 a third party and the defendant's agent, the former agreed that if 
 he could buy the whole tract at the amount named in the decree, 
 he would pay the defendant an additional agreed sum, which was 
 done. Held: That the arrangement was valid, and the sale good. 
 Simrallv. Jacobs, 14 B. Mon. 511, 512. 
 
 3. A sale of land made on the premises, in 1844, as directed in 
 the decree, and which was properly advertised, will be good in the 
 absence of anything tending to show fraud. Mitchell v. Berry, 1 
 Met. 615. 
 
 4. The reversal of a decree under which land has been sold, does 
 not ordinarily vitiate the sale, or divest the purchaser under it; 
 and that the plaintiff in the decree was the purchaser, will make 
 no difference. Qossom v. Donaldson, 18 B. Mon. 237. 
 
 5. The circuit court has no power to set aside a sale of land, 
 made under its j udgment, because of error apparent in the record, 
 in the judgment under which it was made. Yanbussum v. Moloney, 
 2 Met. 551. 
 
 6. "When land is to be sold by a commissioner, to pay the amount 
 of a judgment, it is proper to leave to the discretion of the com- 
 missioner, what part he will sell in case less than the whole will 
 satisfy the judgment. An abuse of this discretion may be correct- 
 ed by the court. Vanbussum v. Moloney, 2 Met. 551. 
 
 7. The requirement of a judgment that the land adjudged to be 
 sold shall be advertised at the court-house door in the town of H., 
 and at two or more public places, is not complied with by an 
 advertisement at the court-house door, and at two other places in 
 the town of H. Vanbussum v. Moloney, 2 Met. 552. 
 
 8. After the confirmation of a sale of town lots, owned by 
 tenants in common, some of whom are infants, the court has no 
 
jrDICIAL SALES. 325 
 
 power, after the close of the term to review the judgment. Todd 
 V. Bowd, 1 Met. 284; sec. 579, Civil Code. 
 
 9. The accepted bidder at a judicial sale acquires no independent 
 right, as in the case of a purchaser under execution, to have his 
 purchase completed, but is nothing more than a preferred bidder, 
 depending on the sound, equitable discretion of the chancellor for 
 a confirmation of the sale. Vanhussum v. Moloney, 2 Met. 552; 
 Taylor v. Gilpin, 3 Met. 546; Basey v. Hardin, 2 B. Mon. 411; 3 
 Dana, 614; 5 B. Mon. 494. 
 
 10. Great inadequacy of price is a powerful consideration 
 when addressed to the chancellor, against confirmation of a sale 
 which is still incomplete, and which depends on his sound dis- 
 cretion for its completion. Vanbussum v. Moloney, 2 Met. 552. 
 
 11. A sale of attached property, made under an order issued by 
 the presiding judge of the county court, in vacation, is not com- 
 plete without a report by the oflScer, and its confirmation by the 
 court in which the attachment is pending, which may confirm or 
 set it aside. Greer v. Powell, 3 Met. 125, 126. 
 
 12. The court has no power to set aside an order confirming a 
 sale made under its judgment, after the expiration of the term at 
 which it was made, unless the sale is void. Magowan v. Penne- 
 baker, 3 Met 502. 
 
 13. Where there is great inadequacy of price at a decretal sale 
 made under circumstances of great hardship to the plaintiff who 
 had no actual notice of the time of the sale, and who would be 
 compelled, by reason of the insolvency of the defendant, to lose a 
 large balance of his debt, the sale may be set aside before it is con- 
 firmed. Taylor v. Gilpin, 3 Met. 546. 
 
 14. "When a commissioner fails to advertise the sale of land, as 
 directed by the judgment, the sale should not be confirmed if the 
 land sold for less than its value. Williams v. Woodruff, 1 DaV. 
 257. 
 
 15. The court may order the sale of attached personal property 
 under section 239 of the Civil Code, upon parole proof, and the 
 correctness of such order will be presumed, in the absence of any- 
 thing showing the contrary. Dunn v. Salter, 1 Duv. 346, 347. 
 
 16. By sections 253 and 405, Civil Code, the court is required to 
 prescribe the credit on which real estate is to be sold, and has no 
 power to fix a shorter credit than three months, nor a longer 
 credit than twelve months on the whole; and a sale for half the 
 price, payable in less than one month, is erroneous, and prejudicial 
 to the debtor, and should be set aside by the court of appeals, 
 
326 JUDICIAL SALES. 
 
 although not excepted to in the circuit court, if the debtor was 
 constructively summoned and had not appeared. Dunn v. Salten 
 1 Duv. 347. 
 
 17. It is the policy of the law to sustain judicial sales, regardless 
 of slight and minute defects. Thornton v. McGrath, 1 Duv. 354 j 
 Benningfield v. Bead, 8 B. Mon. 105. 
 
 18. A sale of land under a judgment of a court, does not come 
 within the statute of frauds and perjuries, and the sale is valid 
 without a writing. Watson v. Violett, 2 Duv. 333. 
 
 19. That the commissioner did not advertise the land as required 
 by law, is no available objection to the sale, when made by the 
 purchaser. Watson v. Violett, 2 Duv. 333. 
 
 20. A purchaser of land at a judicial sale, who refused to com- 
 plete the purchase, and induced a decision that his purchase was 
 invalid, because there was no written memorial of the sale, will be 
 compelled to pay the amount of deficit in a second sale made 
 necessary by his refusal to complete his purchase, and he will not 
 be allowed to defeat his liability on the grounds that his purchase 
 was in reality valid. Watson v. Violett, 2 Duv. 333. 
 
 21. Where land has been sold under a decree procured on con- 
 structive- service, the defendant may appear within five years and 
 open the decree ; and if he succeeds in modifying it, he may elect 
 to vacate the sale. Jackson v. Speed, 2 Duv. 429; sec. 445, Civil 
 Code. 
 
 22. Where a vendor, who has not conveyed, enforces his lien 
 and sells the land and becomes the purchaser, no deed should be 
 made. Jackson v. Speed, 2 Duv. 428. 
 
 23. A sale of the property and franchises of a corporation, under 
 a decree to satisfy a mortgage, does not pass to the purchaser debts 
 due the corporation, nor destroy the corporate existence of the 
 company. Smith & Davis v. Gower, 2 Duv. 19. 
 
JURISDICTION — CIVIL. 327 
 
 JUEISDICTIOK— CIVIL. 
 
 I. Generally. 
 II. Jurisdiction of the county court. 
 
 III. Local jurisdiction. 
 
 IV. Jurisdiction of quarterly court. 
 
 V. Jurisdiction of justices of the peace. 
 
 For jurisdiction of the court of appeals, see Appeals. 
 
 For jurisdiction of courts of equity, see Equity. 
 
 For jurisdiction of the circuit courts, see Circuit Courts. 
 
 I. GENERALLY. 
 
 1. When a court of equity once takes jurisdiction, it will main- 
 tain it, although courts of law, by their own assumption of power 
 or by legislative enactment, have jurisdiction of similar cases. 
 Borsey v. Beese, 14 B. Mon. 158. 
 
 2. "Where the object of a suit in equity is to restrain the defend- 
 ant from a fraudulent disposition of his property before the plain- 
 tiffs demand falls due, the chancellor has jurisdiction to hear and 
 determine the whole ease as an equitable action. Carney v.Walden, 
 16 B. Mon. 397. 
 
 3. The court, rendering a judgment, can alone entertain a bill 
 of review for newly-discovered evidence. Hawkins v. Lambert, 18 
 B. Mon. 107. 
 
 4. That a petition, seeking to set aside a will, of which matter 
 the court had no jurisdiction, also sought the division of the estate 
 will not confer jurisdiction to set aside the will. H.ughey\. Sidwell, 
 18 B. Mon. 261. 
 
 5. Though an action may be in form an action at law, yet, if the 
 parties tried and the court decided it without objection as an 
 equity eace, and it be a proper case for equitable cognizance, the 
 court of appeals will so regai'd it. Bates v. Culver, 17 B. Mon. 167. 
 
 6. Congress can not compel the State courts to entertain juris- 
 diction in any case or to perform any judicial act, but it may con- 
 fer power on them to act in matters to which they are competent 
 when they have an adequate inherent jurisdiction. Morgan v. 
 Dudley, 18 B. Mon. 715. 
 
 7. Such State courts as are authorized by act of Congress to 
 naturalize foreigners, have the power to do so. Morgan v. Dudley, 
 18 B. Mon. 721. 
 
328 JURISDICTION — CIVIL. 
 
 8. If the court, in which a suit was brought, had no jurisdiction 
 of the action and it is appealed, the appellate court will have none, 
 and should dismiss the action. Fleming v. Limebaugh, 2 Met. 465 ; 
 Fidler v. Hcdl, 2 Met. 462. 
 
 II. JURISDICTION OP COUNTY COURTS. 
 
 1. When there are no assets in this State of a decedent, who 
 was domiciled in another State at the time of his death, the county 
 courts of this State have no jurisdiction to appoint an administra- 
 tor of his estate. Thumb v. Gresham, 2 Met. 308. 
 
 2. That the decedent owned land in the county where admfnis- 
 tration was granted will not confer jurisdiction. Thumb v. Gre- 
 sham, 2 Met. 308. 
 
 3. County courts have jurisdiction to appoint guardians for 
 minor free negroes. Glinkenbeard v. Clinkenheard, 3 Met. 331. 
 
 III. LOCAL JURISDICTION. 
 
 1. If a plaintiff seeks to attach land, and subject it to the pay- 
 ment of a debt, and part of the defendants are served with pro- 
 cess in the county where the suit was brought, and the plaintiff 
 does not show himself entitled to have the land subjected, he has 
 a right to a personal judgment against those served. Nixon v. 
 Jack, 16 B. Mon. 179. 
 
 2. The county, in which a will is probated, is the proper county 
 in which to bring an action for the sale and distribution of land held 
 under the will. Flint v. Spurr, 17 B. Mon. 512. 
 
 3. The county court of the county of the testator's residence 
 alone has jurisdiction to probate his will, unless the will be 
 destroyed or suppressed, when the chancery court of the county, 
 where it ought to have been probated, has jurisdiction to estab- 
 lish it. Barnes v. Edioard, 17 B. Mon. 640. 
 
 4. Before judgment can be rendered against a defendant, sum- 
 moned in a different county from that in which the action is pend- 
 ing, some disposition must be made of the action as to the defend- 
 ants served in the county in which the action was brought, and if 
 no cause of action is set forth as to them, it is erroneous to render 
 judgment against the defendants served in another county. Fer- 
 nold V. Speer, 3 Met. 462; sec. 108, Civil Code. 
 
 5. The court of the county, where the decedent resided, and his 
 personal representative qualified, has jurisdiction to partition his 
 real estate, whether situated in that, or another county. Driskell 
 V. Hanks, 18 B. Mon. 866 ; sec. 97, Civil Code. 
 
JITKISDICTION — CIVIL. ' 329 
 
 6. Where an ordinaiy action was brought in one county, against 
 a defendant not residing in that county, and process is served on 
 him in a county other than that in which the action is brought, 
 the judgment is void. Euhy v. Grace, 2 Duv. 540.^ 
 
 7. A plaintiff, who improperly unites several causes of action 
 aifecting different persons, a part of whom are summoned in the 
 county where the action is pending, and the balance in another 
 county, has no right to a judgment against those served out of the 
 county, and who have no connection with the cause of action 
 against those served in the county, and the failure of those served 
 oat of the county to appear, and object to the misjoinder is not a 
 waiver of the objeetion either to the misjoinder or jurisdiction. 
 Bandall v. Shropshire, 4 Met. 329. 
 
 IV. jmiSDicTioN or quarterly COrRTS. 
 
 1. The provisions of the Eevised Statutes, regulating the juris- 
 diction of quarterly courts, was repealed by the Code of Practice. 
 Wiggington v. Moss, 2 Met. 39 ; sees. 24 and 875, Civil Code. 
 
 2. The quarterly court has no jurisdiction of an action to recover 
 a debt, which with its accrued interest exceeds one hundred dol- 
 lars. Wiggington v. Moss, 2 Met. 40.^ 
 
 3. The quarterly court has no jurisdiction, on appeal from a 
 justice of the peace, to try a cause, of which the justice had no 
 jurisdiction. Fidler v. Hill, 2 Met. 462 ; Fleming v. Limehaugh, 2 
 Met. 267. 
 
 v. JURISDICTION OF JUSTICES OE THE PEACE. 
 
 1. A justice of the peace has no jurisdiction, under the Civil 
 Code, of an action on a note, the principal and interest of which 
 exceed fifty dollars. Fidler v. Hall, 2 Met. 462 ; Orth v. Glutz, 18 
 B. Mon. 225.3 
 
 2. Justices of the peace of Jefferson county, have no jurisdiction 
 of an action to recover unliquidated damages, when the amount 
 claimed is one hundred dollars. Fleming v. Limehaugh, 2 Met. 
 266. 
 
 3. A single justice has no jurisdiction as an examining court to 
 examine and hold to bail, or commit to jail, one charged with a 
 felony. Mevill v. Pettit, 3 Met. 318, 319^ 
 
 lOverruling Pa^jJirap-er v. Mayfi-ld, 16 B. Mon. 647. 
 
 2 But now, by an amendment, interest is excluded, and the court has juris- 
 diction where the principle does not exceed one hundred dollars. Sec. 24 
 p. 9, Myers' Code. 
 
 ' This rule has heen changed by an amendment to the Code, and now by 
 Section 29, page 12, Myers' Code, interest is excluded. 
 
330 JURY AND JURY TRIAL. 
 
 JUEY AND JUEY TEIAL. 
 
 I. Generally. 
 II. When parties have a right to a trial by jury. 
 
 III. What is a waiver of the right to trial by jury 
 
 IV. Challenge to jurors. 
 
 V. What facts are for the jury. 
 VI. Powers and duties of jurors. 
 VII. Misconduct of the jury. 
 VIII. Issues out of equity. 
 
 IX. For verdict, see Judgment. 
 
 I. GENERALLY. 
 
 1. That the jury was not sworn in exact conformity with the 
 statute is an objection, that should be made at the time; and if not 
 made then, will not be available in the court of appeals. Thompson 
 V. Blackwell, 17 B. Mon. 624, 625. 
 
 2. Trials, under indictment for offenses punishable by fine only, 
 may, by consent, be tried by a less number of jurors than twelve. 
 Murphy v. Commonwealth, 1 Met. 367 ; Tyra v. Commonwealth, 2 
 Met. 2, 3. 
 
 3. An agreement, of record by the parties, that the verdict of the 
 majority of the jury shall be made the judgment of the court, is not 
 a submission to arbitrators, whose award is final, but a mere agree- 
 ment to dispense with a unanimous concurrence of the jury in the 
 verdict. Northern Bank v. Buford, 1 Duv. 335. 
 
 4. In an action to recover property, alleged to belong to the 
 plaintiff and to have been unlawfully taken from him by the 
 defendant, if the latter admits the taking, but denies that the 
 plaintiff is the owner, and alleges that he is the owner, the burden 
 of proof is on the defendant and he has a right to conclude the 
 argument. Vance v. Vance, 2 Met. 582 ; sec. 347, Civil Code. 
 
 5. If, upon the trial of an ordinary action, the cause be submitted 
 to the court by consent, the court thereby becomes invested with 
 the powers and duties of a jury and may, in action to recover the 
 value of labor, fix the value on the personal knowledge of the 
 judge without proof of its value. Baum v. Winston, 3 Met. 129. 
 
 6. A jury may be allowed, after retiring, to return into court to 
 inquire of a witness what he had testified in any part of the testi- 
 mony given by him, and cross-examination would be improper. 
 In rare cases a jury might be permitted to examine a witness, 
 
JURY AND JURY TRIAL. 331 
 
 respecting a fact not testified to, when the court is satisfied that 
 probable injustice would otherwise be done, but in such a case 
 cross-examination would be a clear right. Thompson v. Poston, 1 
 Duv. 391. 
 
 7. If, under an order to refer to a jury the question whether 
 property attached belonged to the defendant, or to a third person 
 at the time of the levy of the attachment, the verdict be generally 
 that the property belongs to the claimant, it will be understood as 
 responsive to the order and as meaning that it belonged to him at 
 the date of the levy. Schwein v. Sims, 2 Met. 211. 
 
 8. If, in an action for assault and battery, the defendant fails to 
 answer, the jury may find a verdict for the plaintiff on the undis- 
 puted facts stated in the petition, without any other proof Sogers 
 V. Aulick, 2 Duv. 419, 420. 
 
 II. WHEN PARTIES HAVE A RIGHT TO A TRIAL BY JURY. 
 
 1. Issues of facts, arising in ordinary actions, although transferred 
 to equity, should be tried by a jury, unless the right to a jury 
 be waived. Smith v. Moherly and wife, 15 B. Mon. 74. 
 
 2. Where both a legal and equitable defense are relied on in an 
 action at law, the former should be tried by a jury, and the court 
 may submit to the jury matters of fact involved in the equitable 
 issue. Petty v. Malier, 15 B. Mon. 605. 
 
 3. It is proper to refer an issue, made between an attaching 
 creditor and a third person as to the title to property attached) 
 to a jury. Schwein v. Sims, 2 Met. 211. 
 
 4. The surety of a tavern-keeper, proceeded against by motion 
 to recover a fine imposed on his principal for a breach of his bond 
 may deny the breach, and has a right to have the issue tried by a 
 jury. Margoly v. Commonwealth, 3 Met. 407. 
 
 5. One, holding the title of a life-tenant, when sued by the 
 remainder-man for partition, can not, by claiming to hold 
 adversely, entitle himself to a trial by jury. Phillips v. Johnson, 
 14 B. Mon. 176. 
 
 III. WHAT IS A WAIVER OF THE RIGHT OP TRIAL BY JURY. 
 
 1. The right of trial by jury in an action for damages on an 
 attachment bond is not waived by defendant's failure to plead, if 
 he had appeared in the action. Burgess v. Jacobs, 14 B. Mon. 521- 
 
 2. If an action by ordinary proceedings be transferred to equity 
 by consent, it will be regarded as a waiver of the right of trial by 
 jury. Smith v. Moherly, 15 B. Mon. 74. 
 
332 
 
 JURY AND JURT TRIAL. 
 
 3. The intervention of a jury, in actions ex delicto, is not dispensed 
 with by a failure of the defendant to appear at the trial, unless 
 with the assent of the court. Clark v. Beaton, 18 B. Mon. 229, 
 230. 
 
 4. If the parties to an action in equity, to which an exclusively 
 legal defense is i^leaded, fail to move a transfer to the ordinary 
 docket and go to trial without demanding a jury, the right to a 
 jury is waived and the court should proceed to hear and determine 
 the case or direct a jury to decide such issues as are properly 
 triable by jury. Frazer v. Naylor, 1 Met. 596. 
 
 IV. CHALLENGE TO JURORS. 
 
 1. In all but felony cases, the Commonwealth and the defendant 
 may each challenge, without cause, three jurors. Buford v. Com- 
 monwealth, 14 B. Mon. 26. , 
 
 2. The Commonwealth has a right to five peremptory challenges 
 in a criminal cause, commenced before the Criminal Code went 
 into effect. Walston v. Commonwealth, 16 B. Mon. 42. 
 
 v. WHAT PACTS ARE FOR THE JURY. 
 
 1. Whether the land in contest in an action is the same levied on 
 and sold under execution and bought by the plaintiff, is a question 
 of fact for the jury. Phillips v. Jamison, 14 B. Mon. 583. 
 
 2. Whether upon a given state of facts an act of the legislature 
 is constitutional or not, is purely a legal question to be decided by 
 the court, and neither the propriety, nor necessity of the act, nor 
 motives which produced it, are questions for the jury. Sharp v. 
 Dunavan, 17 B. Mon. 232; Maltus v. Shields, 2 Met. 558. 
 
 3. Whether particular facts exist is a question for the jury, hut 
 the effect of these facts, when found to exist, is a question of law to 
 be decided by the court. Sharp v. Dunavan, 17 B. Mon. 232. 
 
 4. Whether the land in contest is contained in a particular 
 patent or deed, is a question of fact for the jury. Morton v. 
 Warring, 18 B. Mon. 83, 84. 
 
 5. Whether a representation or assertion, by a vendor that the 
 thing sold was of a particular quality, was made with the intention 
 that the vendee should rely on it, or whether it was in fact so 
 relied on, are questions ©f fact for the jury. Lamme v. Gregg, 1 
 Met. 447. 
 
 6. When on a question of negligence the testimony is conflict- 
 ing, the jury have a right • to decide the character of the negli- 
 gence. L. & N. B. B. Co. v. Collins, 2 Duv. 115. 
 
JURY AND JURY TEIAL. # 333 
 
 7. Whether a fact alleged in the pleadings is material or not, 
 and whether it has been denied in the answer or reply, are ques- 
 tions of law to be decided by the court, and the jury should be 
 told what facts under the pleadings should be considered as true. 
 Tipton V. Triplett, 1 Met. 574 ; Allard v. Smith, 2 Met. 301 ; Hall 
 & Co. V. Benfro, 3 Met. 55. 
 
 8. If, to avoid the statute of limitations, the insanity of the 
 plaintiff when the right accrued be relied on, and the testimony 
 tends to show a restoration, whether the plaintiff's mind had been 
 restored, and remained in that condition long enough to enable 
 him to look into his affairs and bring an action, are questions of 
 fact for the jury. Clark v. Trail, 1 Met. 41. 
 
 9. In an action against one, who was judge of an election, for 
 refusing the plaintiff's vote, it is for the jury to determine upon 
 the facts before them, whether the rejection of the plaintiff's vote 
 was the result of an honest, though erroneous, conviction of 
 judgment, or of an improper motive. Chrisman v. Bruce, 1 Duv. 
 70. 
 
 10. The degree of prudence to be exercised by a stranger to 
 avoid being injured by a nuisance, is a question for the jury. 
 Matheny v. Wolffs, 2 Duv. 141. 
 
 VI. POWERS AND DUTIES OF JURIES. 
 
 1. The power of a jury, in determining the facts from the evi- 
 dence, is not one of the will merely, but must be, in a reasonable 
 degree, subject to the restraints of judgment and discretion. 
 Quisenberry v. Quisenberry, 14 B. Mon. 484. 
 
 2. The question of the amount of damages is one peculiarly 
 within the province of the jury. McGlain v. Estham, 17 B. Mon. 
 156. 
 
 3. It is the province of the jury to decide, when the evidence is 
 conflicting in a will case, whether the will is valid or not, and 
 their verdict will not be disturbed, unless it be so variant from 
 the proof as to require it. Thompson v. Blackwell, 17 B. Mon. 
 624. 
 
 4. The jury have a right to consider all the testimony together, 
 and to give to each part of it such weight as, in their opinion, it 
 is justly entitled to. Adwell v. Commonwealth, 17 B. Mon. 320. 
 
 5. The jury is bound, in a criminal trial, to take the instructions 
 of the court as the law of the case. Commonwealth v. Van Tuyl, 
 1 Met. 5 ; Monte v. Commonwealth, 3 J. J. Mar. 132. 
 
334 - JURY AND JURY TRIAL. 
 
 6. Unless the facts be admitted, or clearly proved, it is for the 
 jury to say, whether an act required to be done has been per- 
 formed within a reasonable time. Blackwell v. Foster, 1 Met. 
 96. 
 
 7. It is the province of the jury to decide upon the credibility 
 of each witness introduced, and if a witness swears falsely to one 
 material fact in the cause, they have a right to disregard every 
 other fact proved by him. Rutherford v. Commonwealth, 2 Met. 
 388, 389. 
 
 8. Whenever a person is held competent and allowed to testify 
 as a witness, the jury are the exclusive judges of his credibility, 
 and may give such weight to his evidence as they may, under all 
 the circumstances, think it deserves. Letton v. Young, 2 Met. 
 566. 
 
 9. Questions of law should be decided by the court, and not left 
 to the jury. Snoddy & Bransford v. Foster, 1 Met. 163. 
 
 10. Whether the jury will credit the statements made by one 
 party, which have been proved by the other, is a matter in their 
 discretion. Smith v. Northern Bank Ky., 1 Met. 579, 580. 
 
 VII. MISCONDrCT OF THE JURY. 
 
 1. Misconduct of the jury, in a criminal trial, for Which the 
 circuit court refused to grant a new trial, will not be available in 
 the court of appeals. Clark v. Commonwealth, 16 B. Mon. 214. 
 
 2. That a witness, who had been examined in the cause, was 
 sent for by the jury after they had retired from the bar, and re- 
 examined without the knowledge of the court, or either of the 
 parties, is such misconduct as to give the party against whom they 
 find a right to a new trial, liutterell v. M. & L. B. B. Co., 18 B. 
 Mon. 295. 
 
 VIII. ISSUES OUT OP EQUITY. 
 
 1. Where the issue, in an action in equity, is as to the defend- 
 ant's liability, and the extent of that liability, and it is transferred 
 to the ordinary docket to be tried by a jury, an order, reciting that 
 "the issues raised by the pleadings are to be tried by a jury," is 
 sufficiently explicit. Savings Bank Cincinnati v. Benton, 2 Met. 
 242, 243. 
 
 2. Upon the trial by a jury of an issue out of equity, oral tes- 
 timony is always admissible. Depositions may be used, unless the 
 court otherwise directs, in which case oral testimony alone will be 
 admissible. Savings Bank Cincinnati v. Benton, 2 Met. 242, 
 243. 
 
LAND. 335 
 
 3. Wiieii, in an equitable action, an issue of personal identity is, 
 on motion of one of the parties, without objection from the other, 
 submitted to a jury, and a verdict is found, and a motion for a 
 new trial overruled, the court can not, at a subsequent term, dis- 
 regard the verdict, and find the issue the other way. The same 
 weight should be given to the verdict of a jury on an issue in 
 equity as in an action at law. Moore v. Shepherd, 2 Duv. 131 ; 
 sec. 343, Civil Code. 
 
 JUSTICE OF THE PEACE. 
 
 1. A justice of the peace is not liable for errors of judgment, 
 while acting without malice, or improper design in matters of 
 which he has jurisdiction. Bullitt v. Clements, 16 B. Mon. 200. 
 
 2. Otherwise, if he be prompted by corrupt motives. Caulfield 
 V. Bullock, 18 B. Mon. 497 ; Morgan v. Dudley, 18 B. Mon. 711 ; 
 Chrisman v. Bruce, 1 Duv. 66. 
 
 3. A single justice of the peace has no power, as an examining 
 court, to try one charged with a felony, and hold him to bail, or 
 in default, to commit him to jail; and if he does so, he will be liable 
 in damages to the injured party. Revill v. Pettit, 3 Met. 318, 319. 
 
 4. The amount, claimed in a warrant in a justice's court, is the 
 amount in controversy ; although the written statement filed in 
 obedience to section 827, Civil Code, may claim a larger amount. 
 This statement need not specify the amount claimed ; and if it does 
 80, it is surplusage. Burhage v. Squires, 3 Met. 78 ; Mills v. Couch- 
 man, 4 J. J. Mar. 242 ; Williams v. Wilson, 5 Dana, 596. 
 
 LAND. 
 
 See Dbscent and Distribtttiok. 
 
 1. All the unappropriated lands north-east of the Tennessee 
 river, belonging to the State, on August 1, 1835, were vested in the 
 county courts of the several counties with a reservation in favor 
 of actual settlers, holding a deed or bond for the land on which 
 they resided. Parker v. Patrick, 16 B. Mon. 570. 
 
 2. Every interest in or claim to real estate, whether present or 
 future, vested or contingent, and however acquired may be dis- 
 posed of by deed or will. Nutter v. Bussell, 3 Met. 166 ; sec. 6, 
 chap. 80, p. 226, vol. 2, Eevised Statutes. 
 
336 LANDLORD AND TENANT. 
 
 3. The register of the land ofSce is authorized to receive plats, 
 and certificates of surveys of unappropriated lands, after the expi- 
 ration of the time allowed for returning them ; but in such cases, 
 the legal title only takes effect from the date of the patent. Flip- 
 piti V. Mays, 3 Met. 217 ; sec. 10, chap. 102, p. 431, vol. 2, Eevised 
 Statutes. 
 
 4. The inchoate title of one who makes an entry and survey, 
 but fails to return the plat and certificate within the time allowed, 
 still subsists, and may be perfected by grant, but the legal title 
 dates from the patent, and not from the date of the survey. Flip- 
 pin V. Hays, 3 Met. 217. 
 
 5. The act of 1856 (2 Eevised Statutes, 433), to extend tbe time 
 to register surveys, invests the party, making a survey, with the 
 legal title from the date of the survey, if it was registered before 
 January 1, 1860. 
 
 6. An entry and survey, though not returned in time, so as to 
 vest the party with the legal title, is sufficient to render a 
 subsequent entry and survey of the same land void. Flippin v. 
 Hays, 3 Met. 218 ; sec. 8, chap. 102, p. 431, vol. 2, Eevised Statutes. 
 
 LANDLOED AND TENANT. 
 
 I. How the relation is createdand destroyed. 
 
 II. Kelative rights and ohligations of landlord and tenant. 
 
 III. Notice to quit. 
 
 IV. Lien of landlord and tenant. 
 
 I. HOW THE RELATION IS CREATED AND DESTROYED. 
 
 1. In general the relation of landlord and tenant is destroyed 
 by a judgment of eviction, without actual eviction. Mills v. Peed, 
 14 B. Mon. 181. 
 
 2. One, whose entry on land is lawful, and who keeps the owner 
 out by injunction, is a quasi tenant. Tinsley v. Tinsley, 15 B. Mon. 
 460, 461. 
 
 3. But one, whose entry on land is illegal, is not a tenant. Fetty 
 V. Malier, 15 B. Mon. 606. 
 
 4. If the landlord retains control over apartments occupied by 
 one in his employ, although the latter may keep a separate estab- 
 lishment and table, he' will not be a tenant. Waller v. Morgan, 18 
 B. Mon. 143. 
 
LANDLORD AND TENANT. 337 
 
 5. If B. enters as the the tenant of A. and P., and on an order 
 from A. alone, to abandon the possession so far as his interest goes, 
 he abandons the whole possession to T., P. will not be affected 
 thereby, and T. will, at most, only be entitled to hold jointly with 
 P. Tucker v. Phillips, 2 Met. 19, 20. 
 
 6. One, who executes a lease by Ti^hich he " promises to see to 
 said land, and prevent waste or damage to the same until sold, or 
 otherwise disposed of" by his lessor, but who never actually entered 
 on, and took possession of the land, is not a tenant, and the paper, 
 and agency conferred by it can be of no service to the lessor as an 
 evidence of possession. Russell v. Marks, 3 Met. 46, 47. 
 
 7. If one enters upon land, to which he asserts no claim, and not 
 as the tenant of any one, his possession inures to the benefit of the 
 title holder. Russell v. Marks, 3 Met. 47. 
 
 8. The reservation of rent, in some form, and allegiance to the 
 title, are the distinguishing characteristics of a contract by which 
 the relation of landlord and tenant is created. Goldsherry v. 
 Bishop, 2 Duv. 144. 
 
 9. "W". sold land to G., and gave him a title bond, and put him in 
 possession; G. afterward sold and assigned the bond to B., but 
 was to retain the possession until the ensuing March. Held: That 
 these facts did not create the relation of landlord and tenant. 
 Goldsherry v. Bishop, 2 Duv. 144. 
 
 II. RELATIVE RIGHTS AND OBLIGATIONS OP LANDLORD AND TENANT. 
 
 1. If a defendant, sued in ejectment, claimed adversely to the 
 plaintiff before the institation of the suit, he can not afterward 
 claim to be tenant and defeat the action for want of notice. Bick- 
 erson v. Talbott, 14 B. Mon. 73. 
 
 2. If a husband buys an outstanding adverse claim to his wife's 
 land, it will inure to her benefit. Young v. Adams, 14 B. Mon. 131. 
 
 3. A tenant, against whom judgment of eviction has been obtained 
 by a stranger, need not wait for actual eviction, but may shelter 
 himself under another title and hold for his own benefit. Mills v. 
 Peed, 14 B. Mon. 181. 
 
 4. If successful resistance might have been made, a tenant can 
 not, when sued, buy in the adverse title and set it up against his 
 landlord, unless he gave notice of the suit Mills v. Peed, 14 B. 
 Mon. 182. 
 
 5. Neither a tenant for life nor those holding under him can 
 during the life of the former, hold adversely against the remainder- 
 men. Turman v. White, 14 B. Mon. 569. 
 
 23 
 
338 LANDLORD AND TENANT. 
 
 6. A landlord, who had no title whatever to the leased premises, 
 will not be entitled to the benefit of a purchase, made by his tenant, 
 of the real owner. Hodges v. Shields, 18 B. Mon. 831, 832; Swan 
 V. WUson, 1 A. K. Mar. 73; 5 J. J. Mar. 104. 
 
 7. A party is estopped to deny the validity of the title under 
 which he entered, and claims to hold possession. Woolfolk v. Ashby, 
 2 Met. 289. 
 
 8. An attornment by a tenant to a stranger, made without the 
 assent of the landlord, is void. Payne v. Vandever, 17 B. Mon. 19. 
 
 9. If B. enters as tenant of A. and P., and on an order, from A. 
 alone, to abandon the possession so far as his interest goes, he 
 abandons the whole possession to T., P. will not be affected thereby, 
 and T. will at most, only be entitled to hold jointly with P. 
 Tucker v. Phillips, 2 Met. 419, 420. 
 
 10. A purchaser from the husband, who entered under the title 
 of the wife, can not deny her title. Hedger v. Ward, 15 B. Mon. 
 115. 
 
 III. NOTICE TO QUIT. 
 
 1. No action can be maintained against one, who entered under 
 a parole contract of purchase, until after notice to- quit or demand 
 and refusal of possession. Smith v. Moberly and wife, 15 B. Mon. 
 72, 73. 
 
 2. One whose entry on land is illegal, is not entitled to notice 
 to quit. Petty v. Malier, 15 B. Mon. 606. 
 
 3. Possession under a void deed does not entitle the holder to 
 notice to surrender before suit is brought. Covington v. McWickle, 
 18 B. Mon. 290. 
 
 IV. LIEN OF LANDLORD FOR RENT. 
 
 1. A landlord has an exclusive lien for rent on all the produce 
 of the premises, the fixtures, household furniture, and such other 
 personal property as was acquired before the tenant took posses- 
 sion, subject, as to the latter, to any valid lien subsisting at the 
 time it was removed to the leased premises. As to any other 
 property on the premises, he has a superior lien for not more than 
 one year's rent, which has not been due more than four months 
 before the suing out of the attachment or distress warrant. Fisher 
 v. Kollerts, 16 B. Mon. 408; Williams v. Wood, 2 Met. 42. 
 
 2. If property on which the landlord has a lien, be levied on 
 under attachment by a creditor of the tenant, the ofScer levying 
 should pay to the landlord so much rent as is due and in arrear, 
 and is not liable to him for anything more. Williams v. Wood, 2 
 Met. 42, 43. 
 
LAND WARRANT. 339 
 
 3. In order to render his lien effectual against an attaching cred- 
 itor of the tenant, the landlord, if the rent is not due at the time 
 of levying the attachment, should sue out attachment or distress 
 warrant, and have it levied on the attached property on which he 
 has a lien. Williams v. Wood, 2 Met. 43.' 
 
 LAND WAEEANT. 
 
 1. A land warrant does not give to the proprietor a right to any 
 specific land, nor is such a right created by the mere act of lodg- 
 ing it with the surveyor of the county. The title only commences 
 when an actual survey is made. Parker v. Patrick, 16 B. Mon. 569. 
 
 2. The act of 1828 (2 Statute Laws, 1081), only embraces, in, its 
 benefits, occupants of land with legal or equitable title, and 
 expressly excludes those claiming under land warrants issued 
 since February 6, 1815. Harlan v. Beaton, 18 B. Mon. 328. 
 
 3. In the absence of proof to the contrary, it will be presumed, 
 when the warrant, entry, and survey are all exhibited and no 
 assignment appears to have been made, that the patent issued to 
 him in whose name the warrant issued. Russell v. Marks, 3 Met. 40. 
 
 LAPSE OF TIME. 
 
 See Limitations and Equitt. 
 
 LEASE. 
 See Landlord and Tenant. 
 
 LEGACIES AND LEGATEES. 
 See Devise and Devisees. 
 
 LEGISLATIVE POWEE. 
 
 See Constitutional Law. 
 
 'See new act approved February 16, 1858, pages 99, 100, volume 2, Eevised 
 Statutes, by which the landlord has an exclusive lien for one year's rent due 
 or to beoom_e due without attaohnient or distress warrant. 
 
340 LIBEL. 
 
 LEX LOCI COlfTEACTTJS. 
 See Contracts, Marriage, and Bills of Exchange. 
 
 LIBEL. 
 
 1. Toiwrite and publish of one, that he would "sign anything 
 that T. would request that would injure D.'s character, is prima facie 
 libelous. Duncan v. Broicn, 15 B. Mon. 193. 
 
 2. In a suit for a libel, growing out of a church controversy, the 
 jury should be told that damages can be assessed only for the 
 individual injury done to the plaintiff, and not for an injury to the 
 church or other members than the plaintiff. Duncan v. Brown, 15 
 B. Mon. 199, 200. 
 
 3. The publication of a libel is an indictable offense, and one 
 sued for a libel can not, when introduced by the plaintiff as a wit- 
 ness, be compelled to answer whether he published the libelous 
 words or not. Cole v. Wilson, 18 B. Mon. 216. 
 
 4. A letter written as a confidential communication, for the 
 purpose of obtaining information in relation to a pending contro- 
 versy, and containing a statement of such facts only as were 
 necessary to enable the person to whom it was addressed to under- 
 stand the matter in controversy, and the facts which the writer 
 believed to exist, and desired to establish by proof, is not libelous. 
 Cole V. Wilson, 18 B. Mon. 217. 
 
 5. But if it were accompanied by comments of a slanderous 
 character, not necessary to the attainment of a legitimate purpose, 
 referring to an individual concerning whom no information was 
 expected or desired, and setting forth facts foreign to the avowed 
 object with which it was written, it would be libelous. Cole v. 
 Wilson, 18 B. Mon. 217. 
 
 LICENSE. 
 
 1. A distiller has a right to sell liquor of his own manufacture 
 without a license. Dawson v. Commonwealth, 14 B. Mon. 227. 
 
 2. A merchant, licensed to sell liquor by the quart, will be 
 guilty of the offense of keeping a tippling-house, if liquor sold by 
 
LIEN. 341 
 
 him, in whatever quantity, be drank on his premises or adjacent 
 thereto. Curd & Ward v. Commonwealth, 14 B. Mon. 387. 
 
 3. Contracts made by brokers, who have no license, are not on 
 that account void. Lindsey v. Rutherford, 17 B. Mon. 248. 
 
 4. Contracts with unlicensed pedlers, to pay for goods purchased 
 of them not manufactured in this State, are void, and no recovery 
 can be had for their value. Bull v. Harragan, 17 B. Mon. 352. 
 
 5. The power conferred on county courts and the general coun- 
 cil of cities, to license taverns, does not give them power to refuse 
 altogether to license any tavern. Louisville v. McKean, 18 B. 
 Mon. 11. 
 
 6. The city council of Louisville may refuse altogether to license 
 coffee-houses. Louisville v. McKean, 18 B. Mon. 12. 
 
 7. A house of entertainment, in which spiritous liquors are not 
 sold, is not required to have a license. Louisville v. McKean, 18 
 B. Mon. 14. 
 
 8. A county court or city council has a discretion to grant or 
 refuse a tavern license, but it is a judicial and not an arbitrary 
 discretion. Louisville v. McKean, 18 B. Mon. 15 ; Commonwealth 
 V. Graves & Clary, 18 B. Mon. 35. 
 
 9. The propriety of an order, granting a license, can not be 
 questioned collaterally. Commonwealth v. Graves & Clary, 18 B. 
 Mon. 35. 
 
 LIEN. 
 
 I. What is, or will create a lien. 
 II. What will destroy or discharge a lien. 
 III. Eights of priority between holders of liens. 
 IV. Proceedings to enforce liens. 
 
 I. WHAT IS, OR WILL CREATE A LIEN. 
 
 1. A partner has an equitable lien on the partnership effects for 
 the payment of partnership debts^ Talbott v. Pierce, 14 B. Mon. 
 198. 
 
 2. An attorney-at-law, who has made a void contract for a part 
 of the thing sued for, will have no lien on the proceeds of the suit 
 for his fee. Lavis v. Sharron, 15 B. Mon. 68. 
 
 3. Section 26, chapter 80, p. 230, volume 2, Eevised Statutes, 
 does not absolutely destroy the vendor's lien for the unpaid pur- 
 chase-money, if the amount be not stated in the deed, but was 
 intended to operate in favor of purchasers, and as between the 
 
342 
 
 LIEN. 
 
 vendor and ■s'^ndee, and volunteers under the latter, the lien still 
 exists. Neal v. Davis, 17 B. Mon. 143.i 
 
 4. The purchaser of an equity of redemption, under execution, 
 acquires a lien for the repayment of the purchase-money and in^ 
 terest. Phillips v. Wiiislow, 18 B. Mon. 449 ; Forest v. Phillips, 2 
 Met. 196; Cov. & Gin. Bridge Co. v. Walker, 2 Duv. 150. 
 
 5. Since the Eevised Statutes, the vendor has no lien for unpaid 
 purchase-money available against a sub-vendee, who had actual 
 notice, unless it be expressly stated in the deed what part of the 
 purchase-money remains unpaid. Chapman v. Stockwell, 18 B. 
 Mon. 653. 
 
 6. JSio lien exists between vendor and vendee, when a deed has 
 been made, and no statement of the amount of unpaid purchase- 
 money is contained in it. Cottman*Y. Martin, 1 Met. 563,564; 
 Chapman v. Stockwell, 18 B. Mon. 653; Gritton v. McDonald, 3 
 Met. 253 ; Gooch v. Baxter, 2 Duv. 389. 
 
 7. The creditors of a firm have no lien on the partnership effects 
 for the payment of partnership debts, and whenever a lien can be 
 asserted by them at all, it must be derived from, or through, one 
 of the partners. Jones v. Lusk, 2 Met. 360 ; My, Clapp, etc. v. 
 Hair, etc., 16 B. Mon. 237. 
 
 8. There is no lien upon personal property in favor of one, who 
 has advanced money for it without having either title or possession. 
 Allen V. Shortridge, 1 Duv. 36. 
 
 9. The Commonwealth has a lien, for money collected by a 
 sheriff, on all the property, including choses in action, of the 
 sheriff and his securities, from the commencement of suit against 
 them until the judgment is satisfied. Harlan v. Lumsden, 1 
 Duv. 87. 
 
 10. A railroad company made a mortgage to secure four hund- 
 red of its bonds for one thousand dollars each ; attached to each 
 bond, when sold, there wa^ a certificate, that the whole amount of 
 bonds issued, and to be issued did not exceed four hundred thous- 
 and dollars ; but by mistake of the company four hundred and 
 twenty bonds were issued. Held : The holders of the twenty extra 
 bonds had by estoppel a lien on the mortgaged property. Stephens 
 V. Benton, 1 Duv. 115. 
 
 11. Where there is a sale of personal property at a fixed price 
 on a stipulated credit, the seller to retain the property for a few 
 
 ^But see Cottman v. Martin, 1 Met. 563, 564; Gritton v. McDonald, 3 Met. 
 253, and Chapman v. Stockwell, 18 B. Mon. 653, whicli are in conflict with thia 
 
LIENS. 343 
 
 weekSj and then deliver it to the purchaser, on his giving notes 
 for the price with good security, the seller has a lien to secure the 
 performance of the purchaser's undertaking. Duncan v. Lewis, 1 
 Duv. 185. 
 
 12. If property, on which the vendee owes a balance of pur- 
 chase-money, and for which a lien is reserved by the deed, be 
 sold under execution, the purchaser will only acquire a lien for 
 the repayment of his money and interest. Hinton v. Mitchell, 1 
 Duv. 382 ; sec. 1, art. 15, chap. 36, p. 488, vol. 1, Eevised Statutes. 
 
 13. One, who purchases real estate situated in Louisville, on 
 which there is a mechanic's lien, will only acquire a lien for his 
 purchase-money and interest. Brown v. Story, 4 Met. 317, 318. 
 
 14. Service of a summons, in an action by a creditor who has a 
 return of "no property," to subject choses in action, or other 
 property or effects of his debtor, to the payment of the judgment, 
 with the object [of the suit indorsed on it, creates a lien on such 
 property. Huffman v. Thomas, 2 Duv. 105, 106. 
 
 II. WHAT WILL DESTROY OR DISCHARGE A LIEN. 
 
 1. If one partner alone, but with the assent of the other, exe- 
 cutes a deed of trust, it will be a waiver of the latter's lien on the 
 partnership effects. My, Clapp, etc. v. Sair, etc., 16 B. Mon. 237. 
 
 2. A lien, under the law giving to mechanics and others fur- 
 nishing materials, doing work, etc., in the city of Covington, a 
 lien on the work done, will be lost, if the party, by his own act, 
 puts it out of his power to enforce it within the time to which the 
 lien is limited by the statute creating it. Prior v. White, 16 B. 
 Mon. 608. 
 
 3. The death of the plaintiff does not destroy a lien created by 
 an execution on account of its being in the hands of the proper 
 officer for collection. Morgan v. Winn, 17 B. Mon. 244. 
 
 4. The lien, created by the levy of an execution, will be extin- 
 guished by a sale under it, even though the sale be void. Etlinger 
 V. Tansey, 17 B. Mon. 368, 369. 
 
 5. A failure of the sheriff to comply literally with the statute, 
 directing the order of the levy and return of attachments, does 
 not vitiate the lien of the attaching creditor, in whose behalf a 
 levy has actuallj'' been made. Lane & Bartlett v. Bohinson, 18 
 B. Mon. 632. 
 
 6. If a lien, existing in favor of the State, be waived by it in 
 favor of such person as might acquire a lien by a subsequent mort- 
 gage, and the legislature afterward repeals the act, by which the 
 
344 LIENS. 
 
 lien was waived, it will be inoperative as against those acquiring 
 a lien while the waiver was in force. Sinking Fund Com'rs v. 
 Northern Bank Ky., 1 Met. 188. 
 
 7. The lien created by the levy of ay?. /a., will be discharged if the 
 execution is enjoined or superseded. Keith v. Wilson, 3 Met. 205 ; 
 Lockridge v. Biggerstaff, 2 Duv. 282. 
 
 8. Under section 5 of the act of 1839, giving mechanics a lien 
 on work done by them, registration of the claimant's demand 
 within six months after the completion of his work, or suit within 
 that period to assert his claim, is necessary to secure the lien given 
 by the act. Trustees Caldwell Institute v. Young, 2 Duv. 588. 
 
 9. If a vendor of land, at the request of intermediate vendees, 
 executes a deed to a remote vendee, reciting a full payment of the 
 purchase-money, no lien for the purchase-money due from one of 
 the intermediate vendees to his vendor can be enforced against the 
 grantor, even though he had notice that the purchase-money was 
 unpaid. Gooch v. Baxter, 2 Duv. 389. 
 
 III. RIGHTS OP PRIORITY BETWEEN HOLDERS OF LIENS. 
 
 1. If one creditor has a lien on two funds, and another has a lien 
 of a younger date on only one of them, the latter will have a right 
 in equity to have the fund, on which he has no lien, first applied 
 to the payment of the other creditor. Swigert v. Bank Ky., 17 B. 
 Mon. 286. 
 
 2. Mortgages, and other deeds, and conveyances, creating liens 
 which are not recorded, are not valid in a court of law against 
 creditors nor against any legal right %o property, which they may 
 in good faith acquire. Swigert v. Bank Ky., 17 B. Mon. 290. 
 
 3. .If one creditor has a lien on several funds, and another has 
 a lien on only one of them, the first will not be compelled, in a 
 court of equity, to credit his demand with the amount realized out 
 of the fund, on which he has an exclusive lien, and only take his 
 pro rata share with the other incumbrancer on the balance due, 
 but will be entitled to his pro rata share on his whole debt out of 
 the latter fund. Logan v. Anderson, 18 B. Mon. 119, 120. 
 
 4. As a general rule the debts of a mortgagee, who has more 
 than one security, will be thrown upon all his securities ratably 
 pari passu according to the value, and thus leave the residue of 
 each to satisfy the other incumbrancers to whom it is specially 
 mortgaged. Logan v. Anderson, 18 B. Mon. 121. 
 
 5. The vendor of goods bought with the fraudulent intent not to 
 pay for them has a prior and superior lien to attaching creditors 
 
LIENS. 345 
 
 of the vendee, although their attachment was levied first. Lane, 
 etc. V. Eohinson, 18 B. Mon. 631. 
 
 6. One of several creditors of a debtor, who has made sale of 
 property, which, under the statute of 1856, operates to transfer all 
 his estate for the benefit of all his creditors, can not obtain prior- 
 ity over the others by suing out and levying an attachment. 
 Shouse V. Utterhach, 2 Met. 54, 55. 
 
 7. The lien of an attaching creditor will be subordinate to that 
 of one to whom the debtor had, in good faith, and for a valuable 
 consideration, assigned or transferred a debt or fund attached 
 before the institution of the suit. Newhy & Taylor v. Hill & Million, 
 2 Met. 533. 
 
 8. Where there is a lien on a tract of land for an unpaid balance 
 of purchase-money, and a part of the land has been sold to a third 
 person, who has paid for it, the balance of the tract should be first 
 subjected to its payment. Corn v. Sims, 3 Met. 401 ; Winfrey v. 
 Williams, 5 B. Mon. 428. 
 
 9. A railroad company made a mortgage'to secure four hundred 
 of its bonds for one thousand dollars each ; attached to each when 
 issued was a certificate that the whole amount of bonds, issued 
 and to be issued, did not exceed four hundred thousand dollars, 
 but by mistake the company issued four hundred and twenty 
 bonds. Held: The holders of the twenty extra bonds had a lien 
 superior to that of the holders of subsequent unrecorded mort- 
 gages, but inferior to a subsequent recorded mortgage. Stephens 
 V. Benton, 1 Duv. 115. 
 
 10. A creditor, who, having a return of "no property" on an 
 execution, proceeds by an equitable action to subject a known and 
 described equity of his debtor to the payment of his debt, has a 
 superior lien to one who subsequently sues out an attachment. 
 Parsons v. Meyhurg, 1 Duv. 207. 
 
 11. By the act of 1834, giving mechanics a lien on buildings 
 constructed or repaired (in certain counties and towns), such lien 
 is made subordinate to the vendor's lien for the purchase-money 
 of the land on which such improvement is made. Orr v. Batter- 
 ton, 14 B. Mon. 101. 
 
 12. The lien given to mechanics, material men, etc., by the act 
 of 1839, Session Acts, 93, only extends to the interest of the em- 
 ployer in the premises or building, 12 B. Mon. 90 ; and this lien 
 commences with the work and continues to enlarge with its pro- 
 gress, and no intervening lien or incumbrance can break its con- 
 tinuity. Trustees Caldwell Institute v. Young, 2 Duv. 586. 
 
346 LIMITATIONS. 
 
 IV. PEOCEEDINGS TO ENFORCE LIENS. 
 
 1. A mortgagee, on an allegation that the mortgagor is about 
 to remove the mortgaged property out of the State, may attach it. 
 Patten v. Harris, 15 B. Mon. 615. 
 
 2. Courts of equity have jurisdiction to prevent the removal of 
 property, on which the plaintiff has an equitable lien, by one who 
 seeks its sale under execution against the common debtor. Phillips 
 V. Winslow, 18 B. Mon. 447. 
 
 3. It is error to order the sale of land attached in an action, 
 subject to the lien of the defendant's vendor for unpaid purchase- 
 money, without making him a party and ascertaining the amount 
 of his lien. Mills v. Brown, 2 Met. 406. 
 
 4. A petition to enforce a lien in favor of the city of Louisville 
 against real property for taxes, must aver that the taxes had been 
 assessed in the mode prescribed by the city charter. City of 
 Louisville v. Bank Ky., 3 Met. 149 ; Hooser v. Buckner, 11 B. Mon. 
 183. 
 
 LIMITATIONS. 
 
 I. General principles. 
 II. How taken advantage of. 
 
 III. When the statute begins to run. 
 
 IV. What will prevent or suspend the running of the statute. 
 v. Limitation of actions for real property. 
 
 VI. Limitation of actions other than for real property. 
 VII. What will revive a cause of action once barred. 
 VIII. Limitation to action in the name of the Commonwealth. 
 
 I. GENERAL PRINCIPLES. 
 
 1. The statute of limitations in Kentucky is not a mere rule of 
 evidence, for although founded perhaps on a presumption of pay- 
 ment, its effect can not be destroyed by proof tending to destroy 
 the presumption. Pidgely v. Price, 16 B. Mon. 415. 
 
 2. The limitation law of the State where the remedy is sought, 
 and not that of the State where the party resides, must govern. 
 Bennett v. Devlin, 17 B. Mon. 358. 
 
 3. If the case be one of concurrent jurisdiction at law and in 
 equity, and the remedy is barred at law, it will be barred in 
 equity. L. L., F. & M. Ins. Co. v. Page & Richardson, 17 B. Mon. 
 453. 
 
LIMITATIONS. 347 
 
 4. In a case coming within the statute of limitations, the lapse 
 of time prescribed by the statute is pleadable as a bar to the 
 action, and the jury are concluded by it, though convinced the 
 debt still remains unpaid. But where lapse of time is used merely 
 as evidence of payment, it is matter for the jury to credit or not. 
 Waters v. Waters, 1 Met. 522 ; Shields v. Pringle, 2 Bibb, 387. 
 
 5. Statutes of limitation are confined in their operation to 
 actions brought after the limitation has not only been prescribed, 
 but has operated as a bar to the plaintiff's right of action. Fen- 
 wick V. Phillips, 3 Met. 90 ; Hedger v. Bennaker, 3 Met. 257. 
 
 6. The act of 1858, entitled "An act to amend the second sec- 
 tion of article sixty-three of the Eevised Statutes, entitled " Lim- 
 itations of Actions and Suits" (2 Eevised Statutes, 135), is in conflict 
 with section 37, article 2, of the Constitution of Kentucky, and 
 is void, except so much of it as relates to the limitations of 
 actions for real property. Chiles v. Thomas & Monroe, 4 Met. 75. 
 
 II. HOW TAKEN ADVANTAGE OF. 
 
 The statute of limitations is matter of defense, and must, if relied 
 on, be pleaded, unless the petition shows that the action is barred 
 and that the plaintiff is not within any of the exceptions, men- 
 tioned in the statute, where any are contained in the statute pre- 
 scribing the limitation. Chiles v. Drake, 2 Met. 148, 149. 
 
 m. WHEN THE STATUTE BEGINS TO RUN. 
 
 1. If the statute of limitations is pleaded to an action on account, 
 and a promise to pay is proved, the running of the statute should 
 be counted from the date of the promise. Bidgely v. Price, 16 B. 
 Mon. 416. 
 
 2. At law, limitation begins to run from the perpetration of the 
 fraud; in equity, from its discovery. Ellis v. Kelso, 18 B Mon. 
 300. 
 
 3. If a clerk makes a negligent or fraudulent entry on the books 
 of his employer, whereby injury results to the latter, the cause of 
 action accrues and limitation begins to run from the time the entry 
 was made. Ellis v. Kelso, 18 B. Mon. 301. 
 
 4. A father conveyed a slave to his married daughter, until her 
 son by a former marriage should arrive at twenty-one years of 
 age — Held: The son's right of action for the recovery of the slave 
 accrued on his 'arrival at twenty-one, and that the husband's con- 
 tinued possession, for more than five years after that, would bar 
 his right. Divine v. Bullock, 3 Met. 419, 420. 
 
348 LIMITATIONS. 
 
 5. Where one, borrowing money at usurious interest, which on 
 the same day is reloaned to him in accordance with an agreement 
 to that eifect, the statute of limitations then begins to run against 
 an action to recover back the usury. Hayes v. Goodwin, 4 Met. 
 82, 83. 
 
 6. So long as a debt exists, usurious interest must be first applied 
 to the discharge of the legal interest, and then to the principal, 
 and no right of action for the usurious interest accrues until the 
 debt is discharged, and limitation does not begin to run until the 
 debt is paid. Ellis v. O'Bannon, 1 Duv. 50; Stone v. McConnell, 1 
 Duv. 56 ; Martin v. Martin, 12 B. Mon. 307. 
 
 7. In an action by a father for the loss of his daughter's services 
 in consequence of her seduction, limitation runs from the birth of 
 the child, >nd not from the date of the seduction. Hancock Y.Wil- 
 hoit, 1 Duv. 313. 
 
 IV. WHAT WILL PREVENT OR SUSPEND THE RUNNING OP THE STATUTE. 
 
 A. Generally. 
 
 B. Suit and judgment. 
 G. Infancy. 
 
 D. Insanity. 
 
 E. Non-residence and absence, 
 
 F. When disability of one will save rights of all. 
 
 a. Generally. 
 
 1. One disability can not be added to another, so as to defeat 
 the running of the limitation of seven years in favor of an occupy- 
 ing claimant of land. Ashbrook v. Quarles, 15 B. Mon. 25, 26. 
 
 2. Nor to defeat the general statute of limitations. Clark v. 
 Jones, 16 B. Mon, 126; Mitchell v. Berry, 1 Met. 610. 
 
 3. Willful ignorance, or that which results from negligence and 
 the want of that degree of vigilance, which the law requires, will 
 not be sufficient to prevent the operation of the statute of limita- 
 tions, i. i., F. & M. Ins. Co. V. Page & Bichardson, 17 B. Mon. 
 451. 
 
 4. The disability of coverture can not be added to that of infancy, 
 to prolong the statutory saving against the legal eifect of the lapse 
 of time. Martin v. Letty, 18 B. Mon. 581 ; Manion v. Titsworth, 
 18 B. Mon. 601 ; Finley v. Patterson, 2 B. Mon. 78. 
 
 5. The presumption of payment, from mere lapse of time, may 
 be rebutted by facts or circumstances, such as the payment of 
 interest or demand of payment, and its force may thus be impaired 
 or destroyed. Waters v. Waters, 1 Met. 522, 2 Bibb. 387. 
 
LIMITATIONS. 349 
 
 6. That tlie payee of a note had failed to sue on it for more than 
 seven years after its maturity, in consequence of frequent requests 
 of indulgence on the part of the surety, will not deprive him of the 
 benefit of the statute of limitations in favor of sureties. Coleman 
 V. Walker, 3 Met. 67, 68. 
 
 7. The running of the statute of limitations against a matter 
 pleaded as a set-off, ceases at the commencement of the action in 
 which it is pleaded. Hayes v. Goodwin, 4 Met. 82, 83. 
 
 8. In personal actions, when the bar begins to run, it runs re- 
 gardless of intervening disabilities. Baker v. Grundy, 1 Duv. 
 282. 
 
 9. In suits for land, if a litigant dies before his remedy is barred, 
 and his successor by descent labors under disability at his death, 
 the limitation is suspended. But if, in such a case, the descent be 
 cast on several, the running of the statute is not suspended, unless 
 all of them labor under disability, in which case the suspension 
 would continue as long as the disability of any one of them. 
 Baker v. Grundy, 1 Duv. 282 ; Macher v. May, 4 Bibb, 44 ; Mcln- 
 tire V. Funk, 5 Litt. 39 ; South v. Thomas, 7 B. Mon. 63. 
 
 10. One, who receives money for his ward a few days after his 
 guardianship ceased — the ward continuing to be one of his house- 
 hold, and he still maintaining the practical relation of curator — 
 will not be protected by the statute of limitation against the claim 
 of the ward for the money. Hayden v. Stone, 1 Duv. 398. 
 
 11. A son was absent, his whereabouts being unknown ; his 
 mother became his guardian, received his estate, and died. The 
 estate was afterward distributed to her representatives, who had 
 knowledge of the manner in which she held it. Held : That they 
 held the estate subject to the trust ; that the property never be- 
 came theirs, and their holding was not adverse, and the statute of 
 limitations does not apply. Moore v. Shepherd, 2 Duv. 132. 
 
 12. A suit against principal and surety, in which no judgment 
 is obtained against the latter, does not stop the running of the 
 statute as to him. Keller v. Sintbn, 14 B. Mon. 310. 
 
 b. Suit and judgment. 
 , 1. A suit, in which no judgment is rendered against the surety, 
 does not stop the running of the statute in his favor. Keller v. 
 Sinton, 14 B. Mon. 310. 
 
 2. A judgment of eviction, unless executed, does not stop the 
 running of the statute of limitations. Petty v. Malier, 15 B. Mon. 
 603. 
 
350 LIMITATIONS. 
 
 3. Limitation ceases to run against a cause of action pleaded as 
 a set-off at the commencement of the action. Hayes v. Goodwin, 4 
 
 Met. 82, 83. 
 
 c. Infancy. 
 
 A note, payable to a guardian, will not be saved from the statute 
 of limitation by the infancy of the ward. Coleman v. Walker, 3 
 Met. 67 ; Edwards v. Woolfolk, 17 B. Men. 381. 
 
 d. Insanity. 
 
 1. If the statute of limitation begins to run, a subsequent state 
 of insanity will not stop it. There is no difference in this respect 
 between disability from insanity and from any other cause. Clark 
 V. Trail, 1 Met. 40, 41. 
 
 2. If one is insane when his right accrues, and is afterward 
 restored to his right mind, and continues so for a sufficient time to 
 look into his affairs, and institute suit to recover his rights, the 
 statute will begin to run, and a subsequent return of insanity will 
 not arrest it nor save him from the bar. Clark v. Trail, 1 Met. 41. 
 
 e. Non-residence and absence. 
 
 1. One, who, by removing from the State, obstructs the bringing 
 of an action, thereby suspends the running of the statute of lim- 
 itations during his absence. Ridgely v. Price, 16 B. Mon. 409. 
 
 2. That he afterward returned for a short period, will not en- 
 able him to have the benefit of the statute, unless the plaintiff had 
 notice of the fact, or the circumstances were such that he ought to 
 have learned it. Ridgely v. Price, 16 B. Mon. 419. 
 
 3. A surety, who removes from the State either before or after 
 the debt falls due, and returns occasionally for temporary pur- 
 poses, not giving reasonable opportunity to the creditor to sue, 
 will not be entitled to the benefit of the statute while thus absent. 
 Bennett v. Devlin, 17 B. Mon. 359-362. 
 
 /. When the disability of one will save the rights of all. 
 
 1. If seven years' limitation be relied on by an occupying 
 claimant of land, and one of the plaintiffs be under disability so 
 as to save his own right, it will save the rights of all. Ashbrook v. 
 Quarles, 15 B. Mon. 25, 26. 
 
 2. A surety, in a guardian's bond executed to several infants 
 jointly, will not be released as to one, who had attained full age 
 more than five years before the action was brought, unless all had 
 been of full age for that time. Johnson v. Chandler, 15 JB. Mon. 
 590. 
 
LIMITATIONS. 351 
 
 3. The disability of one joint claimant will save the interest of 
 all from the statute of limitations, of seven years in favor of occu- 
 pying claimants. Clark v. Jones, 16 B. Mon. 128. 
 
 4. Theinfancy of someof the heirs, when the right of all accrued 
 by descent, prevents limitation from running and saves the rights 
 of all. Barlan v. Seaton, 18 B. Mon. 326. 
 
 5. But where a decree was rendered against an infant, who lived 
 for two years after he obtained his majority, and died, leaving his 
 right to several, some of whom were infants and some adults — 
 Eeld: On a bill of review by all, that the rights of part being 
 barred, all were barred. Baker v. Grundy, 1 Duv. 282. 
 
 V. LIMITATIONS TO ACTIONS FOE EEAL PEOPEKTT. 
 
 A. Generally. 
 
 B. As to occupying claimants. 
 
 C. Between landlord and tenant, and co-tenants. 
 
 a. Generally. 
 
 1. A possession of twenty years under a junior patent with an 
 inclosure of several acres, will, if there is nothing in the record to 
 show that the entry under the junior patent was not intended to 
 be co-extensive with the survey and patent, be a bar to an action 
 of ejectment under the elder patent. Franklin Academy v. Hall, 
 16 B. Mon. 473. 
 
 2. Limitation will not bar an action of ejectment, unless the 
 adverse possession has been not only actual, but so continued for 
 twenty years as to furnish a cause of action every day during that 
 whole period. Jones v. McGauley, 2 Duv. 14. 
 
 b. As to occupying claimants. 
 
 1. It is seven years possession with title that will 'avail as 
 limitation in an action of ejectment, and possession held before 
 the defendant became connected with the title, can not be added 
 to that held after acquiring the title to make out seven years. 
 Hunter v. Ayres, 15 B. Mon. 215, 216. 
 
 2. One, holding under a Kentucky land warrant, who has had 
 seven years possession before suit brought, will be protected against 
 an elder grant, unless the plaintiff labors under some disability. 
 Clark V. Jones, 16 B. Mon. 126. 
 
 3. Seven years actual settlement and residence within the junior 
 patent will bar a recovery under an elder patent. Franklin 
 Academy v. J3^all, 16 B. lEon. 47.4. 
 
352 LIMITATIONS. 
 
 c. Between landlord and tenant, and co-tenants. 
 
 1. Limitation will not run against the remainder-men in favor 
 of a tenant for life, or those who hold, under him, during his life. 
 Turman v. White, 14 B. Mon. 569. 
 
 2. One, who enters as a co-tenant, but subsequently claims 
 adversely by open and public acts, asserting claim to all the land, 
 will be entitled to the benefit of the statute of limitations from the 
 time his adverse holding commenced. Gossom v. Donaldson, 18 
 B. Mon. 241. 
 
 VI. LIMITATIONS TO ACTIONS OTHEE THAN FOR REAL PROPERTY. 
 
 A. 
 
 B. Judgments, notes, hands, and other writings. 
 O. On accounts, and for personal property. 
 
 D. On merchants' accounts. 
 
 E. For fraud or mistake. 
 
 F. Against sureties. 
 
 G. As to trusts and trust property. 
 
 a. Qenerally. 
 
 In an action for a breach of marriage contract, where the 
 only evidence to support the alleged contract was the frequent 
 visits and attentions of the male, if the statute of limitations be 
 pleaded, the jury will not be authorized to find for the plaintiff, 
 where the only evidence is the continuance of such visits and 
 attention to within one year before the . action was commenced. 
 Burnham v. Cornwell, 16 B. Mon. 286. 
 
 h. Judgments, notes, hands, and other writings. 
 
 1. The mere lapse of fifteen years, from the date of the last 
 execution on a judgment, does not create a presumption of pay- 
 ment. Chiles & Thomas v. Monroe, 4 Met. 73, 74. 
 
 2. In September, 1839, judgment was rendered, and soon there- 
 after execution issued, which was returned "no property found." 
 In July, 1846, a second one was issued, and in September following 
 was returned "no property found." No other step was taken until 
 October 8, 1861, when execution again issued, which the defendant 
 moved to quash, relying on the lapse of time and the statute of 
 limitations. Held: The facts do not raise a presumption of pay- 
 ment. Chiles & Thomas v. Monroe, 4 Met. 74, 75. 
 
 3. A simple order for money to be repaid at an early specified 
 day is an inland bill of exchange and not a covenant, and is barred 
 
LIMITATIONS. 353 
 
 by the limitation of five years. Biesenthall v. Williams, 1 Duv. 
 333; Early v. McCart, 2 Dana, -115. 
 
 c. On accounts, and for personal property. 
 
 1. The statute of limitations does not run in favor of an adverse 
 holder of personal property against those holding the remainder, 
 during the life of those holding the particular estate. Edwards v. 
 Woolfolk, 17 B. Mon. 379, 380. ' 
 
 2. But the rule is different in the case of a contingent remainder. 
 In that case everything which bars or destroys the particular 
 estate, bars also the remainder. Edwards v. Woolfolk, 17 B. Mon. 
 380. 
 
 3. One who claims a life estate in personal property, which he 
 has held for five years, will be protected by limitation in the life 
 estate. Burns v. Bay, 18 B. Mon. 403. 
 
 d. Merchants^ accounts. 
 A merchant's account is not barred until one year from the 
 first of January next succeeding the delivery of the several articles 
 charged in the account. Sams v. Stockton & Curtis, 14 B. Mon. 
 233. 
 
 e. For fraud or mistake. 
 
 1. An action, brought in April, 1863, for fraud or mistake in 
 the execution of a deed in November, 1852, is barred by limita- 
 tion. Salve V. Ewing, 1 Duv. 272; sec. 5, chap. 63, p. 129, vol. 2, 
 Eevised Statutes. 
 
 2. An action for fraudulent misrepresentations, relating, to the 
 possession of land sold to the plaintiff by the defendant, is barred 
 by the lapse of ten years after the commission of the fraud. Graves 
 V. Leathers, 17 B. Mon. 668. 
 
 3. Where a decree was obtained by fraud, limitation, in equity, 
 begins to run from the discovery of the fraud and not from its 
 perpetration. Baker v. Grundy, 1 Duv. 283. 
 
 /. Against sureties. 
 
 1. Seven years will bar a proceeding against one who has 
 undertaken to pay the costs of a non-resident plaintiff. McGlure 
 V. McKee, 14 B. Mon. 265. 
 
 2. One, who resides out of the State and becomes a surety here, 
 will be entitled to the same benefit of limitation as sureties resid- 
 ing here. Kellar v. Sinton, 14 B. Mon. 308. 
 
 3. The surety in a guardian's bond will not be released as to 
 one of several wards after the lapse of five years after his majority, 
 
 24 
 
354 LIMITATIONS. 
 
 unless all had obtained majority more than five years before the 
 commencement of the action. Johnson v. Chandler, 15 B. Mon. 
 590. 
 
 4. Where the liability of a surety, in an administrator's bond, 
 existed prior to the Eevised Statutes, the limitation therein does 
 not apply. Hayden v. Hayden, 3 Met. 191 ; Kellar v. Sinton, 14 B. 
 Mon. 309 ; Henderson v. Hayne, 2 Met. 344.^ 
 
 5. Under the act of 1838, sureties of administrators, etc., were 
 not released until five years after the youngest distributee ward or 
 devisee had attained full age. Hayden v. Hayden, 3 Met. 191. 
 
 6. A surety in a sale bond, having the force and effect of a 
 replevin bond, will be released if no execution issue thereon, 
 within twelve months after its maturity. Spillman & Buff v. 
 tSmith, 15 B. Mon. 134. 
 
 7. One, who signs a contract, as surety for a married woman, 
 which she was not authorized to make, and is, therefore, void as 
 to her, is a principal, and will not be released by the lapse of seven 
 years without suit. Gaines v. Poor, 3 Met. 506; Short v. Bryant, 
 10 B. Mon. 10. 
 
 8. A surety in a replevin bond wrote to the plaintiff, giving his 
 assent to a stay of execution until the first of the following April, 
 and longer if the principal should ask it. The principal continued 
 from time to time to ask and receive indulgence for four years, 
 when execution issued and was enjoined by the surety. Held: 
 The surety was not released. Furher v. Bassett, 2 Duv. 433. 
 
 h. As to trusts and trust property. 
 
 1. Whenever the legal right of a trustee, holding the legal title 
 to slaves, is barred by limitation, the equitable right of the cestui 
 que trust will be barred also. Edwards v. Woolfolk, 17 B. Mon. 
 381 ; Coleman v. Walker, 3 Met. 67 ; Maddox v. Allen, 1 Met. 498, 
 499. 
 
 2. Express continuing trusts, which are within the exclusive 
 jurisdiction of courts of equity, are not affected by the statute of 
 limitations. L. L., F. & M. Ins. Co. v. Page & Richardson, 17 B. 
 Mon. 451. 
 
 3. Constructive trusts are not exempted from the operation of 
 the statute of limitations. Manion v. Titsworth, 18 B. Mon. 601 ; 
 Talhott V. Todd, 5 Dana, 199. 
 
 iBut see act approved May 31, 1865, Myers' Supplement, 295. 
 
LIMITATIONS. 355 
 
 4. If a trust is openly denied, the statute of limitations will 
 apply. Manion v. Titsworth, 18 B. Mon. 601 ; Bohannon v. 
 Sthreshley, 2 B. Mon. 439 ; Findley v. Patterson', 2 B. Mon. 78. 
 
 5. That the property in contest is trust property does not pre- 
 vent the statute of limitations from running against the trustee. 
 But wherever there is a relation of trust between the parties, 
 limitation will not run. Maddox v. Allen, 1 Met. 498, 499. 
 
 VII. WHAT WILL REVIVE A CAUSE OF ACTION ONCE BARRED. 
 
 1. If an account against a firm be barred by limitation, a 
 promise by one of the firm, in the firm name, made after the firm 
 is dissolved, will not take it out of the statute as to any other 
 member of the firm. Merrett v. Pollys, 16 B. Mon. 357. 
 
 2. Payment by a surety of a part of a debt, after he is released 
 by limitation, will not revive the obligation to pay the balance. 
 Emmons v. Overton, 18 B. Mon. 649. 
 
 ■ 3. A promise by a surety to pay the debt, after he is released by 
 limitation, will not be obligatory nor prevent him from pleading 
 and relying on the statute. Emmons v. Overton, 18 B. Mon. 
 650. 
 
 4. Where a paper was executed, reciting that it was made "for 
 the satisfaction and security of M.;" and then proceeded to "re- 
 state" the substance of the former parole agreement, which was 
 barred by limitation — Held: The paper was a covenant, and not a 
 mere memorandum of the parole agreement, and the statute of 
 limitations was not available. Metcalfe v. Poindexter, 4 Met. 52, 
 53 ; 2 Bibb, 614 ; 1 A. K. Mar. 475 ; 4 B. Mon. 402 ; 3 Mon. 22. 
 
 VIII. LIMITATION TO ACTIONS AND PROSECUTIONS IN THE NAME OF 
 THE COMMONWEALTH. 
 
 1. Lapse of time can not operate to bar the Commonwealth's 
 right of entry on land not granted by her. Hartley v. Hartley, 3 
 Met. 58 ; Chiles v. Calk, 4 Bibb, 554. 
 
 2. The right of the Commonwealth to maintain an action on a 
 bail bond, is barred by the lapse of five years between the for- 
 feiture and the commencement of the action. Straus v. Common- 
 wealth, 1 Duv. 150; sees. 2, 9, art. 3, chap. 63, pp. 127, 131, vol. 2, 
 Eevised Statutes. 
 
 3. Where an indictment is lost, and the matter is afterward re- 
 referred to the grand jury, and a new indictment found, limitation 
 runs on until the finding of the last indictment. Comm,onwealth v. 
 Keger, 1 Duv. 241. 
 
356 
 
 LIS PENDENS. 
 
 LIS PENDENS. 
 
 I. What is a lis pendens. 
 II. Effect of a lis pendens. 
 
 I. WHAT IS A LIS PENDENS. 
 
 1. An action by infants for the sale of their land, is not a lis 
 pendens as to one who enters on it as a purchaser pending the suit. 
 Clarkson v. Burnett, 14 B. Mon. 165. 
 
 2. It is not necessary, in order to keep up the character of a lis 
 pendens, that the suit should be prosecuted with even ordinary 
 diligence ; it can only be lost by unusual and unreasonable negli- 
 gence. Gossom V. Donaldson, 18 B. Mon. 238. 
 
 3. But a party, who claims the benefit of a lis pendens as against 
 a bona fide purchaser, must show that the suit was prosecuted 
 with reasonable diligence. Erliman v. Kendrick, 1 Met. 149; 
 Watson V. Wilson, 2 Dana, 406 ; Clarkson v. Morgan, 6 B. Mon. 
 447. 
 
 4. A suit, which has been permitted to lie four years after it 
 was ready for a decree, is not prosecuted with such diligence as to 
 aifect the rights of bona fide purchasers. Erhman v. Kendrick, 1 
 Met. 150. 
 
 5. So far as the pendency of a suit can affect others than parties, 
 matters brought into it by an amended petition, will not have 
 relation to the time of filing the original, but the suit will so far 
 be considered as pending only from the filing of the amendment. 
 Stone & Warren v. Connelly, 1 Met. 656; Dudley v. Price, 10 B. 
 Mon. 88. 
 
 6. If property be attached on the ground that the defendant is 
 about to sell his property, with the intent to hinder and delay his 
 creditors, and the plaintiff, before a hearing of the attachment, 
 obtains judgment, and causes execution to issue, which is returned 
 "no property found," and then files an amended petition and sets 
 uj) these facts, and procures' an attachment and levies it on the 
 same property, and the first attachment is discharged, one, who 
 purchased of the defendant after the levy of the first attach- 
 ment, but before the levy of the second, will have a valid title. 
 Stone & Warren v. Connelly, 1 Met. 657; Jones v. iMsk, 2 Met. 
 359. 
 
LOAN. 357 
 
 7. The levy of an attachment, obtained in a proceeding in equity 
 on a return of "no property found," creates a lien in favor of the 
 plaintiif, which he may enforce against subsequent purchasers. 
 Lewis V. Quinker, 2 Met. 287. 
 
 8. Unless the petition shows on its face a case for the jurisdic- 
 tion of the chancellor, the proceeding will not operate as a lis pen- 
 dens so as to eifect a subsequent sale of the property, sought to be 
 subjected in an equitable action. Jones v. Lusk, 2 Met. 359; Stone 
 & Warren v. Connelly, 1 Met. 657; Pearson v. Keedy, 6 B. Mon. 130; 
 Caldwell v. Wliite, 4 B. Mon. 569; Dudley v. Price, 10 B. Mon. 88; 
 Cromwell v. Clay, 1 Dana, 578; Kennard v. Adams, 11 B. Mon. 105. 
 
 9. One, who purchases property, held by his vendor under a 
 decree, which is subject to be set aside on a bill of review, takes 
 the land subject to the proceedings had on a bill of review. Earle 
 V. Couch, 3 Met. 455. 
 
 10. One, who purchases from the husband property acquired 
 from, or through, the wife, pending a suit by her for divorce and 
 a restoration of the property, will take it subject to her right to 
 restoration, if she succeeds in the action. Williams v. Gooch, 3 
 Met. 489. 
 
 n. EFFECT OF A LIS PENDENS. 
 
 1. One, who purchases the thing in litigation during the pen- 
 dency of a suit, is bound by the judgment rendered against the 
 person from whom he purchased. Stone & Warren v. Connelly, 1 
 Met. 655, 656. 
 
 2. The rule, however, does not operate to annul the conveyance, 
 but only to render it subservient to the rights of the party to the 
 action. Stone & Warren v. Connelly, 1 Met. 655, 656; Cromwell v. 
 Clay, 1 Dana, 578; Kennard v. Adams, 11 B. Mon. 105. 
 
 LOAN. 
 
 1. If personal property be held by the loanee for more than 
 five years without record evidence of the loan, purchasers from 
 the loanee will acquire a valid title and the property will be sub- 
 ject to sale under execution against him. Neal v. Elliott, 18 B. 
 Mon. 610. 
 
 2. But when the possession of the loanee is less than five years, 
 the purchaser acquires no title, and can not make up the statutory 
 bar by adding to the possession of the loanee the time he has held 
 under his purchase. Neal v. Elliott, 18 B. Mon. 613. 
 
358 LOST RECORDS AND WRITINGS. 
 
 3. The law only requires five years coBtinuous possession of 
 personal property by the loanee, whether adverse or amicable, 
 without demand made and pursued by the course of law to render 
 the property liable to creditors of the loanee. Snoddy & Bransford 
 V. Foster, 1 Met. 162. 
 
 LOST EECOEDS AND WEITINGS. 
 
 1. There are two modes of supplying lost records: 1. A com- 
 missioner may be appointed by the court, whose records have been 
 lost or destroyed, who shall take proof and report; section 13, 
 chapter 35, page 467, volume 1, Eevised Statutes. 2. The court 
 on satisfactory proof may substitute a paper for that lost or 
 destroyed; section 16, chapter 35, page 467, volume 1, Eevised 
 Statutes. Commonwealth v. Keger, 1 Duv. 241 ; Suggett v. Bank 
 Ey., 8 Dana, 201. 
 
 2. An indictment lost or destroyed can not be supplied by a 
 subsequent indictment found by a different grand jury. Common- 
 wealth V. Keger, 1 Duv. 241. 
 
 3. The court, whose records have been destroyed, may, on 
 motion upon notice and sufficient evidence, supply the record of a 
 judgment, and award execution thereon. Fleece v. Goodrum, 1 Duv. 
 308; Suggett v. Bank Ky., 8 Dana, 201. 
 
 4. Section 13, chapter 35, Eevised Statutes, does not provide the 
 mode in which the appointment of a commissioner, to take proof 
 of lost records, shall be made, and therefore, a petition verifying 
 the facts would be a lawful and appropriate mode of applying for 
 his appointment. Deshong v. Gain, 1 Duv. 309, 310. 
 
 5. In order to have an execution issued on a lost replevin bond, 
 the plaintiff must prove the former existence of the bond, its con- 
 tents, and that it had not been paid ; the defendants are not bound to 
 respond to the facts stated in the notice, and judgment by default 
 can not be rendered. Farrow v. Or ear, 2 Duv. 262. 
 
 6. The court should direct the execution of the paper to be sub- 
 stituted for that lost, and not leave it to be prepared by the plain- 
 tiff or the clerk. Farrow v. Orear, 2 Duv. 263. 
 
 7. No execution should be ordered against the surety in a lost 
 replevin bond, unless it appear that the bond was destroyed before 
 the surety was released by law. Farrow v. Orear, 2 Duv. 264. 
 
 8. The testimony of the clerk of the court proving the exist- 
 ence, terms, and destruction of a judgment is sufficient to warrant 
 its being re-entered. Green v. Stevens, 2 Duv. 421. 
 
MALICIOUS PEOSEOUTION. 359 
 
 9. On the trial of a motion to re-enter a judgment destroyed by 
 fire, the defendant should be allowed to prove that when the 
 judgment was destroyed there was pending a motion for a new 
 trial. Green v. Stevens, 2 Duv. 422. 
 
 LOTTEEIBS. 
 
 The legislature may authorize cities within the State to tax 
 lotteries, although the lottery be authorized by act of the legisla- 
 ture, if no bonus was paid for the privilege. Wendover v. Lex- 
 ington, 15 B. Mon. 263. 
 
 LOUISVILLE CHANCBEY COUET. 
 
 1. By the act of 1835, which is still in force, the marshal of the 
 Louisville Chancery Court had power to execute process anywhere 
 in the State, either by himself, or by special bailiif ; but now when 
 process from that court is served by special bailiff, the service 
 must be proved by the affidavit of the bailiff, and if this is not 
 done the judgment is void. Lloyd v. McOauley, 14 B. Mon; 542. 
 
 2. Pinal orders in the Louisville Chancery Court can not be set 
 aside by the chancellor after the expiration of sixty days after 
 they are made. Magowan v. Pennehaker, 3 Met. 502. 
 
 LUNATIC. 
 
 See Idiots and Lunatics. 
 
 MAINTEJiTAISrCB. 
 See Alimony and Champerty. 
 
 MALICIOUS PEOSECUTION. 
 
 1. In an action for maliciously procuring an order to suspend 
 plaintiff's license as a tavern-keeper, it must be averred that 
 probable cause did not exist. Ghelf v. Penn, 2 Met, 464; Maddox 
 V. McGinnis, 7 B. Mon. 372. 
 
360 MANDAMUS. 
 
 2. No action can be maintained for the malicious prosecution of 
 a civil action until after a legal determination thereof in favor of 
 the party suing. Wood v. Laycock, 3 Met. 193, 194; 12 B. Mon. 
 553; 3B. Mon. 209. 
 
 3. This rule does not apply when the suit is for maliciously suing 
 out an attachment, the order discharging which is made final by 
 statute. Wood v. Laycock, 3 Met. 193, 194. 
 
 4. An order discharging an injunction, but making no final dis- 
 position of the action, is not final, and no suit can be maintained for 
 maliciously suing out the injunction. Wood v. Laycock, 3 Met. 
 195. 
 
 MANDAMUS. 
 
 I. "WTien mandamus will lie, and proceedings ttereoD. 
 II. When mandamus will not lie. 
 
 I. WHEN MANDAMUS WILL LIE, AND PROCEEDINGS THEREON. 
 
 1. A county court may be compelled by mandamus to appoint 
 commissioners on the application 'of the county court of an adjoining 
 county, to confer with commissioners appointed by that county 
 with a view to building a bridge over a stream dividing the two 
 counties, if, upon proper motion being made, it refuses to appoint 
 such commissioners. Nelson County Court v. Washington County 
 Court, 14 B. Mon. 97. 
 
 2. A petition for a mandamus to compel the performance by a 
 corporation of duties imposed on it, should be against the select 
 body through which the corporation acts, and not against the 
 individuals composing it. Louisville v. McKean, 18 B. Mon. 13. 
 
 3. The Jeiferson Circuit Court has jurisdiction to award a man- 
 damus against the city council of Louisville in a proper case. 
 Kay V. Kean, 18 B. Mon. 847. 
 
 4. County courts may be compelled by mandamus to make a 
 levy to pay for work done under contract with the court. Ander- 
 son Go. Co. V. Stone, 18 B. Mon. 852, 853; Kay v. Kean, 18B. Mon. 
 847 ; Hammar v. City of Covington, 3 Met. 499. 
 
 5. In a proceeding, to obtain a mandamus against a county 
 court, the defendant can not rely on a counter-claim and have judg- 
 ment over, but the counter-claim may be used as a defense. Ander- 
 son Co. Co. V. Stone, 18 B. Mon. 853. 
 
 6. If the ofScers, whose duty it is to compare the polls and give 
 certificates of election, fail to discharge that duty, those, who were 
 
MANDAMUS. 361 
 
 candidates, may proceed by mandanms to compel them to do so. 
 Batman v. Magowan, 1 Met. 540. 
 
 7. Mandamus is the appropriate proceeding to compel a city 
 council to levy and collect a tax, to pay the interest on the bonds 
 of the city issued to a railroad company, under an act of the legis- 
 lature requiring the interest to be paid by tax. Maddox v. Gra- 
 ham & Knox, 2 Met. 67; Justices of Clark Co. Ct. v. Paris, etc., T. 
 Co., 11 B. Mon. 143 ; Page v. Ben. Hardin, 8 B. Mon. 648. 
 
 8. The holder of a single bond of a city, on which interest over- 
 due is unpaid, may, if no tax has been levied for the payment of 
 the interest, maintain a petition in his own name for a mandamus, 
 and in such a case, the city council is the only necessary defend- 
 ant. Maddox v. Graham & Knox, 2 Met. 67. 
 
 9. Facts, stated in an answer to a petition for a mandamus, may 
 be controverted, and the court may hear proof to sustain or dis- 
 prove them. Maddox v. Graham & Knox, 2 Met. 69. 
 
 10. An express and explicit refusal of a city council to levy a 
 tax to pay the interest on the bonds of the city, is not necessary 
 to enable bondholders to have a mandamus ; it is sufS.cient that 
 the conduct of the council makes it apparent that it does not 
 intend to do its duty. Maddox v. Graham & Knox, 2 Met. 71. 
 
 11. If, in a proceeding by mandamus against a city council, 
 those, who were memt)ers when the proceedings commenced, go 
 out of office before a decision, the mandamus may be awarded 
 against their successors. Maddox & Graham v. Graham & Knox, 
 2 Met. 71 ; City of Louisville v. Kean, 18 B. Mon. 13. 
 
 12. If they, whose duty it is to keep the streets of a town in 
 repair, neglect to do so, and allow them to fall into ruins, and to 
 become a nuisance, persons whose property is thereby endangered 
 may have mandamus to compel them to repair the streets. Ham- 
 mar V. City of Covington, 3 Met. 498. 
 
 13. A county court may be compelled by mandamus to show 
 cause why they did not approve an appointment of a dejputy, 
 made by the sheriff, and qualify him. Applegate v. Applegate, 4 
 Met. 237 ; Day v. Justices Fleming Co. Ct., 3 B. Mon. 198. 
 
 14. A county judge, who refuses to receive the bond of an elected 
 sheriff, and allow him to qualify, may be compelled to do so by 
 mandamus. Cate v. Poss, 2 Duv. 244. 
 
 II. WHEN MANDAMUS WILL NOT LIE. 
 
 1. The circuit court has no power, by mandamus, to compel a 
 county court to make a levy to build a bridge over a stream 
 
363 MARKIAGB. 
 
 dividing two counties, before action by joint commissioners of the 
 two counties upon the manner and conditions of building the 
 bridge. Nelson, County Court v. Washington County Court, 14 B. 
 Mon. 96. 
 
 2. Where a judicial disc]*etion is given to an inferior court, the 
 exercise of that discretion can not be controlled by mandamus, 
 although it may have been improperly exercised, Louisville v. 
 McKean, 18 B. Mon. 17. 
 
 3. Mandamus will not be awarded to compel a judicial officer to 
 do, or abstain from doing, an act about which he can exercise a 
 judicial discretion. Goheen v. Myers, 18 B. Mon. 426. 
 
 4. Mandamus should not be awarded against a county court to 
 levy a tax to pay for a bridge built for the county, if the bridge 
 has not been received, and the work has not been done according 
 to contract. Anderson Co. Co. v. Stone, 18 B. Mon. 854. 
 
 MAEEIAGB. 
 
 Tor the rights and obligations growing out of marriage, see Husband and Wife. 
 
 1. A marriage, valid by the laws of the land where it was cele- 
 brated, is valid in other countries in which the parties may be 
 domiciled, even though it would have been invalid by the law of 
 the subsequent domicil, if it had been celebrated there ; but cases 
 of polygamous or incestuous marriage are an exception to this 
 rule in all Christian countries. Stevenson v. Gray, 17 B. Mon. 
 208. 
 
 2. A marriage, otherwise legal, will not be rendered invalid by 
 the fact that the female did not reside in the county in which the 
 license was issued. Stevenson v. Gray, 17 B. Mon. 209. 
 
 3. A marriage can not, after the death of one of the parties, be 
 nullified or avoided on account of consanguinity or affinity. 
 Stevenson v. Gray, 17 B. Mon. 217. 
 
 4. Marriage, though in some respects a contract, is not within 
 the constitutional interdiction of legislative acts impairing the 
 obligation of contracts. Cabell v. Cabell, 1 Met. 326 ; Maguire v. 
 Maguire, 7 Dana, 184; Berthelemy v. Johnson, 3 B. Mon. 90. 
 
 MASTHE AND APPEENTJCJ). 
 
 See Apbenticb. 
 
MERCHANT. 363 
 
 MASTEE AND SEEVANT. 
 
 1. The proprietors of stage coaches will be liable to persons 
 injured by the want of skill or prudence of their drivers ; and 
 when the injury results from gross negligence or wanton reckless- 
 ness of the driver, both the driver and proprietors will be liable, 
 not only for the actual damage done, but for such exemplary 
 damages as, from all the facts, the jury shall deem proper. 
 Hawkins & Co. v. Biley, 17 B. Mon. 110. 
 
 2. ladividuals entering upon the land of another, and trespassing 
 in the name, and assuming to act by authority, of a corporation in 
 doing acts which the corporation had no legal right to do, are 
 individually liable. Waller v. Martin, 17 B. Mon. 192. 
 
 3. A father is liable for injuries resulting to another, from the 
 negligence of his son, while driving the father's carriage and 
 horses with his approbation. In such a case, the son must be 
 regarded as in the employ of his father and as his servant. 
 Laslibrook v. Patten, 1 Duv. 317. 
 
 4. The hirer of a slave is liable to the owner for the cruel and 
 inhuman treatment of the slave by his agent or overseer having 
 control of him. Craig v. Lee, 14 B. Mon. 122. 
 
 MEECHANT. 
 
 1. A merchant, having the qualifications prescribed by law, is 
 entitled, as a matter of right, to a license to sell liquor. Dougherty 
 V. Commonwealth, 14 B. Mon. 242. 
 
 2. A merchant, licensed to sell liquor by the quantity, is liable 
 for keeping a tippling -house, if he sells liquor to be drank on or 
 adjacent to his premises, whether it be drank or not ; and if liquor 
 sold by him be drank on or adjacent to his premises, no matter in 
 what quantity sold, he is liable, whether it was sold with the 
 intention to be so drank or not. Curi & Ward v. Gommoriwealth, 
 14 B. Mon. 387. 
 
 3. A merchant, who receives good§ simply to bo forwarded to 
 another point for the shipper, who has no funds of the owner to 
 pay insurance, and no goods on consignment out of which he can 
 be reimbursed, is not bound, on mere request, to insure them, 
 unless he agrees to do so, or such be the course of dealing between 
 
364 MILEAGE. 
 
 the parties, or the custom of the place. Vickery v. Lanier, 1 Met. 
 137. 
 
 4. The keeper of a hotel, who buys and retails liquors, tobacco 
 and other articles, in the same house, as an unrestricted business, 
 is a merchant within the statute limiting actions between mer- 
 chant and merchant. Campbell v. Finck, 2 Duv. 107, 108. 
 
 MILEAGE. 
 
 A party is entitled to mileage, if, on notice to their attorney, the 
 attorney attends to take depositions, and none are taken, although 
 one of the parties, whose attorney he was, lived at the place where 
 the depositions were tojhave been taken. Kentucky Seminary v. 
 Wallace, 15 B. Mon. 46. 
 
 MISNOMER. 
 
 A mistake in the name of a patentee, when he is sufficiently 
 described, will not render the patent void ; but the title will vest 
 in him notwithstanding. Bussell v. Marks, 3 Met. 40 ; Swan v. 
 Wilson, 1 Mar. 100. 
 
 MISPEISION. 
 
 I. What is misprision. 
 11. "What is not misprision. 
 
 I. WHAT IS MISPRISION. 
 
 1. It is misprision to render judgment against one not served 
 in the county where the suit is pending, in an ordinary action 
 against several, until after service of process on one in the county 
 in which the action is brought, and it should be corrected by 
 motion in the court where it was rendered. Pottinger v. Mayfield, 
 14 B. Mon. 647.1 
 
 2. An error in a judgment as to the date from which interest is 
 to be computed, is a clerical misprision. Clark v. Finnell, 16 B. 
 Mon. 334, 335; Johnson v. Bank Ky., 2 Duv. 521. 
 
 1 Overruled in Ruby v. Oraoe, 2 Duv. 540. 
 
MISPRISION. 365 
 
 3. Trial of a cause, before all the parties necessary to a trial are 
 sei'ved with process, is misprision. Breeding v. Stamper, 18 B. 
 Mon. 177 ; Duncan v. Wickliffe, 4 Met. 120. 
 
 4. Eendering judgment, before the action stood for trial, is mis- 
 prision. Webber v. Webber, 1 Met. 20 ; JBuckner v. Bicsh, 1 Duv. 
 395 ; sees. 577, 578, Civil Code. 
 
 5. Where the petition on a note is in the name of the payee 
 and one, to whom he had passed it by delivery only, as co-plain- 
 tiffs, and it is distinctly averred that the note is the property 
 of the latter, and judgment is prayed in his name alone, and 
 judgment is rendered in the name of both plaintiffs, it is clerical 
 misprision. Oldham v. Brannon, 2 Met. 304; Cooper v. Poston, 1 
 Duv. 93. 
 
 6. If, in such a case, on motion to correct the judgment, the 
 defendant claims to have paid It to the payee of the note, who 
 claimed to be entitled to the debt, the payee is a necessary party 
 to the motion, and should have notice and an opportunity to show 
 his right, and if his right be shown, the defendant will be pro- 
 tected in his payment, but otherwise the correction will be made. 
 Oldham v. Brannon, 2 Met. 305. 
 
 7. That judgment was rendered on an award, which was made 
 out and delivered less than ten days before the commencement of 
 the term, is misprision. Carson v. Carson, 1 Met. 436. 
 
 8. Whenever the error complained of is ascertained to be the 
 mistake of the clerk, and not in the judgment of the court, and 
 there exists in the record anything by which it can be amended, 
 the application to amend it should be made to the court render- 
 ing the judgment. Dodds v. Combs, 3 Met. 29 : sec. 577, Civil 
 Code. 
 
 9. If the petition admits the payment of a sum on the writing 
 sued on, and the credit is omitted in the judgment, it is a clerical 
 misprision. Bodds v. Combs, 3 Met. 29. 
 
 10. There is no limitation applying to motions for the correction 
 of misprisions, except when the ground is that the judgment was 
 prematurely rendered. Smith v. Mullens, 3 Met. 183. 
 
 11. A failure of the clerk to enter judgment on one of two notes 
 sued on may be amended by the record, and in this case it was 
 done more than three years after the judgment was rendered. 
 Smith V. Mullens, 3 Met. 183, 184. 
 
 12. Premature judgment on constructive service is misprision. 
 Buckner v. Bush, 1 Duv. 395. 
 
366 MISTAKE. 
 
 13. In an action against several, one of -wliom. was a nominal 
 and unnecessary party, between whom and the plaintiff there was 
 no litigation, a judgment against "the defendants," without dis- 
 crimination, is a clerical misprision. G. H. & D. M. E. Co. v. 
 Spratt, 2 Duv. 5. 
 
 II. WHAT IS NOT MISPRISION. 
 
 1. If suit is brought in the county of the defendant's residence, 
 and process served on him in another county, and also in the 
 county where he resides, but not in time in the latter for judg- 
 ment, and he appears and objects to judgment, and judgment is 
 rendered, it is not misprision, but error. Baymond v. Bead, 16 B. 
 Mon. 350 ; Smith v. Ferguson, 3 Met. 426. 
 
 2. If infants are made defendants by "eonsent of counsel," and 
 are not served with process, and judgment is rendered against 
 them, it will be error and not misprision. Pond v. Boneghy, 18 B. 
 Mon. 561. 
 
 3. The rendition of judgment, without service of process, is not 
 misprision. Amyx v. Smith. 1 Met. 532. 
 
 4. Where a part only of the defendants, in an action not founded 
 on contract, have been served with process in time for trial, and 
 the plaintiff has failed to discontinue his action, on the first day 
 of the term, as to those not served in time, and the defendant 
 objects to a trial, and his objections are overruled, to which he 
 excepts, and a trial had as to him, he need not, after the trial, 
 move to correct the error, but may appeal. Hedger v. Bournes, 2 
 Met. 161, 162 : Mattingly v. Bosley, 2 Met. 444. 
 
 5. An ordinary action was brought in G-. county, the defendant 
 not then residing there, and, on the return of process executed in 
 another county, judgment was rendered against the defendant by 
 default. Held : That the judgment was not a clerical misprision, 
 but was void. Buhy v. Grace, 2 Duv. 540. 
 
 MISTAKE. 
 
 1. If land not sold be conveyed by mistake, and the vendor has 
 no title to that part, it will furnish the vendee no grounds for a 
 rescission of the contract. Butler v. Miller, 15 B. Mon. 626. 
 
MISTAKE. S67 
 
 2. The mistake of a clerk, in omitting interest in an execution 
 on a judgment bearing interest, will not make void a sale under 
 the execution. Brace v. Shaw, 16 B. Mon. 83. 
 
 3. If, by a clear and palpable mistake' of law or fact essentially 
 bearing upon or affecting the contract, money be paid without 
 consideration, which was not due, and in honor and conscience 
 ought not to be retained, it may be recovered back. Louisville v. 
 Zanone, 1 Met. 153 ; Covington v. Powell, 2 -Met. 228 j Ray v. Bank 
 Ky., 3 B. Mon. 513 ; Underwood v. Brockman, 4 Dana, 309. 
 
 4. If, by mistake in a judicial sale of land, more be sold than 
 was supposed, or intended, the purchaser must pay for the excess, 
 or designate where it shall be laid off. Dawson v. Goodwin, 15 
 B. Mon. 441. 
 
 5. If, through a mistake of law or facts, an instrument, entered 
 into in execution of a previous agreement, fails to contain the 
 agreement, as intended, a court of equity will compel a party re- 
 fusing, to carry out the agreement as it was intended. Scales v. 
 Ashbrook, 1 Met. 361, 362. 
 
 6. If one, who has contracted for the delivery of a specified 
 quantity of coal at a fixed price, receives more than he is entitled 
 to, he must pay for the excess a reasonable price, whether he had 
 knowledge of its being delivered at the time, or not. Caldwell, 
 Hunter & Co v. Dawson, 4 Met. 122. 
 
 7. Where it is evident that there has been a gross mistake as to 
 the quantity of land purchased, or sold, and the complaining party 
 has been guilty of no fraud, or culpable negligence, and has not, 
 otherwise, impaired the equity resulting from the mistake, he may 
 be entitled to I'elief from the technical, or legal, effect of the con- 
 tract, whether it be executed or not. Fall v. McMurdy, 3 Met. 
 368, 369. 
 
 8. In such a case, the purchaser is entitled to an abatement in 
 the price equivalent to the deficit. Fall v. McMurdy, 3 Met. 369 ; 
 Young v. Craig, 2 Bibb, 270 ; Smith v. Smith, 4 Bibb, 81 ; Harrison 
 V. Talhott, 2 Dana, 265. 
 
 9. Money, paid under a city ordinance, which is void, and could 
 not have been enforced, can not be recovered back, unless the 
 party shows, not only that he was ignorant of the fact that the 
 ordinance was void, but also that the payment was made against 
 his will, and was not beneficial to him. Louisville v. Zanone, 1 Met. 
 154, 155; Covington v. Powell, 2 Met. 231. 
 
368 MONEY. 
 
 10. One, who, with a fall knowledge of the law and facts, pays 
 money which he is not bound to pay, can not recover it back. 
 Tyler Y. Smith, 18 B. Mon. 798,799; Covington y. Powell, 2 Met. 
 229. 
 
 MOB. 
 See Towns. 
 
 MONEY. 
 
 1. " To coin money," means to mold into form a metallic substance 
 of intrinsic value, and stamp on it its legal value, so as to encour- 
 age and facilitate its free circulation, and assure stability in the 
 currency. Griswold v. Hepburn, 2 Duv. 29. 
 
 2. "Currency" is not necessarily money. Whatever circulates 
 conventionally on its own credit,- as a medium of exchange, 
 whether it be bank notes, bills of exchange, or government secu- 
 rities, being thus practically current, is properly currency. Gris- 
 wold V. Hepburn, 2 Duv. 33. 
 
 3. Congress and the States are alike prohibited from making 
 anything but coined money a legal tender. Griswold v. Hepburn, 
 2 Duv. 34. 
 
 4. So much of the act of Congress of February 25, 1862, as de- 
 clares United States Treasury notes to be money, is clearly uncon- 
 stitutional. Griswold v. Hepburn, 2 Duv. 47. 
 
 MORTGAGES. 
 
 1, "What is a mortgage, and effect, validity, and construction, of. 
 II. Rights and interests of the parties and others. 
 
 III. Registry, and priority of. 
 
 IV. Foreclosure of. 
 
 v. Equity of redemption. 
 VI. In fraud of creditors and purchasers, see Fraudulent Conveyances. 
 
 I. WHAT IS A MORTGAGE, AND EFFECT, VALIDITY, AND CONSTRUC- 
 TION, OF. 
 
 1. A mortgagor, even after a decree of foreclosure, is regarded 
 in equity as the owner of the property, and he may procure 
 another to purchase in the equity of redemption, when it is sold 
 
MORTGAGES. 369 
 
 under execation, and give him a lien, not only for the price paid, 
 but for other sums, and the purchaser will occupy the position of 
 a second mortgagee. Swigert v. Bank Ky., 17 B. Mon. 284. 
 
 2. A mortgage to secure creditors is not per se fraudulent. Bull 
 V. Harris, 18 B. Mon. 200. 
 
 3. Power to pledge the franchises and rights of a corporation 
 implies the power to pledge everything necessary to the enjoy- 
 ment of the franchise. Phillips v. Winslow, 18 B. Mon. 445. 
 
 4. Property, taken from the mortgagor by legal process, may be 
 mortgaged while so held by the other claimant, and the mortgagee 
 will be entitled to any judgment recovered by the mortgagor in 
 the action pending between him and the claimant of the mort- 
 gaged property. Pindle v. Grooms, 18 B. Mon. 504, 505. 
 
 5. One of two partners can not, in opposition to the will of the 
 other, which is known to the mortgagee, make a valid mortgage of 
 the partnership effects. Bull v. Harris, 18 B. Mon. 200. 
 
 6. When, by mistake, a railroad company issued more bonds 
 than were specified in the mortgage by which they were secured, 
 but each bond had attached to it when sold a certificate that it was 
 secured by mortgage, and that the whole amount of bonds issued 
 and to be issued was not to exceed $400,000 — Held: That, as against 
 the company, holders of the extra bonds, who had no notice of 
 the over-issue, had a mortgage by estoppel. Stephens v. Benton, 1 
 Duv. 115. 
 
 7. A mortgage, executed by a married woman jointly with her 
 husband, conveying lands of which she was the legal owner, to 
 secure a debt of her husband, is valid, and binding on her. Smith 
 V. Wilson, 2 Met. 236, 237 ; Johnson v. Ferguson, 2 Met. 506. 
 
 II. RIGHTS AND INTERESTS OF THE PARTIES AND OTHERS. 
 
 1. If a guarantor takes a mortgage for his indemnity, the holder 
 of the debt guaranteed may proceed to subject the mortgaged 
 property to the payment of the debt, and the guarantor, being 
 made a party, the mortgage may be foreclosed, although he does 
 not ask it. Oom'rs Sinking Fund v. Northern Bank Ky., 1 Met. 191. 
 
 2. A court of equity will not interfere to relieve a mortgagor 
 from the effects of his own fraud, nor will it aid the mortgagee in 
 securing the enjoyment of the mortgaged property. Brookover v. 
 Hurst, 1 Met. 668, 669. 
 
 3. Where both land and personalty are mortgaged by the hus- 
 band, in which the wife joins, she will have a right, when, after the 
 husband's death, a foreclosure is had, to have the personalty first 
 
 26 
 
370 MORTGAGES. 
 
 applied to the payment of the debt, so as to relieve the land. Sar- 
 row V. Johnson. 3 Met. 581. 
 
 III. EEGISTRT AND PRIORITY. 
 
 1. A mortgagee, before decree of bankruptcy, will have a claim 
 superior to that of the mortgagor's assignee, and the latter will 
 only be entitled to what remains after paying the mortgage debt. 
 FindelVs Ass'n v. Vimonfs Ex'r, 14 B. Mon. 403, 404. 
 
 2. Mortgages which are not recorded are not valid in a court of 
 law, against creditors, or against any legal right to property which 
 they have in good faith acquired. Bwigert v. Bank Ky., 17 B. Mon. 
 290. 
 
 3. As a general rule, the debts of a mortgagee, who has more 
 than one security, will be thrown upon all his securities pari passu, 
 according to the value, and thus leave the residue of each to sat- 
 isfy the other incumbrancers to whom it is specially mortgaged. 
 Logan v. Anderson, 18 B. Mon. 121. 
 
 4. The holders of bonds supposed to be secured by mortgage, 
 but which, by mistake, are not embraced in the mortgage, but 
 which the maker of the bonds is estopped to deny being secured, 
 will be postponed to subsequent recorded mortgages ; but their 
 right will be superior to that of the holders of subsequent unre- 
 corded mortgages. Stephens v. Benton, 1 Duv. 115. 
 
 5. A mortgage was lodged with the clerk, with instructions not 
 to record it until directed by the mortgagee, but it did not appear 
 that any creditor had been deceived by the failure to record it, 
 and it was held valid. Alexander v. Smith, 2 Duv. 518. 
 
 IV. FORECLOSURE OP. 
 
 1. A mortgage will not be foreclosed at the instance of a creditor 
 of the mortgagor, who is no party to the mortgage, and has not 
 obtained judgment for his debt. Robinson v. West, 14 B. Mon. 4. 
 
 2. If a guarantor takes a mortgage for his indemnity, the holder 
 of the debt guaranteed may proceed to subject the property to the 
 payment of the debt; and, the guarantor being made a party, the 
 mortgage may be foreclosed, although he does not ask it. Com'rs 
 Sinking Fund v. Northern Bank Ky., 1 Met. 191. 
 
 V. EQUITY OF REDEMPTION. 
 
 1. One, whose equity of redemption in mortgaged property has 
 been sold under execution, can not withhold the possession from 
 the purchaser or his vendee. Mercer v. Tinsley, 14 B. Mon. 274. 
 
MOTIONS. 371 
 
 2. A mortgagor's equity of redemption, which descends to his 
 heirs, is legal assets in their hands, subject to execution on a judg- 
 ment against them for debts of their ancestor. Brace v. Shaw, 16 
 B. Mon. 78. 
 
 3. A mortgagor, whose equity of redemption is about to be sold 
 under execution, may procure another to buy it in, and give him a 
 lien on it, not only for the purchase price, but for other sums, and 
 the purchaser will occupy the attitude of a second mortgagee. 
 Swigert v. Bank Ky., 17 B. Mon. 284. 
 
 MOTIONS. 
 
 I. Against officers, see Sheriffs, 
 
 II. On bonds to suspend sale of property under execution. 
 III. Of the notice necessary. 
 
 II. ON BONDS TO SUSPEND SALE OF PROPERTY UNDER EXECUTION. 
 
 1. A bond, given by a third person claiming property levied on 
 by an officer, should be made payable to the plaintiff in the execu- 
 tion and not to his assignee, and, if executed to the latter, will be 
 invalid as a statutory bond, and no judgment can be given on it 
 On motion merely. Watson v. Gabby, 18 B. Mon. 665. 
 
 2. A court of law can not, on a motion for judgment on a bond, 
 given by one partner to suspend the sale of the interest of another 
 under execution against the other alone, hear and determine the 
 state of the partnership accounts and liabilities. Watson v. Crabby, 
 18 B, Mon. 663, 664. 
 
 III. OP THE NOTICE NECESSARY. 
 
 1. I^otice of a motion against a sheriff, for failing to pay a county 
 creditor a claim allowed him, must aver that the plaintiffs name 
 was on the list of claims furnished the sheriff by the clerk, and 
 that payment had been demanded. It must contain all the requi- 
 sites of a petition. Terrill v. Cecil, 3 Met. 348; Todd v. Gaines, 18 
 B. Mon. 621; Thompson v. Sealy, 4 Met. 259. 
 
 2. The notice must also show, if the claim was not allowed at 
 the term at which the levy was made, that there remains in the 
 hands of the sheriff enough money to pay the plaintiff after paying 
 all the claims previously allowed. Todd v. Caines, 18 B. Mon. 
 621, 622; Thompson v. Sealy, 4 Met. 258. 
 
 3. But, if the claim was allowed at the term at which the levy 
 was made, the notice need not state that there remains money 
 
372 NATTTKALIZATION. 
 
 enough in the sheriff's hands to pay the plaintiff. Thompson v- 
 Healy, 4 Met. 258. 
 
 4. The sheriffs return, on a notice of a motion, that he had 
 executed it hy leaving a copy with the wife of the defendant, he 
 not being at home, is sufBcient, prima facie. Fleece v. G-oodrum, 1 
 Duv. 307; Webber v. Webber, 1 Met. 20; Davidge v. Colston, 1 Met. 
 146. 
 
 NATUEALIZATION. 
 
 1. Such State courts, as are authorized by act of Congress to 
 naturalize foreigners, have the power to do so. Morgan v. Dudley, 
 18 B. Mon. 721. 
 
 2. An alien, who has made his declaration and taken the oath 
 preparatory to becoming a citizen of the United States, is not 
 thereby rendered capable of taking land by descent. White v. 
 White, 2 Met. 188, 189. 
 
 3. l^aturalization is a personal privilege, and the naturaliza- 
 tion of the husband does not make his alien wife a citizen. White 
 V. White, 2 Met. 191. 
 
 4. We have no law by which an alien can be constituted a deni- 
 zen. The act of Congress relates exclusively to naturalization, 
 and only prescribes a rule by which an alien can be made a 
 citizen. White v. White, 2 Met. 188. 
 
 5. One, who is alleged to be an alien and denies it, but admits 
 he is of foreign birth, must prove his naturalization. White v. 
 White, 2 Met. 190. 
 
 NAVIGATION. 
 See EiPABiAN Eights. 
 
 1. One, who is navigating a public highway, may cable his 
 vessel to a tree, or other permanent object on shore, in case of 
 necessity, or as mere matter of convenience, being responsible only 
 for any actual damage that may result to another from his positive 
 acts, or his want of proper skill or care. Morrison v. Thurman, 17 
 B. Mon. 257. 
 
 2. A navigator of a public stream will be responsible to the 
 owner of the adjacent soil for damage resulting from his failure to 
 use such care and caution, to avoid injury, as would have been 
 used under similar circumstances by other navigators, possessing 
 
NEGLIGENCE. 373 
 
 competent experience and ordinary skill. Morrison v. Thurman, 17 
 B. Mon. 258. 
 
 3. The owner of the soil on the- banks of a navigable stream can 
 acquire no right to the exclusive use of the adjacent stream, longer 
 than the actual use shall continue, and then to use it so as not to 
 interfere with the public right to its use. Morrison v. Thurman, 
 17 B. Mon. 263. 
 
 4. The owner of the soil between high and low water mark must 
 so use it as not to interfere with the public right to navigation, 
 which extends over the whole river in high as well as in low water. 
 Morrison v. Thurman, 17 B. Mon. 263. 
 
 5. If boats be sunk in a navigable stream, between high and low 
 water mark, the owner will be liable for any damage, resulting to 
 the owner of the soil on which they lay, for his failure to remove 
 them in a reasonable time. Morrison v. Thurman, 17 B. Mon. 267 ; 
 Thurman v. Morrison, 14 B. Mon. 372. 
 
 NEGLIGENCE. 
 See Bailments. 
 
 1. A husband, who remains in possession, by himself or tenant, 
 of a house belonging to his wife, after her death without issue, 
 will not be liable if the house be destroyed by fire resulting from 
 the negligence or carelessness of himself or tenant. Morrow v. 
 Mason, 2 Met. 117. 
 
 2. Corporations are liable to individuals for injuries sustained 
 in consequence of their negligence, or that of their employees 
 while engaged in their service. Danville, etc., T. B. Co. v. Stewart, 
 2 Met. 122. 
 
 3. If an injury to one traveling on a turnpike road results in 
 part from the negligence of the driver of a coach running on the 
 road, and in part from the negligence of the employees of the 
 road, both will be liable. Danville, etc., T. B. Co. v. Stewart, 2 
 Met. 122. 
 
 4. In actions for personal injuries resulting from negligence, it 
 is sufficient for the plaintiff to allege in general terms, that the 
 injury complained of was occasioned by the carelessness and 
 negligence of the defendant. Chiles v. Drake, 2 Met. 149. 
 
 5. One, who draws a pistol improperly in a room containing 
 many persons, will, if the pistol be discharged and kill one of 
 
374 
 
 NEGLIGENCE. 
 
 them, be liable to his personal representative for damages, although 
 he intended no injury to the person killed. Chiles v. Brake, 2 
 Met. 154, 155. 
 
 6. The recovery, in actions for personal injuries resulting from 
 carelessness or negligence, is not restricted to the loss of time and 
 the amount expended to restore the injured party to health, but 
 exemplary damages may be given. Bowler v. Lane, 3 Met. 313. 
 
 7. An officer of court, having possession of property under 
 process, who permits it to escape or be lost through his negli- 
 gence, is liable to the party injured. Tudor v. Lewis, 3 Met. 383 ; 
 2 Mar. 567 ; 4 Bibb, 494. 
 
 8. The degree of diligence, required of an officer in taking care 
 of property in his hands under process, is such diligence in watch- 
 ing and guarding it as an ordinarily prudent man would exercise 
 under like circumstances. Tudor v. Lewis, 3 Met. 384. 
 
 9. Willful neglect of a turnpike road company to have bridges 
 so constructed and preserved as to secure travelers against acci- 
 dents, means a knowledge by the company of the insufficiency of 
 its bridges for that end ; and after the lapse of a reasonable time, 
 a voluntary failure to remedy the defect, and a palpable and peril- 
 ous defect, which any competent judge of such a structure could 
 discover by ordinary diligence, might authorize a presumption of 
 such knowledge and willful neglect. Board Int. Imp. Shelby Co. 
 V. Scearce, 2 Duv. 577. 
 
 10. In order to render a corporation liable ii^ such a case for 
 injuries resulting from a defect in any of its bridges, the defect 
 must be of such a character as to be perceived by a competent 
 judge of such work, and a latent defect, such as the unobservable 
 imperfections of a timber, will not warrant a recovery for injuries 
 resulting from its giving way. Board Int. Imp. Shelby Co. v. 
 Scearce, 2 Duv. 581. 
 
 11. Where one being transported as a passenger on a street rail- 
 road, is injured by the upsetting of the car, the law presumes it 
 was the result of negligence. L. & P. B. R. Co. v. Smith, 2 Duv. 558. 
 
 12. Although the plaintiif, suing for an injury resulting from 
 gross negligence of the defendant, may have been himself guilty 
 of negligence, if, nevertheless, the injury might have been avoided 
 by the proper care of the defendant, such co-operating negligence 
 of the plaintiff will not exonerate the defendant. L. & N. B. B. 
 Co. V. Collins, 2 Duv. 116. 
 
 13. The responsibility of railroad companies for injuries result- 
 ing from the negligence or unskillfulness of its engineers, is 
 
NEW TRIAL. 375 
 
 graduated by the class of the person injured — as to strangers, 
 ordinary negligence is suflftcient ; as to subordinate employees 
 associated with the engineer in conducting the cars, the negligence 
 must be gross ; but as to employees in a different department of 
 service, unconnected with the running operations, ordinary negli- 
 gence may be sufficient. L. & iV. B. B. Co. v. Collins, 2 Duv. 
 116-118. 
 
 14. A railroad company is liable to an employee, whose business 
 it is to load and unload burden cars, for an injury resulting to him 
 ft'om the gross negligence of an engineer in the conduct and 
 management of his engine. L. & N. R. R. Co. v. Collins, 2 Duv. 
 114. 
 
 NEGOTIABLE NOTES. 
 See Bills of Exchange and Peomissoey Notes. 
 
 NEW TEIAL. 
 
 I. Generally. 
 II. For newly-discovered evidence. 
 
 III. For excessive damages. 
 
 IV. For other causes. 
 
 V. When motion for to be made. 
 
 I. GENERALLY. 
 
 1. After an affirmance by the court of appeals, a new trial may 
 be granted upon the grounds and in the manner provided in 
 sections 579-581 of the Civil Code. McLean v. Nixon, 18 B. Mon. 
 775. 
 
 2. A defendant, moving for a new trial on the ground that the 
 debt had been satisfied before judgment against him, by a co- 
 defendant, should show that he did not know, and could not, with 
 reasonable diligence, have learned, before the trial, that the debt 
 was paid. It will not avail to show that his counsel did not know 
 it. Alexander v. Lewis, 1 Met. 409. 
 
 3. It is only where verdicts are palpably against the evidence, 
 or obviously the result of passion or prejudice, that the courts are 
 permitted to interfere. Danville, etc., T. R. Co. v. Stewart, 2 Met. 122. 
 
 4. Circuit courts have no power, after the expiration of the 
 term, to vacate or modify a judgment or final order, except in the 
 mode and on the grounds specified in the Civil Code. McManama 
 V. Garnett, 3 Met. 517 j sees. 579, 581. 
 
376 NEW TRIAL. 
 
 5. A new trial may be granted in a divorce case, as in any other 
 case, upon snfScient grounds, properly presented in due time, 
 although the adverse party, who had obtained a divorce, had mar- 
 ried in the mean time. Meyar v. Meyar, 3 Met. 300, 301. 
 
 6. Facts before the court, at the time of the original trial, fur- 
 nish no ground for a new trial after the expiration of the term, 
 even though the decision on them was erroneous. Socker v. 
 Gentry, 3 Met. 469, 470. 
 
 II. FOR NEWLY -DISCOVERED EVIDENCE. 
 
 1. The court rendering a judgment can alone entertain a bill of 
 review for newly-discovered evidence. Hawkins v. Lambert, 18 
 B. Mon. 107. 
 
 2. An application for a new trial, on the ground of the discovery 
 of new facts, must not only show that the fact relied on was not 
 discovered until it was too late to have used it on the former trial, 
 but that it could not have been discovered by reasonable diligence. 
 Denny v. Wickliffe, 1 Met. 224. 
 
 3. If defects of title to land appear by deeds of record in the 
 proper office, failure to discover it until after trial will be no 
 grounds for a new trial. Denny v. Wickliffe, 1 Met. 224. 
 
 4. The statement in the affidavit of a witness alleged to be 
 newly discovered, that he had not communicated the facts relied 
 on for a new trial to the party until after the trial, is not sufficient 
 unless the party also states that it was unknown to him until after 
 the jury retired from the bar. Bronson v. Green, 2 Duv. 238. 
 
 5. A motion for a new trial, on account of newly-discovered 
 evidence, must be sustained by affidavits. Slone v. Slone, 2 Met. 
 341 ; sec. 372, Civil Code. 
 
 III. FOR EXCESSIVE DAMAGES. 
 
 1. If the plaintiff, to avoid a new trial because of excessive 
 damages, enters a remittiter, it must be for such a sum as will 
 reduce the verdict to the amount the jury were clearly authorized 
 to find. Masterson v. Hogan, 17 B. Mon. 332. 
 
 2. A remittiter by the plaintifp will not authorize the refusal of a 
 new trial, when excessive damages have been found under mis- 
 direction of the court, unless there is something in the record by 
 which to determine what ought to have been found. Masterson 
 V. Bogan, 17 B. Mon. 332. 
 
 3. Although the damages assessed in an action for a willful 
 injury may seem high, yet, if they are not so outrageously so aS 
 
NEW TRIAL. 377 
 
 to induce tlie belief that the jury were influenced in their finding 
 by passion or prejudice, it will not be ground for a new trial. 
 Kountz V. Brown, etc., 16 B. Mon. 587. 
 
 4. Four thousand dollars is not an excessive verdict against a 
 turnpike road company for negligence, whereby the plaintiff's 
 thigh was badly fractured. Danville, etc., T. B. Co. v. Stewart, 2 
 Met. 122, 123. 
 
 5. A new trial should not be granted because of excessive dam- 
 ages, especially in actions of slander and the like, unless the find- 
 ing is so great as to strike the mind at first blush as having been 
 superinduced by passion or prejudice. JJetton v. Young, 2 Met. 
 560 ; 4 Litt. 118 ; 2 Mar. 365. 
 
 IV. FOR OTHER CAUSES. 
 
 1. If a defendant be prevented, by his own and his counsel's 
 casual absence when judgment was rendered, from making defense, 
 and he comes within three days with a valid answer, the judgment 
 should be set aside, and the answer filed. Sarris v. Bay, 15 
 B. Mon. 630. 
 
 2. That one of the jurors on the second trial of a cause had 
 served as a juror on the first trial, is not sufficient ground for a 
 new trial. Fitzpatrick v. Sarris, 16 B. Mon. 564. 
 
 3. That a witness, who had been examined in the cause, was 
 sent for by the jury after they had retired from the bar, and re- 
 examined without the knowledge of the coui't or of either of the 
 parties, is such misconduct of the jury as to be sufficient ground 
 for a new trial. Luttrell v. M. & L. B. B. Co., 18 B. Mon. 295. 
 
 4. See this case for the facts on which the verdict was based, and 
 in which a new trial was refused. N. Y. L. Ins. Co. v. Graham, 
 2 Duv. 507. 
 
 v. WHEN MOTION FOR TO BE MADE. 
 
 1. A motion for anew trial must be made within three juridical 
 days after the verdict, or decision, and in computing the time both 
 the day of the judgment and the day of making the motion 
 must be included. Long v. Hughes, 1 Duv. 387 ; Batman v. Ma- 
 gowan, 1 Met. 548 ; Chiles v. Smith, 13 B. Mon. 460. 
 
 2. A motion for a new trial, except for newly -discovered evi- 
 dence, must be made within three days after the judgment is ren- 
 dered. Harris v. Bay, 15 B. Mon. 631. 
 
 NEWLY-DISCOVERED EYIDBNCE. 
 See Bills of Eeview and New Trials. 
 
378 NON-RESIDENTS. 
 
 NON-EBSIDENTS. 
 
 I. Generally. ', 
 
 II. Actions against. 
 III. Non-resident executors, adfninistrators, and guardians. 
 
 I. GENERALLY. 
 
 1. A non-reeident, who becomes a surety in this State, will be 
 released by the same time that would release one who resides here. 
 Kellar v. Sinton, 14 B. Mon. 308. 
 
 2. Prior to 1825, the failure of a non-resident to list his lands 
 for taxation did not ipso facto divest him of title until inquest of 
 office. Aliter, since that time. Harlan v. Beaton, 18 B. Hon. 327. 
 
 3. Where there are no assets in this State of a decedent, domi- 
 ciled at the time of his death in another State, the courts of this 
 State have no jurisdiction to appoint an administrator. Thumb v. 
 Gresham, 2 Met. 308. 
 
 4. If a non-resident be received as surety in a recognizance, he 
 will be bound, notwithstanding the statute requires that bail 
 should be a resident of the State. Commonwealth v. Bamsey, 2 
 Duv. 386. 
 
 II. ACTIONS AGAINST. 
 
 1. Actions to attach and sell the land of non-residents must be 
 brought in the county in which the land lies. Nixon v. Jack, etc., 
 16 B. Mon. 180. 
 
 2. An attorney, appointed by the court to defend for a non-resi- 
 dent, and who acts under an agreement with the non-resident, and 
 looks to him for compensation, is not entitled to an allowance 
 against the party at whose instance he was appointed. Cabell v. 
 Cahell, 1 Met. 333, 334. 
 
 3. It is not incumbent on the plaintiff, in an action against a 
 non-resident, to prove the execution of a note sued on. The note 
 is prima facie evidence of indebtedness. Gill v. Johnson, 1 Met. 
 651 ; Barrett v. Cohurn, 3 Met. 516 ; Buckner v. Bush, 1 Duv. 395. 
 
 4. Nor is it necessary, when the plaintiff is not the payee of the 
 note, and there is no assignment, to prove that he is the owner of 
 it. The possession of the note is prima fade evidence that he is 
 the owner. Gill v. Johnson, 1 Met. 651. 
 
 5. The failure of the plaintiff to give the bond required by sec- 
 tion 440, Civil Code, before taking judgment against a non-resi- 
 
NON-RESIDENTS. 379 
 
 dent, is fatal to the judgment on appeal, and the error will not be 
 cured by an order that the plaintiff should not receive the money 
 until he should execute bond in the clerk's office, as required by 
 law. Gill V. Johnson, 1 Met. 652 ; Allen v. Brown, 4. Met. 343 ; 
 Payne v. Witherspoon, 14 B. Mon. 272. 
 
 6. A defendant, in an action for a divorce, who was proceeded 
 against as a non-resident, may appear within five years after the 
 rendition of the judgment, and, security for the costs being first 
 given, may make defense, have a retrial, and have the judgment 
 set aside if the defense is sustained. Meyar v. Meyar, 3 Met. 302. 
 
 7. No judgment can be rendered for the sale of land, attached 
 in an action against a non-resident, until an affidavit, stating that 
 the defendant has no personal property, or not enough to satisfy 
 the plaintiff's claim, is filed in the action. Payne v. Witherspoon, 
 14 B. Mon. 271 ; Anderson v. Sutton, 2 Duv. 487. 
 
 8. It is error to render judgment sustaining an attachment 
 against a non-resident not summoned, and against whom no 
 warning order has been made. Allen v. Brown, 4 Met. 343 ; sec. 
 88, Civil Code. 
 
 9. So, if no attorney be appointed. Allen v. Brown, 4 Met. 343 ; 
 Paynes. Witherspoon, 14 B. Mon. 272; sec. 440, Civil Code. 
 
 10. An appeal, by one proceeded against as a non-resident, is an 
 appearance to the action. Allen v. Brown, 4 Met. 343 ; Gill v. 
 Johnson, 1 Met. 652. 
 
 11. No personal judgment can be rendered against a defendant 
 constructively summoned, who has not appeared in the action. 
 Harris v. Adams, 2 Duv. 142. 
 
 12. An order for the sale of real property, attached in an action 
 in which the defendant has been constructively summoned and has 
 not appeared, can not be made until bond has been executed, as 
 required by section 440, Civil Code. Harris v. Adams, 2 Duv. 142. 
 
 13. The clerk of the court in which an action was brought, and 
 attachment sued out, under act of December 23, 1861 (Myers' 
 Supplement, 38), had power to make a warning order against the 
 defendant. Anderson v. Sutton, 2 Duv. 485. 
 
 14. It is not necessary that a summons should issue against one 
 constructively summoned. Anderson v. Sutton, 2 Duv. 485. 
 
 15. Personal judgment may be rendered against a defendant 
 constructively summoned, who has appeared in the action, though 
 no summons has been served on him. Duncan v. Wickliffe, 4 Met. 
 119; sec. 450, Civil Code. 
 
380 NON-RESIDENTS. 
 
 16. Judgment may be rendered in an action against one con- 
 structively summoned, altliough the attorney appointed for him 
 has not reported. Brown v. Early, 2 Duv. 372. 
 
 17. No personal judgment can be rendered against a non-resi- 
 dent on service of a copy of the petition and summons on him, out 
 of the State. Griswold v. Papham, 1 Duv. 170. 
 
 18. In an action in rem, to enforce a lien for purchase-money, 
 against one constructively summoned, a judgment in personam is 
 erroneous. Jackson v. Speed, 2 Duv. 429. 
 
 19. Where, in an action against one constructively summoned, 
 to enforce a vendor's lien, judgment is obtained, and the land sold, 
 the defendant may appear in the circuit court at any time within 
 five days, and open the decree, and if he succeeds in modifying 
 the decree, he may elect to vacate the sale, or he may attain the 
 same relief by an appeal. Jackson v. Speed, 2 Duv. 429. 
 
 III. NON-RESIDENT EXECUTORS, ADMINISTRATORS, AND GUARDIANS. 
 
 1. A guardian of a non-resident minor, who has qualified ac- 
 cording to law, and given bond in the country of the ward's resi- 
 dence, may compel a guardian appointed in this State to pay over 
 any funds in his hands. Martin v. McDonald, 14 B. Mon. 548; 
 Swayzee v. Miller, 17 B. Mon. 565, 566. 
 
 2. The same rule applies between a non-resident guardian and a 
 resident administrator having funds due the ward. BatesY. Culver, 
 17 B. Mon. 162, 163. 
 
 3. No action can be maintained in this State by a creditor of the 
 intestate against an administrator who qualified in another State, 
 and still resides there. Baker v. Smith, 3 Met. 265. 
 
 4. A non-resident executor of a non-resident decedent, suing 
 here on a judgment obtained in another State, in his capacity of 
 executor, need not file here letters testamentary, nor execute the 
 bond required by statute, to pay debts due to creditors here to the 
 extent of assets received here. Wayland v. Porterfield, 1 Met. 640. 
 
 NOTES. 
 
 See Bills and Notes. 
 
NOTICE. 381 
 
 NOTAEY PUBLIC. 
 
 1. Under the statute of Louisiana, a protest by a notary, after 
 presentment by bis deputy, is authorized ; and a certificate of pro- 
 test by the notary, although it shows that payment of the bill was 
 demanded by the deputy, is valid. Lee, Ivy & Go. v. Bvford, 4 
 Met. 7, 8. 
 
 2. The protest of a foreign bill by a notary of Ohio, reciting 
 that he had " notified the drawer and indorser thereof," in a spec- 
 ified manner, is, by the statute of Ohio, prima facie evidence that 
 notice was so given, and, by the Kentuck;^ statute of 1864 (Myers' 
 Supplement, 355), the protest is entitled to the same weight here. 
 Harmon v. Wilson & Micks, 1 Duv. 324. 
 
 3. A statement, in a notarial protest, of the reasons given by the 
 treasurer of the United States for refusing payment of a treasury 
 note, is not evidence in an action to recover the nominal value of 
 the note of one from whom the plaintiff received it. The protest 
 is only evidence of presentation and non-payment. Moore v. Wor- 
 thington, 2 Duv. 308. 
 
 NOTICE. 
 
 1. Constructive notice will be sufficient to charge a sub-vendee 
 with the original vendor's lien. Tiernan v. Thurman, 14 B. Mon. 
 284. 
 
 2. Purchasers of land will be charged with notice of liens 
 created by the deeds under which their vendor holds. Gault v. 
 Trumbo, 17 B. Mon. 684. 
 
 3. Purchasers of trust property, with notice of the trust, will 
 hold it, subject to the trust, and will be required to contribute to 
 the removal of the lien. G-ault v. Trumbo, 17 B. Mon. 686. 
 
 4. One, whose entry on land is illegal, is not entitled to notice 
 to quit. Petty v. Malier, 15 B. Mon. 606. 
 
 5. A remote purchaser of land, held under a defective convey- 
 ance from a married woman, will not be charged with notice of 
 her claim by the mere fact that the clerk's certificate is defective, 
 BO as to defeat his claim to pay for lasting and valuable improve- 
 iients. Thomas v. Thomas, 16 B. Mon. 425. 
 
382 
 
 NUISANCE. 
 
 6. Possession under a void deed does not entitle the holder to 
 notice to surrender, before suit is brought. Covington v. McNiekle, 
 18 B. Mon. 290. 
 
 7. If a lien be created by an act of the General Assembly, or by 
 mortgage properly recorded, purchasers will be charged with legal 
 notice ; and although neither of these show the amount of incum- 
 brance, it is enough to put the purchase on inquiry and will there- 
 fore be sufficient. Gom'rs Sinking Fund v. Northern Bank Ky., 1 
 Met. 191. 
 
 8. A deed made by an agent, and recorded, will not operate as 
 constructive notice, unless the power of attorney be also recorded. 
 Graves v. Ward, etc., 2 Duv. 301. 
 
 NUISANCE. 
 
 1. The power and jurisdiction of courts of equity, in cases of 
 nuisance, can not be doubted ; but such power will only be exer- 
 cised where the case is clearly and satisfactorily made out. 
 Dumesnil v. Dupont, 18 B. Mon. 804. 
 
 2. The mere possibility, that injury may result, from the erec- 
 tion of a powder-house, to those living in the vicinity, will not 
 authorize the chancellor to suppress it. Dumesnil v. Dupont, 18 
 B. Mon. 807. 
 
 3. G-enerally, one, who creates a private nuisance, is liable to 
 any person injured by it ; but one, who merely continues a nuisance, 
 is not liable for damages without a request to remove it. Bay v. 
 Sellers, 1 Duv. 256. 
 
 4. If the owner of real estate suffers a nuisance to be created on 
 or adjacent to his premises in the prosecution of a business for his 
 benefit, when he has the power to prevent or abate the nuisance, 
 he is liable for an injury resulting therefrom to a third person. 
 Matheny v. Wolffs, 2 Duv. 138. 
 
 5. Any act of an individual, though performed on his own soil, 
 if it detracts from the safety of travelers, is a nuisance. Mathmy 
 V. Wolffs, 2 Duv. 138. 
 
 6. An excavation six or eight feet deep, running up to the edge 
 of a pavement on a street in a populous city, is a nuisance, if left 
 at night without sufficient lights, guards, safeguards, or barricades 
 to warn off passers-by. Matheny v. Wolffs, 2 Duv. 139, 140. 
 
 7. If the owner of real estate in a city employs an undertaker 
 to excavate a cellar and erect a building, and it is done in such a 
 
OFFICE AND OFFICER. 383 
 
 manner as to result in a nuisance, unless prevented by the proper 
 precautionary measures, the owner is bound to the exercise of such 
 measures; else he must answer in damages for injuries resulting to 
 others from his neglect to do so. Matheny v. Wolffs, 2 Duv. 140. 
 
 8. The city authorities of C. elevated the grade of the street six 
 feet above the natural surface of the defendant's adjacent lot, and 
 the owner of an adjoining lot on the side of the natural drainage, 
 filled his lot to correspond with the street, neither the city nor the 
 owner of the adjacent lot made any provision for the escape of the 
 water; in consequence of which, the water accumulated into a putrid 
 and noxious pond. Held: That these facts did not render the 
 defendant liable for keeping and permitting a nuisance. Barring 
 V. Commonwealth, 2 Duv. 96. 
 
 9. In order to render one responsible for a nuisance, it is neces- 
 sary to show that he had some agency in its creation, or that he 
 had done some act procuring or causing its continuance, or omitted 
 some duty in regard to it which he was bound to perform. Bar- 
 ring V. Commonwealth, 2 Duv. 97. 
 
 OCCUPYING- CLAIMANTS. 
 See Limitations. 
 
 1. One, claiming under the act for the benefit of occupying 
 claimants, paying for improvements made on land, must show no 
 only that he believed that he was the owner, but that he so believed 
 by reason of a claim in law or equity, the foundation of which is 
 of public record. The foundation referred to in the statute is a 
 grant from the Commonwealth. Fairhairn v. Means, 4 Met. 325 ; 
 Clay V. Miller, 4 Bibb, 461 ; Lewis v. Singleton, 2 A. K. Mar. 214. 
 
 2. And the claimant must be able to connect himself with the 
 grant by showing that he holds the title granted. Fairbairn v. 
 Means, 4 Met. 325. 
 
 3. The statute only applies to claimants under different grants, 
 and not to adverse claimants under the same grant. Fairbairn v. 
 Means, 4 Met. 325; Lewis v. Singleton, 2 A. K. Mar. 214. 
 
 OFFICE AND OFFICER. 
 
 1. If the person, chosen county clerk by the people, had no 
 certificate of his qualification, as required by the constitution, the 
 
384 OFFICE AND OFFICER. 
 
 county board for trying contested elections may properly declare 
 him not eligible and the office vacant. Steven v. Wyatt, 16 B. 
 Mon. 547. 
 
 2. In such a case, the old incumbent has no right to hold on to 
 the office until a successor is elected and qualified, but the county 
 court-should appoint one. Steven v. Wyatt, 16 B. Mon. 547. 
 
 3. A marshal of a town, who has served two terms, is ineligible 
 to a third, in the same manner that a sheriflf is ineligible. Sail v. 
 Sosteter, 17 B. Mon. 785, 786. 
 
 4. Whether one, acting as sheriif, has qualified by giving bond 
 and taking the oath of office, according to the constitution and 
 laws, can not be inquired into collaterally on a motion to quash 
 his return on process. Stokes v. Kirkpatrick, 1 Met. 143. 
 
 5. Until a vacancy or forfeiture is declared by the proper trib- 
 unal in a direct proceeding for that purpose, the acts of one, 
 acting as sheriff, must be held valid, at least so far as third persons 
 are concerned, and their legality can not be collaterally ques- 
 tioned. Stokes V. Kirkpatrick, 1 Met. 143 ; Patterson v. Miller, 2 
 Met. 496 ; 1 Mon. 86; 3 Litt. 459, 4 B. Mon. 229. 
 
 6. The certificate, which is issued to candidates by the board for 
 comparing the polls, is conclusive evidence that the party has been 
 elected, unless his election has been contested before the proper 
 board, but is not even prima facie evidence of his eligibility. Pat- 
 terson V. Miller, 2 Met. 497. 
 
 7. The county court has no power to inquire into the eligibility 
 of one holding a certificate of election to the office of sheriff, or to 
 refuse to qualify him on the ground that he was not eligible. Pat- 
 terson V. Miller, 2 Met. 497. 
 
 8. An office created and held under legislative enactment, may 
 be altered or altogether abolished during the term of an incum- 
 bent. Standeford v. Wingate, 2 Duv. 443. 
 
 9. One, who is constitutionally ineligible to the office of sheriff, 
 and is elected, and qualifies and makes sale of property under 
 execution, will be liable to the owner of the property as a tres- 
 passer. Patterson v. Miller, 2 Met. 498. 
 
 10. But a purchaser at such a sale will acquire a valid title. 
 Patterson v. Miller, 2 Met. 496 ; 1 Mon. 86 ; 3 Litt. 459. 
 
 11. One, elected to the office of county attorney, to which he 
 was ineligible — not having been a licensed practicing attorney for 
 two years — and exercising the functions of the office and receiving 
 the emoluments, is guilty of the offense of usurpation of office, and 
 
OVERRTILED CASES. 385 
 
 may be prosecuted by indictment for the recovery of the fine 
 imposed by statute. Gommonwealth v. Adams, 3 Met. 9. 
 
 12. The constitution provides two modes of removing officers 
 from office : 1. By impeachment, which applies to every civil 
 officer in the State. 2. By indictment, which applies to sheriffs, 
 coroners, surveyors, jailors, assessors, county attorneys, justices of 
 the peace, and constables, liowe v. Commonwealth, 3 Met. 240. 
 
 13. "Wherever the constitution has created an office and fixed its 
 term, and has also declared upon what grounds and in what mode 
 an incumbent may be removed before the expiration of his term, 
 it is beyond the power of the legislature to remove such officer, or 
 to suspend him from office for any other reason, or in any other 
 mode than the constitution itself has fixed. Lowe v. Common- 
 wealth, 3 Met. 241. 
 
 14. The constitution itself, without further legislation, author- 
 izes an indictment against any of the officers mentioned in section 
 36, article 4, for the offenses mentioned and a judgment and con- 
 viction and judgment vacating the offender's office. JJowe v. Gom- 
 monwealth, 3 Met. 240. 
 
 15. A county court has no power to suspend or remove a jailor 
 from office, and the act of the legislature, conferring such power 
 (section 9, article 2, chapter 91, page 348, volume 2, Eevised Stat- 
 utes), is unconstitutional. Lowe v. Commonwealth, 3 Met. 239, 240. 
 
 16. If the office of sheriff becomes vacant, the county court should 
 appoint a successor, to hold until the next ensuing August elec- 
 tion, and until the successor then chosen shall qualify, and if none 
 is chosen a new appointment should be made. Cate v. Boss, 2 
 Duv. 244, 245. 
 
 OVBEEULBD CASES. 
 
 [The following cases have been overruled in whole or in part. The figures 
 preceding each refer to the number of the paragraph under this head in which 
 the precise point overruled is stated.] 
 
 1. Eoyal V. Miller, 3 Dana, 56, overruled in Tierman v. Thur- 
 
 man, 14 B. Mon. 284. 
 
 2. Conway v. Bank United States, 6 J. J. Mar. 129, overruled 
 
 in Ward v. Northern Bank Ky., 14 B. Mon. 354. 
 
 3. Hobbs V. Blanford, 7 B. Mon. 469, overruled in Cheshire v. 
 
 Payne, 16 B. Mon. 628. 
 
 4. Smith V. Miller, 2 Bibb, 617, and Bacon v. Brown, 3 Bibb, 35, 
 
 overruled in Lamme v. Gregg, 1 Met. 446. 
 26 
 
386 OVERRULED CASES. 
 
 5. Farmers' Bank Ky. v. Butler, 3 Litt. 498, overruled in 
 
 Bondurant v. Everett, 1 Met. 660. 
 
 6. Talbott V. Pierce, 14 B. Mon. 197, overruled in Newton v. 
 
 West, 3 Met. 27. 
 
 7. Neal v. Davis, 17 B. Mon. 143, overruled in Gritton v. McDon- 
 
 ald, 3 Met. 253, 254. 
 
 8. Eudd & Ferguson v. Johnson, 5 Litt. 19, overruled in James 
 
 V. Yates, 3 Met. 346. 
 
 9. Johnson v. Severe, 4 J. J. Mar. 140, overruled in Kay v. 
 
 Tydings, 3 Met. 530. 
 
 10. Waller v. Martin, 17 B. Mon. 188, overruled in Hedger v. 
 
 Downs, 2 Met. 160. 
 
 11. Johnson v. Bank United States, 2 B. Mon. 310, overruled 
 
 in Terry & Bell v. Hazlewood, 1 Duv. 108, 109. 
 
 12. Tyre v. Commonwealth, Mss. opinion, June, 1856, overruled 
 
 in Commonwealth v. Eoberts, 1 Duv. 202. 
 
 13. Finn v. Stratton, 5 J. J. Mar. 364, overruled in Miller v. 
 
 Dyer, 1 Duv. 265. 
 
 14. Elliott V. Threlkeld, 16 B. Mon. 343, overruled in Holt v. 
 
 Thompson, 1 Duv. 301. 
 
 15. Pool V. Webster, 3 Met. 282, overruled in Allen v. Brown, 4 
 
 Met. 344. 
 
 16. Watts V. Pond, 4 Met. 62, overruled in Thornton v. McGrath, 
 
 1 Duv. 353. 
 
 17. Dorsey v. Eeese, 14 B. Mon. 158, overruled in Chinn v. 
 
 Mitchell, 2 Met. 95. 
 
 18. Pottinger v. Mayfleld, 16 B. Mon. 647, overruled in Euby v. 
 
 Grace, 2 Duv. 540. 
 
 1. In Boyal v. Miller, 3 Dana, 56 — Held: That constructive 
 notice was not sufficient to maintain a lien against a sub-vendee, 
 but it is now held otherwise. Honoris Ex'rs v. Bakewell, 6 B. 
 Mon. 67; Thornton v. Knox, 6 B. Mon. 74; Woodward v. Wood- 
 ward, 7 B. Mon. 116; Tierman v. Thurman, 14 B. Mon. 284. 
 
 2. In Conway v. Bank United States, 6 J. J. Mar. 129 — Held: 
 That if a note, intended to be discounted in bank and payable 
 there, be signed by sureties and delivered by the principal to a 
 third person, who advances the money on it, no suit can be main- 
 tained on it in the name of the bank against them, or of him who 
 advanced the money, but it was held otherwise in Smith v. Moberly, 
 10 B. Mon. 270, and in Ward v. Northern Bank Ky., 14 B. Mon. 
 354, both of which overrule the first case. 
 
OVEERULED CASES. 387 
 
 3. That a conveyance, by the wife, of her estate between the 
 engagement and marriage is a fraud upon the marital rights of the 
 husband, although he had notice of it before the marriage took 
 place, was decided in Hobhs v. Blanford, 7 Mon. 469, but this point 
 was expressly overruled in Cheshire v. Payne, 16 B. Mon. 628. 
 
 4. In Smith v. Miller, 2 Bibb, 617, and Bacon v. Brown, 3 Bibb, 
 35 — Held: That a representation or affirmation of the sound- 
 ness of the thing sold did not amount to a warranty of soundness. 
 In Lamme v. Gregg, 1 Met. 446, 447 — Held: That a verbal repre- 
 sentation or assertion, respecting the kind, quality, or condition of 
 the thing sold, if made with the intention that it should be relied 
 on and which the vendee does rely on, is a warranty. 
 
 5. Where the party, sought to be charged as drawer or indorser 
 of a bill of exchange, lives near to, but not at, the place of dishonor, 
 and the post-office at that point is the office at which he usually 
 receives his letters or is the nearest office to his residence, notice 
 may be given him by letter through such office. Bondurant v. 
 Everett, 1 Met. 660, overruling. Farmers' Bank v. Butler, 3 Litt., in 
 which it was decided that such notice was not good. 
 
 6. In Talbott v. Pierce, 14 B. Mon. 197— Held: That affidavits 
 could be read as evidence on the trial of an attachment issue. 
 This decision, and some unpublished ones, which followed it, were 
 made under section 307 of the Code as originally adopted. It was 
 subsequently held in Newton v. West, 3 Met. 27, that the Code as 
 ameiided changed that rule, and that by the provisions of section 
 280, which was substituted for section 307, the proof must be by 
 depositions or, with the assent of the court, by witnesses orally 
 examined in court, and that affidavits are not now admissible. 
 
 7. In Neal v. Davis, 17 B. Mon. 143, it was decided, that the 
 vendor had a lien, enforcible against the vendee, for unpaid pur- 
 chase-money for land, although there was no statement in the 
 deed of the amount unpaid. In Stockwell v. Chapman, 18 B. Mon. 
 650, and Cottman v. Martin, 1 Met. 563, it was decided otherwise, 
 and in Gritton v. McDonald, 3 Met. 253, 254 ; Neal v. Davis, is 
 expressly overruled. 
 
 8. Prior to the Eevised Statutes, it was decided that the sureties 
 of a sheriff were not liable for money collected by him on an 
 execution after the return day. Mudd & Ferguson v. Johnson, 5 
 Litt. 19; Stephens v. Boswell, 2 J. J. Mar. 29, and the court in 
 Chinn v. Mitchell, 2 Met. 94, express the same opinion. But in the 
 latter case, the point was not before the court and was not neces- 
 sary to the decision presented; and in James v. Yates, 3 Met. 346, 
 
388 OVERRULED CASES. 
 
 these cases are all overruled as in conflict with section 37, article 
 1, chapter 91, p. 346, volume 2, Kevised Statutes. 
 
 9. Kay v. Tydings, 3 Met. 530, overrules so much of Johnson 
 V. Severe, 4 J. J. Mar. 140, as decides that personal property, 
 held in trust under a deed or will made and recorded in another 
 State, but never recorded here, and which property had been held 
 continuously for more than five years by the trustee in his exclu- 
 sive possession, was not subject to the debts of the trustee. 
 
 10. Waller v. Martin, 17 B. Mon. 188, was an action of trespass, 
 in which some of the defendants were served with process and 
 others were not, and a trial was had as to those served without 
 any disposition of the case as to those not served — Held: That 
 as the plaintiff might have maintained his suit against any number 
 of the defendants, and was, by the Code, entitled to judgment 
 against some without disposing of the ease finally as to others, it 
 was no available objection to the judgment, that no notice was taken 
 of the other defendants. In Hedger v. Downs, 2 Met. 160, which 
 was also an action ex delicto, process was served on only one of two 
 defendants, and a trial was had as to the one served and the action 
 continued as the other, to which the defendant objected. His 
 objection was overruled, and he excepted, and the judgment was 
 reversed. The court say "it is clear, that action, under the pro- 
 visions of the Code of Practice, did not stand for trial at the time 
 it was tried." The rendering of judgment in Waller v. Martin, at 
 the time it was rendered, was misprision of the clerk, and could not 
 have been reversed, there having been no objection to the ti'ial on 
 the part of the defendants served, until after motion made and 
 refused in the court below; but the affirmance is not placed on 
 that ground, but distinctly on the ground that he " was, by the 
 Code, entitled to a judgment against some, without disposing of the 
 case finally as to the others." See Buckles v. Lambert, 4 Met. 332, 
 333. 
 
 11. In Johnson v. Bank United States, 2 B. Mon. 210, it was said 
 by the court: "we have seen no adjudged case in which it was 
 ever decided, that an action was maintainable on a bill or note 
 against the drawer, after even an immaterial alteration by the 
 payee without the drawer's authority." There is an intimation to 
 the same effect in Commonwealth v. McCord, 4 Dana, 191, but in 
 that case the alteration was held to be material. In Terry & Bell 
 V. Hazlewood, 1 Duv. 108, 109, both these cases were reviewed, and 
 held not to be authority on this point; and an alteration, which 
 did not increase or injuriously affect or change in any manner the 
 
OVEERTJLED CASES. 389 
 
 obligations and duties arising from the contract, would not 
 vitiate it. 
 
 12. In Tyre v. Commonwealth, Mss. opinion, June term, 1856, an 
 abstract of wbieh appears in note six to section 79, Stanton's 
 edition of the Criminal Code, it was decided that a recognizance 
 taken by a jailor from one, in his custody, charged with malicious 
 stabbing, is prima facie obligatory as a common law bond, but this 
 decision is expressly overruled. Commonwealth v. Roberts, 1 Duv. 
 202, and such a bond was held not valid, either as a common law, 
 or statutory, bond. 
 
 13. In Finn v. Stratton, 5 J. J. Mar. 364^B:eld : That a 
 sheriff who, by negligently failing to levy an execution, had ^here- 
 by made himself liable to the plaintiff for the debt and had paid it, 
 might compel one, who was only surety, to pay him on an execution 
 in the plaintiff's name ; although, at the time the sheriff held the 
 execution, it could have been made out of the property of the 
 principal. This point has since been overruled in Commonwealth 
 V. Stratton, 7 J. J. Mar. 90 ; Staton. et al. v. Commonwealth, 2 Dana, 
 397; Rowe v. Williams, 7 B. Mon. 202; Miller v. Dyer, 1 Duv. 265. 
 
 14. In Elliott V. Threlkeld, 16 B. Mon. 343, and it was held that in 
 an action by an assignee against his assignor on the contract of 
 assignment, the plaintiff should aver "the nature and amount of 
 the consideration," and that a statement in the petition, that the 
 assignment had been made for a valuable consideration, would not 
 have been sufficient; hntin Solt v. Thompson, 1 Duv. 301, this point 
 was expressly overruled, and it was held the plaintiff need not set 
 out the amount or nature of the consideration, but may set out the 
 written assignment without even averring that it was for a valua- 
 ble consideration. 
 
 15. In Pool V. Webster, 3 Met. 282— Held: That an afSdavit for 
 an attachment could not be amended after motion to discharge. 
 This ruling was reviewed in Allen v. Brown, 4 Met. 344, 345, and 
 overruled. No motion had been made to discharge before the 
 amendment was offered, but the court say that could make no 
 difference. 
 
 16. In Watts v. Pond, 4 Met. 62— ITeld : That if the record of 
 proceedings, for the sale of infants' real estate, does not show that 
 the commissioners appointed to value their real estate, etc., were 
 sworn, the judgment is void. In Thornton v. McGrath, 1 Duv. 
 353 — Reld: That the record need not show this fact, and that, 
 although nothing appeared in the record to show whether they 
 were sworn or not, the court would not presume, from that cir- 
 
390 OHIO RIVEE. 
 
 cumstance alone, that the commissioners recklessly disregarded 
 their duty and made an illegal report. 
 
 17. In Horsey v. Beese, 14 B. Mon. 158 — Seld: That one, who 
 had permitted judgment in an action at law, might enjoin the 
 judgment, and set off a demand due him from the plaintiff, which, 
 though only amounting to an equitable defense, might have been 
 pleaded as a set-off, This case was decided under the Code as 
 originally adopted, which did not contain section 14 of the 
 present Code, nor any similar provision ; and in Chinn v, Mitchell 
 2 Met. 95, this case was declared not to be authority. 
 
 18. In Pottinger v. May field, 16 B. Mon. 647— .HeZd; That judg- 
 ment, in an ordinary action in one county, against a defendant 
 who resided and was served in another, was a clerical misprision ; 
 but in Ruby v. Grace, 2 Duv. 540, this case was overruled, and the 
 judgment held to be void. 
 
 OHIO EIVEE. 
 
 1. Judicial notice may be taken of the character of the Ohio 
 river. Thurman v. Morrison, 14 B. Mon. 370. 
 
 2. One, owning land bounding on the Ohio river, has a proprietary 
 right down to low water mark. Thurman v. Morrison, 14 B. Mon. 
 371. 
 
 3. For an elaborate review of the relative rights of owners of 
 the soil on the Ohio and other navigable streams, see Thurman v. 
 Morrison, 14 B. Mon. 367-377. 
 
 4. The boundary and jurisdiction of the State of Kentucty 
 extend to low water mark on the northern or western side of the 
 Ohio river. McFall v. Commonwealth, 2 Met. 396. 
 
 PAEDON AND EBMISSION BY THE GOVBENOE. 
 
 1. One, who has been convicted of a felony and pardoned by the 
 governor, and who is subsequently convicted of the same offense, 
 may be convicted and sentenced for twice the term for which he 
 was first sentenced. Mount v. Commonwealth, 2 Duv. 94, 95. 
 
 2. A fine or forfeiture can not be remitted until it has been 
 either adjudged, or shall have been so charged and defined, in 
 some judicial procedure for enforcing its legal penalty, as to iden- 
 tify it, and make the remission effectual as a bar to any other 
 
PARENT AND CHILD. 391 
 
 prosecution for the same act. Commonwealth v. Bush, 2 Duv. 
 265. 
 
 3. But in all cases alike, the executive pardon relieves from the 
 offense, and discharges the accused from its legal penalty ; and this 
 may be done as well and effectually before as after formal con- 
 viction. Commonwealth v. Bush, 2 Duv. 265. 
 
 PAEBNT ANi) CHILD. 
 
 1. The statute conferring on the mother the right, if there be 
 no father living, to the control and custody of her infant children, 
 and requiring her assent hefore they can be apprenticed, applies 
 to the mother of negroes. Bukers v. Winfrey, 15 B. Mon. 504. 
 
 2. The mother of children can not recover of their guardian, 
 who had hired them out, the proceeds of their hire. Clinkenbeard 
 V, Clinkenbeard, 3 Met. 332. 
 
 3. When a divorce is granted, the father has prima facie the 
 abstract right to the custody of the children of the marriage ; but 
 the court granting the divorce should confide the care and control 
 of an infant child to the parent most trustworthy and capable. 
 Adams v. Adams, 1 Duv. 169. 
 
 4. A father is liable for injuries, resulting to another from the 
 negligence of his son in driving the carriage and horses of the 
 father with his approbation. Lashbrook v. Patten, 1 Duv. 317. 
 
 5. In such cases the son must be regarded as in the employ of 
 the father, and, for the purposes of the suit, as his servant. Lash- 
 brook V. Patten, 1 Duv. 317. 
 
 PAEOLB CONTEACTS. 
 
 See Feauds — Statute op. 
 
392 PARTIES TO CIVIL ACTIONS. 
 
 PAETIBS TO CIVIL ACTIONS. 
 
 I. Who inay or must be a party. 
 II. "Who are not necessary parties. 
 
 III. "Who has a right to be made a party. 
 
 IV. "When courts should order new party to be made. 
 V. "Who are parties. 
 
 VI. How and when defect or misjoinder of parties may be taken advantage of. 
 
 I. WHO MAT OE MUST BE A PARTY. 
 
 1. A trustee, named in a deed of trust, is a necessary party to a 
 suit to set aside the deed. Talbott v. Pierce, 14 B. Mon. 203. 
 
 2. Two joint assignors of a bond for land may be sued jointly on 
 the contract of assignment, although they own separate interests. 
 Emerson v. Olaywell, 14 B. Mon. 20. , 
 
 3. A suit, upon the official bond of a constable, may be in the 
 name of the Commonwealth for the benefit of the party injured by 
 a breach of the bond. Commonwealth for Harris v. Teal, 14 B. 
 Mon. 30, 31. 
 
 4. A married woman can not maintain an action, in her name 
 alone, for the ' recovery of land, unless it be her separate estate, 
 free from the control of her husband. Petty v. Malier, 14 B. Mon. 
 247. 
 
 5. A feme covert may sue for a settlement in her own name 
 without her husband. Wright v. Arnold, 14 B. Mon. 642.^ 
 
 6. One, owning part of a tract of land sought to be sold 
 under an attachment against another part owner, is a necessary 
 party. Nixon v. Jack, 16 B. Mon. 183. 
 
 7. A. hired a slave to B., and B. hired him to C, by whose un- 
 lawful acts the slaye died. Seld : That A. and B. might unite as 
 plaintiffs in an action against C. to recover the hire due to B., and 
 the value of the slave for A. Carney v. Walden, 16 B. Mon. 
 398. 
 
 8. An executor, who is directed to rent property, may maintain 
 in his own name a suit to quiet the possession, and to prevent its 
 use from being interfered with or its value impaired. Newport v. 
 Taylor, 16 B. Mon. 782. 
 
 1 This case is decided on the authority of Moore v. Moore, 14 B. Mon. 260; 
 but it will be found by reference to that case, that "Walker Moore, the husband 
 of the plaintiff, was dead before the suit was commenced. 
 
PARTIES TO CIVIL ACTIONS. 393 
 
 9. One, having a limited estate or interest in the subject of the 
 action, may have relief to the extent of his interest, without join- 
 ing those having the residue of the interest. Newport v. Taylor, 
 
 16 B. Mon. 782, 783. 
 
 10. Since the adoption of the Code of Practice, there can be no 
 recovery, in the name of John Doe, for mesne profits, after the 
 recovery of the land in his name in ejectment. Masterson v. 
 Hagan, 17 B. Mon. 334. 
 
 11. A trustee of the separate estate of a married woman can 
 maintain a suit, in his own name alone, to recover the possession 
 of the trust property from one who has seized it under execution 
 against the husband of his cestui que trust. McGlanahan v. Beasley, 
 
 17 B. Mon. 117. 
 
 12. One of several beneficiares, in a deed of trust, can not 
 maintain an action, in his own name alone, without alleging any 
 other grounds for so doing than that he has an interest under the 
 deed. L. L., F. & M. Ins. Co. v. Page & Bichardson, 17 B. Mon. 455 
 
 13. The real owner of a note sued on is a necessary party, and 
 suit can not be maintained, in the name of the payee alone, on a 
 note which has been transferred by delivery only to a third 
 person. Such third person is the beneficial owner and a necessary 
 party. Carpenter v. Miles, 17 B. Mon. 602. 
 
 14. Stock, subscribed to a corporation, payable to the president 
 and directors, when none existed, may, after the company is or- 
 ganized, be recovered in an action, in the corporate name of the 
 company. Lackey v. B. & L. T. B. Co., 17 B. Mon. 48. 
 
 15. The owner of land, whether in possession or not, may main- 
 tain an action in his own name for an injury to the land. Bebee v. 
 Hutchinson, 17 B. Mon. 498. 
 
 16. One, who has no right to sue, will not be entitled to judg- 
 ment, although the party having the right is a defendant, and does 
 not object to the recovery in the name of the plaintiff. Worthing- 
 ton V. Greer, 17 B. Mon. 748. 
 
 17. An agent, who sells by parole contract, property for which 
 he is bound to pay his principal, may, if he pays it, maintain an 
 action, in the name of himself and principal, against the pur- 
 chaser. Dean v. English, 18 B. Mon. 135. 
 
 18. If money be deposited in a bank for the payment of debts 
 of the depositor, and a mistake be made by the bank in paying it 
 out, an action to recover the excess paid must be in the name 
 of the bank, and not of the depositor. Keen v. Collier, 1 Met. 
 416, 417. 
 
394 PARTIES TO CIVIL ACTIONS. 
 
 19. An action for the recovery ofa debt not assignable by statute, 
 should be in the name of the equitable owner, but the assignor is 
 a necessary party. Lytle v. Lytle, 2 Met. 128. 
 
 20. Several joint owners of a single tract of land may bring a 
 joint action against several persons, each of whom holds. a distinct 
 and separate parcel, and who have no joint possession. Woolfolk 
 V. Ashby, 2 Met. 288, 289. 
 
 21. If land, on which a vendor has a lien for unpaid purchase 
 money, be attached by a creditor of the vendee before a sale is or- 
 dered, the vendor should be brought before the court, and the 
 amount of his lien ascertained in the judgment. Mills v. Brown, 
 
 2 Met. 406, 407. 
 
 22. If, on a motion by one of two plaintiffs to correct a judg- 
 ment, which has, by mistake of the clerk, been entered in favor of 
 both, when it should have been entered in favor of one only, the 
 defendant claims to have paid it since judgment to the other 
 plaintiff, the latter is a necessary party to the motion. Oldham v. 
 Brannon, 2 Met. 305,. 
 
 23. In an action, by a creditor of a creditor of a decedent 
 to subject a fund due to the creditor from the decedent's estate, to 
 which the surety of the personal representative is made a party in 
 order to a recovery against him for an alleged devastavit, the ex* 
 ecutor is an indispensable party. Lee v. Waller, 3 Met. 64. 
 
 24. The party, for whose benefit a contract is evidently made, 
 may sue thereon in his own name, although the engagement be 
 not directly to, or with, him. Allen v. Thomas, 3 Met. 199. 
 
 25. If money be delivered to A., who promises to deliver it to 
 M., at a distant point, and his receipt containing such an under* 
 taking be sent to M., an action to recover the money, on A.'s fail- 
 ure to deliver it, must be in the name of M., or his personal rep- 
 resentative. Allen V. Thompson, 3 Met. 199, 200 ; Smith v. Lewis, 
 
 3 B. Mon. 230. 
 
 26. A suit, to recover the personal property of an infant, wrong- 
 fully detained by a third person, must be in the name of the in- 
 fant, by his guardian or next friend. Section 33 of the Civil Code 
 only authorizes a guardian to sue alone in eases in which he could 
 have done so before the Code. Anderson v. Watson, 3 Met. 510; 
 B. & L. B. R. Co. V. Metcalfe, 4 Met. 202, 203. 
 
 27. Where a testator devised land to his executor to be sold, and 
 only gave to his devisees the proceeds, an action to recover the 
 land must be in the name of the executor, Jennings v. Monks, 4 
 Met. 105. 
 
PARTIES TO CIVIL ACTIONS. 395 
 
 28. In an action against a married woman, on a contract made 
 before marriage, the husband is a ne6essary party. Beaumont v. 
 Miller, 1 Met. 70 ; sec. 49, Civil Code ; Fultz v. Fox, 9 B. Mon. 
 502. 
 
 29. Section 33 of the Civil Code does not authorize a trustee, to 
 whom a railroad and its franchises have been mortgaged, to sue in 
 his own name and recover the interest on the bonds, which the 
 company had failed to pay when due, it appearing the bonds be- 
 longed to divers persons not parties to the action. But the trustee, 
 owning part of the bonds, and thus having an interest in common 
 with many others, may, by alleging these facts, and that the bond- 
 holders are numerous, and that it is impracticable to bring them all 
 before the court in a reasonable time, be permitted to sue for the 
 benefit of all. B. & L. R. B. Co. v. Metcalfe, 4 Met. 204 ; sec. 
 37, Civil Code. 
 
 30. If, in such a case, the mortgage makes it the duty of the 
 trustee, whenever the company fails to pay the interest on the 
 bonds, to " proceed, by due process of law, to subject the road and 
 all its effects to satisfy the amount claimed and due," he may main- 
 tain the action in his own name alone, by showing that the bond- 
 holders are numerous, and that it is impracticable to bring them 
 before the court in a reasonable time. B. & L. B. B. Co. v. Met- 
 calfe, 4 Met. 204, 205. 
 
 31. When land is devised by a testator, and after his death a 
 patent issues therefor, the title vests in his heirs, and they are 
 necessary parties in an action to recover the land. Cohb v. Stewart, 
 4 Met. 256. 
 
 32. Section 49 of the Civil Code gives a wife no right to main- 
 tain a suit in her own name alone, in any case in which she could 
 not have sued before the adoption of the Code, by the intervention 
 of a next ftiend. Matson v. Matson, 4 Met. 264. 
 
 33. If three partners sue for a debt, and, pending the action, one 
 sells his interest to his co-plaintiffs, it is error to strike out his 
 name. He is a necessary party. Dougherty v. Smith & Wilson, 4 
 Met. 281. 
 
 34. In an action, by the holder of one of several notes given for 
 the purchase-money *for land, to enforce the vendor's lien, the 
 holders of all the unpaid notes are necessary parties. Jenkins v. 
 Smith, 4 Met. 384. 
 
 35. When a note is made payable to one of the obligors and a 
 third person, the third person may maintain an action in his own 
 name against all the obligors. Quinsenberry v. Artis, 1 Duv. 30, 31. 
 
396 PAETIES TO CIVIL ACTION. 
 
 36. The beneficial owners of notes sued on, are necessary parties. 
 Humphreys v. Fearce, 1 Duv. 239. 
 
 37. A married woman, whose husband is insolvent and an habitual 
 drunkard and makes no provision for the support of his family, 
 may sue alone to enforce a trust created for her benefit. Berry v. 
 Norris, 1 Duv. 303. 
 
 38. A petition, for a mandamus to compel the performance by a 
 corporation of duties imposed on it, should be against the select 
 body through which the corporation acts, and not against the 
 individuals composing it. Louisville v. McKean, 18 B. Mon. 13. 
 
 39. Notes were assigned to B. & S. merely for collection, and 
 while they held them they made a general transfer of all their 
 effects to "W. in trust for creditors. Meld: That W. could not 
 maintain an action in his own name on the notes; although E. & 
 S. and their assignors were parties defendant and did not object to 
 a recovery in his name. Worthington v. Greer, 17 B. Mon. 747. 
 
 40. The payee of a note, who has transferred it by parole, is a 
 necessary party to an action in the name of the assignee. G-ill v. 
 Johnson, 1 Met. 651 ; Perry v. Seitz, 2 Duv. 124. 
 
 41. In an action against a devisee, to subject assets devised to 
 the payment of the testator's debts, the personal representative of 
 the testator, if there be one, is a necessary party. Perry v. Seitz, 
 2 Duv. 123, 124. 
 
 42. If a surety pay off the obligation on which he is bound, and 
 at the time of payment, stipulates with the obligee for the right to 
 sue the principal in the name of the latter, he may maintain the 
 action in his name. Smith v. Latimer, 15 B. Mon. 77. 
 
 43. Where the legal title to land or slaves owned by infants, is 
 in a trustee, he is a necessary party to a suit to sell either. Bush 
 y. Bush, 2 Duv. 272. 
 
 44. Several signers of a contract for the payment, by each, of 
 one hundred dollars may be sued jointly. Wilde & Co. v. Say- 
 craft, etc., 2 Duv. 311. 
 
 45. The holder of the legal title to land sought to be subjected, 
 in equity, to the payment of a judgment, after a return of " no 
 property," is a necessary party. Ogle v. Clough, 2 Duv. 146. 
 
 46. An action to recover damages for the destruction of a court- 
 house may be in the name of the county, or of the Commonwealth 
 and county for the use of the latter. Christian Co. Co. v. Rankin 
 & Tharp, 2 Duv. 503. 
 
PARTIES TO CIVIL ACTION. 397 
 
 47. The heirs of a vendor, who has not conveyed the legal title, 
 are necessary parties to a suit by his personal representative, either 
 by proceedings to enforce the lien, or by common law attachment 
 levied on the land, to subject it to .the payment of the purchase- 
 money. Anderson v. Sutton, 2 Duv. 486. 
 
 48. The personal representative of a decedent, is a necessary 
 party to an action by one who has obtained judgment against him, 
 to subject property conveyed by the decedent to the payment of 
 the judgment. Alexander & Lancashire v. Quigley, 2 Duv. 408. 
 
 II. WHO ARE NOT NECESSARY PARTIES. 
 
 1. The sureties in a guardian's bond in the county court, are not 
 necessary parties in an action on the bond of a guardian, given in 
 the circuit court to procure a decree to sell the lands of the ward. 
 Johnson V. Chandler, 15 B. Mon. 590. 
 
 2. When an administrator properly sues in equity to recover 
 assets, that he has improperly joined a distributee with him as 
 plaintiff, will not prejudice his right to recover. Richardson v. 
 Spencer, Marshall, etc., 18 B. Mon. 464. 
 
 3. One, injured by the breach of a warehouse-keeper's bond, 
 which was executed to the Commonwealth, may sue on the bond 
 in his own name; although the bond is not valid as a statutory 
 bond. Lane v. Kasey, 1 Met. 412, 413. 
 
 4. The obligee in a note is not a necessary party to an action in 
 which his assignee has sued the obligor, who has pleaded usury 
 and payment before notice of assignment. True v. Triplett, 4 Met. 58. 
 
 5. Where suit was brought by a single depositor against persons, 
 who had, as alleged, guaranteed the payment of all the deposits 
 of a banker on a given day, and it appeared from the petition that 
 there were other depositors — Held: They were not necessary 
 parties. Stedman v. Guthrie, 4 Met. 151. 
 
 6. In an action against the stockholders of a corporation, who 
 are numerous, and in which the question is one of common interest, 
 if it is impracticable to bring them all before the court, it is proper 
 that one or more should be allowed to defend for all. L. & 0. T. 
 R. Go. V. Ballard, 2 Met. 171 ; sec. 37, Civil Code. 
 
 III. WHO HAS A RIGHT TO BE MADE A PARTY. 
 
 1. In a suit, against an administrator, on a debt claimed against 
 his intestate, it is the duty of the court to allow heirs of the 
 decedent to become parties defendant upon their application by 
 petition showing a defense to the action, which the administrator 
 
398 PARTIES TO CIVIL ACTIONS. 
 
 will not or can not make. Gibson v. Higdon, 15 B. Men. 209; 
 Lusk V. Anderson, 1 Met. 428. 
 
 2. If, pending an action, the cause of action be transferred, it is 
 in the discretion of the court to allow the assignee to be substituted 
 as plaintiff or not. Dougherty v. Smith & Wilson, 4 Met. 281; sec. 
 32, Civil Code. 
 
 IV. WHEN THE COURT SHOULD ORDER NEW PARTY TO BE MADE. 
 
 1. When it appears that others, not parties, are indispensable, 
 and that the court can not decide the cause nor determine the con- 
 troversy, between the parties before it, without the presence of 
 others, it should cause them to be brought in. Johnson v. Chandler, 
 15 B. Mon. 589. 
 
 2. If a defendant, by his answer, suggests that another person, 
 not a party to the action, is a necessary party, but fails to prove it, 
 the court should not order such person to be made a party. 
 Vanbuskirk v. Levy, 3 Met. 136. 
 
 3. Whenever the petition omits a party deemed necessary by the 
 chancellor, he ought, before final hearing, to notify the partitioner 
 thereof and give him a reasonable time to supply the defect. 
 Ogle V. Glough, 2 Duv. 146 ; sec. 40, Civil Code. 
 
 V. WHO ARE PARTIES. 
 
 1. The owners of a steamboat, sued by the general appellation 
 of "owners,"' are not parties to the suit. To make them parties, 
 they must be designated by name, and served with process, either 
 actually or constructively. Kountz v. Brown, 16 B. Mon. 585. 
 
 2. One, who presented his petition, and asked to be made a 
 party, asserting claim to property attached in the action, and who 
 was ordered to be made a party, which was never formally done, 
 but who has been treated as a party by the other parties and the 
 court, is a party to the action.. Schwein v. 8ims, 2 Met. 210. 
 
 3. One, who is prayed to be made a defendant to a petition, does 
 not thereby become a party. To make him so, process must issue, 
 and be served actually or constructively. Smith v. Gower, 3 Met. 
 175 ; Bond v. Hendricks, 1 Mar. 592. 
 
 4. One, who is referred to in the petition as a defendant, and is 
 prayed to be made a defendant, and is summoned only as a gar- 
 nishee, is not a party to the action. Smith v. Gower, 3 Met. 
 175. 
 
PARTITION OF LAND. 399 
 
 VI. WHEN AND HOW DEFECT OK MISJOINDER OF PARTIES MAT BE 
 TAKEN ADVANTAGE OF. 
 
 1. A defect of parties appearing in the petition may be taken 
 advantage of by demurrer ; if not appearing by the petition, then 
 by a suggestion in the answer ; and if not taken by either mode, 
 the objection is waived. Johnson v. Chandler, 15 B. Mon. 589; 
 Vanbuskirk v. Zevy, 3 Met. 136 ; Carpenter v. Miles, 17 B. Mon. 
 602 ; Albro v. Lawson, 17 B. Mon. 645 ; Bean v. English, 18 B. 
 Mon. 136. 
 
 2. Objections for misjoinder of parties must be made in the cir- 
 cuit court, or it will be deemed to have been waived. Wilson v. 
 Thompson, 1 Met. 127 ; sec. 161, Civil Code. 
 
 3. To constitute a cause of demurrer, defect of parties must 
 appear from the petition. A petition, in the name of "A. J. M. & 
 Co.," on a bill payable to A. J. M. & Co., is good on demurrer. 
 Morrison v. Tate, 1 Met. 570. 
 
 4. Objections for the want of necessary parties is waived, if not 
 made in the circuit court. Gill v. Johnson, 1 Met. 651, 652. 
 
 5. That others, not parties, were necessary parties to the 
 action, can not be relied on for a reversal by those whose duty 
 it was to have made them parties. Yandever v. Vandever, 3 Met. 
 138. 
 
 6. A misjoinder of parties, either plaintiff or defendant, can 
 only be taken advantage of by motion to strike out the name of 
 the party thus improperly joined. Yeates v. Walker, 1 Duv. 85 ; 
 Dean v. English, 18 B. Mon. 136. 
 
 PAETITION OF LAND. 
 
 See Joint Tenants and Tenants in Common. 
 
 1. One, holding the title of the tenant for life, can not resist 
 partition among the remainder-men by claiming to hold adversely. 
 Phillips V. Johnson, 14 B. Mon. 176., 
 
 2. The court of the county, where the decedent resided and his 
 personal representative qualified, has jurisdiction to partition his 
 real estate, whether situated in that or another county. Driskell 
 V. Hanks, 18 B. Mon. 866 ; sec. 97, Code of Practice. 
 
 3. If, in answer to a petition in equity for partition, the defend' 
 ants set up claim, to be the exclusive legal owners of the land 
 sought to be divided, but fail, to move a transfer to the ordinary 
 
400 PARTNERS AND PARTNERSHIPS. 
 
 docket, it is error on the trial to dismiss tlie petition without 
 deciding the issue. Frazer v. Naylor, 1 Met. 596. 
 
 4. When one of several joint owners of land takes into his pos- 
 session separate parcels of the land, and it is thus separately held 
 and claimed during many years, the presumption arises that a 
 partition had been made between the parties. Russell v. Marks\ 
 3 Met. 45. 
 
 5. Ten-twelfths of a tract of land were sold under execution! 
 and purchased by S., and the remainder was subsequently pur- 
 chased by C. Each purchaser sold to sub-purchasers various 
 small lots, and a sub-purchaser under C. brought ejectment against 
 strangers on two small parcels of the land. Held : That he was 
 only entitled to recover two-twelfths ; also, that had there been no 
 other sub-purchaser than the plaintiff (the cause having been 
 transferred to equity), such an equitable partition might have been 
 made as to allot to him the entire tracts claimed ; but in any equit- 
 able interallotment, the adverse sub-purchasers under S. have equal 
 rights conflicting with that equity. Stone v. Lasley, 2 Duv. 267. 
 
 PAETJNBRS AND PAETNBESHIPS. 
 
 I. Liabilities of firm, and rights of firm creditors. 
 II. Powers of one partner over partnership property. 
 
 III. Power of all the partners to convert partnership into individual 
 
 property. 
 
 IV. Eights and remedies of partners between themselves, and as it 
 
 respects third persons. 
 V. What is partnership property, and how it will be treated. 
 VI. Eights of the creditors and representatives of one of the partners. 
 VII. Dissolution. 
 
 I. LIABILITIES OF FIRM, AND RIGHTS OF FIRM CREDITORS. 
 
 1. If demands be placed in the hands of a firm of practicing at- 
 torneys for collection, and suit be instituted and judgment recov- 
 ered, and one of the partners dies before it is collected, and the 
 survivor collects the money and fails to pay it over, and there arc 
 no assets of the firm for its payment, the separate estate of the de- 
 ceased partner will be liable to the client. McGill v. McGill, 2 
 Met. 260-265. 
 
 2. The creditors of a firm have no lien upon partnership prop- 
 erty for the payment of their debts. Whenever such a lien can 
 be asserted at all, it must be derived from, or through, one of the 
 partners. Jones v. Zusk, 2 Met. 360. 
 
PARTNERS AND PARTNERSHIPS. 401 
 
 3. Insolvency, in order to give the chancellor jurisdiction to de- 
 cree priority of payment in favor of partnership creditors, must be 
 evidenced by judgment and return of execution, "no property 
 found," against one or more of the partners. Jones v. Lusk, 2 Met, 
 361. 
 
 4. The mere allegation that a firm, or the members composing 
 it, are unable to pay their debts, vrhether joint or individual, nor 
 the apprehension of firm creditors that the partners will use the 
 firm effects to pay their individual debts, vrill confer on the chan- 
 cellor jurisdiction to assume the control and settlement of the 
 firm. Jones v. Lusk, 2 Met. 361. 
 
 5. If a firm sells partnership property to a creditor of one of the 
 members of the firm, before any steps are taken by firm creditors 
 which warrant the chancellor in assuming control of the partner- 
 ship affairs, and before any lien is created on it, the purchaser will 
 be entitled to hold it against firm creditors. Jones v. Lusk, 2 Met, 
 361, 362. 
 
 6. That the purchaser knew the firm owed debts, when he pur- 
 chased, will not defeat his title. Jones v. Lusk, 2 Met. 362. 
 
 7. The partners may, by their joint act, convert partnership 
 property into individual property, or one partner may, with the 
 assent of the others, apply partnership effects to the payment of 
 his individual debts, and if it be done bona flde, it can not be com- 
 plained of by partnership creditors. Jones v. Lusk, 2 Met. 361 ; 
 Ely, Glapp & Go. v. Hair, 16 B. Mon. 237, 238. 
 
 8. If a firm receives and uses the consideration of a note, exe- 
 cuted in the name of a firm by one of its members, but which, be- 
 ing under seal, is not binding on the firm, the payee, upon alleging 
 and proving that the firm received and enjoyed the consideration, 
 will be entitled, to recover against all the members. Daniel v. To- 
 ney, 2 Met. 525. 
 
 II. POWERS OP ONE PARTNER OVER PARTNERSHIP PROPERTY. 
 
 1. One partner has no right, without the assent of the others, to 
 appropriate the partnership effects to the payment of his individ- 
 ual debts. Jackson, Cox & Co. v. Holloviay, 14 B. Mon. 138. 
 
 2. One of two partners can not, in opposition to the will of the 
 other, which is known to the mortgagee, make a valid mortgage of 
 the partnership effects. Bull v. Harris, 18 B. Mon. 200. 
 
 27 
 
402 PAKTNER3 AND PARTNERSHIPS. 
 
 III. RIGHTS AND REMEDIES OF PARTNERS, AS BETWEEN THEMSELVES, 
 AND AS RESPECTS THIRD PERSONS. 
 
 1. If an execution, against an individual member of a firm, be 
 levied on partnership property, and the other members claim the 
 eifects as necessary for the payment of firm debts, the creditor 
 must resort to a court of equity to ascertain the balances, and en- 
 force his lien. Watson v. Gabby, 18 B. Mon. 664. 
 
 2. A partner has an equitable lien on the partnership eifects for 
 the payment of partnership debts. Talbott v. Pierce, 14 B. Mon. 
 198. 
 
 3. Two persons, who were partners, took a mortgage on slaves 
 to secure a debt due the firm, and kept them in possession until 
 the hire paid the debt. The slaves were divided : the hire of the 
 one taken by one partner was worth $1,255 ; that taken by the 
 other, only $330. Held : The partnership having been dissolved, 
 the latter should recover of the former one-half of the difference. 
 Lambert v. Ingram, 15 B. Mon. 269. 
 
 IV. WHAT IS PARTNERSHIP PROPERTY, AND HOW TREATED. 
 
 1. Real property, held by partners as partnership stock, will be 
 regarded at law as being held by tenants in common, but in equity, 
 as being held in trust, sabject to the ordinary rules relating to 
 personal property, for the payment of partnership debts. Galbraith 
 V. G-edge, 16 B. Mon. 634. 
 
 2. Only such real estate as is bought for the purposes of the 
 partnership, will be treated as personal property. Galbraith v. 
 Gedge, 16 B. Mon. 636. 
 
 V. RIGHTS OP THE CREDITORS AND REPRESENTATIVES OP ONE OF THE 
 
 PARTNERS. 
 
 1. The widow of a deceased partner has no right to dower in the 
 real estate of the firm, held as partnership stock, and necessary for 
 the payment of firm debts. Galbraith v. Gedge, 16 B. Mon. 634. 
 
 2. The wives of surviving partners have no vested interest in 
 real estate held as partnership stock, and need not join in a deed 
 by which it is conveyed. Galbraith v. Gedge, 16 B. Mon. 635. 
 
 3. The right of execution creditors of one of the members of a 
 firm to subject his interest in the partnership property to sale under 
 execution, is unquestionable. Watson v. Gabby, 18 B. Mon. 663. 
 
 4. Persons, dealing with an individual member of a firm, have 
 a right to look to his interest in the firm as a part of his eifects. 
 
PARTNERS AND PARTNERSHIPS. 403 
 
 They are bound, however, to know that the extent of his in- 
 erest depends on the amount of capital invested and the contracts 
 of partnership, and they have no right to regard him as equal in 
 interest to the other members of the firm. Winter smith & Young 
 V. Pointer & Conway, 2 Met. 459. 
 
 5. Creditors of one of the members of a firm can only subject 
 to the payment of his debts whatever his debtor is entitled to of 
 the partnership assets, on a full settlement of the firm affairs. 
 Wintersmith & Young v. Pointer & Conway, 2 Met. 450. 
 
 6. The sale of a lot of mules at a fixed price, on a stipulated 
 credit, the seller to keep them for a few weeks and then to deliver 
 them to the purchaser on his giving notes for the price, with good 
 security, vests the legal title in the purchaser ; and if, after the 
 purchase but before the delivery of the mules, the purchaser and 
 another form a limited partnership, whereby it was agreed that 
 the mules should be put into the joint stock and sold on joint 
 account, and they are so sold, the surety of the purchaser in the 
 notes given for the price, who has been compelled to pay them, 
 can not hold the other partner liable as a joint purchaser. Duncan 
 V. Lewis, 1 Duv. 185, 186. 
 
 7. If a partnership firm becomes insolvent, having partnership 
 property and partnership creditors, and also individual j^roperty 
 and individual creditors, and the partnership creditors exhaust 
 the partnership property, the individual creditors have a priority 
 of right to receive an equal per centage of their debts out of the 
 individual property, and if anything remains, it is to be distribu- 
 ted among both classes of creditors pari passu. Northern Bank Ky. 
 V. Keizer, 2 Duv. 169 ; Whitehead v. Chadwell, 2 Duv. 432. 
 
 VI. DISSOLirTION. 
 
 Ji.. What will dissolve a partnership. 
 
 B. Effect of a dissolution. 
 
 C. Powers of partners after dissolution. 
 
 a. What will dissolve a partnership. 
 If three persons enter into a partnership in an adventure, and 
 one soon after abandons it, the contract is no longer binding on 
 the others, and as between the other two, if one does that which 
 shows an intention to abandon the contract on his part, he can not 
 afterward assert any claim against the other, who has gone on 
 and been successful. Bryan v. Proctor, 14 B. Mon. 457, 458. 
 
404 PATENTS FOE LAND. 
 
 h. Effect of dissolution. 
 One member of a firm executed a paper to another membcir, 
 authorizing him to sign the firm name at discretion — Held : That 
 after a dissolution the power ceased. Gronley v. Bank Ky., 18 B. 
 Mon. 409. 
 
 c. Powers of partners after dissolution. 
 
 1. After a partnership has been dissolved, neither of the part- 
 ners has a right to give a note, in the firm name, either to settle a 
 firm account, or to renew a firm note. Merritt v. Pollys, 16 B. 
 Mon. 365, 356. 
 
 2. But a note, given in the firm name after dissolution, is good, 
 if given in the ordinary course of business, or in liquidation of 
 firm debts, if the party receiving it had no notice of the dissolution 
 at the time he received it. Merritt v. Pollys, 16 B. Mon. 355, 
 356. 
 
 3. A surviving partner can not sell partnership lands, and make 
 a conveyance, although they were held as partnership stock, and 
 their sale is necessary for the payment of firm debts. Galbraith 
 V. aedge, 16 B. Mon. 635. 
 
 PASSWAY. 
 See EoADS and Passwats. 
 
 PATENTS FOE LAND. 
 
 1. All patents emanating, or surveys made on entries west of the 
 Tennessee river, of military warrants, prior to 1792, if variant, 
 from the entry, are void. Ashbrook v. Quarles, 15 B. Mon. 23. 
 
 2. But in order to invalidate an entry made on such a survey 
 the proof must conclusively show that the survey was variant. 
 Ashbrook v. Quarles, 15 B. Mon. 24. 
 
 3. There are only two states of case where patents are void ; 
 one is where the legislature has declared they shall be void if 
 issued in contravention of certain specified provisions, and the 
 other where they have declared the patent fraudulent when issued 
 under similar circumstances. Clark v. Jones, 16 B. Mon. 126. 
 
 4. That land, claimed under a patent issued on a Kentucky 
 land warrant, was covered by an elder patent, does not render the 
 former void. Clark v. Jones, 16 B. Mon. 126. 
 
PAYMENT. 405 
 
 5. A mistake in the name of the patentee, when he is sufficiently 
 described, will not render the patent void ; but the title will vest 
 in him notwithstanding. Bussell v. Marks, 3 Met. 40 ; Swan v. 
 Wilson, 1 Mar. 100. 
 
 6. In the absence of proof to the contrary, it will be presumed, 
 where the warrant, entry, and survey are all exhibited, and no 
 assignment appears to have been made, that the patent issued to 
 him in whose name the warrant issued. jRussell v. Marks, 3 Met. 
 40. 
 
 7. A patent, issued since the Eevised Statutes went into effect, 
 is not void, except so far as it may conflict with a previous entry 
 or patent. Hartley v. Hartley, 3 Met. 59. 
 
 8. A patent can not be avoided at law in a collateral proceeding 
 hy a matter dehors the patent, unless it is declared void, or its 
 nullity is indicated by some equally explicit statutory denuncia- 
 tion. Hartley v. Hartley, 3 Met. 58 ; Pearson v. Baker, 4 Dana, 
 321. 
 
 9. A patent, issued since the Eevised Statutes, to a third person 
 for land occupied by an actual settler, who had no notice, is not 
 void, and can not be avoided at law by the settler, when sued by 
 the patentee for possession. Hartley v. Hartley, 3 Met. 59. 
 
 10. Whether it might be avoided by proper allegations in the 
 answer and a transfer to equity. Quere. Hartley v. Hartley, 3 
 Met. 59. 
 
 11. Where lands are devised by a testator, and after his death a 
 patent issues to him therefor, the legal title vests in his heirs, who 
 hold it in trust for the benefit of the devisees. Cobb v. Stewart, 4 
 Met. 256. 
 
 PAYMENT. 
 
 1. Payment in full is a legal, and not an equitable, defense, and 
 should be made at law, and will not be grounds for an injunction. 
 lAllard v. Turner, 16 B. Mon. 376. 
 
 2. The acceptance of part of a debt, when due, in satisfaction of 
 the whole, can not operate as a bar to the recovery of the residue. 
 Fenwick v. Phillips, 3 Met. 88. 
 
 3. But the payment of a part, in satisfaction of all before the 
 debt becomes due, or at a different place from that where it is pay- 
 able, is good, and will bar an action to recover the balance. Fen- 
 wick V. Phillips, 3 Met. 88. 
 
406 PEDDLERS. 
 
 PEDDLBES. 
 
 1. Contracts made with peddlers, who have no license, to pay 
 for goods purchased of them, which were not manufactured in 
 Kentucky, are void, and no recovery can be had for the value of 
 such goods. Bull v. Harragan, 17 B Mon. 352. 
 
 2. An indictment for peddling, which charges that the defend- 
 ant did peddle " and sell " in the county of M., buggies and pleasure 
 carriages, not having a license to peddle the same, and said articles 
 not being the product or manufacture of the State of Kentucky, 
 is not good. The particular acts relied on should be specified. 
 Commonwealth v. Dudley, 3 Met. 221, 222. 
 
 PBESONAL PEOPBETT. 
 
 1. The owner of an oil well, from which oil had been taken by 
 the defendants, may maintain an action for its recovery, and on 
 making the proper affidavit, and giving bond, as required in an 
 action for the immediate delivery of personal property, may have 
 it delivered to him. Sail v. Eeed, 15 B. Mon. 488. 
 
 2. The obligors in a bond, given to retain personal property 
 ordered to be delivered to the plaintiff in an actionfor the recovery 
 of specific personal property, are only bound for the performance 
 of the judgment of the court in reference to such property, that is 
 for its delivery, or its value and damages for its detention. McKee 
 V. Pope, 18 B. Mon. 556. 
 
 3. If the plaintiff, in an action to recover specific personal prop- 
 erty, procures an order of delivery, under which the property is 
 taken and delivered to him, and the defendant contests his right 
 to the property and the jury returns a verdict for the "defendant" 
 simply, without fixing the value of the property, it is fatally defect- 
 ive, and a judgment for the supposed value of the property, as 
 fixed by the court from the proof, is erroneous. Young v. Parsons, 
 2 Met. 499, 500; sec. 360, Civil Code. 
 
 4. An action for personal property may be maintained against a 
 person who has had the possession, although he did not have it at 
 the time the action was commenced. Easley v. Easley, 18 B. Mon. 
 92 ; Bush v. White, 3 Mon. 103 ; Pool v. Adkinson, 1 Pana, 118. 
 
PLEADINGS IN CIVIL ACTIONS. 407 
 
 5. A wife, residing with h©r husband, has no right in an action 
 at law against him for possession of slaves, to have an order for thp 
 delivery of the possession to her. Matson v. Matson, 4 Met. 265, 
 266. 
 
 6. The owner of a horse which had been stolen is not divested 
 of his title by the purchase by the government from the thief or 
 his vendee, and such owner may recover the horse from the vendee 
 of the government. Bassett v. Green, 2 Duv. 561 ; Porter v. Botts, 
 2 Duv. 366. 
 
 PLEADINGS IN CIVIL ACTIONS. 
 
 I. Generally. 
 II. Petition. 
 
 III. Answer. 
 
 IV. Reply. 
 
 V. Cross-petition. 
 VI. Demurrer. 
 VII. Amendments. 
 VIII. Verification. 
 
 IX. Failure to plead. See Judgment. 
 
 I. GENERALLY. 
 
 1. In considering a demurrer, exhibits, referred to in the plead- 
 ings demurred to, must be taken into view as controlling any 
 statement inconsistent with them. Bush v. Madeira, 14 B. Mon. 
 213; Collins v. Blackburn, 14 B. Mon. 254. 
 
 2. The circuit court may allow pleadings to be amended after 
 the trial has been commenced, when it is apparent that the ends of 
 justice require it. Rogers v. Rogers, 15 B. Mon. 377. 
 
 3. Pleadings must contain a statement of the facts relied on and 
 not conclusions of law, arising from facts not stated; nor should 
 the evidence by which the facts relied on are proved to be stated. 
 Bentley v. Bustard, 16 B. Mon. 686. 
 
 4. The only proceedings, allowed by the Code as originally 
 adopted, were the petition, reply, and demurrer by the plaintiff and 
 answer, demurrer, set-off, or counter-claim by the defendant. 
 Sanders v. Sanders, 17 B. Mon. 13. 
 
 5. The facts, relied on in a pleading, should be directly and 
 positively stated, and should not be stated by way of argument, 
 inference, or belief Patterson v. Caldwell, 1 Met. 492 ; Walters v. 
 Ghinn, 1 Met. 502; Garnett v. Finnell, 2 Duv. 167. 
 
408 PLEADINGS IN CIVIL ACTIONS. 
 
 6. Pleadings should be construed most strongly against the 
 pleader, and words of doubtful character, or words used in an 
 equivocal sense, are to receive an interpretation unfavorable to 
 the party using thenai. Covington v. Powell, 2 Met. 230. 
 
 7. An allegation, that a person was at a stated time "judicially 
 found to be of unsound mind," is not an averment of the fact, that 
 he was of unsound mind. Gregory v. McFarland, 1 Duv. 60, 61. 
 
 8. The provisions of section 144, Civil Code, which declare that 
 neither presumptions of law nor matters, of which judicial notice 
 is taken, need be stated in a pleading, do not refer to legal conclu- 
 sions, such as nil debet, but to those presumptions of fact, which the 
 law raises upon the ascertainment of other facts. Gregory v. 
 McFarland, 1 Duv. 60. 
 
 II. PETITION. 
 
 A. What U must contain. 
 
 B. How and when defects may he taken advantage of. 
 
 C. What defects may be cured by answer. 
 
 a. What it must contain. 
 
 1. The Code of Practice requires that the petition should con- 
 tain a statement of the facts, constituting the plaintiff's cause of 
 action, and it is not sufficient to state in the petition a part of the 
 facts, relied on and necessary to make the plaintiff's cause of action 
 complete, and refer to a paper filed with a petition for the other 
 necessary facts. All the facts, necessary to a complete cause of 
 action, must be stated in the petition. Hill for Wintersmith v. 
 Barrett, 14 B. Mon. 84; Collins v. Blackburn, 14 B. Mon. 254; 
 Mountjoy v. Pierce, 4 Met. 99 ; Biggs v. Malthy, 2 Met. 89. 
 
 2. A petition, founded on an appeal bond, should 8%t forth so 
 much of the bond and decree or judgment appealed from as will 
 show the undertaking of the obligors, and such facts as will show 
 a breach and the injury resulting therefrom. Collins v. Blackburn, 
 14 B. Mon. 255; Biggs v. Maltby, 2 Met. 89; Mountjoy v. Pierce, 4 
 Met. 99. 
 
 3. If a petition sets out a promise, to answer for the conduct of 
 another, and fails to show it was in writing, no judgment can be 
 rendered; although the defendant fails to plead and rely on the 
 statute. Smith v. Fah, 15 B. Mon. 446; Byasse v. Beese, 4 Met. 
 373. 
 
 4. A petition, for a breach of covenant containing conditions, 
 need not aver, that the non-compliance of the defendant was not 
 justified by the conditions. Bentley v. Bustard, 16 B. Mon. 675. 
 
PLEADINGS IN CIVIL ACTIONS. 409 
 
 6. In an action for failure to pay money subscribed as stock in 
 a corporation, it is not necessary to set out at length the facts 
 showing a performance by the corporation of the conditions, on 
 which the money was payable; it will be sufficient to aver gener- 
 ally, that all the conditions have been complied with. H. & N. B. 
 B. Co. V. Leavell, 16 B. Mon. 361. 
 
 7. If the obligation, imposed on subscribers to the stock of a 
 corporation, be prescribed by the charter, it will be unnecessary, 
 in an action to recover the amount, to state the conditions. JI. & 
 N. B. B. Co. V. Leavell, 16 B. Mon. 361. 
 
 8. It is not necessary in an action, by a corporation, to state that 
 it had been legally organized according to its charter. S. &. N. 
 B. B. Co. V. Leavell, 16 B. Mon. 363. 
 
 9. The plaintiff need not aver his readiness to perform an act, 
 required of him, to be performed after the defendant has performed 
 that for which he is sued. H. & N. B. B. Go. v. Leavell, 16 B. Mon. 
 363. 
 
 10. A petition for a forcible injury should state such facts .as, 
 before the Code, would have authorized an action of trespass ; and if 
 the action is for negligence or a want of skill, the petition should 
 state such facts as would have constituted an action on the case. 
 Kountz V. Brown, 16 B. Mon. 584. 
 
 11. A petition, against a judge of an election for corruptly refus- 
 ing the plaintiff's vote, must allege, that one judge and the sheriff 
 or both judges concurred in refusing the vote. Caulfield v. Bullock, 
 18 B. Mon. 497. 
 
 12. It is not necessary in an action, on a contract made by the 
 defendant (a corporation) to aver that the obligor had authority to 
 make it. Shelbyville v. Shelbyville, etc., T. Co. 1 Met. 57. 
 
 13. A petition against a personal representative need not aver, 
 that the afiQdavit, required by the Revised Statutes, and demand, 
 required by the Civil Code, had been made. Bogers v. Mitchell, 1 
 Met. 24; Thomas v. Thomas, 15 B. Mon. 184. 
 
 14. It is not necessary in order to maintain an action, against the 
 husband and wife, upon a contract of the latter, made dum sola, to 
 aver that the husband received property by the wife. Beaumont v. 
 Miller, 1 Met. 70. 
 
 15. The petition, in an action on an assigned note, must state 
 such facts as show that the plaintiff is the owner of the note. The 
 assignment on the note, which is not copied into the petition nor 
 referred to, is not sufficient for this purpose. Dodd v. King, 1 Met. 
 431; Haney v. Tempest, 3 Met. 98. 
 
410 PLEADINGS IN CIVIL ACTIONS. 
 
 16. An averment, in a petition on a constable's bond for failure 
 to collect fee bills listed with him, that the "plaintiff believes he 
 has collected the money thereon ; if he has not, it is his own neglect 
 and fault," is not sufficient to charge the constable with the uncol- 
 lected fee bills. Walters v. Chinn, 1 Met. 502 ; Garnett v. Finnell, 
 2 Duv. 166, 167. 
 
 17. In an action for personal injuries, resulting from negligence, 
 it is sufficient to allege, in general terms, that the injury com- 
 plained of was occasioned by the carelessness and negligence of 
 the defendant. Chiles v. Brake, 2 Met. 149. 
 
 18. A petition, on a promissory note payable in bank, which 
 alleges, that the defendants, whose names were indorsed in blank 
 on the back of the note, "made the indorsement at, and before, the 
 delivery thereof to the plaintiffs, whereby they intended to be 
 equally bound as obligors," is not good on demurrer. Kellogg v. 
 Dunn, 2 Met. 216, 217. 
 
 19. In such a case, the petition should allege that they indorsed 
 it in order to enable the payee to have it discounted in bank, or 
 that they did so for the purpose of guaranteeing its payment. Kel' 
 logg V. Dunn, 2 Met. 217. 
 
 20. If a petition on a note states its amount, when it was due, 
 and that it is wholly unpaid, and that the note is filed, it is good. 
 Totten V. Cooke, 2 Met. 279. 
 
 21. An allegation, that the "defendant is indebted to the plain- 
 tiff in the sum of seven hundred and seventy-nine dollars, due by 
 note herewith filed," is sufficient to make the note part of the peti- 
 tion. Totten V. Cooke, 2 Met. 279. 
 
 22. A petition for a breach of contract, which avers that, on the 
 
 day of , 1851, the defendant proposed to the plaintiff 
 
 that if he would come and live with him, he would do as well, or 
 
 better, by him than he could do at his trade, and that, on the 
 
 day of — — , 1851, he went and did live with the defendant, is 
 
 defective in not showing that the offer had been accepted in a 
 reasonable time after it was made. Moxley v. Moxley, 2 Met. 311. 
 
 23. Nor would an allegation of the breach of such a contract in 
 these words be good : "The plaintiff avers that his business, trade, 
 etc., were worth twelve hundred dollars per year, of which defend- 
 ant had notice, yet the defendant had failed to pay plaintiff any 
 part of said sum," though often requested. Moxley v. Moxley, 2 
 Met. 312. 
 
 24. A petition on a bail bond taken in a civil action, which fails 
 to allege that the bond was executed in the presence of a, sheriff or 
 
PLEADINGS IN CIVIL ACTIONS. 411 
 
 other officer authorized to take bail, is defective. Jones v. Bunn, 
 2 Met. 491 ; sec. 190, Civil Code ; McMahan v. Knox, 4 Bibb, 450. 
 
 25. The petition in such a case must also allege that the judg- 
 ment has not been paid. Jones v. Bunn, 2 Met. 492. 
 
 26. In a suit, on a contract to deliver a given quantity of coal, 
 to recover a balance of the price, and for an excess over the 
 amount specified in the contract, the petition must allege the value 
 of the excess. Caldwell, Hunter & Go v. Dawson, 4 Met. 122. 
 
 27. In an action for slander, the specific words in which the 
 slander was conveyed must be set forth in the petition ; it is not 
 sufficient to state merely the effect of the words, or that the 
 defendant charged the plaintiff with the commission of a par- 
 ticular crime. Taylor v. Moran, 4 Met. 137. 
 
 28. A petition for dower, in land sold by the plaintiff's husband, 
 should show that the land was owned by the husband during 
 coverture. Taney v. Smith, 2 Met. 411. 
 
 29. In an action by a corporation against stockholders to recover 
 the amount of their subscription, if the charter provides that the 
 company shall not be organized until a given amount of stock is 
 subscribed, it is necessary to aver that that amount had been sub- 
 scribed. Fry V. Z. & B. S. JR. JR. Co., 2 Met. 324. 
 
 30. When notice of the acceptance of a guaranty is necessary 
 the allegation of notice in an action on the guaranty should be 
 special, and such as would enable the court to determine from the 
 statement whether the notice was given as required by law. The 
 general averment, "of all of which the defendants had notice," is 
 not sufficient. Steadman v. Guthrie, 4 Met. 159. 
 
 31. The statement in a petition of a legal conclusion, without 
 the facts on which it is founded, is insufficient. Bansdall v. Shrop- 
 shire, 4 Met. 330 ; Quinsenberry v. Artis, 1 Duv. 30. 
 
 32. A petition by a surety against his co-surety must allege the 
 insolvency of the principal. Bowling v. JDoneghy, 1 Duv. 221. 
 
 33. A petition, which shows a legal right in the plaintifi', and 
 an injury to that right by the defendant, is good on general de- 
 murrer. Thurman v. Morrison, 14 B. Mon. 369, 370. 
 
 34. A petition for dower, alleging legal seizin in the husband, 
 and a sale by him without the concurrence of the plaintiff, and 
 that the plaintiff " is entitled to the use for life of one-third of each 
 of said tracts as dower therein," is good without an express aver- 
 ment that the plaintiff was the wife of defendant's grantor at the 
 time of the sale. Fritz v. Tudor, 2 Duv. 174. 
 
412 PLEADINGS IN CIVIL ACTIONS. 
 
 35. A petition, alleging that the plaintiff placed two hundred 
 and fifty dollars in the hands of defendant to be used to procure a 
 substitute for plaintiff in the event he was drafted, but the money 
 to be refunded if he were not drafted, and that plaintiff was not 
 drafted, is good. Yewell v. Bradshaw, 2 Duv. 573. 
 
 36. A petition against the fraudulent or voluntary grantee of a 
 decedent to subject the property conveyed to pay a judgment, 
 obtained after the death of the grantor, against his pergonal repre- 
 sentative, must contain a statement of the facts constituting the 
 original cause of action. Alexander & Lancashire v. Quigley, 2 
 Duv. 404-406; 2 Bibb, 547; 4 Litt. 355; 6 Mon. 1 ; 7 J. J. Mar. 
 376 ; 10 B. Mon. 75, 76. 
 
 b. Sow and when defects may be taken advantage of. 
 
 1. After a demurrer to a petition is overruled and answer filed, 
 no further objections can be taken to the petition except for mat- 
 ters available in arrest of judgments. Duncan v. Brown, 15 B. 
 Mon. 196, 197. 
 
 2. Defect of parties, appearing on the petition, may be taken 
 advantage of by demurrer. Dean v. English, 18 B. Mon. 136. 
 Yeates v. Walker, 1 Duv. 85. 
 
 3. If the petition shows a misjoinder of parties, either plaintiff 
 or defendant, it is not grounds of demurrer ; but should be reached 
 by a motion, to strike out those improperly joined. Dean v. Eng- 
 lish, 18 B. Mon. 136. 
 
 4. Where it appears by the petition, that the plaintiff has not 
 legal capacity to sue, a failure to demur will be a waiver of the 
 objection. Petty v. Malier, 14 B. Mon. 248. 
 
 5. If causes of action are improperly joined in the petition, the 
 only mode of making the objection is by motion to strike out, 
 before filing the answer, and if not so taken, the objection is 
 waived. Hancock v. Johnson, 1 Met. 245 ; sees. 113, 114, Civil Code. 
 
 e. What defects may be cured by answer. 
 
 1. If a petition is defective, and the defect is cured by the an- 
 swer, and the plaintiff's case is made out by proof, the case will 
 not be reversed by the defect in the petition. Bentley v. Bustard, 
 16 B. Mon. 675. 
 
 2. The Code has not changed the long and well-settled rule of 
 practice, that defective allegations of the petition may be supplied 
 and cured by the answer; and when, in an action, on a bond of 
 indemnity to the sheriff to secure the sale of property under exe- 
 
PLEADINGS IN CIVIL ACTIONS. 413 
 
 cution, the petition failed to set out fully the terms and conditions 
 of the bond, and this defect was substantially cured by the an- 
 swer — Held: After verdict, that a new trial should not b^ 
 awarded for this defect. Biggs v. Malthy, 2 Met. 90; Fible v. 
 Caplinger, 13 B. Mon. 466. 
 
 III. ANSWER. 
 
 1. A defendant alleged that he was only surety in the note sued, 
 and that the plaintiff, without his knowledge or consent, gave the 
 principal indulgence after the note fell due, in consideration of a 
 promise by the latter to pay a greater interest than six pei- cent., 
 and the payment of $ toward that interest. Held: The an- 
 swer was not good. Patten v. Shanklin, 14 B. Mon. 17. 
 
 2. A defendant may set forth in his answer as many grounds of 
 defense, whether legal or equitable, as he shall have. Bosley v. 
 Mattingly, 14 B. Mon. 91. 
 
 3. A plea of accord and satisfaction, averring the payment of a 
 less sum than was due, is not good. Williams v. Langford, 15 B. 
 Mon. 569, 570. 
 
 4. An answer, to an action on a bill of exchange, that the de- 
 fendants do not owe and ought not to pay, "for they do not admit 
 the regular protest thereof and notice," etc., as charged in the 
 petition, but require proof, is bad on demurrer. Clark v. Finnell, 
 16 B. Mon. 335. 
 
 5. An averment in an answer, that the goods, for the non- 
 delivery of which the defendant is sued, were lost by unforeseen, 
 inevitable accident, is not good. The facts, showing why the 
 accident was unforeseen, inevitable, or unavoidable, should have 
 been stated. Bentley v. Bustard, 16 B. Mon. 686. 
 
 6. An answer, which shows that the plaintiff has no legal right 
 to sue, is good, although the party, who has the legal right, is a 
 defendant, and makes no objection to the prosecution of the suit in 
 the name of the plaintiff. Worthington v. Greer, 17 B. Mon. 748. 
 
 7. An answer to a suit on notes given for capital stock in a 
 bank in process of liquidation, averring that there is a sufficiency 
 of assets, without the note, to pay the liabilities of the bank, is not 
 good. Finnell v. Sandford, 17 B. Mon. 761. 
 
 8. In an action on a merchant's account, an answer, that the 
 " defendant denies that he is to the best of his knowledge or belief 
 indebted to the plaintiff as stated in his petition," is not good. 
 Francis v. Francis, 18 B. Mon. 60. 
 
414 PLEADINGS IN CIVIL ACTIONS. 
 
 9. The answer must deny each material allegation of the peti- 
 tion, intended to be controverted, or any knowledge or informa- 
 tion sufficient to form a belief. Morton v. Warring, 18 B. Mon. 82 ; 
 Corhin v. Commonwealth, 2 Met. 380. 
 
 10. That there remains ample real estate of the intestate for the 
 satisfaction of the debt of a party suing for a devastavit, is not a 
 defense to the action. McCalla v. Patterson, 18 B. Mon. 211. 
 
 11. That the " defendant knows nothing of his own knowledge " 
 as to a particular allegation of the petition, is not sufficient to put 
 the plaintiif on the proof The answer should deny any knowledge 
 or information upon which the defendant could found a belief. 
 Terrill v. Jennings, 1 Met. 454. 
 
 12. An answer, alleging that the defendants have no knowledge 
 of any of the facts set up, in the petition, as the foundation of the 
 plaintiff's claim, and no means of forming a belief, and therefore 
 deny them all and require proof, presents no obstacle to a recovery, 
 and other matters of defense set up in the answer, which are in- 
 consistent with the facts thus impliedly admitted, are unavailing, 
 Corhin v. Commonwealth, 2 Met. 381, 382. 
 
 13. An answer, alleging that a paper sued on was procured by 
 the fraud, covin, and misrepresentations of the plaintiff, is good. 
 Whitehead v. Boot, 2 Met. 588. 
 
 14. An allegation, in an answer of new matter, not constituting 
 a counter-claim or set-off, should be considered as controverted 
 without a denial, and must be proved by the defendant. Bailey & 
 Varnon v. Mitchell, 3 Met. 51 ; Mitcheson v. Foster, 3 Met. 325. 
 
 15. New matter, not responsive to the petition, can not be given 
 in evidence, unless it be stated in the answer. Denton v. Logan, 
 3 Met. 435. 
 
 16. That the defendant "has not knowledge or information to 
 constitute a belief whether there is eleven and one-half acres of 
 surplus land above the one hundred and sixty, and denies that he 
 is indebted" on account of said surplus, is equivalent to a denial 
 of any knowledge or information thereof sufficient to form a 
 belief Hutchings v. Moore, 4 Met. 114. 
 
 17. A statement in an answer, that, at the time of the execution 
 of the note sued on, the defendant was an infant under twenty-one 
 years of age, is sufficient. Stern v. Freeman, 4 Met. 311. 
 
 18. An objection to an answer, that it contains several defenses 
 in one paragraph, should be taken advantage of by a motion to 
 strike out, and state in separate paragraphs. Williams v. Lang- 
 ford, 15 B. Mon. 569. 
 
PLEADINGS IN CIVIL ACTIONS. 415 
 
 19. A meritorious answer should not be rejected at any time 
 before the cause is submitted for decision, although an order had 
 been previously made taking the petition for confessed. Alexander 
 & Lancashire v. Quigley, 2 Duv 402. 
 
 20. An allegation in a petition against the defendants as indor- 
 sers of a bill of exchange, that the Curlew Coal Company indorsed 
 the bill, and that the defendants were members of the company, is 
 sufficiently answered by a denial that the defendants were mem- 
 bers of that company. It would have been otherwise if the 
 allegation had been that they indorsed the bill in that name. 
 Curlew Coal Co. v. Grief, 2 Duv. 528, 529. 
 
 IV. REPLY. 
 
 1. If an answer presents an immaterial issue on the petition, 
 but contains a counter-claim, no judgment can be rendered on the 
 petition until a trial of the issue made by the answer and reply. 
 Moore v. Garuthers, 17 B. Mon. 681. 
 
 2. The Code does not authorize a reply, except to a counter- 
 claim or set-off. Barharoux v. Barker, 4 Met. 49. 
 
 3. A reply may contain any matter of avoidance, which might 
 formerly have been set forth by replication, provided it is not in- 
 consistent with the petition. Barbaroux v. Barker, 4 Met. 49. 
 
 4. If a reply contains matter inconsistent with the petition, the 
 defendant should object to its being filed, or move to strike out the 
 inconsistent matter ; and if he fails to do so, he can not raise the 
 objection in the court of appeals. Barbaroux v. Barker, 4 Met. 
 49. 
 
 5. In an action on a note, where the defendant pleaded infancy, 
 the plaintiif need not reply or amend his petition, in order to 
 prove and avail himself of a subsequent ratification. Stern v. 
 Freeman, 4 Met. 313. 
 
 6. A reply to a set-off, denying the correctness of each and 
 every item of debit in the account sued on, is bad. Whitaker v. 
 Sandifer, 1 Duv. 262. 
 
 7. Where, in an action for assault and battery, the defendant 
 pleads a counter-claim, to which the plaintiif fails to reply, the 
 court can not instruct the jury to find for the defendant the amount 
 of damages claimed in the answer; the jury must determine from 
 the evidence the amount of damages. Slone v. Slone, 2 Met. 340, 
 341 ; sec. 153, Civil Code. 
 
 8. No reply is necessary, in order to put a defendant on the 
 proof of facts alleged in his petition to be made a party, which is 
 
416 PLEADINGS IN CIVIL ACTIONS. 
 
 filed as his answer, and which do not constitute a set-ofif or coun- 
 ter-claim. Graves v. Ward, etc., 2 Duv. 304. 
 
 V. CEOSS-PETITION. 
 
 1. "Where one defendant seeks a recovery or relief against a co- 
 defendant, his answer should assume the character of a cross- 
 petition against the other, to which the other, being served with 
 process on the cross-petition, may answer, and the former reply, if 
 required or justified by the response. Horine v. Moore, 14 B. Men. 
 311, 312. 
 
 2. The executor and a part of the devisees of S. filed a petition 
 to sell the real estate devised by the testator ; those made defend- 
 ants made their answers cross-petitions against the plaintiifs, 
 charging that the paper exhibited was not the true last will of S. 
 Held: That under the Code, the defendants could not thus attack 
 the will. Sanders v. Sanders, 17 B. Mon. 12, 13 ; Crahtree v. Banks, 
 1 Met. 484. 
 
 3. Nor does the act of December 16, 1857 (Myers' Code, 39), 
 authorize a cross-petition in such a case. By that act, cross- 
 petitions are allowed where a defendant has a cause of action 
 affecting the subject-matter of the main or original action. Crab- 
 tree V. Banks, 1 Met. 485. 
 
 VI. DEMURRER. 
 
 A. Generally. 
 
 B. To the petition. 
 
 C. To the answer. 
 
 a. Generally. 
 
 1. The facts stated in a pleading must, on demurrer, be taken 
 as true ; but exhibits referred to must be taken into view as con- 
 trolling any statement inconsistent with them. Bush v. Madeira, 
 14 B. Mon. 213. 
 
 2. Failing to demur for want of jurisdiction will not be a waiver 
 of the objection, but it may be made at any time, ffufhey v. Sid- 
 well, 18 B. Mon. 261. 
 
 3. A demurrer brings the whole of the pleadings before the 
 court and in deciding upon it, it is the duty of the court to decide 
 against the party, who committed the first fault. If the demurrer 
 be by the plaintiff and the petition is defective, the demurrer 
 should be sustained to the petition. Young v. Buhme, 4 Met. 242 ; 
 Mitchell V. Mattingly, 1 Met. 239; Martin v. McDonald, 14 B. Mon. 
 548; Zytle v. Lytle, 2 Met. 128; sec. 123, Civil Code; Mitchell v. 
 Vance, 5 B. Mon. 528; Burney v. Haren, 3 A. K. Mar. 322. 
 
PLEADINGS IN CIVIL ACTIONS. 417 
 
 4. An error, in sustaining a demurrer, need not be excepted to, 
 but is available without it. Coffman v. Wilson, 2 Met. 543. 
 
 5. Where, in an action to recover real estate, the plaintiff sets 
 out specifically his title — consisting in part of a sale under execu- 
 tion and sheriff's deed — and it appears from the petition and 
 exhibits that the sale was not made on the first day of a circuit or 
 county court, the petition should be adjudged bad on a demuri-er 
 to the answer. Wile v. Sweeny, 2 Duv. 162. 
 
 b. To the petition. 
 
 1. That the plaintiff has not legal capacity to sue, if appearing 
 in the petition, is ground of demurrer. Fetty v. Malier, 14 B. Mon. 
 
 248. 
 
 2. A general demurrer should be overruled, if the petition shows 
 a legal right in the plaintiff and an injury to that right by the 
 defendant. Thurman v. Morrison, 14 B. Mon. 369, 370. 
 
 3. Demurrer will not reach the question, whether the facts stated 
 in the petition show an equitable or legal right to relief. If the 
 petition is good, either at law or in equity, a demurrer to the 
 jurisdiction should not be sustained. Trustees of Lebanon v. For- 
 rest, 15 B. Mon. 171, 172. 
 
 4. After a demurrer to a petition is overruled and answer filed, 
 no objection to the petition is available, unless it amounts to cause 
 for arrest of judgment. Duncan v. Brown, 15 B. Mon. 196. 
 
 5. The want of proper parties, appearing from the petition, may 
 be taken advantage of by demurrer. Johnson v. Chandler, 15 B. 
 Mon. 589; Carpenter v. Miles, 17 B. Mon. 602; Vanbuskirk v. I/evj/, 3 
 Met. 136. 
 
 6. If a petition in equity fails to show that the plaintiff is entitled 
 to the relief sought, but shows he is entitled to relief at law, a 
 demurrer should not be sustained, but the action should be trans- 
 ferred to the ordinary docket. Foster v. Watson, 16 B. Mon. 387. 
 
 7. That the petition shows another action, pending between the 
 same parties for the same cause of action, is ground of demurrer. 
 Moore v. Shepherd, 1 Met. 100; sec. 120, Civil Code. 
 
 8. A demurrer to "the whole case" puts in issue the sufficiency 
 of each fact alleged in the original petition and amendments. Miles 
 V. Collins, 1 Met. 311. 
 
 9. On the trial of a demurrer, on the ground that a petition does 
 not state facts constituting a cause of action, no other ground of 
 demurrer can be considered. Lee v. Wallfir, 3 Met, 65. 
 
 28 
 
418 PLEADINGS IN CIVIL ACTIONS. 
 
 10. On general demurrer to a petition, its sufficiency should not 
 be tested by blending with its averments any matter of defense 
 which the defendant may have, though it consist of a writing 
 signed by the plaintiff and exhibited with the answer. Yewell v. 
 Bradshaw, 2 Duv. 574. 
 
 11. If the petition shows a misjoinder of parties, plaintiff or 
 defendant, it is not grounds of demurrer, but should be reached by 
 a motion to strike out. Dean v. English, 18 B. Mon. 136. 
 
 12. Defect of parties, to constitute grounds of demurrer, must 
 appear from the petition. Morrison v. Tate, 1 Met. 570. 
 
 13. If an answer and a demurrer to the petition be filed at the 
 same time, the fact, that the parties proceeded to trial without 
 objection and without noticing the demurrer, authorizes the infer- 
 ence that it was waived or overruled. If the petition be good, the 
 failure to dispose of the demurrer will not avail for reversal. Dan- 
 ville T. B. Co. V. Stewart, 2 Met. 120. 
 
 14. Even if a petition for the mere purpose of an execution or 
 rescission of a contract be premature, yet, if it shows a present 
 equity for an injunction, as well as probable ground for the 
 future action of the court in behalf of the plaintiff, a demurrer 
 should not be sustained. Kelly v. Kelly, 2 Duv. 364. 
 
 c. To the answer. 
 
 1. That several defenses, set out in an answer, are not each in a 
 separate paragraph, is not ground of demurrer, but should be 
 taken advantage of by motion, to have them set out separately. 
 Williams v. Langford, 15 B. Mon. 569. 
 
 2. A demurrer to an answer, containing several defenses in one 
 paragraph, all of which are good except one, if to the whole answer 
 should be overruled, but if to that part or defense which is not 
 good, it should be sustained. Williams v. Langford, 15 B. Mon. 
 569. 
 
 3. A demurrer to the answer will reach back to the petition, and 
 if that is bad, the demurrer to the answer should be overruled. 
 Mitchell V. Mattingly, 1 Met. 239; Young v. Duhme, 4 Met. 242; 
 Martin v. McDonald, 14 B. Mon. 548; Lytle v. Dytle, 2 Met. 128; 
 sec. 123, Civil Code; Mitchell v. Vance, 5 Mon. 528; Burney v. 
 Sauhn, 3 A. K. Mar. 322. 
 
 4. A demurrer to an answer brings the whole record before the 
 court, and judgment should be given against the party committing 
 the first material error in his pleadings. Wile v. Sweeny, etc., 2 
 Duv. 162. 
 
PLEADINGS IN CIVIL ACTIONS. 419 
 
 VII. AMENDMENTS. 
 
 1. The court may permit the pleadings to be amended, after the 
 trial has commenced, if it be apparent that the ends of justice 
 demand it. Rogers v. Rogers, 15 B. Men. 377. 
 
 2. Sections 159-162 inclusive of the Civil Code authorize such 
 amendments as relate to the case actually in court, and not to such 
 as constitute an entirely new case. The facts, alleged by way of 
 amendment, must be material to the case as presented in the 
 original complaint. They must serve to explain or perfect the 
 cause of action originally stated. Taylor v. Moran, 4 Met. 130; 
 Brookover v. Hurst, 1 Met. 667. 
 
 3. A party, seeking to recover on an express contract, may, if 
 he fails to prove the contract and proves an implied promise, 
 amend his pleading and recover on the latter. Frankfort Bridge 
 Go. V. Frankfort, 18 B. Mon. 49. 
 
 4. In an action of slander, a slander uttered subsequent to the 
 bringing of the suit, can not be set up in an amended petition. 
 Taylor v. Moran, 4 Met. 130. 
 
 5. In an action on a note, the defendant pleaded that it contained 
 one hundred and sixty dollars of usury; the plaintiff rej)lied, 
 admitting that it contained thirty -six dollars and ninety-two cents 
 of usury. Upon a vague and unsatisfactory statement of a witness, 
 tending to show that there was no usury in the note, the plaintiff 
 had no right to amend his reply and deny that the note contained 
 any usury. Hubble v. Murphy, 1 Duv. 279. 
 
 6. Whether a warrant, in a case of forcible entry and detainer, 
 can be amended in the circuit court on a traverse. Quere. Powers 
 V. Sutherland, 1 Duv. 152. 
 
 7. But new parties can not be made to the case in the circuit 
 court by amendment. Powers v. Sutherland, 1 Duv. 152, 153. 
 
 8. "Where, on the petition of heirs for a division and sale of land, 
 the widow answered, consenting to a sale and to take the value of 
 her life estate in one-third of the land — Held : She should not have 
 been allowed to amend her answer and seek to treat the land as 
 personalty, and to have distribution of it as such. Sioan v. Good- 
 win, 2 Duv. 300. 
 
 VIII. VERinCATION. 
 
 1. That a petition was not verified, is not an available objection 
 after judgment; it should be taken by rule before judgment. 
 Harris v. Ray, 15 B. Mon. 630. 
 
420 POSSESSION. 
 
 2. An amended answer is required to be verified as other plead- 
 ings. Burgess v. Jacobs, 14 B. Mon. 520. i 
 
 3. The affidavit of an attorney, who verifies an answer, must 
 state that the defendant is absent from the county. Burgess v. 
 Jacobs, 14 B. Mon. 520. 
 
 4. An action for creating a private nuisance is an action for a 
 personal injury, and no verification of the petition is necessary. 
 May V. /Sellers, 1 Duv. 255 ; sec. 143, Civil Code. 
 
 POSSESSION. 
 
 I. Generally. 
 II. Adverse possession. 
 
 I. GENERALLY. 
 
 1. The possession of one, having title, can not be ousted by ari 
 occasional entry, and the cutting and hauling away of timber by 
 another. Caskey v. Lewis, 15 B. Mon. 32. 
 
 2. In order to render seven years possession available as a 
 defense to an action of ejectment, the defendant must show, that 
 during the seven years he had title ; and possession, held before he 
 became connected with the title, can not avail him. Hunter v. 
 Ayres, 15 B. Mon. 215, 216. 
 
 3. A purchaser, at sheriff's sale of the mortgagor's equity of 
 redemption, is entitled to the possession of the property as against 
 the mortgagor. Mercer v. Tinsley, 14 B. Mon. 274. 
 
 4. A judgment of eviction, in an action of ejectment, does not 
 change the possession, unless it be executed and an actual eviction 
 had. Petty v. Malier, 15 B. Mon. 603. 
 
 5. One, holding under a junior patent, whose inclosure and 
 actual possession does not extend within the senior patent, can 
 not be sued in ejectment for the land embraced in the interference 
 between the two patents. Franklin Academy v. Hall, etc., 16 B. 
 Mon. 474. 
 
 6. If neither party has title to land and the defendant, finding 
 it vacant, takes possession, erects a house, and puts in a tenant, 
 who abandons the possession to the plaintifP, who locks up the 
 
 I This case was decided under the Code, as originally adopted, and which 
 contained no provision similar to that in section 166 of the Code as now in 
 force; that section prpvides that the courts may permit the amendments, 
 allowed by chapter 8 of the Code, to be made without verification. 
 
POSSESSION. 421 
 
 house and leaves it, and the defendant enters again and holds it 
 the plaintiff can not maintain an action to regain possession. 
 Tucker v. Phillips, 2 Met. 419, 420. 
 
 7. If one enters upon land, to which he has no title and asserts 
 no claim, his possession inures to the benefit of the title-holder. 
 Russell V. Marks, 3 Met. 47. 
 
 8. Possession by a United States quartermaster of a stolen horse, 
 the branding and sale of him by such oflScer, can not negative the 
 superior title of the plaintiff, manifested by undisputed proof that 
 the horse was his. Bassett v. Qrem, 2 Duv. 561. 
 
 9. A settlement under the elder patent, even outside of the lap, 
 extends the constructive possession over the entire lap, unless 
 there was then an actual possession of it under the junior grant, 
 or the occupancy under the elder grant was not intended to inter- 
 fere with the lap. Jones v. McGauley, 2 Duv. 14. 
 
 10. And so also occupancy under a junior grant may construc- 
 tively extend the possession over an adjoining tract owned and 
 used by the occupant; but, to be allowed to have this effect, there 
 must be no adverse possession either actual or constructive. 
 Jones V. MeOauley, 2 Duv. 15. 
 
 11. There can be no constructive possession of the same land by 
 conflicting claimants. In the absence of any actual possession, if 
 there be any constructive possession, it must necessarily be in the 
 holder of the best title unless he has renounced it. One construc- 
 tive possession can not be ousted by another constructive posses- 
 sion by the claimant under the junior patent, nor will an occasional 
 trespass bar an action of ejectment. Jones v. McGauley, 2 Duv. 16. 
 
 12. A vendee, under a deed defining the boundaries of the land, 
 took possession in 1837, intending to hold all that had been con- 
 veyed to him, but, through mistake as to his eastern corner and 
 line, he left out a strip of forty-seven acres, a fraction of which 
 had been occupied since 1834 under an adverse claim, but there 
 had been no adverse possession, actual or constructive, of the 
 residue until eight years before the vendee sued for its recovery. 
 ffeld : That he was entitled to recover the forty -seven acres, ex- 
 cept the part that had been occupied since 1834. Baird v. Bell, 1 
 Duv. 385 ; Moskins v. Cox, 2 B. Mon. 306. 
 
 II. ADVERSE POSSESSION. 
 
 1. One, who enters as a co-tenant, but subsequently claims 
 adversely by open and public acts, asserting claim to all the land, 
 will be entitled to the benefit of his adverse holding from the time 
 it commenced. Qossom v. Donaldson, 18 B. Mon. 241. 
 
422 POSSESSION. 
 
 2. One joint owner of land, having it in possession and holding 
 and claiming it as his own, adversely to the rights of the other 
 joint owners, in such manner as to apprise them of the adverse 
 character of his possession, for a period of twenty years, may 
 thereby acquire a separate right to it, available against his co- 
 tenants and all other persons. Hussell v. Marks, 3 Met. 45, 46. 
 
 3. A possession may be adverse, under the statute of limitations) 
 which is not adverse under the champerty act. Barrett v. Co- 
 bum, 3 Met. 514 ; Baily v. Deakins, 5 B. Mon. 161, 162 ; Castleman 
 V. Combs, 7 Mon. 273; Griffith v. Dickens, 4 Dana, 561. 
 
 4. An individual may, by a continuous, peaceable, adverse, or 
 exclusive occapancy of grounds, dedicated to the public use, for a 
 period of twenty years, defeat the public right to the land. Alves 
 V. Town of Henderson, 16 B. Mon. 172. 
 
 5. One, who holds only the title of the tenant for life under 
 which he entered, does not hold adversely to the remainder-men, 
 so as to oust the chancellor of jurisdiction to decree partition 
 between the remainder-men and control the possession. Phillips 
 V. Johnson, 14 B. Mon. 176. 
 
 6. One who enters under a tenant for life, does not, and can not, 
 hold adversely to remainder-men, during the continuance of the 
 life tenancy. Turman v. White, 14 B. Mon. 569. 
 
 7. The possession of a tenant for life is not adverse as to the 
 remainder-men. Burns v. Bay, 18 B. Mon. 403. 
 
 8. A widow, in possession of land as dower, will be presumed to 
 hold consistently with her title ; and a conveyance, by those en- 
 titled in remainder, will not be champertous, unless the widow's 
 holding be openly and notoriously declared to be adverse to those 
 who have right. Driskell v. Hanks, 18 B. Mon. 864; Frazer v. 
 Naylor, 1 Met. 595. 
 
 9. So long as a purchaser looks to his vendor for title, the pos- 
 session of the former is not adverse to the title of the latter, but 
 when he takes a conveyance from another, his claim becomes 
 adverse. Gossom v. Donaldson, 18 B. Mon. 239. 
 
 10. The entry of one joint owner upon land, is not adverse, but 
 insures to the benefit of all, unless accompanied by some open and 
 public act, denying their right, and of which they are informed. 
 Gossom V. Donaldson, 18 B. Mon. 239; Young v. Adams, 14 B. 
 Mon. 130. 
 
 11. One who enters under the junior legal title, having the 
 superior equitable title, can not, by acquiring the elder legal title, 
 by means of his superior equitable title, fortify himself against the 
 
POWERS. 423 
 
 holder of the junior legal title. Gossom v. Donaldson, 18 B. 
 Men. 238. 
 
 12. Limitations will not bar an ejectment unless the adverse 
 possession has been not only actual, but so continued for twenty 
 years as to have furnished a cause of action every day during that 
 whole period. Jones v. McCauley, 2 Duv. 15. 
 
 POWBES. • 
 
 1. A married woman may make a will in pursuance to power 
 given her for that purpose. George v. Bussing, 15 B. Mon. 563- 
 565. 
 
 2. The chancellor has no power, on the death of the donee of a 
 discretionary power, before the power is executed, to assume to 
 act in the place of the donee in execution of the power, but will 
 divide the subject per capita among all the class out of which the 
 donee had a discretion to choose. McGaughey's Adm'r v. Henry, 
 15 B. Mon. 398 ; Flint v. Spurr, 17 B. Mon. 515, 516. 
 
 3. If property be conveyed to A. for his life, with power to dis- 
 pose of it, at his discretion, and he dies without executing the 
 power, the property will pass to the heirs of the grantor. Thomp- 
 son V. Vance, 1 Met. 677; McGaughey v. Henry, 15 B. Mon. 400; 
 Collins V. Carlisle, 7 B. Mon. 14. 
 
 4. A testator, by his will, gave his "executors" power to sell 
 land, to be exercised only with the consent of his surviving wife ; 
 in a subsequent clause, he appointed his wife his executrix and 
 sole representative. Held : The power to sell was vested in the 
 wife alone. Williams v. Williams, 1 Duv. 222. 
 
 5. A will, after two small bequests and a devise of the testator's 
 lands to his wife, for life, directed a sale of all his estate, except 
 that part disposed of by the two bequests and the devise to his 
 wife. Held : The remainder, in the land devised to the wife for 
 life, is embraced in the power to sell. Isaacs v. Swan, 1 Duv. 277. 
 
 6. A testator devised all his estate to his wife for life, or during 
 her widowhood, with power to sell any part of it during the con- 
 tinuance of her interest. Held: On suit by the ulterior devisees 
 after the death of the widow, to recover land sold by her, that 
 she had power to make the sale. Morse v. Cross, 17 B. Mon. 741. 
 
 7. A testator bequeathed to his widow certain personal property 
 with power to dispose of the same by will, or otherwise, as she 
 might chose ; he also devised to her a house and lot for life, and^ 
 
424 
 
 PRACTICE IN THE COURT OP APPEALS. 
 
 after his death she acquired the remainder interests, and then 
 married again ; and while covert, made a will disposing of both the 
 personalty and the house and lot. Held: The will was valid as to 
 the personalty only. Ford v. Ford, 2 Duv. 418. 
 
 8. A trustee may execute the powers conferred by the instrument 
 by which the trust is created, in the manner there designated, 
 without the aid of the chancellor, except where this power is 
 abridged by statute. O'Bannon v. Musselman, 2 Duv. 523. 
 
 PEACTICE IN THE COTJET OF APPEALS. 
 
 I. Generally. 
 II. What errors and irregularities will be deemed waived if made for the 
 first time in the court of appeals. 
 
 III. What errors and irregularities will not he waived by failure to except. 
 
 IV. What, though erroneous or irregular, is not available. 
 V. Damages on dismissal or affirmance. 
 
 VI. Mandate and proceedings after decision by the court of appeals. 
 
 I. QENEEALLT. 
 
 1. A party has no right to complain that the court altered an 
 instruction asked by him, which was erroneous. Commonwealth 
 for Ashby v. Gill, 14 B. Mon. 23, 24. 
 
 2. Matters en pais can not be pleaded in the court of appeals to 
 procure the affirmance of an erroneous decree, or the dismissal of 
 the appeal. Shropshire v. Shropshire, 14 B. Mon. 286. 
 
 3. A decree, erroneous on the face of the record, can not be 
 sustained by showing aliunde, that it was rendered by consent. 
 Shropshire v. Shropshire, 14 B. Mon. 286, 287. 
 
 4. If the original appeal be dismissed by the appellee on his own 
 motion or for other cause, the whole case is out of court and cross 
 errors, assigned by appellee, can not be considered. Crawford v. 
 Bashford, 16 B. Mon. 3, 4. 
 
 5. The court of appeals will, upon their own motion, award a 
 certiorari where the facts, appearing in the record, create a strong 
 presumption, that there has been a mistake in copying it. Frank- 
 lin Academy v. Hall, 16 B. Mon. 474. 
 
 6. Although the answer of the defendant be bad, yet, if it was 
 demurred to and the demurrer overruled, and the parties went to 
 trial and treated it as valid, and a verdict be found against the 
 defendant, he will not be precluded from a reversal for error to his 
 prejudice. Bentley v. Bustard, 16 B. Mon. 691, 
 
PRACTICE IN THE COURT OF APPEALS. 425 
 
 7. The court of appeals will take judicial notice of an act of the 
 legislature, creating a corporation, if it was relied on in the court 
 below ; whether it is embraced in the bill of exceptions or not. 
 Lachey v. R. & L. T. R. Co., 17 B. Mon. 47, 48. 
 
 8. It is only where an interlocutory order of the circuit court 
 determines some right pf the parties, that an agreement, making 
 it final, has been deemed sufficient to give the court of appeals 
 jurisdiction ; and the court is not disposed to enlarge that rule. 
 
 Overly v. Gray, 17 B. Mon. 146. 
 
 9. "When an appeal is prayed from a judgment of the circuit 
 court, when rendered, and the record is filed on or before the first 
 day of the second succeeding term of the court of appeals, no pro- 
 cess is necessary. The appellee is bound to take notice of the 
 filing of the record, though no supersedeas bond is executed within 
 ninety days. Cohh & Wood v. Waggoner, 17 B. Mon. 563. 
 
 10. Where it appears, from the bill of exceptions, that the 
 plaintiff had a, prima facie right to recover, and the court perempt- 
 orily instructed the jury to find for the defendant, the judgment 
 will be reversed ; although the bill of exceptions does not show 
 that it contains all the evidence. Easley v. Easley, 18 B. Mon. 93. 
 
 11. It is the duty of the court of appeals in a will case, coming 
 by appeal from the county court to the circuit court, and thence to 
 the court of appeals, to decide both questions of law and fact; and 
 in case the will is established, no new trial will be had in the 
 circuit court, although the judgment may be reversed. But it ia 
 otherwise, when the validity of the will was tried by a jury on an 
 issue of devisavit vel non out of chancery. Overton v. Overton, 18 
 B. Mon. 64-67; Sechrest v. Edward, 4 Met. 167; Sarah v. Miller, 
 1 Duv. 259, 260 ; sec. 28, chap. 106, p. 466, vol. 2, Eevised Statutes. 
 
 12. An answer, sworn to and lodged with the record and used 
 on the trial, though never noted on the record as filed, should be 
 regarded in the court of appeals as filed. Hawkins v. Ball, 18 B. 
 Mon. 819. 
 
 13. If the objections, made to the competency of a witness, are 
 held sufficient by the circuit court, but on appeal are found to be 
 insufficient, the party objecting can not rely on the fact that the 
 bill of exceptions fails to show, that it contains all the evidence, 
 and have an affirmance on the ground that other evidence not in 
 the bill of exceptions mjiy have shown him competent. Easley v. 
 Easley, 18 B. Mon. 94. 
 
 14. Where the circuit court decides alone on a special verdict, 
 and the finding of the jury can not be revised by the court of 
 
426 PKACTICE IN THE COURT OF APPEALS. 
 
 appeals, it can only decide on the correctness of the judgment on 
 the verdict and pleadings. JJisle v. Rogers, 18 B. Mon. 535. 
 
 15. The court of appeals will not disturb an allowance, made to 
 an executor, unless there has been an obvious abuse of discretion 
 by the circuit court. Cabell v. Cabell, 1 Met. 334. 
 
 16. A supersedeas can not be issued by the clerk of the court of 
 appeals until a copy of the records has been filed in his office. 
 Hunt V. Berryman, 2 Met. 240. 
 
 17. If two causes of action are set out in the same petition and a 
 trial is had, and a separate verdict and judgment on each, and one 
 is found on appeal to be correct, and the other erroneous, that 
 which is right will be affirmed and the other reversed. Totten v. 
 Cooke, 2 Met. 280. 
 
 18. If no petition is copied into the record, but from facts appear- 
 ing in the record, it is apparent that one had been filed and was 
 before the court when the judgment was rendered, it will be pre- 
 sumed it was good; Harvey v. Payne, 2 Met. 452. 
 
 19. If the record contains no bill of exceptions, it will be pre- 
 sumed, that the evidence heard was sufficient to warrant the judg- 
 ment. Commonwealth v. Bunnion, 3 Met. 4; Cooper v. Poston, 1 
 Duv. 93. 
 
 20. But if the record, of an action for a tort, fails to show that the 
 case was heard, or to state anything from which it may be inferred 
 that the court assessed the damages on proof, or if it shows the 
 judgment was by default, it will be reversed. Mead v. NeviU,Z. 
 Duv. 281. 
 
 21. The court of appeals will not reverse a judgment of con- 
 viction, in a criminal prosecution, for error in giving or refusing 
 instructions to the jury, unless it appears by the bill of exceptions 
 that the record contains all the instructions given. Clem v. Com- 
 monwealth, 3 Met. 12 ; Jane v. Commonwealth, 3 Met. 23 ; Smith v. 
 Commonwealth, 1 Duv. 225 ; sec. 335, Criminal Code. 
 
 22. An order, merely preliminary to the organization of a cor- 
 poration created to drain a district of country, which ascertains 
 the boundary of the district, but which does not, in any way, 
 affect the rights of those within the boundary, can not be reversed 
 by a part of those included in it, on the ground that a tax author- 
 ized by the charter, but which had not been levied, is unjust and 
 oppressive, and the act authorizing it unconstitutional. Combs v. 
 Jefferson Pond Draining Co., 3 Met. 73, 74, 
 
PRACTICI! IN THE COURT OF APPEALS. 427 
 
 23. That others, not parties, were necessary parties, can not be 
 relied on for a reversal by those whose duty it was to have made 
 them parties. Vandever v. Vandever, 3 Met. 138. 
 
 24. The court of appeals will not regard as evidence a paper 
 copied into the record, which does not appear to have been read 
 in the circuit court. Leeman v. Hinton, 1 Duv. 42 ; Vaughn v. 
 Mills, 18 B. Hon. 634 ; Bodd v. King, 1 Met. 431 ; Haney v. Tem- 
 pest, 3 Met. 96. 
 
 25. On an appeal from a verdict and judgnfent, rejecting a paper 
 offered as a will, the court of appeals will pronounce final judg- 
 ment, uninfluenced by the verdict, except where the evidence is 
 equiponderant. Sarah v. Miller, 1 Duv. 259, 260. 
 
 • 26. Failure of the court to reduce an instruction to writing, 
 when required by either party, will be ground for a reversal. 
 Ferguson v. Fox, 1 Met. 86. 
 
 27. In testing the correctness of instructions given on a trial for 
 murder, every fact which the jury was authorized to deduce from 
 the evidence, will be regarded as proved. Phillips v. Common- 
 wealth, 2 Duv. 328. 
 
 28. Where several eases not consolidated are heard together, 
 but each retained its distinct characteristics, and the judgment in 
 each is several, if the proceedings and judgment in any one ease 
 is erroneous, such errors must be fatal to that particular case, 
 however free the others may be from error. Anderson v. Sutton, 
 2 Duv. 484. 
 
 29. The court of appeals will not reverse a judgment, which was 
 right when rendered, although by a subsequent change of the law 
 it is rendered erroneous. Parish v. Hill, 2 Duv. 399. 
 
 II. WHAT ERRORS AND IRKEGULARITIES WILL BE DEEMED WAIVED, 
 IF MADE FOR THE FIRST TIME IN THE COURT OF APPEALS. 
 
 1. It is too late to object, for the first time, in the court of 
 appeals, to a charge of interest made by a commissioner against a 
 guardian. It should have been excepted to in the circuit court. 
 Collins V. Champ, 15 B. Mon. 123. 
 
 2. That the jury were not sworn in exact conformity to the 
 statute, is an objection that should be made at the time; and if not 
 made then, will not be available iu the court of appeals. Thomp- 
 son V. Blackwell, 17 B. Mon. 624, 625. 
 
 3. If the writer of the codicil to a will prove its execution by 
 the testator, and its attestation by the two subscribing witnesses, 
 neither of whom are produced on the trial, nor their absence 
 
428 PRACTICE IN THE COURT OF APPEALS. 
 
 accounted for, and no objection is made in the circuit court, it can 
 not be made in the court of appeals. Tudor v. Tudor, 17 B. Mon. 
 390. 
 
 4. All objections to the misjoinder of causes of action must be 
 taken in the circuit court, or they will be deemed to have been 
 waived. McKee v. Pope, 18 B. Mon. 555; Wilson v. Thompson, 
 1 Met. 127, 128 ; Bandall v. Shropshire, 4 Met. 328 ; sec. 161, Civil 
 Code. 
 
 5. If, pending suit; the cause of action be transferred, and the 
 assignee be substituted as plaintiff, and made answerable, by order 
 of court, for all past and future costs, and the defendant does not 
 then object to failure to require security for costs, he can not 
 object in the court of appeals. Warner v. Turner, 18 B. Mon. 
 761. 
 
 6. If depositions are taken without notice, and no exceptions 
 are taken in the circuit court, it will, on appeal, be deemed to 
 have been waived. Wehher v. Webber, 1 Met. 20. 
 
 7. Evidence, not objected to on the trial, can not be objected to 
 in the court of appeals. Clark v. Trail, 1 Met. 41, 42 ; Shippen v. 
 Gurry, 3 Met. 186. 
 
 8. That the foreign executor of a non-resident has failed to file 
 copies of his letters testamentary and give bond, as required by 
 statute, can not be objected, for the first time, in the court of 
 appeals. Wayland v. Forterfield, 1 Met. 640. 
 
 9. Failure of the court to reduce instructions to writing will be 
 ground for a reversal, if the party required it , to be done ; but if 
 his expressions are equivocal, it will not be sufficient. Ferguson 
 V. Fox, 1 Met. 86. 
 
 10. Objection for the want of necessary parties is waived, if 
 not made in the circuit court. Gill v. Johnson, 1 Met. 651, 
 652. 
 
 11. If the demurrer and answer be filed at the same time, the 
 fact that the parties proceeded to trial without objection, and 
 without noticing the demurrer, authorizes the inference that it 
 was waived or overruled ; and if the petition is good, the failure 
 to dispose of the demurrer will not be available. Danville, etc^, 
 T. B. Go. V. Stewart, 2 Met. 120. 
 
 12. It is too late, after trial and judgment in the court below, to 
 raise the objection in the court of appeals; for the first time, that 
 an order of reference to arbitrators had been made, and not dis- 
 posed of before trial. Danville, etc., T. E. Co. v. Stewart, 2 Met. 
 121. 
 
PRACTICE IN THE COURT OF APPEALS. 429 
 
 13. Exceptions to the exclusion of evidence must be taken at 
 the time, or error committed by the coui't will not be available in 
 the court of appeals. Clem v. Commonwealth, 3 Met. 11. 
 
 14. Judgment in a criminal case will not be reversed for error 
 in the instructions of the court, unless the bill of exceptions shows 
 it was excepted to when given. Burns v. Commonwealth, 3 Met. 
 17 ; Adwell v. Commonwealth, 17 B. Mon. 316. 
 
 15. When a cause is submitted by consent to a special judge, 
 and no objection is made in the circuit court to the person agreed 
 upon, objections to him will not be available in the court of 
 appeals. Vandever v. Vandever, 3 Met. 137, 138. 
 
 16. A party who objected to the giving of instructions, but did 
 not except to the decision of the court in reference thereto, can 
 not avail himself of error in the instructions. Cox v. Winston, 3 
 Met. 577. 
 
 17. Objection that plaintiff is but the equitable owner of the 
 debt sued for is waived, unless made by answer or demurrer. 
 Levi V. Mendell, 1 Duv. 79. 
 
 18. If a motion be set, by consent and agreement of parties, for 
 hearing on a particular day, it will be a waiver of all objections 
 to previous irregularities in the institution of the motion, and an 
 agreement that the motion is then regularly in court. Common- 
 wealth V. Marks, 2 Duv. 388. 
 
 19. An error in the date from which interest is to be computed, 
 or in allowing the cost of the protest of the note sued on, will not 
 be available, if raised, for the first time, in the court of appeals 
 Clark V. Finnell, 16 B. Mon. 334, 335. 
 
 III. WHAT ERRORS AND IRREGULARITIES WILL NOT BE WAIVED BY 
 
 FAILURE TO EXCEPT. 
 
 1. That the petition does not state facts, constituting a cause of 
 action, is a valid ground of reversal, whether the objection was 
 made in the court below or not. Walters v. Chinn, 1 Met. 503. 
 
 2. An error, in sustaining a demurrer, need not be excepted to, 
 but is available without it. Coffman v. Wilson, 2 Met. 543. 
 
 3. A final judgment need not be excepted to. Coffman v. Wilson, 
 2 Met. 543. 
 
 IV. WHAT, THOUGH ERRONEOUS OR IRREGULAR, IS NOT AVAILABLE. 
 
 1. A party can not complain of an instruction, which is wholly 
 abstract, if he is not prejudiced by it. Justice v. Mendell & McLan- 
 ■ahan, 14 B. Mon. 14; Bidgeley v. Price, 16 B. Mon. 420; Tudor v. 
 Tudor, 17 B. Mon. 393. 
 
430 PRACTICE IN THE COURT OP APPEALS. 
 
 2. Although the circuit court may transcend its legitimate pow- 
 ers in compelling those, not parties, to produce evidence, it will be 
 no ground for reversing the judgment. Dicker son v. Talbott, 14 B. 
 Mon. 66. 
 
 3. The court of appeal has no power to reverse a judgment of 
 the circuit court, in a criminal case, for error in refusing to grant 
 a new trial on the alleged ground, that one of the jury had, before 
 he was sworn, expressed an opinion adverse to the prisoner, which 
 fact was unknown to the accused or his counsel until after the 
 trial. Cornelius v. Commonwealth, 15 B. Mon. 544. 
 
 4. A judgment against the "defendant" in the plural, will, in 
 legal contemplation, be regarded only as a judgment against the 
 one served with process, and will not he reversed on the ground 
 that only one was served. Kountz v. Brown, 16 B. Mon. 585; Wal- 
 lace V. Martin, 17 B. Mon. 188. 
 
 5. The court of appeals will not reverse a judgment of convic- 
 tion in a criminal case, except for errors apparent in the record to 
 the prejudice of the defendant. Robinson v. Commonwealth, 16 B. 
 Mon. 618 ; Murphy v. Commonwealth, 1 Met. 367. 
 
 6. A judgment will not be reversed for a defect in the petition, 
 which is cured by the answer. Bentley v. Bustard, 16 B. Mon. 618 ; 
 Biggs v. Malthy, 2 Met. 90. 
 
 7. Though an action may be, in form, a suit at law, yet if the 
 parties tried and the court decided it without objection as an 
 equity as equity action, and it be a proper case for equitable 
 decision, the court of appeals will so regard it. Bates v. Culver, 17 
 B. Mon. 167. 
 
 8. The court of appeals will not reverse, for the exclusion of 
 depositions, if the party has been permitted to prove the same 
 facts by other evidence. Tudor v. Tudor, 17 B. Mon. 388. 
 
 9. When the court of appeals is satisfied, that the verdict of a 
 jury in a will case, coming by appeal from the county court to the 
 circuit court, and thence to the court of appeals, is right on the 
 evidence; it will not inquire whether the instructions given to the 
 jury are correct or not. Overton v. Overton, 18 B. Mon. 64, 65. 
 
 10. A judgment will not be reversed for an error in not setting 
 aside an indictment, or in overruling a demurrer thereto. Marston 
 V. Commonwealth, 18 B. Mon. 490. 
 
 11. The court of appeals can not inquire into the sufficiency of 
 the evidence to support the verdict in a criminal case. Tipper v. 
 Commonwealth, 1 Met. 10; sec. 334, Criminal Code. 
 
PRACTICE IN THE COURT OF APPEALS. 431 
 
 12. "When a question is asked a witness and objected to, and the 
 objection sustained, and the bill of exceptions does not show what 
 the party expected to prove by him, it will be no ground for 
 reversal, although the question may have been legal and proper. 
 Tipper v. Commonwealth, 1 Met. 12; Bowler v. Lane, 3 Met. 313. 
 
 13. Unless the variance between the allegations and proof be 
 Buch as to have mislead the adverse party to his prejudice, it will 
 be no grounds of reversal. Woodcock v. Farrel, 1 Met. 442, 443. 
 
 14. The court will not reverse a judgment because of error in 
 rejecting evidence, when, upon all the facts of the case, the rejected 
 evidence could not have altered the verdict. Smith v. Northern 
 Bank, Ky., 1 Met. 578, 579; Millet v. Parker, 2 Met. 613. 
 
 15. That evidence, offered by a defendant in a criminal case and 
 rejected by the court, was admissible, is not alone sufficient to 
 entitle him to a reversal. It must, in view of all the facts, be 
 important testimony. Champ v. Commonwealth, 2 Met. 26-29. 
 
 16. A judgment will not be reversed for an error that does not 
 affect the substantial rights of the party. Jtyan v. Bean, 2 Met. 
 139; Combs v. Jefferson Pond Draining Co., 3 Met. 73; Buckles v. 
 Lambert, 4 Met. 331, 332; Buckner v. Bush, 1 Duv. 395. 
 
 17. A party can not complain that the court failed to interpret, 
 to the jury, words used by himself in an instruction asked for by 
 him, unless he asked the court for such explanation and was 
 refused. Chiles v. Drake, 2 Met. 154. 
 
 18. If objection be made to the reading of a will as evidence, 
 and the objection does not appear to have been acted on in the 
 court below, the court of appeals will not consider whether it was 
 properly admissible or not. Bussell v. Marks, 3 Met. 42, 43. 
 
 19. The refusal of the circuit court to strike out irrevelant 
 matter, will not be available for reversal, unless the substantial 
 rights of the party were prejudiced by it. Buckles v. Lambert, 4 
 Met. 331, 332. 
 
 20. Although a pleading may be defective, yet if the necessary 
 allegations may be implied from the pleading, when taken in con- 
 nection with the instructions and verdict, the defect will not be 
 ground for a reversal. Murphy v. Muble, 2 Duv. 252. 
 
 V. DAMAGES ON DISMISSAL OR APFIRMANCE. 
 
 1. Damages will be given in the court of appeals on the dis- 
 missal of an appeal. Madison, etc., B. B. Co. v. Briscoe, 18 B. Mon. 
 572. 
 
432 PRACTICE IN THE COURT OP APPEALS. 
 
 VI. MANDATE AND PROCEEDINGS AFTER DECISION BT THE COURT OP 
 
 APPEALS. 
 
 1. The court of appeals can not, after the expiration of the term 
 at which a judgment for cost is rendered, look into the record to 
 see whether a party, complaining of the judgment, was properly 
 made a party or not ; the court has no power after a term to amend 
 its judgments, unless there is something in the record to amend by. 
 Stephens v. Wilson, 14 B. Men. 88. 
 
 2. A new trial not will be awarded in a will cause, brought by 
 appeal from the county court to the circuit court and thence to the 
 court of appeals, even though the judgment is reversed; the 
 decision of the court of appeals is final, and it will direct what 
 judgment shall be entered in the court below. Overton v. Overton, 
 18 B. Mon.64,-66; Sechrest v. Edwards, 4 Met. 167. 
 
 3. The mandate of the court of appeals is imperative, and must 
 be carried into eifect by the court below, according to its true 
 intent and meaning. McLean v. Nixon, 18 B. Men. 774; Benny v. 
 Wickliffe, 1 Met. 223; Brown v. Grow, 1 Hardin, 437; Kennedy v. 
 Meredith, 4 B. Mon. 411. 
 
 4. If the court of appeals directs what judgment shall be entered 
 by the court below, supplemental pleadings, seeking relief on 
 grounds not before presented, should only be allowed in cases 
 which would authorize the circuit court to set aside or modify its 
 own judgments after the term at which they are rendered. Denny 
 V. Wickliffe, 1 Met. 223. 
 
 5. After the court of appeals had decided the sale of infants, 
 real estate to be void, but before the mandate was entered, the 
 guardian of the infants filed his petition to confirm the sale under 
 the acts of 1861 and 1862 (Myers' Supplement, 424, 425), and' the 
 circuit court refused to vacate the sale as ordered by the mandate, 
 but proceeded to confirm the sale. Held: The decision was right. 
 Woodcock v. Bowmn, 2 Duv. 510. 
 
fEACTlCE IN THE CIKCUI* COURT. 433 
 
 PEACTICB m THE CIECUIT COUET. 
 
 I. Practice in general. 
 II. Practice in ordinary actions. 
 
 III. Practice in equitable actions. 
 
 IV. Practice in special proceedings. 
 V. Proceedings after trial. 
 
 I. PRACTICE IN GENERAL. 
 A. Before trial. 
 •s B. On trial. 
 
 C When actions stand for trial. 
 
 a. Before trial. 
 
 1. Failing to demur for want of jurisdiction will not be a waiver 
 of the objection, but the objection may be taken at any time. 
 Hughey v. Sidwell, 18 B. Mon. 261. 
 
 2. K the circuit court has jurisdiction of the action, either at 
 law, or in equity, it should not dismiss the petition for want of juris- 
 diction, because the plaintiff had sued at law on an equitable cause 
 of action or vice versa. Lansdale v. Mitchell, 14 B. Mon. 349. 
 
 3. If a petition in equity shows a cause of action at law, it should 
 be transferred; and a demurrer, for want of jurisdiction in the 
 equity court, should be overruled. Tricstees of Lebanon v. Forest, 
 15 B. Mon. 171, 172. 
 
 4. It is error to order the sale of attached property, when the 
 property is shown to belong to several, only one of whom is a 
 party to the suit. Talbott v. Pierce, 14 B. Mon. 203. 
 
 5. In an action by ordinary proceedings against several defend- 
 ants, it ought to appear, before judgment is rendered against one 
 not served in the county, that one, at least, was served with 
 process in the county in which the action was brought. Pottinger 
 V. Mayfield, 14 B. Mon. 647. 
 
 6. But rendering judgment in such a case is a clerical misprision, 
 and no appeal will lie until a motion to correct in the court below. 
 Pottinger v. Mayfield, 14 B. Mon. 647.i 
 
 7. In an action against an administrator for a demand due from 
 his intestate, if the demand be not verified as required by section 
 35, article 2, chapter 37, Eevised Statutes, nor demand made before 
 the suit was commenced, as required by section 473 of the Civil 
 Code, the defendant can only take advantage of this neglect by 
 
 •Overruled in Ruby v. Grace, 2 Duv. 540, and the judgment in such a case 
 held void for want of jurisdiction. 
 29 
 
434 
 
 PRACTICE IN THE CIRCUIT COrRT. 
 
 rule at or before the filing of his answer. Thomas' JEx'rs v. Thomas, 
 15 B. Mon. 184; Bogers v. Mitchell, 1 Met. 24, 25. 
 
 8. If one defendant be substituted for another under sec- 
 tion 44 of the Code, and no objection is made at the time of 
 making the order, it will be presumed to be waived. Gunn v. 
 Gudehus, 15 B. Mon. 449. 
 
 9. A defendant, in an action at law for the recovery of land, 
 may set up and rely on an equitable or legal defense, or both. 
 Petty V. Malier, 15 B. Mon. 604, 605. 
 
 10. Where it appears in the record that money, sought to be 
 recovered of a garnishee, belongs to one not a party, it is the 
 duty of the court to order such party to be brought in. Forepaugh 
 V. Appold, 17 B. Mon. 631, 632. 
 
 11. To make an infant a defendant in an action, process must 
 be served on him. Pond v. Doneghy, 18 B. Mon. 560. 
 
 12. Judgment can not be rendered against an infant until after 
 service of process and defense by guardian. Pond v. Doneghy, 18 
 B. Mon. 560 ; Smith v. Ferguson, 3 Met. 426. 
 
 13. Where a mortgagee institutes an action, before any forfeiture 
 of the mortgage occurs, to recover the mortgaged property, and the 
 forfeiture occurs during the pendency of the action, he may amend 
 and set up the forfeiture to enable him to maintain his action. 
 Brookover v. Hurst, 1 Met. 667; sec. 162, Civil Code. 
 
 14. In an action, not founded on contract, if there are several 
 defendants, some of whom are served and others are not served, 
 the plaintiff is not entitled to a trial as to those served, unless he 
 discontinued his action as to those not served on the first day of 
 the term.i Hedger v. Downs, 2 Met. 161 ; sec. 392, Civil Code. 
 
 15. If the testimony of one defendant in ejectment be important 
 to his co-defendant and he be otherwise competent, the other 
 defendant may have him severed so far as to allow them to have a 
 separate trial, that he may use him as a witness. Young v. Adams, 
 14 B. Mon. 133. 
 
 16. If, on a change of venue, the papers be filed in the court to 
 which the change is had, ten days before the commencement of the 
 term, the cause will stand for trial at the next term; if it would 
 
 iThis case seems in conflict with Waller v. Martin, 11 B. Mon. 188, 189,. in 
 ■which It was held, in an action of trespass, that "the plaintiff might have 
 maintained his suit against any number of the defendants, and was, iy the- 
 Code, entitled to a judgment against some without disposing of the case finally 
 as to others." 
 
PRACTICE IN THE CIECUIT COURT. 435 
 
 have stood for hearing at the next term of the court from which it 
 was removed. Dale v. Dale, 14 B. Mon. 316. 
 
 17. No judgment can be rendered against a defendant, on a cause 
 of action set up in the answer of a co-defendant, without service 
 of process on the answer. Sorine v. Moore, 14 B. Mon. 312. 
 
 18. When one defendant seeks relief against a co-defendant, the 
 parties may plead as in an independent suit. Sorine v. Moore, 14 
 B. Mon. 312. 
 
 19. A defendant is not bound to answer an interrogatory in the 
 petition, not founded on some material allegation. Burnett, etc. v. 
 Garaett, 18 B. Mon. 71. 
 
 20. An action is not to be dismissed in any case, for an error as 
 to the kind of proceedings adopted by the plaintiif, but the error 
 will be regarded as waived by a failure to move for its correction 
 at the time and in the manner provided by the Code. Robertson 
 v. West, 14 B. Mon. 5; Frazer v. Naylor, 1 Met. 596. 
 
 21. An amended petition, which has been answered by the de- 
 fendant and treated by both parties as if filed, must be regarded as 
 a part of the record ; although the filing is not noted on the order 
 book. Bowler v. Lane, 3 Met. 312. 
 
 22. A party can not avail himself of an error of the circuit court, 
 in overruling a motion, to require the plaintiff to verify his peti- 
 tion, unless he excepts to the order. Gohb v. Stewart, 4 Met. 256. 
 
 23. In an action on a note against several, one of the signers was 
 not sued; one pleaded payment by him not sued, and the other 
 failed to answer at all. Held : No judgment could be rendered 
 against the defendant, who had not answered, until the issue 
 presented by the answer was disposed of Bouse v. Howard, 1 Duv. 
 33, 34. 
 
 24. That the payer and payee of a note sued on are the same 
 person, is matter of defense, and the plaintiff need not aver they 
 are not the same. Cooper v. Boston, 1 Duv. 93. 
 
 25. The answer of an infant by guardian ad litem should not be 
 rejected because not presented in time. Beverly v. Perkins, 1 Duv. 
 253. 
 
 26. An order, taking the petition for confessed, should not be 
 made until all the parties are served with process who are con- 
 cerned in interest with those against whom the confession is taken. 
 Alexander & Lancashire v. Quigley, 2 Duv. 402. 
 
 27. Nor ought an order taking the petition for confessed, to pre- 
 vent the filing of a meritorious answer, at any time before the 
 
436 PRACTICE IN THE CIRCUIT COURT. 
 
 submission of the cause for trial. Alexander & Lancashire v. Quig- 
 ley, 2 Duv. 402. 
 
 28. A party is not entitled to a continuance on account of the 
 absence of a witness, residing out of the county, unless he has paid 
 the witness his traveling expenses in coming to, and returning 
 from, the place of trial, or tendered it to him.> Thurman v. Virgin, 
 18 B. Mon. 791. 
 
 29. An action by equitable proceedings does not stand for trial 
 at the term, at which an answer, making an issue of facts, is filed, 
 unless the plaintiff consents that the statements of the answer may 
 be taken as true. Gruell v. Smalley, 1 Duv. 359. 
 
 30. The absence of the principal counsel, who had not attended 
 the court for two years, is not grounds for a continuance, when no 
 additional preparation is expected. Adams v. Adams, 1 Duv. 168. 
 
 31. The court may, at its discretion, in an action on contract, 
 render judgment against a part of the defendants and continue as to 
 others. Patten v. Shanklin, 14 B. Mon. 17. 
 
 32. An equitable action, against a non-resident, does not stand 
 for trial until ninety days after the pleadings ought to have been 
 completed. Harris v. Adams, 2 Duv. 143. 
 
 33. If the case presented be one exclusively cognizable in equity, 
 and it be commenced as an ordinary action, the plaintiff should 
 amend his petition and move to transfer it to equity. Cobb v. 
 Stewart, 4 Met. 256. 
 
 b. On the trial. 
 
 1. It is too late, in an action against a personal representative, 
 after the evidence is concluded, to object that the demand had not 
 been proved and demanded before the suit was brought. Thomas' 
 Ex'rs V. Thomas, 15 B. Mon. 184. 
 
 2. The court may, at its discretion, in an action on contract,, 
 render judgment against part and continue as to others. Patten 
 V. Shanklin, 14 B. Mon. 17. 
 
 3. If a plaintiff, in an action for the recovery of land, shows 
 himself entitled to recover any part, he should have judgment for 
 that part; although he may fail to show title to all. Dickerson v. 
 Talbott, 14 B. Mon. 63, 64; Young v. Adams, 14 B. Mon. 132. 
 
 1 Since this dsoision the legislature has, by act approved March 2, 1860, 
 Myers' Supplement, 552, enacted that a witness shall not be exempt from 
 attending court out of his county, by reason of the failure of the party sum- 
 moning him to pay or tender his traveling expenses, unless the witness, at the 
 time of being summoned, demands the same. 
 
PEAOTICE IN THE CIRCUIT COURT. 437 
 
 4. A judgment for the whole tract of land on proof of title to 
 three undivided fourth parts, is erroneous. Petty v. Malier, 14 B. 
 Mon. 247. 
 
 5. If one, sued for the conversion of the property of another, 
 makes default, he thereby waives the right to trial by jury; but 
 judgment can not be rendered by the court without proof of the 
 value of the property and the damages sustained. Daniels v. Judy, 
 14 B. Mon. 395; Marr v. Prather, 3 Met. 197; Smith & Thornton v. 
 Curtis, 1 Duv. 281; Frances v. Frances, 18 B. Mon. 61. 
 
 6. If a petition seeks a recovery for various items, some of which 
 are recoverable and some not, it is error to give judgment for all 
 on the failure of the defendant to plead. Burgess v. Jacobs, 14 B. 
 Mon. 521. 
 
 7. In an action on an attachment bond, on the defendant's fail- 
 ing to plead, a jury must be impanneled to assess the damages. 
 Burgess v. Jacobs, 14 B. Mon. 521. 
 
 8. IS two persons are sued on an attachment bond and one 
 answers, presenting a valid defense on the merits, and the other 
 fails to plead, can a trial be had and judgment rendered against 
 him failing to answer and the cause be continued as to the other? 
 Quere. Burgess v. Jacobs, 14 B. Mon. 522. 
 
 9. If a defendant demurs to a petition and his demurrer is over- 
 ruled, and he fails to plead farther, the court may render judg- 
 ment without a jury, as in case of default, and if the petition does 
 not contain data sufficient to ascertain the amount, and it can be 
 ascertained from other evidence in the record, it may be done. 
 Lambert v. Ingram, 15 B. Mon. 270. 
 
 10. If a petition sets out a promise to answer for the conduct of 
 another and fails to show that it was in writing, no judgment can 
 be rendered ; although the defendant may fail to plead and rely 
 on the statute. Smith v. Fah, 15 B. Mon. 446. 
 
 11. If several defendants are sued for a libel, and the jury finds 
 a verdict against all, the court may, if there is no evidence to sup- 
 port the verdict as to one, put the plaintiff to his election, to enter 
 a nolle prosequi as to him against whom there is no proof, or sub- 
 mit to a new trial. Shelton v. Harlow, 15 B. Mon. 549. 
 
 12. An equitable defense must be disposed of in an action at law 
 before a judgment can be rendered for the plaintiff. Petty v. 
 Malier, 15 B. Mon. 605. 
 
 13. ff a legal, as well as equitable, defense be pleaded to an 
 action at law, the former should be tried by a jury, and the court 
 
438 PRACTICE IN THE CIRCUIT COURT. 
 
 may also submit to the jury such matters of fact as are involved in 
 the equitable issue. Petty v. Malier, 15 B. Mon. 605. 
 
 14. The court may render judgment without proof in an action 
 on an account, if the defendant fails to answer. Harris v. Ray, 15 
 B. Mon. 630. 
 
 15. A letter purporting to have been written by the plaintiff, 
 can not be read in evidence against him, without proof of its 
 execution. McClain v. Estham, 17 B. Mon. 155. 
 
 16. A party, who seeks to recover on an express contract, may, 
 if he fail to prove the contract but proves an implied promise, 
 amend his pleading and recover on the latter. Frankfort Bridge 
 Co. V. Frankfort, 18 B. Mon. 49. 
 
 17. If, in answer to a petition in equity for the partition of land, 
 the defendants set up claim to be the exclusive legal owners of the 
 land, but fail to move to transfer to the ordinary docket, it is error 
 on the trial to dismiss the petition without deciding the issue. 
 Frazer v. Naylor, 1 Met. 596. 
 
 18. If the parties to an equitable action, to which an exclusively 
 legal defense is pleaded, fail to move a transfer to the ordinary 
 docket and go to trial without demanding a jury, the right to a 
 jury is waived and the court should proceed to hear and determine 
 the issues presented, or direct a jury to decide such as are properly 
 triable by a jury. Frazer v. Naylor, 1 Met. 596. 
 
 19. The court may permit the pleadings to be amended, after 
 the trial has commenced, when it is apparent the ends of justice 
 require it. Rogers v. Rogers, 15 B. Mon. 377. 
 
 20. If a petition in equity fails to show the plaintiff is entitled 
 to the relief sought, but shows he is entitled to relief at law, a 
 demurrer to the whole action should not be sustained; but the 
 cause should be transferred to the ordinary docket. Foster v. 
 Watson, 16 B. Mon. 387. 
 
 21. No judgment can be rendered against the defendant because 
 of his failure to answer an interrogatory, contained in the body of 
 the petition, not founded on some material allegation. Burnett, etc. 
 V. Garnett, 18 B. Mon. 71. 
 
 22. Judgment can not be rendered against an infant, until after 
 service of process and defense by guardian. Pond v. Doneghy, 18 
 B. Mon. 560 ; Smith v. Ferguson, 3 Met. 426. 
 
 23. In an action on contract, the court may, if a specific sum is 
 claimed and not denied, give judgment by way of damages for 
 
PBACTIOE IN WaE CIRCTJIT COURT. , 439 
 
 interest from the bringing of the action. Francis v. Francis, 18 
 B. Men. 60, 61; Marr v. Prather, 3 Met. 197. 
 
 24. A plaintiff seeking to recover land, must show that his title 
 covers the land in controversy. Vaughn v. Mills, 18 B. Mon. 634. 
 
 25. The plaintiff is not bound to read, as evidence, papers referred 
 to and filed with his petition. Vaughn v. Mills, 18 B. Mon. 634. 
 
 26. Where there is an insnflSicient answer in an action at law 
 on a merchant's account for a specific amount, the court may give 
 judgment for the amount without a jury. Frances v. Frances, 18 
 B. Mon. 60, 61 ; Marr v. Prather, 3 Met. 197. 
 
 27. A plaintiff, who declares on a note as payable to himself and 
 files one payable to another, can not recover, although the note is 
 in fact assigned to him, unless his petition contains such facts as 
 show him to be the owner of the note. This is not a variance 
 within the meaning of section 156, Civil Code, but fatal under 
 section 158. Dodd v. King, 1 Met. 433. 
 
 28. Where a note was executed by two obligors, payable to one 
 of the obligors and a third person, and was sued on in the name of 
 the third person alone, the plaintiff may be allowed to abate as to 
 his co-obligee, who is also an obligor, and take judgment as to the 
 other. Quinsenberry v. Artis, 1 Duv. 30, 31. 
 
 29. If a defendant, sued for a demand, answers and admits the 
 demand, but relies that it has been assigned for the benefit of 
 creditors of the plaintiff, and offers no proof of the assignment, the 
 plaintiff is entitled to judgment. Vanbuskirk v. JJevy, 3 Met. 135, 
 136. 
 
 30. But, if, in such a case, the transfer be proved, the court 
 should not dismiss the action; but should order the necessary 
 parties to be made. Vanbuskirk v. Levy, 3 Met. 135, 136. 
 
 31. Before a judgment can be rendered against a defendant, 
 summoned in a different county from that in which the action is 
 pending, some disposition should be made of the action as to the 
 defendants served in the county in which the action is brought, 
 and if no cause of action is set forth as to them, it is erroneous to 
 render judgment against the defendants served in another county. 
 Fernold v. Speer, 3 Met. 462; sec. 108, Civil Code.i 
 
 32. No personal judgment can be rendered against a defendant, 
 summoned out of the State by the delivery of a copy of the peti- 
 tion and summons, as provided in section 86, Civil Code. Grris- 
 wold V. Popham, 1 Duv. 170. 
 
 1 Under the rule in Ruby v. Grace, 2 Duv. 540, such a judgment is void. 
 
440 PEACTICE IN THE fiIBX}VlT COURT. 
 
 33. Where several are sued for an assault and battery and all 
 served with process, a trial may be had and judgment rendered 
 against a part of the defendants without disposing of action as to 
 the other defendants. Buckles v. Lambert, 4^Met. 333. 
 
 34. If a petition seeks to attach land and subject it to the pay- 
 ment of a debt, and part of the defendants be served with process 
 in the county, where the action is pending, if the plaintiff does not 
 show a right to have the land sold, he is entitled to a personal 
 judgment. Mxon v. Jack, etc., 16 B. Mon. 179. 
 
 35. An action, on a guardian's bond against the surety and the 
 executor of the principal, should not be dismissed, as to the former, 
 because no demand had been made of the latter before suit was 
 commenced. Sogers v. Mitchell, 1 Met. 26. 
 
 36. If the plaintiff is a public enemy, he has no capacity to sue; 
 but it is error to dismiss his action absolutely — it should be dis- 
 missed without prejudice. Hoskins & Hughes v. Gentry, 2 Duv. 
 286; Norris v. Doniphan, 4 Met. 401. 
 
 37. But, where a public enemy is a necessary, though nominal, 
 party to an action prosecuted for the sole benefit of a co-plaintiff, 
 the action should not be dismissed on that account. Hoskins & 
 Hughes v. Gentry, 2 Duv. 285. 
 
 c. When causes stand for trial. 
 
 1. .^n ordinary action upon contract, wherein the summons has 
 been served in due time as provided in section 135, Civil Code, upon 
 part only of the defendants, may be tried at the first term as to 
 those served, and may be continued as to the others. Hedger v. 
 Downs, 2 Met. 161. 
 
 2. But in ordinary actions, not upon contract, the plaintiff can 
 only demand a trial at any term as to part of the defendants, who 
 are served, when his action has been discontinued on the first day 
 of the term as to those not served. Hedger v. Downs, 2 Met. 161. 
 
 3. Where several joint obligors are sued, and one pleads pay- 
 ment, and the others fail to plead, no judgment can be rendered 
 against those not answering, until the issue made by the other 
 has been tried- Mouse y. Howard, 1 Duv. 31. 
 
 4. An equitable action does not stand for trial at the term at 
 which the plaintiff files a reply, to a counter-claim pleaded by the 
 defendant. Smith v. Ferguson, 3 Met. 425. 
 
 5. Where an ordinary action was brought in the county of the 
 defendant's residence, and summons served on him in another 
 county in time for judgment, and also in the county where the suit 
 
PRACTICE IN THE CIRCUIT COURT. 441 
 
 was brought, but not in time for judgment — Held: The action did 
 not stand for trial until the succeeding term. Saymond v. Heed, 
 16 B. Mon. 349, 350. 
 
 6. "Where a warning order was made on May 1, 1862, in 
 an equitable action, the cause did not stand for trial on the 15th of 
 July following, because the pleadings were not, and could not have 
 been, completed ninety days before that time. Harris v. Adams, 
 2 Duv. 143 ; sees. 91, 137, 393, Civil Code. 
 
 7. An equitable action does not stand for trial at the term at 
 which an answer is filed making an issue of fact, unless the plain- 
 tiff will consent that the statements in the answer may be taken as 
 true. Gruell v. Smalley, 1 Duv. 358. 
 
 8. Where a case is removed by change of venue, if the case would 
 have stood for trial at the succeeding term of the court from which 
 it was removed, and the papers are filed in the clerk's ofiice of the 
 court to which it is changed ten days before the ensuing term of 
 that court, the action will stand for trial at the first term. Bale 
 V. Hays, 14 B. Mon. 316. 
 
 II. PRACTICE IN ORDINARY ACTIONS. 
 
 1. If an answer to a petition at law presents a valid equitable 
 defense, the action should be transferred, on the motion of either 
 party, to the equity docket. Bosley v. Mattingly, 14 B. Mon. 91. 
 
 2. In an action commenced in ordinary, if the defendant's an- 
 swer presents both a legal and equitable defense, and the cause be 
 transferred to equity by consent, it will be a waiver of the right to 
 have the legal issue tried by a jury ; but, otherwise, if it be not by 
 consent. Smith v. Moberly, 15 B. Mon. 74. 
 
 3. An equitable defense in an action at law must be disposed of 
 before a judgment can be rendered for the plaintiff. Petty v. 
 Malier, 15 B. Mon. 605. 
 
 4. In an action for an assault and battery, where the defendant 
 fails to answer, the jury may render a verdict on the undisputed 
 facts alleged in the petition, without other proof Rogers v. Au- 
 lick, 2 Duv. 419, 420. 
 
 5. Whether the particular tract of land in contest is the one sold . 
 by a sheriff under execution, is a question of fact for the jury. 
 Phillips V. Jamison, 14 B. Mon. 583. 
 
 6. In an action of trespass for entering the plaintiff's close, if 
 the defendant pleads a right of entry, he has a right to introduce 
 his evidence first and conclude the argument. Caskey v. Lewis, 
 15 B. Mon. 31, 
 
442 PRACTICE IN THE CIRCITIT COURT. 
 
 7. If several defendants are sued for libel, and the jury finds a 
 verdict against all, the court may, if there is no evidence to sup- 
 port the verdict against one, put the plaintiff to his election, to 
 enter a nolle prosequi, as to him against whom there is no proof, 
 or to submit to a new trial. Shelton y. Harlow, 15 B. Mon. 549. 
 
 8. It is too late, after verdict, to raise an objection that one of 
 the jurors had served in the same case on a former trial. It should 
 have been made before the jury retired. Fitzpatrick v. Harris, 
 
 16 B. Mon. 563. 
 
 9. Whether a particular fact exists is a question for the jury, 
 but the effect of such fact, when found to exist, is a question of 
 law to be decided by the court. Sharp v. Dunavan, 17 B. Mon. 
 232. 
 
 10. If, upon the statements in the pleadings, the plaintiff is en- 
 titled to a judgment, the court ought, on his motion, to render 
 judgment for him; notwithstanding the verdict of the jury is 
 against him. Lindsey v. Rutherford, 17 B. Mon. 249. 
 
 11. No recovery for mesne profits can be had for a time anterior 
 to the date of the demise, unless the plaintiff shows title before 
 that time. Masterson v. Hagan, 17 B. Mon. 330. 
 
 12. The court may render judgment without proof in an action 
 on an account, if there is no answer. Harris v. Bay, 15 B. Mon. 
 630. 
 
 13. Since the adoption of the Code of Practice, there can be no 
 recovery in the name of John Doe for mesne profits, after a re- 
 covery of the land in bis name in ejectment. Masterson v. Hagan, 
 
 17 B. Mon. 334. 
 
 14. The deposition of a witness, living in an adjoining county, 
 although he resides at a greater distance than thirty miles from 
 the court, can not be read without proof of his inability to attend. 
 Tolly V. Price, 17 B. Mon. 411. 
 
 15. That the jury was not sworn in exact conformity with the 
 statute, is an objection that should be mad^ at the time, and, if not 
 made, will not be available in the court of appeals. Thompson v. 
 Blackwell, 17 B. Mon. 624, 625. 
 
 16. The court should not intimate to the jury, whether the 
 trespass, complained of, was one of "enormity and magnitude," or 
 not, but leave them to decide its character from the proof. Botts 
 v. Williams, 17 B. Mon. 697. 
 
 17. A party, who seeks to recover on an express contract, may, 
 if he fails to prove the contract, but proves an implied promise, 
 
PEACTIOE IN THE CIRCUIT COURT. 443 
 
 amend his petition and recover on the latter. Frankfort Bridge 
 Co. V. Frankfort, 18 B. Men. 49. 
 
 18. Whether the land in contest is contained in a particular 
 patent or not, is a question of fact to he left to the jury. Morton 
 V. Warring, 18 B. Mon. 83, 84. 
 
 19. Allegations of value or amount of damages in an action 
 ex delicto, can not be taken as true by the failure to controvert 
 them. Clark v. Seaton, 18 B. Mon. 229; Slone v. Slone, 2 Met. 
 340, 341 ; Daniels v. Judy, 14 B. Mon. 393 ; Smith & Thornton v. 
 
 - Curtis, 1 Duv. 281. 
 
 20. In an action ex delicto, whether commenced by ordinary or 
 equitable proceedings, the intervention of a jury is not dispensed 
 with by tlie failure of the party to appear at the trial, and a judg- 
 ment by default is erroneous ; but the court may dispense with a 
 jury, and hear proof and assess the damages. Clark v. Seaton, 18 
 B. Mon. 229, 230. 
 
 21. In an action against a city for work and labor done on the 
 streets, the petition alleged the work had been performed, but the 
 proof showed that it was done under a special contract by which 
 the plaintiff was to look to the lot owners for payment — the court 
 instructed the jury to find for the defendant ; but before the jury 
 rendered a verdict the plaintiff offered to file an amended petition 
 alleging facts rendering the city liable. Held: The court ought 
 to have allowed the amendment to be filed. ' Kearney v. Covington, 
 1 Met. 344, 345. 
 
 22. "Whether a representation or assertion by a vendor that the 
 thing sold was of a particular quality, was made with the inten- 
 tion that the vendee should rely on it, or whether it was in fact 
 so relied on, is a question of fact for the jury. Lamme v. Q-regg, 
 1 Met. 447. 
 
 23. In an action against a common carrier for the non-delivery 
 of goods, if the defendant relies upon having delivered them ac- 
 cording to the local custom of the place of delivery, and there is 
 proof, conducing to show such custom and delivery, whether such 
 custom as that relied on existed or not, is matter of fact for the 
 jury to determine. Huston v. Peters & Hardin, 1 Met. 561, 562. 
 
 24. Exceptions to the exclusion of evidence must be taken at 
 the time, or error, committed by the court in its exclusion, will 
 not be available. Clem v. Oommonwealth,_ 3 Met. 11. 
 
 25. Deeds and other writings, not relied on as evidence of in- 
 debtedness, but to be used merely as evidence on the trial, need 
 
444 PRACTICE IN THE CIRCUIT COURT. 
 
 not be previously filed, but may be produced and read on the trial 
 if properly proven. Haney v. Tempest, 3 Met. 97. 
 
 26. The material allegations of a petition were that defendant 
 owed plaintiff $140 for the hire of her negro man for the year 
 1859; that he hired the boy, and had him in his possession for the 
 time aforesaid, and had received the product of his services to the 
 value of 1140. By an amended petition, it was alleged that the 
 defendant was to furnish the boy with clothing, which was worth 
 $25. The answer denied that defendant had any negro of plain- 
 tiff's hired, as charged in the petition ; nor did he agree to pay 
 either clothing or hire, and therefore denies that he owes plaintiff 
 $140, or any other sum for the hire or clothing of said negro as 
 charged. Held: On the case being submitted for trial, on the 
 pleadings alone, that the plaintiff was entitled to judgment for the 
 value of the services of the slave for the year 1859, and that the 
 court might fix the value from its own knowledge of the value of 
 labor. Baum v. Winson, 3 Met. 128, 129. 
 
 27. In an action for an injury, resulting from the carelessness, 
 negligence, and unfitness of defendant's servants engaged in oper- 
 ating railroad cars, it is error to exclude from the jury the con- 
 sideration of the fitness or unfitness of such servants for the proper 
 discharge of their respective duties. Bowler v. Lane, 3 Met. 313, 
 314. 
 
 28. If the plaintiff takes and files a deposition, and, on the trial, 
 declines to read it, the defendant has a right to do so. Musick v. 
 Bay, 3 Met. 431. 
 
 29. Where, in an action on a note, the only defense was a plea 
 of usury, and the verdict is "for the plaintiff" simply, the judg- 
 ment should be for the debt and interest. Cooper v. Boston, 1 
 Duv. 94 ; sec. 416, Civil Code. 
 
 30. Where the action is against infants, and the service of pro- 
 cess is not legal, if they be under fourteen, the question whether 
 they are under fourteen, should be submitted to the jury for a special 
 verdict, and if they find them under fourteen, the action should be 
 dismissed without prejudice. Beverly v. Perkins, 1 Duv. 253. 
 
 31. In an action for slander in charging the plaintiff with per- 
 jury (plea of justification), the jury found by a special verdict that 
 the testimony, given by plaintiff, was untrue, but he was mis- 
 taken, "and, therefore, find for the defendant." Held: The 
 verdict did not justify a judgment for the defendant, but would, 
 
PRACTICE IN THE CIRCUIT COURT. 445 
 
 had it not been too equi vocal, have authorized a judgment for the 
 plaintiff. Scott v. Cook, 1 Duv. 315. 
 
 32. It is too late, after verdict, to except to the giving of in- 
 structions. Kennedy v. Cunningham, 2 Met. 540 ; Letton v. Young, 
 2 Met. 564, 565 ; Tudor v. Lewis, 3 Met. 381 ; Cox v. Winston, 3 
 Met. 577. 
 
 33. That the circuit court had made a rule by which all ques- 
 tions, decided on the trial, should be reserved without formal ex- 
 ceptions, taken at the time, will not save the right of a party, who 
 fails to except at the time required by the Code. Kennedy v. Cun- 
 ningham, 2 Met. 541. 
 
 34. In an action to recover property alleged to belong to plain- 
 tiif, and to have been taken from him by defendant, if the latter 
 admits the taking, but denies that the plaintiff is the owner, and 
 alleges that he is the owner, the burden is of the defendant, and 
 he has a right to conclude the argument. Vance v. Vance, 2 Met. 
 582 ; see. 347, Civil Code. 
 
 35. Before an order can be made for the sale of property at- 
 tached in an action in which the defendant has only been con- 
 structively summoned and not appeared, the facts alleged in the 
 petition and aflSdavit must be proved, unless the plaintiff files an 
 aflSdavit to dispense with it. Harris v. Adams, 2 Duv. 142. 
 
 III. PRACTICE IN EQUTY. 
 
 1. If the parties to an action in equity, to which an exclusively 
 legal defense is pleaded, fail to move a transfer to the ordinary 
 docket and go to trial without demanding a jury, the right to a 
 jury is waived, and the court should proceed to hear and deter- 
 mine the issue presented, or direct a jury to decide such as are 
 properly triable by a jury. Frazer v. Naylor, 1 Met. 596. 
 
 2. When holders of a part of the notes, given for the purchase- 
 money of land, are made parties to an action by the holder of 
 another note, for the purpose of enforcing the vendor's lien, the 
 defendants may set up their notes by answer, and no service of 
 process or formal pleadings is necessary. Jenkins v. Smith, 4 
 Met. 382. 
 
 3. If a petition in equity fails to show the plaintiff is entitled to 
 the relief sought, but shows him entitled to relief at law, a demur- 
 rer to the whole case should not be sustained, but the action should 
 be transferred to the ordinary docket. Foster v. Watson, 16 B. 
 Mon. 387. 
 
 4. The pleadings may be amended after the trial has com- 
 
446 PRACTICE IN THE CIRCUIT COURT. 
 
 menced, when it is api^arent that the ends of justice demand it. 
 Rogers v. Rogers, 15 B. Men. 377. - 
 
 5. If a bill be dismissed for want of proper parties, it should be 
 without prejudice. Smith v. Moberly, 15 B. Mon. 74. 
 
 6. Issues of fact, in an ordinary action which has been transferred 
 to equity, must be tried by a jury ; unless the right to such trial 
 has been waived. Smith v. Moberly, 15 B. Mon. 74. 
 
 7. If a judgment be void, the circuit court has a right to disre- 
 gard the whole proceedings and quash the bonds of purchasers, 
 given for land sold under such void judgment. Carpenter & Grigs- 
 hy V. Strothers, 16 B. Mon. 295. 
 
 8. The chancellor has a discretion to decree the ordinary legal 
 costs of an action, but he has no discretion to decree extraordinary 
 costs incurred by a party. Williamson v. Williamson, 1 Met. 305. 
 
 9. If a petition in equity, to enforce a resulting trust, fails to 
 state facts entitling the plaintiff to the relief sought, but shows 
 the plaintiff furnished the defendant with money, with which he 
 made the purchase, and the prayer is for general relief, the 
 plaintiff may have judgment for the money. Graves v. Graves, 3 
 Met. 169. 
 
 10. In an action by a client, to set aside a judgment against him, 
 rendered upon a compromise made by his attorney-at-law in the 
 action without authority to do so, his right, to recover in the 
 action in which the judgment was rendered, will not be inquired 
 into. Smith v. Dixon, 3 Met. 446. 
 
 IV. PRACTICE IN SPECIAL PROCEEDINGS. 
 See Motions. 
 
 1. A court of law can not, on a motion for judgment on a bond, 
 given by one partner to suspend the sale of the interest of another 
 partner under an execution against him alone, hear and determine 
 the state of the partnership liabilities. Watson v. Gabby, 18 B. 
 Mon. 663, 664. 
 
 2. Facts, relied upon to defeat a recovei;y on a forfeited recog- 
 nizance, must be set up by a written answer. Brown v. Common- 
 wealth, 4 Met. 222. 
 
 3. It is proper to refer the issue made between an attaching 
 creditor and a third person, as to the title of property attached, to 
 a jury. Schwein v. Sims, 2 Met. 211. 
 
 4. The facts stated in a notice of a motion to have execution' 
 issued on- a lost replevin bond, must be proved, and can not be 
 
PRACTICE IN THE CIRCUIT COrRT. 447 
 
 taken as true because the defendants do not appear and dispute 
 them. Farrow v. Orear, 2 Duv. 263. 
 
 T. PROCEEDINGS AFTER TRIAL. 
 
 1. It is too late, after verdict, to raise an objection that one of 
 the jurors had served in the same case on a former trial. Fitz- 
 patrick v. Harris, 16 B. Mon. 563. 
 
 2. If the court of appeals direct what judgment shall be entered 
 by the court below, it should be entered and supplemental pro- 
 ceedings, seeking relief on grounds not before j)resented, should 
 only be allowed in cases which would authorize the circuit court 
 to set aside or modify its own judgment after the term at which it 
 was rendered. Denny v. Wickliffe, 1 Met. 223. 
 
 3. An answer contained three paragraphs. The plaintiff 
 demurred to each, and his demurrer was overruled; he elected to 
 stand by his demurrer to the first paragraph, and thereupon judg- 
 ment was rendered against the plaintiff in the action. The court 
 of appeals held the first paragraph presented no defense to the 
 action and reversed the judgment. The plaintiffs on the return of 
 the cause are entitled to a trial of the issues made by the second 
 and third paragraphs which are of a character to require no 
 reply. Whitehead v. Boot, 2 Met. 588. 
 
 4. If a judgment be void, the court has a right to disregard and 
 quash bonds taken in the action under the judgment. Carpenter 
 & Grigsby v. Strothers, 16 B. Mon. 295. 
 
 5. After an affirmance by the court of appeals, a new trial may 
 be granted upon the grounds and in the manner provided in sec- 
 tions 579-581, Civil Code. McLean v. Nixon, 18 B. Mon. 775. 
 
 6. That a witness, who had been examined on the trial, was 
 sent for by the jury after they had retired from the bar and re- 
 examined without the knowledge of the court or either of the 
 parties, is such misconduct as to give the party, against whom 
 they find, a right to a new trial. Luttrell v. M. & L. M. B. Co., 
 18 B. Mon. 295. 
 
 7. If several defendants are sued for libel, and the jury finds a 
 verdict against all, the court may, if there is no evidence to sup- 
 port the verdict against one, put the plaintiff to his election, to 
 enter a nolle prosequi as to him, or submit to a new trial. Shelton 
 V. Harlow, 15 B. Mon. 549. 
 
 PRESCEIPTIOK. 
 
 See Evidence, Eoads and Passwats. 
 
448 PRINCIPAL AND SURETY. 
 
 PEESUMPTIONS. 
 
 See Evidence. 
 
 PEINCIPAL AND AGENT. 
 
 See Agency. 
 
 PEINCIPAL AND SUEETY. 
 
 1. A principal, who was sued jointly with his surety, has no 
 right when sued by the surety, who has paid the judgment to 
 resist the payment of the full amount, on the ground that the 
 defense, by the surety, was unsldllfuUy made. Rice v. Rice, 14 B. 
 Mon. 418. 
 
 2. A surety, who pays off the debt for which he is bound, and 
 stipulates at the time of payment for the right to sue the princi- 
 pal, may maintain an action for reimbursement in the name of the 
 obligee. Smith v. Latimer, 15 B. Mon. 77. 
 
 PEIVILEGE. 
 
 1. A member of the legislature, attending its session, is not 
 privileged against being served with a summons in a civil action. 
 Johnson v. Offutt, 4 Met. 20. 
 
 2. A member of the legislature, who is sued and has a defense, 
 on filing his answer and an affidavit that he can not prepare for 
 trial without neglecting his legislative duties, or an affidavit show- 
 ing that he has a defense, but can not prepare his answer without 
 such neglect, should have a continuance. Johnson v. Offutt, 4 
 Met. 21. 
 
 PEIVILEGED COMMUNICATIONS. 
 
 If an attorney-at-law, while acting for two persons in a matter, 
 in which thoy are jointly interested, against a third person, receives 
 a communication from one of them, respecting the matter of con- 
 
PUBLIC POLICY. 449 
 
 troversy, he may, in a subsequent controversy between those for 
 whom he was counsel, testify as to such communication without 
 a breach of professional confidence. Bice v. Mice, 14 B. Mon. 418. 
 
 PEOCESSIONING LANDS. 
 
 County courts have no power to hear and determine exceptions 
 to the report of processioners of land, or to confirm their report. 
 Mclntire v. Gettings, 15 B. Mon. 177. 
 
 PEOHIBITION. 
 
 A writ of prohibition will not be awarded by the court of appeals 
 in a case in which it would have no appellate jurisdiction of the 
 judgment. Arnold v. Shields, 5 Dana, 18 ; and in cases where it 
 has such jurisdiction the remedy is by appeal. Sasseen v. Ham- 
 mond, 18 B. Mon. 674, 675. 
 
 PUBLIC POLICY. 
 
 1. It is not against public policy to enforce a contract in favor 
 of the seller of property, which was to be paid for by H. if S. was 
 elected president of. the United States, or by S. if P was elected. 
 Eeironimus v. Sarris, 14 B. Mon. 314. 
 
 2. The law can not sanction a transaction or enforce a contract, 
 having for its object or consideration a violation of good faith and 
 of its own mandate. Payne v. Yandever, 17 B. Mon. 19. 
 
 3. A contract, having for its object or consideration a violation 
 of good faith and the law of the land, may be avoided by either 
 party, even though it can only be done by showing his own per- 
 fidy. Payne v. Vandever, 17 B. Mon. 19. 
 
 4. A contract, by a prisoner in jail who is sick, to pay the jailor 
 for extra services and attentions, beyond those required by law of 
 the jailor, is not void as against public policy. Trundle v. Biley, 
 17 B. Mon. 400. 
 
 5. A contract, by which a guardian agrees to resign his ofBce 
 that the other contracting party may be appointed in his stead, 
 that he may have custody and control of the ward's person and 
 
 30 
 
450 PUBLIC POLICY. 
 
 estate, is against public policy and void. Cunningham v. Cunning- 
 ham, 18 B. Mon. 24, 25. 
 
 6. It is against the policy of the law to permit a deputy register 
 of the land office to buy land sold by his principal; and although 
 such sales may not be void, it can only be sustained by its appear- 
 ing to have been fair and for adequate consideration. Morton v. 
 Waring, 18 B. Mon. 85. 
 
 7. A release, by a husband, of the wife's chose in action in con- 
 sideration of forbearance to prosecute the husband, is invalid. 
 Manion v. Titsworth, 18 B. Mon. 602. 
 
 8. One, who pays money on an illegal contract will not be aided 
 by the law to recover it back. Tyler v. Smith, 18 B. Mon. 799. 
 
 9. One, to whom an apprentice is bound by order of the county 
 court, who hires such apprentice to another for a part of the term, 
 can not recover on a covenant given for the hire. Suffmann v. 
 Bout, 2 Met. 51. 
 
 10. An agreement, to pay a part of the money realized on 
 papers to which the plaintiff signed the name of another without 
 authority, is illegal, and will not be enforced. Socker v. G-entry, 3 
 Met. 469. 
 
 11. A contract by a husband, made before marriage or after- 
 ward while living in amity with his wife, to pay an allowance 
 for her support, if at any future time she should separate from him, 
 is against public policy and void ; aliter, if made in contemplation 
 •of immediate separation. Gaines v. Poor, 3 Met. 506, 507. 
 
 12. A contract, to pay for lottery tickets delivered by the man- 
 agers Of a lottery, or return those not sold, made in a State where 
 their sale is not prohibited, and which contained no stipulation to do 
 any act in violation of the laws of any other State, is valid, although 
 the purchaser may have sold them in violation of the laws of 
 ■another State. Jameson v. Gregory, 4 Met. 368. 
 
 13. That the original seller knew the tickets were being sold by 
 the purchaser in violation of the laws of a State, will not vitiate 
 •the contract. Jameson v. Gregory, 4 Met. 370. 
 
 14. A contract, for the sale and purchase of Confederate money, 
 "is against the policy of the State, and the courts should refuse to 
 aid either of the parties to such a contract. Jjaughlin v. Dean, 1 
 'Duv. 20, 21 ; Campbell v. Anderson, 2 Duv. 384. 
 
 15. Public policy does not forbid the combination of a number 
 of workmen, who are bound by no contract, for the purpose of 
 
PURCHASERS. 451 
 
 obtaining reasonable prices for their labor. Sayre v. Louisville 
 Benevolent Association, 1 Duv. 146. 
 
 16. The employment of counsel, at a fixed fee, to assist the 
 official attorney in a criminal prosecution, is not inconsistent with 
 public policy ; but a contract for a contingent fee, dependent on 
 conviction, ought not to be enforced. Price v. Caperton, 1 Duv. 
 208. 
 
 PUEOHASEES. 
 
 I. "Who are purchasers. 
 II. Eights and liabilities of purchasers. 
 
 I. WHO ARE PURCHASERS. 
 
 1. If property be conveyed to A. and his heirs, it does noL vest 
 any interest in the heirs or next of kin as purchasers. Brown v. 
 Alden, 14 B. Mon. 144. 
 
 2. If land is conveyed to A. and B., or the survivor'of them for 
 life, then to the issue of their bodies, they will only take an estate 
 for life, and their issue will take a remainder in fee as purchasers. 
 Stephenson v. JTagan, 15 B. Mon. 300. 
 
 3. The word "purchaser," as used in our statutes, has acquired 
 a well-defined technical signification, and embraces every holder 
 of the legal title to real or personal property, when such title has 
 been acquired by deed. There is no exception to this rule. JEal- 
 bert V. McCuUoch, 3 Met. 457. 
 
 II. RIGHTS AND LIABILITIES OP PURCHASERS. 
 
 A. Generally. 
 
 B. As between vendor and vendee, see Vendor and Vendee: 
 
 C. When purchaser will be affected by eguiUes in others. 
 
 a. G-enerally. 
 
 1. A remote purchaser of land, held under a defective convey- 
 ance from a married woman, who in good faith, supposing the land 
 to be his own, has made lasting and valuable improvements on it, 
 will be entitled, in equity, to recover for his improvements a sum 
 equal to the enhanced vendible value of the land, resulting from 
 the improvements, less the value of the rents after the death of the 
 husband. Thomas v. Thomas, 16 B. Mon. 425. 
 
 2. The reversal of a decree, under which land has been sold, does 
 not ordinarily vitiate the sale, or divest the purchaser under it of 
 
452 PUBCHASERS. 
 
 the title acquired by the purchase ; and that the plaintiff in the 
 decree was the purchaser, will make no difference. Gossom v. 
 Donaldson, 18 B. Mon. 237. 
 
 3. A plaintiff, who purchases under his own execution, will, if 
 the sale was for more money than was due on the execution, he 
 held in equity a trustee for the defendant for the excess. Walker 
 V. McKnight, 15 B. Mon. 478, 479. 
 
 4. The burthen of showing fairness in a voluntary conveyance, 
 as against a purchaser for a valuable consideration without notice, 
 is on the voluntary grantee. Constructive notice, arising from the 
 recording of the conveyance, is not sufScient; it must be actual no- 
 tice. Enders v. Williams, 1 Met. 353 ; Lewis v. Love, 2 B. Mon. 345. 
 
 5. A purchaser, at execution sale of the defendant's interest in 
 property, incumbered by mortgage or other bona fide lien, only ac- 
 quires a lien for his purchase-money, and ten per cent, interest 
 thereon. Forest v. Phillips, 2 Met. 196, 197 ; Brown v. Story, 4 Met. 
 318 ; Sinton v. Mitchell, 1 Duv. 383. 
 
 6. One, who purchases land, sold under a void execution, which 
 the defendant had given up to be sold, has a lien on the land, 
 if in possession, for the amount paid on the execution. Qeoghegan 
 V. Ditto, 2 Met. 437, 438. 
 
 7. If the purchaser of land, under a void execution, is sued for 
 trespass, in entering on it, by the defendant in the execution, who 
 is insolvent, he has a right by answer, setting up the fact that he 
 had paid off the execution and satisfied the debt, to an equitable 
 set-off against any judgment for damages which may be obtained 
 against him on account of the trespass ; but the purchaser can not 
 recover for improvements on the land after he is sued. G-eoghegan 
 V. Ditto, 2 Met. 437, 438. 
 
 8. One, who purchased property at a sheriff's sale, under execu- 
 tion, will have a valid title, although the sheriff was constitution- 
 ally ineligible. Patterson v. Miller, 2 Met. 496 ; 1 Mon. 86 ; 3 
 Litt. 459. 
 
 9. If the defendant in an execution, who holds a bond for a deed 
 to land on which he owes a balance of purchase-money, gives up, 
 in writing, his interest in the land, to be sold to satisfy the execu- 
 tion, the purchaser, having obtained a deed from the sheriff, is en- 
 titled to possession, and on paying the balance of the purchase- 
 money due on the land, he will be entitled to a deed from the legal 
 title-holder. Moore v. Simpson, 3 Met. 350. 
 
 10. Article 15, chapter 36, page 488, volume 1, Eevised Statutes 
 does not apply to a case like this. Moore v. Simpson, 3 Met. 350, 351. 
 
PTTRCHASERS. 453 
 
 ^ 
 
 11. Where land is levied on and sold by a sheriff, under execu- 
 tion, in which the defendant in the execution had only an equita- 
 ble title, such defendant will be estopped to deny the purchaser's 
 title if the levy and sale were made with his assent. Moore v. 
 Simpson, 3 Met. 351, 352. 
 
 12. One, who purchased of husband and wife, in 1843, the wife's 
 interest in remainder in slaves, will, when his title is defeated by 
 the wife, be entitled to a return of his purchase-money and inter- 
 est. Ashby V. Woolfolk, 3 Met. 543. 
 
 13. "Where there is a lien on a tract of land for an unpaid bal- 
 ance of purchase-money, and a part of the land has been sold to a 
 third person, who has paid for it, the balance of the tract should 
 be first subjected to the payment of such balance. Corn v. Sims, 
 3 Met. 401. 
 
 14. A purchaser is not bound to accept a deed with general war- 
 ranty, without a relinquishment of dower by the vendor's wife. 
 Andrews v. Word, 17 B. Mon. 521. 
 
 c. When purchasers will be affected by equities in others. 
 
 1. A purchaser of land must take notice of all liens which ap- 
 pear on the face of the deed or bond under which his vendor claims 
 title. Tiernan v. Thurman, 14 B. Mon. 279 ; G-ault v. Trumbo, 17 
 B. Mon. 684. 
 
 2. Constructive notice to sub-vendee is sufficient to charge him 
 with lien of the original vendor. Tiernan v. Thurman, 14 B. Mon. 
 284. 
 
 3. A purchaser of land, charged with a trust, will not be respon- 
 sible for the application of the purchase-money, unless his obliga- 
 tion be clearly indicated by the will, or other instrument of title. 
 
 ■ Sims V. Lively, 14 B. Mon. 448. 
 
 4. If a will directs that a devisee shall, out of land and slaves 
 devised to him, with the help of another fund of uncertain amount, 
 pay to another devisee a certain sum, and he sells the land and 
 slaves to a purchaser ignorant of any fraud done, or intended, he 
 will not be responsible for the application of the purchase-money 
 which he has paid. Sims v. Lively, 14 B. Mon. 447. 
 
 5. Where the trustee has a discretion, and the performance is at 
 a distance of ten or twelve years, the purchaser of property, 
 charged with the trust, will not be responsible for the application 
 of the purchase-money. Sims v. Lively, 14 B. Mon. 449, 450. 
 
 6. If a lien be created, by act of the general assembly, or by 
 mortgage property recorded, purchasers will be charged with 
 
554 PURCHASERS. 
 
 legal notice, although neither of these show the amount of the in- 
 cumbrance : it ifl enough to put the purchaser on inquiry, and will, 
 therefore, be sufficient. Gom'rs Sinking Fund v. Northern Bank 
 Ky., 1 Met. 191. 
 
 7. ITotice of a lien, given at a public sale of incumbered prop- 
 erty, will affect the purchaser at that sale, but not a subsequent 
 purchaser, who was not present, and to whom it had not been com- 
 municated. Gom'rs Sinking Fund v. Northern Bank Ky., 1 Met. 
 190, 191; Willis V. Vallette, 4 Met. 195. 
 
 8. A purchaser, ignorant of a fraud committed by his vendor, 
 will not be aifected thereby. Wood & Oliver v. Yeatman, 15 
 B. Mon. 281. 
 
 9. A purchaser of land at a sheriff's sale, under his own execu- 
 tion, will not be decreed to surrender his title to the holder of a 
 bond, of which he had no notice when he obtained his deed. 
 Walker and wife v. McKnight, 15 B. Mon. 475, 476. 
 
 10. If personal property be sold at a fixed price, to be paid at a 
 uture day, and possession be given, but the title to remain in the 
 vendor until the price is paid, the title does not pass until payment 
 is made ; and an innocent purchaser cannot protect himself under 
 the statute against fraudulent conveyances. Patten v. McCane, 
 15 B. Mon. 558. 
 
 11. If one tenant in common alien a part of the common prop- 
 erty, and enough remains to satisfy the claims of the other ten- 
 ants, the purchaser will not be disturbed. Alves v. Town of Hen- 
 derson, 16 B. Mon. 165. 
 
 12. One, who purchases property, with a knowledge that it had 
 been levied on, will not be protected against the attachment. Car- 
 ney V. Walden, 16 B. Mon. 398; Lewis v. Quinker, 2 Met. 287. 
 
 13. A remote purchaser of land, held under a defective convey- 
 ance from a married woman, will not be charged with constructive 
 notice of her right, so as to defeat his claim to pay for improve- 
 ments, because of a defect in the clerk's certificate of her acknowl- 
 edgment. Thomas v. Thomas, 16 B. Mon. 425. 
 
 14. Purchasers of trust property, with notice of the trust, hold 
 it subject to the trust, and should be required to contribute rata- 
 bly to the discharge of the lien. Gault v. Trumbo, 17 B. Mon. 686. 
 
 15. Purchasers for a valuable consideration, without notice, are 
 protected against an unrecorded deed of the grantor ; but such 
 
PURCHASERS. 455 
 
 purchaser from the heirs of the grantor, is not protected against 
 an unrecorded deed made by the ancestor. Harlan v. Beaton, 18 
 B. Mon. 326. 
 
 16. If personal property be held by the loaner for more than 
 five years, without record evidence of the loan, purchasers from 
 the loanee will acquire a valid title. Neal v. Elliott, 18 B. Mon. 
 610. 
 
 17. But if the possession of the loanee is less than five years, the 
 purchaser acquires no title, and can not make up the statutory bar 
 by adding the time of his own possession to that of the loanee. 
 Neal V. Elliott, 18 B. Mon. 613. 
 
 18. That a subsequent purchaser had actual notice that a part of 
 the purchase-money, agreed to be paid by his vendor, remains 
 unpaid, if it be not stated in his deed, will not be sufiicient to 
 revive the lien in favor of the vendor. Chapman v. Stockwell, 18 
 B. Mon. 654, 655. 
 
 19. One, who transfers a bond for land, without stating in the 
 written assignment what part of the purchase-money agreed to be 
 paid him by the assignee remains unpaid, will have no lien on the 
 land for the balance due him, which will be available against a 
 purchaser from his assignee. McBrayer v. Collins, 18 B. Mon. 836, 
 837. 
 
 20. If property be attached on the ground that the defendant is 
 about to sell his property with the intent to hinder and delay his 
 creditors, and the plaintiff, before a hearing of the attachment, 
 obtains judgment and causes execution to issue, which is returned 
 "no property found," and then files an amended petition, and sets up 
 these facts and procures an attachment on that ground, and the 
 first one is discharged, one, who purchased of the defendant after 
 the levy of the first attachment, but before the filing of the 
 amended petition, making grounds for the second attachment, 
 will have a valid title. Stone & Warren v. Connelly, 1 Met. 657; 
 Jones V. Lusk, 2 Met. 359. 
 
 21. A bona fide purchaser of partnership property, pending a 
 suit by firm creditors, seeking the aid of the chancellor to restrain 
 the partners from diverting the firm effects from the payment of 
 firm debts, will have a valid title if they fail to show themselves 
 entitled to relief. McGill v. McGill, 2 Met. 262. 
 
 22. If a doweress, while in possession of land and slaves, pur- 
 chase out the interest of the remainder-men by executory contract 
 only, her title will be superior to that of a subsequent purchaser, 
 whether he had notice or not of her purchase. Being in posses- 
 
456 PURCHASERS. 
 
 sion, it was the' duty of the purchaser to inquire on what terms 
 she held possession. Bussell v. Moore, 3 Met. 437. 
 
 23. A voluntary conveyance is good against a subsequent pur- 
 chaser with actual notice. Enders v. Williams, 1 Met. 353; Earle 
 V. Gouch, 3 Met. 450. 
 
 24. One, who purchases property held by his vendee under a 
 decree, which is subject to be set aside on a bill of review, acquires 
 no better title than his vendor had. Earle v. Couch, 3 Met. 455. 
 
 25. One, who purchased property from the husband, acquired 
 from or through the wife, pending a suit by her for divorce and a 
 restoration of the property, will take it subject to her right to 
 restoration, if she succeeds in the action. Willaims v. Gooch, 3 
 Met. 489. 
 
 26. Sales or conveyances, made by a husband to defraud or 
 hinder the wife, are void as to purchasers with notice. Williams 
 V. Gooch, 3 Met. 490; sec. 12, art. 3, chap. 47, p. 22. vol. 2, Eevised 
 Statutes. 
 
 27. A purchaser at a decretal sale, made under a judgment pro- 
 cured in the name of the plaintiff, enforcing a lien by one having 
 general authority to collect the debt, will, if not cognizant of any 
 limitation on the authority of the person prosecuting the suit, be 
 shielded from any responsibility to the plaintiff and protected in 
 any rights he may have acquired under the judgment. Taylor v. 
 Gilpin, 3 Met. 545. 
 
 28. A purchaser of land, bought by his vendor at a judicial sale, 
 and who has paid for all the land he gets, without notice of a mis- 
 take in the sale as to the quantity of land in the tract, will be 
 protected against the claim of the former owners for the excess, 
 Jennings v. Monks, 4 Met. 107, 108. 
 
 29. There is no distinction, as to the notice necessary to bind a 
 purchaser between the cases, which come within the registry laws, 
 and those which do not. Willis v. Vallette, 4 Met. 188, 189. 
 
 30. Implied or presumptive notice may be eqally as effective as 
 positive notice, but it must not be that notice which is barely 
 sufficient to put a party in inquiry. Suspicion of notice is not 
 sufficient. The inference of a fraudulent intent, affecting the con- 
 science, must be clear and unquestionable. Willis v. Vallette, 4 
 Met. 189, 190. 
 
 31. Whatever puts a party upon inquiry amounts in judgment 
 of law to notice, provided inquiry becomes a duty and would lead 
 to a knowledge of the requisite fact by the exercise of ordinary 
 diligence and understanding. Willis v. Vallette, 4 Met. 190. 
 
RAILROADS. 457 
 
 32. A purchaser will be charged with notice, when he designedly 
 abstains from inquiry for the very purpose of avoiding notice. 
 WUlis V. Toilette, 4 Met. 190. 
 
 33. K there is no actual notice, that the property is in some way 
 affected, and no fraudulent turning away from a knowledge, which 
 res gestce would suggest to a prudent mind ; if mere want of cau- 
 tion as distinguished from fraudulent and willful blindness, is all 
 that can be imputed to a purchaser, he will be regarded as a bona 
 fide purchaser without notice. Willis v. Valletta, 4 Met. 190, 191. 
 
 34. A purchaser is legally chargeable with notice of an unre- 
 corded lien, though he has no knowledge of its existence, if he has 
 notice, actual or constructive, of the contents of the instrument 
 giving the lien, though under a mistake of the law he may suppose 
 there is no lien. Willis v. Valletta, 4 Met. 192. 
 
 35. The general rule is that a purchaser without notice is not 
 affected by notice to his vendor. Willis v. Vallette, 4 Met. 195; 
 Gom'rs Sinking Fund v. Northern Bank Ky., 1 Met. 190. 
 
 36. Where there are circumstances exciting strong suspicion of 
 fraud, both in the sale of land and in the transfer of the notes 
 given for it, and the consideration of the assignment is very inad- 
 equate, the holder of the notes, when asserting a lien on the land, 
 against a purchaser at a decretal sale, will only be allowed to 
 enforce it to the extent of consideration actually paid. Doyle v. 
 Armstrong, 2 Duv. 536. 
 
 EAILEOADS. 
 
 1. Eailroad companies have no right to kill stock straying upon 
 their road, if it can be avoided without unreasonable delay or 
 danger to their trains, or persons, and property conveyed by them. 
 L. &F. R. B. Go. V. MUler, 14 B. Mon. 79. 
 
 2. One, who releases the right of way for a railroad, is not there- 
 by bound to inclose the road to prevent stock from straying on it, 
 nor is the company bound to inclose it because of the acceptance 
 of the right of way. L. & F. R. R. Co. v. Miller, 14 B. Mon. 80. 
 
 3. If the killing of stock by a railroad be accidental, the loss 
 should fall on the owner; but if designedly killed, the company 
 will be answerable. L. & F. R. R. Co. v. Miller, 14 B. Mon. 
 80, 81. 
 
 4. A stockholder, in an incorporated railroad company, is a 
 competent witness for the company. C. & L. R. R. Co. v. Ingles, 
 15 B. Mon. 641. 
 
458 RAILROADS. 
 
 5. Eailroad companies are not liable, to the owners of lots in 
 towns and cities, for damages resulting from grades and embank- 
 ments necessary in the construction of their roads through the 
 streets, when done by the permission of the proper town authori- 
 ties. L. & F. R. R. Co. V. Brown, 17 B. Mon. 778. 
 
 6. One, who has granted the right of way over his land to a 
 railroad, can not recover against the company damages for injuries 
 resulting from a proper and reasonable use of the way for the pur- 
 poses of the road. Hortsman v. L. & C. R. R. Co., IB B. Mon. 222. 
 
 7. A railroad company is not liable to the owner of land, who 
 has given the right of way, for an injury to his lands by the falling- 
 in of the banks of cuts necessarily made in the construction of the 
 road. Hortsman v. L. & 0. R. R. Co., 18 B. Mon. 222. 
 
 8. The owner of land, over which a railroad is located, who con- 
 sents that it may pass through his lands, can not recover damages 
 for the entry of the company to construct the road. L. & F. B. B. 
 Co. V. Thompson, 18 B. Mon. 744. 
 
 9. The paramount duty of a railroad company, through its 
 agents entrusted with the conduct of a train, is to look to the 
 safety of persons and property therein; subordinate to which 
 is the duty to avoid unnecessary injury to animals straying upon 
 the road. Z. & F. R. R. Co. v. Ballard, 2 Met. 179. 
 
 10. A company, not bound by law to fence its track, is not 
 responsible for injuries to cattle upon the track, where the safety 
 of persons and things on the train requires that it should not be 
 arrested. L. & F. R. R. Co. v. Ballard, 2 Met. 180. 
 
 11. There is a peculiar obligation upon the owners of cattle to 
 keep them off the tracks of railways, and if they are permitted to 
 go on railroads and are killed, the company will not be liable, 
 unless it is proved that the company, or its agents, has been guilty 
 of reckless, wanton, and willful dereliction of duty. L. & F. R. B. 
 Go. V. Ballard, 2 Met. 184. 
 
 12. Eailway companies are liable to strangers, for the failure of 
 their agents and employees to exercise ordinary diligence and care 
 in operating their trains. L. & N. R. R. Co. v. Collins, 2 Duv. 116. 
 
 13. A railroad company, having by its charter a right to con- 
 struct but one road, but having the choice of any one of three 
 routes, can not complain that another company is allowed to build 
 a road on one of the routes which it might have chosen, but did 
 not. L. & P. R. R. Co. v. i. C. R. W. Co., 2 Duv. 177. 
 
 14. A "railroad" and a "street railroad" are not, in a technical 
 sense, the same, and a provision in the charter of a railroad com- 
 
REGISTER or THE LAND OFFICE. 459 
 
 pany that no other "railroad" should be constructed between 
 Twelfth street, in Louisville, and Portland does not prohibit the 
 legislature from allowing a "street railroad" to be constructed 
 between those points. L. & P. R. B. Oo. v. L. C. B. W. Go., 2 
 Duv. 178. 
 
 EBOBIPT. 
 
 1. Eeceipts and other writings, which only acknowledge the 
 existence of a fact, such as the payment of money, are susceptible 
 of explanation and may be contradicted by witnesses. Gordon v. 
 Gordon, 1 Met. 288; Olay v. Clay, 3 Met. 552. 
 
 2. Less effect will be given to a receipt by a ward to his guardian 
 than to such a paper between persons not standing in such rela- 
 tion of trust and confidence;^ and specially in a case where the 
 minority of' the ward has but recently ceased. Clay v. Clay, 3 
 Met. 552. 
 
 EECITALS. 
 See Evidence. 
 
 EECOGNIZAlSrCB. 
 See Bail. 
 
 EEDEMPTIOISr— EQUITY OE. 
 See Executions, Lien, Pitrchaser. 
 
 EEGISTEE OF THE LAND OFFICE. 
 
 1. The register of the land ofiice has power to appoint a deputy, 
 whether there is any express statutory provision authorizing it or 
 not. Morton v. Waring, 18 B. Mon. 84. 
 
 2. It is against the policy of the law to permit a deputy register 
 of the land office to buy land sold by his principal, and, although 
 such purchase may not be void, it can only de sustained by show- 
 ing it to have been fair, free from suspicion, and for adequate con- 
 sideration. Morton v. Waring, 18 B. Mon. 85. 
 
460 HEMAINDER AND EEVERSION. 
 
 3. A sale of land, made by the register under the act of 1813 
 and in accordance with the act of 1806, upon installments due the 
 State on head-right certificates, granted by a county court, passes 
 absolutely the title to the purchaser, unaffected by any transfer 
 made prior to the sale, or by any cause or defect whatever except 
 payment of the installment before sale. Vincent v. Eaves, 1 Met. 
 249. 
 
 4. It will be presumed the register did what he was required by 
 law to do before selling land, to pay installments due the State on 
 head-right claims. Vincent v. Eaves, 1 Met. 250 ; Hickman v. 
 Skinner, 3 Mon. 211. 
 
 EEMAINDEE AND EEVEESION. 
 
 1. A devise in trust, to the use of the testator's four children, 
 during their lives, with remainder to their children j but, in case 
 any should die without issue, then to the children of the others, 
 gives the children of the devisees a vested remainder ; and in case 
 any of the devisees for life die without issue, the children of the 
 others will take per capita, and not by representation. Walters v. 
 Crutcher, 16 B. Mon. 10. 
 
 2. If land be conveyed to two persons for their lives, and the life 
 of the longest liver of them, and then to the issue of their bodies 
 in fee, the first takers will only have a life estate, and the issue the 
 fee ; and the issue may recover it of the vendee of the life tenant, 
 at any time within twenty years after the death of the last sur- 
 vivor of them. Stephenson v. Sagan, 15 B. Mon. 300. 
 
 3. The statute of limitations does not run against those having a 
 vested remainder, in favor of an adverse holder of personal pro- 
 perty, during the continuance of the particular estate. Edwards 
 V. Woolfolk, 17 B. Mon. 380. 
 
 4. A limitation to the heirs of a person in existence, if it has the 
 other qualities of a remainder, must be a contingent remainder. 
 Williamson v. Williamson, 18 B. Mon. 368. 
 
 5. A testator, devising land, says: " The tracts or lots, which I 
 give to my daughters, they are to have, hold, and enjoy the rents 
 and profits of the same, for their separate and sole use, during their 
 natural lives, and at their deaths the title to the same is to vest in 
 their heirs in fee forever." Seld: The heirs of the daughters took 
 only a contingent remainder, and those dying during the continu- 
 ance of the life estate, had no interest to pass by descent to their 
 heirs. Williamson v. Williamson, 18 B. Mon. 376, 377. 
 
RENTS AND IMPROVEMENTS. 461 
 
 6. [A testator gave to one grandchild, "wlien he arrives at 
 twenty-one years of age," certain property, and to each of the 
 others certain property, " when they arrived at twenty-one years," 
 etc. Held : They each took a vested remainder. Allen v. Vanmeter, 
 1 Met. 270; Briscoe^. Wickliffe, 6 Dana, 162; Danforth v. Talbott, 
 7 B. Mon. 628 ; Grigsby v. Breckinridge, 12 B. Mon. 632. 
 
 7. When a devise is made in words, apparently creative of a 
 flitiire estate, and that even import a contingency, such words, if a 
 prior interest has heen carved out of the estate, will be construed 
 as referring to the futurity of possession occasioned by the carving- 
 out of the prior interest, and not as designed to protract the vest- 
 ing. Allen V. Vanmeter, 1 Met. 271 ; Grigsby v. Breckinridge, 12 B. 
 Mon. 632. 
 
 8. C. conveyed lands, to be held for her use during life, and after 
 her death to be held for the use and benefit of her son "W. P. C, 
 and such other child or children as she might thereafter have, to 
 be conveyed to them in equal portions, as they attain twenty-one 
 years, provided they attain that age. Held: The after-born 
 children took only a contingent remainder. Magowan v. Way, 1 
 Met. 423. 
 
 9. If a legacy be given to a class of persons, to be paid to them 
 at a given time, they take a vested interest at the testator's death. 
 Hocker Y.Gentry, 3 Met. 471. 
 
 10. Land was devised to one, for life, with remainder to another, 
 upon condition that he would pay $1,000 to a third person. If the 
 testator intended the money should be paid after the termination 
 of the life estate, the remainder vested at the death of the testator, 
 and the conditions to the payment of the legacy was subsequent 
 and nota precedent condition. Duncan v. Prentice, 4 Met. 217. 
 
 EENTS. 
 See Landlord and Tenant. 
 
 EBNTS AND IMPEOVBMENTS. 
 
 See OccTTPTiNa Claimants. 
 
 1. K one, who has sold land by parole contract, refuses to execute 
 the contract, he will only be entitled to rents to the amount of the 
 interest on the unpaid purchase-money, and must pay for improve- 
 
462 
 
 REVIVOR. 
 
 merits made, subject to a deduction for any waste committed by 
 the purchaser. Bellamy v. Ragsdale, 14 B. Men. 366. 
 
 2. The purchaser of land, under a void execution, is not entitled 
 to set off the value of improvements, made after he is sued, against 
 damages recovered for the trespass in entering on the land. 
 Geoghegan v. Ditto, 2 Met. 437. 
 
 3. A remote purchaser of land, held under a defective convey- 
 ance from a married woman, who, in good faith, supposing that he 
 was the owner of the land, has made lasting and valuable improve- 
 ments on it, will be entitled, in equity, to recover for his improve- 
 ments, a sum equal to the increase in the vendible value of the 
 land caused by the improvements, subject to deductions for rent 
 after the death of the husband. Thomas v. Thomas, 16 B. Mon. 425. 
 
 EEPLEVY BOKDS. 
 See Bonds. 
 
 EBSCISSION. 
 See Contracts, "Vendor and Vendee. 
 
 EE VENUE, 
 ror remedy against sheriffs for failing to pay over revenue, see Motions. 
 
 EEVIVOE. 
 
 I. Revivor of judgments. See Judgments. 
 II. Revivor of actions. 
 
 II. Revivor of actions. 
 
 1. When a plaintiff dies pending the action, and it is revived on 
 the motion of his representative, the order of revivor must be 
 served on the defendants in the same manner as a summons, 
 and a judgment rendered without such service is void. Amyx v. 
 Smith, 1 Met. 531, 532. 
 
 2. If the right of a deceased plaintiff descends to his co-plain- 
 tiff, that fact can not be made to appear, except by reviving the 
 action in the name of the survivor, as the representative of the 
 
RIPARIAN OWNER. 463 
 
 decedent; and if the action is not thus revived, no judgment can 
 be rendered in favor of the survivor for the share or interest of 
 the decedent in the thing sued for. Smith v. Ferguson, 3 Met. 426 
 
 EIGHTS OP BBLLIGEEBNTS. 
 See Belligerents. 
 
 EIPAEIAW OWNBE. 
 
 1. One, owning land binding on the Ohio river, or other navi- 
 gable stream, has the proprietary right down to low water mark. 
 But the river, at whatever stage, is a public highway, every part 
 of which is free for the navigation of all persons, with such 
 freights and vessels as the stream will bear, and the right of the 
 owner of soil between high and low water mark, is subject to the 
 superior right of navigators. Thurman v. Morrison, 14 B. Mon. 371 ■ 
 Morrison v. Thurman, 17 B. Mon. 263. 
 
 2. But the right of navigators to a free use of the stream does 
 not give them the right at pleasure to land upon and use the adja- 
 cent banks, for such purpose and such length of time, as they may 
 choose, and thereby to obstruct the use of the stream by the owner 
 of the adjacent soil. Thurman v. Morrison, 14 B. Mon. 371, 372. 
 
 3. A riparian owner, having a mill, or other establishment, on 
 the bank of a navigable stream, which receives its supplies from 
 vessels in the river, or sends out its products that way, has a right 
 to construct such roads, or ways, and apparatus connected with 
 them, as may be necessary to establish intercommunication, pro- 
 vided they do not obstruct the public right to navigation. Thur- 
 man V. Morrison, 14 B. Mon. 374, 375. 
 
 4. The owner of a saw-mill on the bank of a navigable stream, 
 who owns the soil down to low water mark, may erect log-ways 
 extending down into the river below low water mark, provided he 
 does not thereby obstruct navigation ; and if navigators unneces- 
 
 •sarily land their boats at the log- way, so as to obstruct its use by 
 the owner, whether during high or low water, they will be liable 
 for the injury caused thereby. Thurman v. Morrison, 14 B. Mon. 
 375, 376. 
 
 5. A riparian owner may recover of a navigator of a public 
 stream, for damages resulting from the failure of the latter to use 
 
464 ROADS AND PASSWATS. 
 
 such care and caution as would have been used under similar cir- 
 cumstances by other navigators, possessing competent experience 
 and ordinary skill. Morrison v. Thurman, 17 B. Mon. 258. 
 
 6. Owners of the soil on the bank of a navigable stream, can 
 acquire no right to the exclusive use of the adjacent stream, longer 
 than the actual use shall continue, and then to use it in such a 
 manner as not to interfere with the public right to its use. Morri- 
 son V. Thurman, 17 B. Mon. 263. 
 
 7. If boats be sunk in a navigable stream, between high and low 
 water mark, the owner will be liable to the owner of the soil on 
 which they lay for damage resulting from a failure to remove them 
 in a reasonable time. Morrison v. Thurman, 17 B. Mon. 267; 
 Thurman v. Morrison, 14 B. Mon. 372. 
 
 EOADS AND PASSWATS. 
 
 I. Generally. 
 II. Appointment and report of reviewers. 
 
 I. GENERALLY. 
 
 1. The use of a passway, to create a presumption of a grant, 
 must have been claimed and enjoyed as a right, and not merely as a 
 privilege, which the proprietor of the land might have withdrawn 
 at his pleasure. Bowman v. Wickliffe, 15 B. Mon. 99; Hall v. 
 McLeod, 2 Met. 101, 102. 
 
 2. A fixed determinate locality is also necessary to justify a pre- 
 sumption of grant. Wickliffe v. Bowman, 15 B. Mon. 99. 
 
 3. Eoads, running laterally with turnpike and plank roads, and 
 not within one mile of a city or town, and which are within one 
 mile of such turnpike or plankroad, will be closed on the applica- 
 tion of such turnpike or plankroad company. Campbell T. M. 
 Co. V. Dye, 18 B. Mon. 767. 
 
 4. To enable a purchaser to claim a right of way through the 
 lands of his vendor, he must show that such a passway is indis- 
 pensably necessary to the enjoyment of the land conveyed to him. 
 Rail V. McLeod, 2 Met. 100. 
 
 5. Where the proprietor of land has a passway through it for 
 his own use, the mere fact that he has permitted others to use it 
 for half a century would confer on them no right to its use. Sail 
 V. McLeod, 2 Met. 101. 
 
ROADS AND PASSWATS. 465 
 
 6. A verbal agreement to give a private passway over the lands 
 of the promissor, is within the statute of frauds and perjuries. 
 Eall V. McLeod, 2 Met. 103, 104. 
 
 7. A private passway can not be created by dedication : a pub- 
 lic highway may be. ITall v. McLeod, 2 Met. 104. 
 
 8. Any person has a right to resist an application to erect gates 
 across a public road; and, on doing so on the record, such person 
 becomes a party, and may prosecute an appeal. Bond v. Mullins, 
 3 Met. 284. 
 
 II. APPOINTMENT AND REPORT OF VIEWERS. 
 
 1. It is not necessary that an order, appointing viewers of a 
 new road, should direct the reviewers to view the nearest and 
 best way from one point to the other. Wood v. Campbell, 14 B. 
 Mon. 425. 
 
 2. If the report of viewers states that they were sworn, it will 
 be suflScient evidence that they were sworn, and it will be pre- 
 sumed they took the appropriate oath. Wood v. Campbell,' 14 B. 
 Mon. 425. 
 
 3. The report must describe the proposed route by metes and 
 bounds, courses and distances, and state the inconveniences to the 
 owners of land over which it passes ; and if it fails in either of 
 these particulars, it will be fatally defective. Wood v. Campbell, 
 14 B. Mon. 426 ; Phillips v. Tucker, 3 Met. 70. 
 
 4. Viewers of a road, who have reported and whose report has 
 been quashed, have no power to make a second report without a 
 new appointment. Phillips v. tucker, 3 Met. 70. 
 
 5. The points of commencement and termination of a route for 
 a new road should be fixed by the viewers by some visible object 
 sufficient to determine their exact locality. Phillips v. Tucker, 3 
 Met. 71 ; Craig v. North, 3 Met. 187, 188. 
 
 6. That the points of beginning may be ascertained by com- 
 mencing at an intermediate point and reversing the courses of the 
 route, is not a sufficiency certain location of the beginning. 
 Phillips V. Tucker, 3 Met. 71. 
 
 7. That one of two viewers, who had reported, was a brother-in- 
 law to the applicant, is a fatal objection to the report. Phillips 
 V. Tucker, 3 Met. 71. 
 
 8. An order, appointing viewers on an application to erect gates 
 across a public highway, which fails to fix the site where it is pro- 
 posed to erect the gates, is fatally defective. Bond v. Mullins, 3 
 Met. 284. 
 
 31 
 
466 SABBATH. 
 
 9. The report of viewers, in such a case, must fix definitely the 
 sites for the gates, and must state the convenience and incon- 
 venience to the public, that would result from the erection of the 
 gates. Bond v. Mullins, 3 Met. 284. 
 
 10. A statement in the report, that "the public will not be 
 materially injured," ,is not sufQcient. Bond v. Mullins, 3 Met. 284. 
 
 SABBATH. 
 
 1. A contract, having for its consideration the doing of work on 
 the Sabbath, can not be enforced. 8lade v. Arnold, 14 B. Mon. 288. 
 
 2. Swapping horses on the Sabbath is such business as is pro- 
 hibited by the statute ; and the dontract can not be enforced or 
 any recovery had for a breach of warranty of soundness made on 
 that day. Murphy v. Thompson, 14 B. Mon. 420. 
 
 3. Process issued on the Sabbath day is void. Moore v. Ha,gan, 
 2 Duv. 438; p. 347, vol. 2, Eevised Statutes. 
 
 SAVINGS BANK. 
 See Taxation. 
 
 SE.LF DDiPElSrSB. 
 See Cb,iminal Law. 
 
 SET-OFF. 
 
 I. General principles. 
 
 ^,, II. What may be pleaded as a set-off. 
 
 *' ,! III. Set-off in equity. 
 
 IV. "When available against an assignee. 
 
 I. GENERAL PRINCIPLES. 
 
 1. A cause of actioft not existing at the commencement of the 
 suit can not be pleaded as a set-off. Jackson, Cox & Co. v. Hollo- 
 vyay, 14 B. Mon. 140. 
 
 2. Set-off and discount are separate and distinct matters ; the 
 first is independent debt or demand which the debtor has against 
 
SET-OFF. 467 
 
 his creditor ; the latter is a demand in favor of the former arising 
 out of a partial failure of consideration, or on account of some 
 equity arising out of the transaction on which the demand is 
 founded. Trabue v. Harris, 1 Met. 598, 599. 
 
 3. A set-off is in the nature of a cross-action, and is subject to 
 the same restrictions as if prosecuted in an original action. Ben- 
 nett V. McCrockUn, 3 Met. 323, 324. 
 
 4. In an action by an assignee, on a note, the obligor pleaded 
 usury and payment — Held: This was neither a set-off nor counter- 
 claim, although so denominated in the answer. True v. Triplett, 
 4 Met. 58, 59. 
 
 5. To authorize a set-off, there must be mutual subsisting de- 
 mands, constituting causes of action, at the date of the commence- 
 ment of the suit. Hayes v. Goodwin, 4 Met. 82, 83. 
 
 II.- WHAT MAT BE PLEADED AS A SET-OFF. 
 
 1. If a note be executed to one as adm.inistrator, it is prima facie 
 assets of his intestate, and an individual demand against the ad- 
 ministrator can not be set off against it. Jones v. Everman, 15 
 B. Mon. 633. 
 
 2. But it will be otherwise, if the administrator has made the 
 debt his own, by charging himself with it on settlement of his ac- 
 counts. Jones V. Overman, 15 B. Mon., 633. 
 
 3. The assignment of an obligation to be used as a set-off against 
 a demand due the obligor, will be vqlid ; and the set-off may be 
 pleaded, although the assigned has no beneficial interest in it. 
 Graham Y. Tilford, 1 Met. 114; Ottwell v-. Cook, 9 B. Mon. 358. 
 
 4. A debt due the testator, by a devisee who died in the lifetime 
 of the testator, can not be set off against the claim of the children 
 of the devisee to the estate bequeathed to their father, unless the 
 debts are mentioned in the will in such manner as to make them 
 a charge upon the legacy. Carson v. Carson, 1 Met. 302, 303. 
 
 5. One, against whom a proceeding has been instituted by a 
 non-resident, to compel the restitution of money collected under a 
 judgment which has been reversed, may defeat a recovery by 
 showing an indebtedness of the plaintiff to him in an amount 
 equal to that sought to be recovered of him. Carson v. Carson, 2 
 Met. 97. 
 
 6. Unliquidated damages can not be pleaded as a set-off in an 
 action at law on a note. Shropshire v. Conrad, 2 Met. 144. 
 
468 
 
 SET-OFF. 
 
 7. One, who is a distributee of an estate, when sued by the ad- 
 ministrator for a debt due him in his own right, can not avail him- 
 self by way of set-off of a sum due him by the plaintiff as admin- 
 istrator, when the suit is in a county other than that in which the 
 administrator was appointed. Bennett v. McGrocklin, 3 Met. 323, 
 324 ; sec. 97, Civil Code. 
 
 8. In a suit by husband and wife and their assignee, on two notes, 
 one payable to the husband and wife, and the other to the husband 
 alone, but both reciting on their face that they were given for the 
 rent of land held by the wife as dower in the estate of a former 
 husband, the defendant can not set off debts due to him by the 
 husband. Green v. Carson, 4 Met. 76, 77. 
 
 9. A deputy sheriff, who has paid money as surety of his prin- 
 cipal, before a lien in favor of the Commonwealth upon his indebt- 
 edness to the sheriff, on account of revenue, collected by him, 
 has attached, has a right to set off the amount against the Com- 
 monwealth, or its assignee. Harlan v. Lumsden, 1 Duv. 89. 
 
 10. A housekeeper, with a family, sold his only cow, to raise 
 money to buy one then giving milk ; the parchaser knew this fact, 
 and promised to pay cash for her. Held : That he could not set 
 off against the price agreed to be paid, a debt held at the time 
 against the plaintiff. Mulliken v. Winter, 2 Duv. 257. 
 
 III. SET-OFF IN EQUITY. 
 
 1. Equity will set off an equitable demand which might have 
 been, but was not; presented as a set-off to a legal demand, and 
 give relief against the judgment at law, if the plaintiff in the 
 judgment is insolvent, or a non-resident. Dorsey v. Reese, 14 
 B. Mon. 158.1 
 
 2. If it be agreed that one demand shall be received in satisfac- 
 tion of another, the chancellor has power to enforce the contract, 
 and decree a set-off. Lansdale v. Mitchell, 14 B. Mon. 350. 
 
 , 3. nUntil he pays the debt of his principal, a surety has no avail- 
 able demand which amounts to a set-off, or equitable discount, and 
 the insolvency of his principal will not alter this rule. Walker v. 
 McKay, 2 Met. 295, 296. 
 
 4. If the purchaser of land under a void execution is sued for 
 trespass by the defendant in the execution, for entering on the 
 land, if the plaintiff is insolvent, and he has paid the execution, 
 
 1 Overruled in Chinn v. Mitchell, 2 Met. 95. 
 
SET-OFF. 469 
 
 and satisfied the debt, ke may set it off in equity against the claim 
 against him for the trespass. Geogeghan v. Ditto, 2 Met. 437, 438. 
 
 5. The rule was well settled before the adoption of the Civil 
 Code, that courts of equity would entertain jurisdiction to enforce 
 a set-off where the demands were connected, or where the one 
 sought to be set off formed the consideration of the other. Tay- 
 lor & Son V. Stowell & Chamberlain, 4 Met. 176, 177. 
 
 6. The only exception to this rule was, that if the claim was for 
 unliquidated damages, the chancellor would not, on account of the 
 mere connection between the demands, first liquidate the damages, 
 and then make the set-off, where there was a plain and adequate 
 remedy at law. Taylor & Son v. Stowell & Chamberlain, 4 Met. 
 177. 
 
 7. But where the existence of any extraneous fact calculated to 
 defeat the legal remedy, such as insolvency, or non-residence of 
 the plaintiff, or his assignor, is shown, the jurisdiction of the chan- 
 cellor is unquestionable, even in cases of unliquidated demands; 
 and the law on this subject has not been changed by the Code. 
 Taylor & Son v. Stowell ds Chamberlain, 4 Met. 177. 
 
 8. A claim for usury, against a non-resident plaintiff, who has 
 obtained judgment, may be setoff in equity against the judgment. 
 Moss V. Rowland, 1 Duv. 322. 
 
 IV. WHEN AVAILABLE AGAINST AN ASSIGNEE. 
 
 1. If the debtor of a bank be sued, by commissioners appointed 
 to wind up and settle its affairs on ard^and due thq bank, he may 
 set off against it any demand due him from the bank, at the date of 
 the assignment. Finnell v. IJ'esbiit, 16 B. Mon! 354, 355; Sarlan 
 v. Lumsden, 1 Duv. 89. { 
 
 2. Beneficiaries in a deed of trust, made by a debtor for the 
 benefit of his creditors, may retain funds in their hands when the 
 assignment was made, to pay any debts then due them from the 
 maker of the deed or for any liability they may have incurred Jbr 
 him before notice of the assignment. L. L., F. & M. Ins. Co. v. 
 Page & Richardson, 17 B. Mon. 458. 
 
 3. A note assigned to the defendant to be used by him as a set-off 
 against an action by an assignee must, to be available, have become 
 due before he had notice of the assignment of the demand against 
 which he offers to plead it. Graham v. Tilford, 1 Met. 115 ; Walker 
 V. McKay, 2 Met. 295, 296; Wathen v. Chamberlain, 8 Dana, 164; 
 Bidgeway v. Collins, 3 Mar. 412. 
 
470 SHERIFF. 
 
 4. A breach of warranty in the sale of lumber may be pleaded 
 as a set-off in an action by an assignee on a note given for the 
 price, if the assignor be a non-resident or is insolvent. Taylor & 
 Son V. Stowell & Chamberlain, 4 Met. 177. 
 
 5. If an obligor executes a new note to an assignee for the 
 debt including the usury, he can not, when sued on the new note, 
 set up the usury by way of set-off. Stone v. McConnell, 1 Duv. 
 56, 57. 
 
 SETTLEMEISTT. 
 See Husband and "Wife. 
 
 SHBEIFF. 
 
 I. The office. 
 II. Powers of sheriff. 
 
 III. Duties. 
 
 IV. Liabilities. 
 
 I. THE OFFICE. 
 
 1. Whether one, acting as sheriff, has qualified, by giving bond 
 and taking the oath required by the constitution and laws, can not 
 be inquired into collateEgJIly-' on a motion to quash his return on 
 process. Stokes v. Kirkpatrick, 1 Met. 143. 
 
 2. Until a forfeiture, or vkcandy is declared by the proper trib- 
 unal in a direct proceeding'for that purpose, the acts of one acting 
 as sheriff, must be held valid, at least so far as third persons are 
 concerned, and their" legality can not be questioned collaterally. 
 Stokes V. Kirkpatrick, 1 Met. 143; Patterson v. Miller, 2 Met. 496; 1 
 Mon. 86; 3 Litt. 459; 4 B. Mon. 234. 
 
 3. The county court has no power to inquire into the eligibility 
 of QjOf holding a certificate of election to the office of sheriff. Pat- 
 terson y. Miller, 2 Met. 497. 
 
 4. A sheriff may be removed from office by impeachment or 
 indictment. Jjowe v. Commonwealth, 3 Met. 240. 
 
 5. If the office of sheriff becomes vacant, the county court should 
 appoint one, to hold until the next August election, and until the 
 successor then chosen shall qualify; and if none is then elected, 
 another appointment should be made. Cate v. Boss, 2 Duv. 244, 
 245. 
 
SHERIFF. 471 
 
 6. Section 4 of article 6 of the constitution, prescribes the time 
 •when sheriffs elected at the regular biennial elections shall qualify, 
 and has no application to sheriffs elected to fill vacancies. The 
 latter may qualify at the first term of the county court after he 
 receives a certificate of election. Cate v. Moss, 2 Duv. 244, 245. 
 
 II. POWERS. 
 
 1. A sheriff, having criminal process to execute, may lawfully 
 break open doors, and enter and search the house where the per- 
 son resides, whose arrest is directed by the writ. Hawkins v. 
 Commonwealth, 14 B. Mon. 396. 
 
 2. But an officer has no authority to break and enter any other 
 house than that in which the defendant in the writ resides, unless 
 he be then actually in such house ; and if he enters with the assent 
 of the owner, he can only continue his search until the consent is 
 withdrawn, if the person to be arrested be not then in the house. 
 Hawkins v. Commonwealth, 14 B. Mon. 399. 
 
 3. If an attachment be placed in the hands of a sheriff to be 
 levied, but before a levy is made, the defendant executes bond, 
 with security, to the sheriff, to pay the debt, it will be valid as a 
 common law bond. Cook v. Boyd, 16 B. Mon. 559. 
 
 4. A sheriff has no power to take a forthcoming bond for prop- 
 erty levied on under an execution, which is indorsed, " No security 
 of any kind to be taken." Ditto v. Geoghegan, 1 Met. 174! 
 Bichardson v. Bartley, 2 B. Mon. 330. 
 
 5. A sheriff has no authority to take from one arrested, in a 
 civil action, a bond whereby the defendant, or his security, agrees 
 to become bound that the defendant will perform the judgment of 
 the court in the action, and such a bond is void. L. & D. B. B. 
 Co. V. Barbee, 1 Met. 391. 
 
 6. A sheriff who, at the time of qualifying as such, executes bond 
 for the collection and payment of " the county levy, and public dues 
 of the county," for the year, is authorized to collect a tax levied 
 to pay the interest on the bonds of the county issued to a railroad 
 company. Taylor v. JVunn, 2 Met. 203, 204. ,,, 
 
 7. A sheriff, though out of office, may, on leave of the court, 
 amend his return on a writ of fi. fa. Newton v. Frather, 1 Duv. 
 102, 103. 
 
 III. DUTIES. 
 
 1. The law only requires a sheriff, in good faith, to make a rea- 
 sonable effort to execute process placed in his hands. Common- 
 wealth for Ashby v. Gill, 14 B. Mon. 22. 
 
472 SHERIFF. 
 
 2. If a sheriff goes to the house of the party, and does not find 
 him there, he may return "not found," unless he has a reasonable 
 opportunity to execute it on another occasion. Commonwealth for 
 Ashhy V. Gill, 14 B. Men. 22. 
 
 3. It is the duty of a sheriff, making a deed to land sold by his 
 predecessor, to recite, in the deed, that a certificate of purchase 
 was produced, and such recital, when made, is prima facie evi- 
 dence of the fact. Phillips v. Jamison, 14 B. Mon. 583. 
 
 4. The law will presume that the sheriff did his duty in the 
 execution of a summons. Webber v. Webber, 1 Met. 21 ; Bridges v. 
 Jtidgely, 2 Litt. 396. 
 
 5. A sheriff who takes an indemnifying bond before levying an 
 execution, is bound to levy it and sell the property. Snoddy & 
 Bransford v. Foster, 1 Met. 163. 
 
 6. It will be presumed that a sheriff did his duty by levying 
 attachments in the order in which they came to his hands. Buck- 
 tier V. Bush, 1 Duv. 396. 
 
 IV. LIABILITIES. 
 
 A. Generally. 
 
 B. For failure to pay county creditors. 
 
 C. For failure to return execution. 
 
 D. For failure to pay over money collected. 
 
 E. For failure to pay over revenue collected. 
 
 a. Generally. 
 
 1. A sheriff who executed bond for the collection and payment of 
 the county levy and public dues of»the county for the year, is, with 
 his sureties, liable for money collected under a levy subsequently 
 made to pay the intereat on the bonds of the county, issued to a 
 railroad company ; and a subsequent order of the county court, 
 appointing the sheriff to collect the tax, and the execution of a 
 new bond to account for the taxes thus collected, will not change 
 the liabilities of his sureties in the original bond. Taylor v. Nunn, 
 2 Met. 203, 204. 
 
 2. A sheriff, who acts as umpire in deciding upon the legality 
 of a vote offered, acts judicially, and is not responsible for a mere 
 error of judgment. Morgan v. Dudley, 18 B. Mon. 712 
 
 3. If a sheriff takes an indemnifying bond before levying an exe- 
 cution, and then refuses to sell the property, he is only liable on 
 his bond for the damage sustained by the plaintiff ; and if sued 
 for a failure to levy, may show, in mitigation of damages, that 
 the property did not belong to the defendant in the execution. 
 Snoddy & Bransford v. Foster, 1 Met. 163. 
 
SHERIFF. 473 
 
 4. A sheriif, who levies on and sells property under an execution 
 issued on a judgment rendered ^without the service of process, 
 will be liable to the owner of the property in damages for the 
 trespass. Board v. Helm, 2 Met. 502. 
 
 5. If an execution be placed in the hands of A., as deputy for 
 Q., and Q. dies during the lifetime of the execution, and H. is 
 appointed his successor, and A. his deputy, and M. succeeds H., 
 and A. be appointed his deputy, it is the duty of A., who levied 
 the execution during the term of H., and sold the property under 
 venditioni,i&svLQ& during the term of M., to have made the levy and 
 sale as deputy of Q., and for any delinquency or misconduct, the 
 representatives and sureties of Q., and not those of H. or M., are 
 liable. Hamilton v. Tail, 2 Met. 512, 513; Colyer v. Higgins, 
 1 Duv. 7. 
 
 6. A sheriff is responsible to the plaintiff in an execution for 
 money paid thereon to his deputy, although the payment was made 
 after the return day of the execution, and the execution was not 
 levied. James v. Yates, 3 Met. 346." 
 
 7. And the sheriff having paid the money thus collected to the 
 plaintiff, the sureties of the deputy are responsible to him upon their 
 bond, to indemnify him against loss on account of the official acta 
 of the deputy. James v. Yates, 3 Met. 344, 345. 
 
 8. A sheriff under an order to sell attached property, reported the 
 sale and collection of the proceeds, which the court ordered him to 
 loan out on good security, and report at the next term, but he 
 failed to make out the required report. Held : That the sureties 
 in the sheriff's bond, are not responsible for the money. Saunders 
 V. Parrott, 1 Duv. 293; sees. 188, 189, 239, Civil Code. 
 
 b. For failure to pay county creditors. 
 
 1. On a motion against a sheriff and his sureties, for failing to 
 pay a county creditor, the facts stated in the notice can not be 
 taken for confessed on their failure to appear and controvert them, 
 but must be proved. Todd v. Gaines, 18 B. Mon. 621, 622; Terrill 
 V. Cecil, 3 Met. 348 ; Thompson v. Healy, 4 Met. 258, 259. 
 
 2. On such a motion, it should be shown that the sheriff has 
 money in his hands to pay the plaintiff after paying all claims pre- 
 viously allowed, and this fact should be stated in the notice, unless 
 the claim was allowed at the term, at which the levy was made. 
 Todd V. Caines, 18 B. Mon. 621, 622 ; Thompson v. Healy, 4 Met. 258. 
 
 ' Overruling a dictum in Chinn v. Mitchell, 2 Met. 94. 
 
474 SHERIFF. 
 
 3. If the claim was allowed at the term, at which the county levy 
 was made, the notice need not aver that there is money in the 
 sheriff's hands to pay the plaintiff after paying claims previously 
 allowed. Thompson v. Healy, 4 Met. 258. 
 
 4. No recovery can be had on a motion against the sureties of a 
 sheriff, for the failure of the latter to pay a county creditor, until a 
 demand is made of him; even, though he has left the State and is 
 inaccessible. The remedy in such a case is by action on the bond. 
 Thompson v. Healy, 4 Met. 259. 
 
 c. For failure to return executions. 
 
 1. A defendant in an execution, who is surety for other defend- 
 ants, and has paid the debt to the plaintiff, can not, by motion, re- 
 cover of the sheriff for his failure to return within thirty days after 
 the return day. Sanders v. Bank Ky., 2 Met. 328 ; Mershon Y.Oom- 
 monwealth, 2 Met. 374. 
 
 2. The pendency of an action against the sheriff and his sureties, 
 for failure to collect an execution, and for a false return, is no bar 
 to a motion against them, to recover damages for the sheriff's 
 failure to return the execution within thirty days after the return 
 day. Sanders v. Bank Ky., 2 Met. 330. 
 
 3. The plaintiff in an execution, may, although the debt has been 
 paid to him by the defendant, recover of the sheriff and his sure- 
 ties thirty per cent, on the amount of the execution, for a failure to 
 return in thirty days after the return day. Sanders v. Bank Ky., 
 2 Met. 329. 
 
 4. But, on such a motion, the plaintiff can not recover the 
 amount of the execution, if it has been paid to him by the defend- 
 ant. Sanders v. Bank Ky., 2 Met. 330. 
 
 5. If, upon the trial of a motion against a sheriff and his sureties, 
 for not returning an execution within thirty days after the return 
 day, it appears that the defendant in the execution had property in 
 the county, out of which a part only of the execution could be 
 made, the sheriff and his sureties will be liable for the whole 
 amount of the execution, and thirty per cent, thereon. Qoodrum v. 
 Boot, 2 Met. 428. 
 
 • 6. Sheriffs are liable to a fine of fifty dollars for failing to return 
 an execution of^f. fa, issued on a judgment in an action by ordinary 
 proceedings, on the return day of the writ. Dep. Bank of Cyn- 
 thiana v. Glenn, 1 Met. 588, 589. 
 
 7. The sureties of the sheriff are not liable for the fine imposed 
 for a failure to return &fi.fa, on the return day, but are liable 
 
SHERIFFS. 475 
 
 when the sheriff is proceeded against for the recovery of the 
 amount of the execntion, and thirty pe?' cent, thereon for a failure 
 to return the execution on the return day. Dep. Bank of Oynthiana 
 V. Glenn, 1 Met. 588, 589. 
 
 8. A sheriff, who accidentally mislaid an execution, after it was 
 replevied with good security, and on that account fails to return it 
 within thirty days after the return day, is not liable for the debt, 
 and thirty per cent, for such failure. Shippen v. Gurry, 3 Met. 185, 
 186 ; Mitcheson v. Foster, 3 Mett. 325 ; Warring v. Tliomas, 1 Litt. 
 253; Bassett v. Bowman, 3 B. Men. 328. 
 
 9. The plaintiff, in an execution, may recover nominal damages 
 against the sheriff individually, independently of the bond, for a 
 failure to return the execution. Golyer v. Higgins, 1 Duv. 8. 
 
 d. Failure to pay money collected. 
 
 1. A motion against a sheriff and his sureties, for a failure to 
 pay over money collected by him, must be made in court on the 
 day named in the notice or entered on the motion docket, and if 
 neither is done, the motion will be regarded as abandoned. Foster 
 Y. Wade, 4 Met. 253, 254. 
 
 2. An entry, on the record in such a case, on the day before that 
 named in the notice, of " notice filed and ordered to lie over," is 
 not sufficient, and a judgment rendered at a subsequent term is 
 void. Foster v. Wade, 4 Met. 253, 254. 
 
 e. For failure to pay revenue. 
 
 1. A motion in the Franklin circuit court against a sheriff and 
 sureties, for failing to pay over the revenue collected by the sheriff, 
 must be docketed for the third day of the term ; but may be tried 
 on any subsequent day. Mershon v. Commonwealth, 2 Met. 372. 
 
 2. If, on the trial of such a motion, a statement of the auditor of 
 public accounts and an official copy of the sheriff's bond be filed, 
 these will, if there is no other evidence, authorize a judgment. 
 Mershon v. Gommonwealth, 2 Met. 372. 
 
 3. A sheriff and his sureties are liable, on motion, for twenty 
 per cent, damages on the amount of revenue in the hands of the 
 sheriff after the 15th of December, when he is required by law to 
 pay it into the treasury, and payment after that time does not 
 relieve them from liability, but only operates as a credit on the 
 whole amount of his liability, including the twenty per cent. 
 Mershon v. Gommonwealth, 2 Met. 373 ; Sanders v. Bank Ky., 2 Met. 
 328; Bruce v. Dyal, 5 Mon, 128; Stenens v. Lewis, 8 B. Mon. 150. 
 
476 SHOOTING AT ANOTHER. 
 
 SHEEIFP'S SALES. 
 See Executions and Purchaseus. 
 
 SHOOTING AT AJSTOTHEE. 
 
 For shooting and wounding maliciously with intent to kill, see Oriminal Law. 
 
 1. It is only a misdemeanor to shoot at and wound another with- 
 out malice, and not in self-defense. Commonwealth v. Yancy, 2 
 Duv. 375. 
 
 2. The attempt to shoot another is an inferior degree of the 
 offense of shooting at another, without wounding him, and may be 
 punished under an indictment for shooting at another. Usher v. 
 Commonwealth, 2 Duv. 395. 
 
 3. As the statute limits the fine for actually shooting at another 
 to five hundred dollars and twelve months imprisonment, it seems 
 proper, though the punishment for attempting to shoot another is 
 punishable at the discretion of the jury, that the punishment of the 
 latter should not be greater than that prescribed by the statute 
 for the former. Usher v. Commonwealth, 2 Duv. 395. 
 
 SLANDER. 
 
 1. In an action for slander charging the utterance of various 
 expressions prejudicial to the plaintiff, the jury should be told by 
 the court what words are slanderous, and the instructions should 
 be predicated on their belief of the speaking of such words by the 
 defendant. Estham v. Curd, 15 B. Mon. 105, 106. 
 
 2. Circumstances of provocation, which are insufS.cient to justify, 
 may yet, by weakening the inference of malice, palliate the publi- 
 cation of a slander or lible, and may operate to mitigate the dam- 
 ages to be recovered for it. Duncan v. Brown, 15 B. Mon. 198. 
 
 3. That which amounts to justification can not be given in 
 evidence in an action for slander under a plea of not guilty, but 
 that which falls short of it may be. Thurman v. Virgin, 18 B. 
 Mon. 791. 
 
 4. But in an action of slander when the plaintiff has introduced 
 evidence tending to prove the speaking of the words charged, he 
 may give in evidence other slanderous or libelous matter uttered 
 
SLANDEE. 477 
 
 by the defendant, and actionable in itself for the purpose of show- 
 ing malice, but for no other purpose. Letton v. Young, 2 Met. 561 ; 
 Taylor v. Moran, 4 Met. 132. 
 
 5. An instruction in an action of slander hypothecated upon the 
 belief of the jury that the slanderous words set foi'th in the peti- 
 tion or any part of them were spoken, but which fails to inform 
 the jury what words are actionable, is misleading especially if the 
 petition contains expressions charged to have been spoken which 
 are not slanderous. Letton v. Young, 2 Met. 565. 
 
 6. The words "he, the defendant, had sexual intercourse with 
 the plaintiff at divers different times," are actionable, and special 
 damages need not be alleged nor proved. Adams v. Mankin, 1 
 Duv. 58; 1 Litt. 64; 2 Litt. 163. 
 
 7. In an action for slander in charging the plaintiff with perjury, 
 plea of justification, proof of the high character of the plaintiff is 
 admissible. Smith v. Lovelace, 1 Duv. 215. 
 
 8. In an action for slander in charging the plaintiff with per- 
 jury, the jury found by special verdict that what the plaintiff 
 swore on the occasion referred to in the slanderous words was 
 untrue, but that he was mistaken, and for that reason they found 
 for the defendant, under a plea of justification — Held: The verdict 
 did not justify a judgment for the defendant. Scott v. Cook, 1 
 Duv. 314. 
 
 9. A judgment in an action for slander should not bear interest, 
 and to give interest on such a judgment is error. Adams v. Bankin, 
 1 Duv. 59. 
 
 10. The plaintiff must prove substantially the same words 
 alleged. It is not sufficient to prove words of the same effect or 
 import or words conveying the same idea. Taylor v. Moran, 4 
 Met. 138. 
 
 11. Whether the words charged have been proved is a question 
 for the jury; whether the words spoken correspond with the words 
 laid is a question for the court. Taylor v. Moran, 4 Met. 139. 
 
 12. Slanderous words, of similar import with those declared on, 
 spoken after the commencement of the action, can not be relied 
 upon in such action either as a distinct ground of recovery, or to 
 show that the words charged had been spoken, or to enhance the 
 damages to which the plaintiff may be entitled on the original 
 cause of action, but simply and merely to show the intent with 
 which the words charged were spoken, and when given in evi- 
 dence, the court should give such cautionary directions to the jury 
 
478 SPECIAL JUDGE. 
 
 as to restrict their effect upon the verdict within the legitimate 
 purpose of their admission. Taylor v. Moran, 4 Met. 129, 130. 
 
 13. In an action of slander, a slander uttered subsequent to the 
 institution of the suit, can not be set up by way of amendment. 
 Taylor v. Moran, 4 Met. 130. 
 
 14. The specific words in wkich a slander is conveyed must be 
 set forth in the petition, and it is not sufficient to state merely the 
 effect of the words uttered, or that the defendant charged the 
 plaintiff with the commission of a particular crime. Taylor v. 
 Moran, 4 Met. 137. 
 
 SPECIAL JUDGE. 
 
 1. The statute requires that in the selection of a special judge, 
 the reason of such selection, and the fact that the requisite oaths 
 have been taken, shall be entered on the order book of the court; 
 but if no objection be made in the circuit court, it will be pre- 
 sumed the requirements of the statute have been complied with. 
 Slone V. Slone, 2 Met. 340. , 
 
 2. In a proceeding to strike the name of an attorney-at-law from 
 the rolls of the court, the attorney is entitled to have the charges 
 against him tried by a special judge on filing an affidavit stating 
 that the presiding judge is personally hostile to him, and had been 
 so for years, and that he believed he could not and would not, 
 because of such hostility, do him justice. Turner v. Common- 
 wealth, 2 Met. 630. 
 
 3. When a cause is submitted by consent to a special judge, and 
 no objection is made in the circuit court to the person agreed upon, 
 objections to him will not be available in the court of appeals- 
 Vandever v. Vandever, 3 Met. 137, 138. 
 
 SPECIFIC BXBCUTIOlSr. 
 
 1. When the parties have, upon a compromise, agreed upon a 
 boundary between their lands, and reduced the agreement to 
 writing, and no unfairness, fraud, or mistake, is complained of, 
 the court will decree a specific execution. Fugate v. Bobinson, 18 
 B. Mon. 684. 
 
 2. An action was brought by the purchaser for the specific 
 execution of a contract for the sale of a tract of land ; no allega- 
 
SPECIFIC EXECUTION. 479 
 
 tion of defect of title was made ; the court of appeals directed a 
 decree to be entered for a specific performance, on the payment of 
 a balance of purchase-money due. Before entering the mandate, 
 the circuit court permitted the plaintiff to file additional pleadings 
 alleging a recently-discovered defect in the title of the vendor, 
 and upon hearing rescinded the contract. Held : That the title of 
 the vendor being of record, it was the duty of the plaintiff to have 
 examined into its validity before the first trial, and that having 
 failed to do so, he can not ask a rescission of the contract, or a 
 vacation of the decree for specific execution. Denny v. Wichliffe, 
 1 Met. 225. 
 
 3. A purchaser in possession, who has obtained a decree for the 
 specific enforcement of a contract for the sale of land, occupies 
 virtually the attitude of a purchaser under an executed contract. 
 Benny v. Wickliffe, 1 Met. 226. 
 
 4. But if he obtains a new trial for newly-discovered defects in 
 the title, he may have a rescission as though the contract had not 
 been executed. Denny v. Wickliffe, 1 Met. 226. 
 
 5. A specific execution of general promises by one to establish 
 a passway over his lands, when no specific contract was made by 
 him with any person, can not be enforced. Sail v. McDeod, 2 
 Met. 103. 
 
 6. M. sold land to H. for three thousand five hundred dollars, 
 and stipulated in the contract that if, at the expiration of three 
 years from date, H. should desire to sell the land, M. would, upon 
 request of H., purchase the same at the price of three thousand 
 five hundred dollars. H. failed to make the request until nearly 
 a month after the expiration of the three years. Seld: That this 
 was not such a compliance with the contract as to give H. a right 
 to enforce it, either at law or in equity. Magoffin v. Bolt, 1 Duv. 
 95. 
 
 7. Equity will not ordinarily regard time as of the essence of a 
 contract for the sale of land ; but where there is a want of mutual- 
 ity in the obligation, time is essential in equity, as well as at law. 
 Magoffin v. Salt, 1 Duv. 97 ; 2 B. Mon. 282. 
 
 8. On a contract made since the passage of the act of Congress 
 of February 25, 1862, declaring treasury notes a legal tender for the 
 payment of a certain sum in gold, the obligee will be entitled to a 
 specific execution, whether the legal tender act is constitutional or 
 not. Smith v. Dilland, 2 Duv. 152. 
 
 9. A contract made in 1863 to pay for land in gold— the differ- 
 ence between gold and currency being taken into consideration in 
 
480 STEAMBOATS AND STEAMBOAT OWNERS. 
 
 estimating the value of the land — will be specifically enforced in 
 equity, whether treasury notes are a legal tender or not. Hord v. 
 Miller, 2 Duv. 103. 
 
 10. The payee of a note, dated and due prior to the passage of 
 the act declaring treasury notes a legal tender, is not entitled to 
 any other judgment than for dollars simply, without specifying in 
 what kind of money it may be discharged. Johnson v. Yickers, 1 
 Duv. 267 ; Smith v. DiUand, 2 Duv. 152. 
 
 11. If it be agreed that one demand may be set off against 
 another, and one of the parties, in violation of his agreement, sues 
 and obtains a judgment on the demand due him, the chancellor 
 has power to enforce the contract, and decree the set-off. Lans- 
 dale V. Mitchell, 14 B. Mon. 350. 
 
 12. An executory contract for the sale of land will not be 
 specifically enforced where the written memorial describes the 
 tract as containing one hundred and thirty acres, when in fact it 
 contained but one hundred and five acres, the deficiency being 
 made up by the vendor by a subsequent purchase of twenty-seven 
 acres adjoining, but not within the boundaries of the tract sold. 
 Snedaker v. Moore, 2 Duv. 542. 
 
 13. A bond, stipulating that the vendor will "make the title," 
 will entitle the vendee to a decree for a deed with general war- 
 ranty. Andrews v. Word, 17 B. Mon. 520. 
 
 STEAMBOATS AND STEAMBOAT OWISTBES. 
 
 1. Steamboat owners are not, as common carriers, responsible 
 to passengers for wearing apparel not delivered to them as bag- 
 gage, but worn about the person of the passenger. Crystal Palace 
 V. Vanderpool, 16 B. Mon. 308. 
 
 2. Owners of steamboats are liable, under our statute, for forci- 
 ble injuries and trespasses by their agents, as well as for their 
 Carelessness, negligence, or want of skill. Kountz v. Brown, 16 B. 
 Mon. 582; sec. 2, chap. 7, p. 202, vol. 1, Eevised Statutes. 
 
 3. The owners of a steamboat who are sued by the appellation 
 of "owners," are not thereby made parties to the suit, and no per- 
 sonal judgment can be rendered against them. Kountz v. Brown, 
 16 B. Mon. 585. 
 
 4. Congress has power to provide for the appointment, and to 
 prescribe the qualifications, of steamboat pilots, and any state 
 
STOPPAGE IN TRANSITU. 481 
 
 regulation in conflict with such regulations are void. Dryden v. 
 Commormealth, 16 B. Mon. 603, 604. 
 
 5. Owners of a steamboat can only justify a jettison when with- 
 out fault, negligence, or want of skill in themselves or their 
 agents, it becomes absolutely necessary to cast overboard a part of 
 the cargo in order to save the residue. Bentley v. Bustard, 16 B. 
 Mon. 677. 
 
 6. The act of Congress requiring steamboats to obtain license 
 does not apply to a steam ferry-boat used for ferrying across the 
 Ohio. Neicport v. Taylor, 16 B. Mon. 799. 
 
 7. A steamboat acting under a license from the United States, 
 has no right to interfere with the privileges of a ferry across the 
 Ohio established by the States bordering on the river. Newport v. 
 Taylor, 16 B. Mon. 801. 
 
 8. A license from the United Slates to a coasting vessel, confers 
 no right to transport passengers from one side of the Ohio to the 
 other, and no authority to transport them from the Kentucky side 
 to the other, without a license from the propier authorities of Ken- 
 tucky. Newport v. Taylor, 16 B. Mon. 808, 809. 
 
 9. The owners of steamboats must use such care as ordinarily 
 prudent men would use, under similar circumstances, to avoid 
 damaging the property of others. Watson v. McGuire, 17 B. 
 Mon. 37. 
 
 10. The owners of a steamboat are liable for any damages un- 
 lawfully done by the boat through the willful or negligent conduct 
 of her officers or crew, or willfully or negligently committed by 
 her officers or crew, while acting as such, although the boat had 
 been chartered by the owners to others, and the injury was done 
 by officers and crew employed by the charterers. Sparks v. Kate 
 French, 3 Met. 535, 536. 
 
 STOPPAGE EST TEANSITU. 
 
 1. A vendor may stop goods in transitu if he shows a proba- 
 bility that the vendee is embarrassed and not able to pay all his 
 debts. Secomb, Voorhies & Co. v. Nutt, 14 B. Mon. 326. 
 
 2. If goods be shipped to the vendee and he gives orders, and a 
 part of the goods are intercepted and sold en route, the vendor will 
 not thereby lose his right to seize the residue, while yet in transitu, 
 and, in such a case, he will have priority over attaching creditors, 
 who have detained the goods by attachment. Secomb, Voorhies & 
 Co. V. Nutt, 14 B. Mon. 327. 
 
 32 
 
482 SUBSTITUTION. 
 
 3. If goods are shipped to the purchaser at N., and he inter- 
 cepts them on the road at P., and takes, or directs another to 
 take, possession of them and reship them, the right of the vendor 
 to stop them in transitu will be at an end. Wood & Oliver v. 
 Yeatman, 15 B. Mon. 280. 
 
 4. The right of a vendor to stop goods in transitu exists until 
 they come into the actual possession of the vendee, or to that 
 place where they are destined for his nse, or to await his orders, 
 or when nothing further remains to be done until they are applied 
 to his use. JJane v. .Robinson, 18 B. Mon. 628. 
 
 5. If goods arrive at their original destination and are delivered 
 by the carrier to a third person for the vendee, who is absent, the 
 right of the vendor to stop them is gone. Lane v. Bohinson, 18 B. 
 Mon. 629. 
 
 SUBSTITUTION". 
 
 1. A deputy sheriff who purchased property under execution at 
 a sale made by a co-deputy, and has been compelled to pay the 
 9,mount of his bid to the creditor, may be substituted to his rights 
 and recover the amount of the debtor. Mlinger v. Tausey, 17 B. 
 Mon. 369. 
 
 2. If a husband and wife convey lands, the inheritance of the 
 wife, and after their death the heirs of the wife sue for the land, 
 relying on a defect in the conveyance, but fail to recover because 
 they have received assets from the estate of their father equal to 
 the value of the land, it will be in equity a substantial breach of 
 the covenant of warranty, which being satisfied by the heirs of 
 the mother, will entitle them to recover the amount of the executor 
 of their ancestor. Todd v. Todd, 18 B. Mon. 166. 
 
 3. If sureties be indemnified on account of several liabilities for 
 their principal, and are sued on one of them, and judgment had 
 against both principal and surety, aud the surety refuses to join in 
 a replevin bond, and others enter as surety of the principal in 
 such bonds, and be compelled to pay the debt, they will not be 
 entitled by substitution to the benefit of the mortgage. Havens v. 
 Foudry, 4 Met. 250, 251 ; Hunter v. Richardson, 1 Duv. 248. 
 
 4. When a railroad company made a mortgage to secure four 
 hundred of its bonds for $1,000 each, but by mistake issued four 
 hundred and twenty bonds, all of which were sold to purchasers 
 ignorant of the mistake, and afterward issued income bonds giving 
 a lien on the property of the company, but which were not recorded, 
 
SUMMONS. 483 
 
 and after this issued other bonds secured by mortgage, and B. 
 purchased part of these bonds without notice of the over-issue 
 under the first mortgage, but with notice of the income bonds — 
 Held: That the holders of the income bonds were entitled, by 
 substitution, to the legal advantage acquired by B. by the regis- 
 tration of his bonds, and to preference over the holders of the 
 extra bonds issued by mistake under the first mortgage. Stephens 
 v. Benton, 1 Duv. 116, 117. 
 
 5. The purchaser of a lot under execution, for less than one- 
 fourth of its value, agreed with the defendant in the execution to 
 release to him whenever he would reimburse the amount bid. 
 The defendant having afterward sold the lot, his vendee was en- 
 titled, by subrogation, to redeem. Dupuy v. McMillen, 2 Duv. 555. 
 
 6. F. bound himself to assume all the liabilities of a certain 
 firm, and to save S. harmless on account of such debts. Seld : 
 That a creditor of the firm had a right, S. consenting, to a personal 
 judgment against F., on his covenant. Francis v. Smith, 1 Duv. 
 124 ; Millett v. Parker, 2 Met. 610., 
 
 sum:mon"s. 
 
 I. To whom directed. 
 II. By wbom executed. 
 
 III. Manner of service. 
 
 IV. Return. 
 
 V. Summons issued on Sunday void. 
 VI. Constructive service. See Non-Residents. 
 
 I. TO WHOM DIRECTED. 
 
 The plaintiff in an action has an unlimited right to have his 
 original process directed to the sheriif, jailor, coroner, or a consta- 
 ble, at his option. Boaz v. Nail, 2 Met. 246. 
 
 II. BY WHOM EXECUTED. 
 
 1. The service of a summons by a sheriff, in a case in which he 
 is a plaintiff, whether he has a pecuniary interest or not, is not 
 valid ; and a judgment rendered on such service is a nullity, and 
 its execution may be resisted by injunction. Knott v. Jarbor, 
 1 Met. 506, 507 ; sec. 737, Civil Code ; 3 Mar. 536. 
 
484 SUMMONS. 
 
 III. MANNER OF SERVICE. 
 
 1. A summons against an infant under fourteen years of age, 
 must be served on the father, or guardian, if either can be found ; 
 if not, then on the mother, or other white person having control of 
 the infant, or with whom it resides. Lloyd v. McCauley, 14 
 B. Mon. 543. 
 
 2. A summons must be executed by delivering, or offering to de- 
 liver, to the defendant, a copy. Beading the summons to the de- 
 fendant is not sufScient. Case v. Colsten, 1 Met. 146 ; sees. 74, 
 75, Civil Code. 
 
 3. The act of March 15, 1862, authorizing proceedings against 
 officers of the so-called provisional government of Kentucky, is 
 not unconstitutional in substituting constructive for actual service 
 of process, and allowing personal judgment on such service. Bur- 
 nam v. Commonwealth, 1 Duv. 211. 
 
 IV. RETURN. 
 
 1. The return on process against infants under fourteen years of 
 age, if executed by a private person, must show that neither the 
 father nor guardian could be found, or service on the mother, or 
 other person, will not be good. Lloyd v. Mc Cauley, 14 B. Mon 
 543. 
 
 2. Whether the return of an officer ought not, in such a case, to 
 show that neither the father nor guardian could be found, in order 
 to render service on any other person good. Quere. Lloyd v. 
 McCauley, 14 B. Mon. 543. 
 
 3. If a summons be served by a private person, as provided in 
 section 73 of the Civil Code, the judgment will be void, unless he 
 makes affidavit of the time and manner of the service. Lloyd v. 
 McCauley, 14 B. Mon. 642, 543. 
 
 4. The law will presume a sheriff did his duty in executing a 
 summons, Webber v. Webber, 1 Met. 21 ; and if the officer returns 
 a summons indorsed " executed," without stating how it was exe- 
 cuted, it will be good. Lloyd v. McCauley, 14 B. Mon. 542, 543; 
 Case V. Colston, 1 Met. 146. 
 
 5. When there is nothing in the record to show the age of an 
 infant defendant, or whether he had a guardian or not, and the 
 sheriff returns the process " executed by delivering a copy " to 
 the infant, it will be presumed that the officer did his duty, and 
 that the infant was over fourteen years old. Webber v. Webber, 
 1, Met. 21. 
 
SURETIES. 485 
 
 6. The return to a summons against infants, that it had been ex- 
 ecuted by delivering a true copy to each of the persons named 
 therein, negatives the presumption that the service was on any 
 other person than the infants, and such of them as were not over 
 fourteen years of age were not legally in court. Beverly v. Per- 
 kins, 1 Duv. 254. 
 
 V. SUMMONS ISSUED ON SUNDAY VOID. 
 
 1. The holiday mentioned in sections 732, 733, Civil Code, 
 means a day dedicated by usage to amusement and festivity, and 
 does not include Sunday ; and process of any kind issued on Sun- 
 day is void. Moore v. Ragan, 2 Duv. 438. 
 
 SUPBESEDEAS. 
 
 1. When the execution of a writ of fi. fa. is arrested by injunc- 
 tion or supersedeas, the levy is released, and lien created thereby 
 is discharged. Keith v. Wilson, 3 Met. 205 ; Flowers v. Fletcher, 
 Pr., Decisions, 265. 
 
 2. A supersedeas can not be issued by the clerk of the court of 
 appeals, until a copy of the record has been filed in his ofS.ce. 
 Sunt V. Berryman, 2 Met. 240. 
 
 SUPEESEDEAS BOISTD. 
 See Bond. 
 
 SUEETIES. 
 
 I. LiaTjility of sureties. 
 II. Wliat will discharge a surety, or be a defense. 
 
 III. Eemedy of sureties against co-sureties. 
 
 IV. Eemedy of surety against his principal. 
 
 V. Limitations in favor of sureties. See Limitations: 
 
 I. LIABILITY 01" SURETIES. 
 
 A. Generally. 
 
 B. Sureties in official bonds. 
 
 a. Generally. 
 1. A promise made by a surety, after he is released by limita- 
 tion, to pay the debt, will not be obligatory, and will not prevent 
 
486 STTRETIES. 
 
 him from relying on the statute of limitations. Emmons v. Over- 
 ton, 18 B. Men. 650. 
 
 2. A surety, in the bond of one who hires a slave, and stipulates 
 for his return at the end of the year, is answerable for the value of 
 the slave, if, in consequence of the hirer's wrongful act, he is una- 
 ble to return him at the end of the time. Carney v. Walden, 16 
 B. Mon. 397. 
 
 3. The delivery of a blank note, by a surety to his principal, is 
 authority to him to fill up the blank with the amount borrowed 
 and the name of the payee. Fatten v. Shanklin, 14 B. Mon. 16. 
 
 4. If a common law court, in which a negro has sued for his 
 freedom, make an order directing the sheriff to hire out the plain- 
 tiff, unless the defendant will execute a bond with surety con- 
 ditioned to have him forthcoming at a subsequent term, and in 
 the mean time not to sell him or send him out of the State, it will 
 be obligatory as a common law bond against the surety. Wai-field 
 V. Davis, 14 B. Mon. 41. 
 
 5. Sureties who sign a note with the understanding and agree- 
 ment that two other solvent men are also to sign it, of which 
 agreement the payee had notice before he received the note, will 
 not be bound if the others do not sign it. Coffman v. Wilson, 2 
 Met. 542, 543 ; Bivins v. Selsley, 4 Met. 79. 
 
 6. But, when the surety delivered the note to the payee, upon 
 the latter agreeing to procure the signature of another as co-surety, 
 but failed to do so — Held: That the surety was bound, but if he 
 sustained damages in consequence of such failure, he might recover 
 of the payee by way of counter-claim whatever damages he had 
 sustained. Hubble v. Murphy, 1 Duv. 279, 280; Murphy v. Hubble, 
 2 Duv. 247. 
 
 7. If a surety signs an obligation and delivers it to his principal 
 to be held until it is signed by another surety, it is not an escrow; 
 and if the principal delivers it to the obligee before it is signed by 
 the other surety, it will be binding on him who has signed it. 
 Millett V. Parker, 2 Met. 613, 614. 
 
 8. So far as the creditor is concerned, all the obligors in a note 
 are equally liable, and it is the duty of each of them to pay it 
 punctually. Nichols v. McDowell, 14 B. Mon. 7. 
 
 b. Sureties in official bonds. 
 1. Sureties in an executorial bond are not liable to a devisee, 
 whose devise is payable by the executor as devisee, and not as 
 executor. Simms v. Lively, 14 B. Mon. 446. 
 
SURETIES. 487 
 
 2. A surety in an executorial bond is not liable, upon the will 
 being set aside, for legacies paid in good faith by the executor 
 after probate of the will, and before it is annulled. Jones v. Jones, 
 
 14 B. Mon. 472. 
 
 3. A surety, in the bond of an administrator with the will 
 annexed, will be liable, if the will be annulled, for all funds of the 
 estate disposed of by the administrator, after notice that the will 
 was contested, the validity of which depended alone on the will. 
 Grow V. Grow, 14 B. Mon. 479. 
 
 4. Whether the surety of a statutory guardian, in his bond in 
 the county court, is liable for contribution to the surety of the 
 same guardian in his bond given in the circuit court to procure a 
 decree to sell the lands of the ward. Quere. Johnson v. Chandler, 
 
 15 B. Mon. 590. 
 
 5. A surety in a joint bond, given in the circuit court, by a 
 guardian of several infants to procure a decree to sell real estate, 
 is not released as to one, who was of full age more than five years 
 before suit, unless all had been of age for that length of time. 
 Johnson V. Chandler, 15 B. Mon. 590. 
 
 6. The sureties of a sheriff are not liable for the fine imposed upon 
 the sheriff for failing to return an execution on the return day, but 
 are liable wTien the sheriff is proceeded against for the amount 
 of the execution, and thirty per cent, thereon, for failing to return 
 it within thirty days after the return day. Deposit Bank of Cyn- 
 thiana v. Glenn, 1 Met. 589. 
 
 7. The sureties of a sheriff in his bond stipulating for the col- 
 lection and payment of the county levy and public dues, are 
 liable for money levied and collected to pay the interest on the 
 bonds of the county issued to a railroad company. Taylor v. Nunn, 
 2 Met. 203, 204. 
 
 8. If an execution comes into the hands of a deputy sheriff, and 
 his principal dies during the lifetime of the execution, and the 
 same person becomes deputy of his successor and then levies the 
 execution and returns it, and a third person becomes sheriff, and 
 the same deputy is continued under him, and a venditioni issues to 
 him, and he sells the property and fails to pay over the proceeds, 
 the sureties of the first sheriff are liable, and not those of either of 
 his successors. Hamilton v. Vail, 2 Met. 512, 513; Colyerv. Higgins, 
 1 Duv. 7. 
 
488 
 
 SURETIES. 
 
 II. WHAT WILL DISCHARGE A SURETY OR BE A DEFENSE. 
 For discharge by limitation, see Limitation. 
 
 1. Simple forbearance by a creditor, does not interfere with any 
 of the rights of the surety, and will not exonerate him, though 
 the indulgence be given without his knowledge or consent. Nichols 
 V. McDowell, 14 B. Mon. 7. 
 
 2. Notice, by a surety, to the creditor to sue, will not be avail- 
 able, unless it was in writing. Nichols v. McDowell, 14 B. Mon. 8. 
 
 3. A suit against principal and surety, in which no judgment is 
 obtained against the latter, does not stop the running of the statute 
 of limitations as to him. Kellar v. Sinton, 14 B. Mon. 310. 
 
 4. If a note payable in bank, or to its order, be signed by sure- 
 ties to enable their principal to raise money, and he, without dis- 
 counting it, sells it to an individual, the sureties will not be dis- 
 charged, and the holder of the note may recover in an action in 
 the name of the bank. Ward v. Bank Ky., 14 B. Mon. 352 ; Brown- 
 ing V. Fountain, 1 Duv. 13, 14. 
 
 5. A surety, in a sale bond, having the force and effect of a 
 replevin bond, will be released by a failure to issue execution on 
 it within twelve months after its maturity; but if the delay to 
 issue be at the instance of the surety, it will be otherwise. Spill- 
 man & Duffy. Smith, 15 B. Mon 134, 135. 
 
 6. That the testator requested in his will that no security should 
 be required of his executor, will not, if a bond be given, exonerate 
 the surety ; nor will it be a defense that he was procured by the 
 fraud of the executor to enter into the bond. Sebastian v. Johnson, 
 2 Duv. 101. 
 
 7. If a principal, in violation of an agreement with his surety 
 that the note should be used to raise money for the principal's 
 family, transfers it to pay a pre-existing debt to one who had 
 notice of the agreement and the purpose for which the note was 
 given, the surety will not be compelled to pay it. Bussell v. Bal- 
 lard, 16 B. Mon. 205. 
 
 8. The filMng-up of a blank note by the principal, after it was 
 signed by the surety, for eight per cent, interest, will not release 
 the surety. Patton v. Shanklin, 14 B. Mon. 16. 
 
 9. If a sheriff executes bond for the collection and payment of 
 the county levy and public dues, he and his sureties will be liable 
 on the bond for money levied and collected to pay interest on the 
 bonds of the county issued to a railioad company, and a subse- 
 quent order of the county court appointing the sheriff collector of 
 
SURETIES. 489 
 
 the tax levied to pay interest on the county bonds, and the execu- 
 tion of a new bond for the money thus collected, ■will not change 
 the liability of the sureties in the first bond. Taylor v. Nunn, 
 2 Met. 203, 204. 
 
 10. One who, as surety for a defendant in an attachment which 
 has not been levied, executes a bond to the sheriff to pay the debt, 
 will not be exonerated because one whose name appeared as a 
 surety when he signed the bond, avoids it on a plea of non est 
 factum. Cook v. Boyd, 16 B. Mon. 559. 
 
 11. An administrator or his sureties, when sued on their bond 
 for a failure to satisfy a judgment against the former, may show 
 that he had fully administered the assets in his hands when the 
 judgment was rendered, or they may limit the recovery to the 
 assets then on hand. McOalla v. Patterson, 18 B. Mon. 210. 
 
 12. In an action on a guardian's bond against the executor and 
 sureties of the guardian, the action should not be dismissed as to 
 the sureties, because no affidavit and demand had been made of 
 the executor. Rogers v. Mitchell, 1 Met. 26. 
 
 13. If several makers of a note sign it, without designating on 
 the note whether they are principal or sureties, and the obligee or 
 his assignee agrees with the first signer, without the assent of the 
 others, to give him day for payment, the others will not be re- 
 leased by showing that they are only sureties for him with whom 
 the agreement was made, unless he had knowledge at the time 
 that the others were sureties. Neel v. Harding, 2 Met. 250. 
 
 14. That the payee of a note had failed to sue on it for more 
 than seven years after its maturity, in consequence of frequent 
 requests of indulgence on the part of the surety, will not deprive 
 the latter of the benefit of the act of limitations. Coleman v. 
 Walker, 3 Met. 67, 68. 
 
 15. An alteration in a note, which will release the surety, must 
 be in a material part. Lisle v. Bogers, 18 B. Mon. 535. 
 
 16. To change the time of the payment of a note from the fourth 
 to the tenth of the same month, renders a note void as to a surety; 
 and this though the alteration be made by the principal without 
 the knowledge of the payee, but before he becomes entitled to it- 
 Lisle V. Rogers, 18 B. Mon. 535. 
 
 17. One who signs a contract as surety for a married woman, 
 which she was not authorized to make, and which is therefore 
 void as to her, is a principal, and will not be released by the lapse 
 of seven years without suit. Gaine s v. Foor, 3 Met. 506 ; Short v. 
 
 Bryant, 10 B. Mon. 10. 
 
490 
 
 SUEETIBS. 
 
 18. When a judgment against the principal debtor and hie sure- 
 ties is replevied by him with other sureties — the sureties in the 
 judgment refusing to join in the replevin bond — they are released 
 from liability. The execution of the replevin bond merges the 
 judgment. Havens v. Foudry, 4 Met. 250 ; Hoskins v. Parsons, 1 
 Met. 252 ; Kouns v. Bank Xy., 2 B. Mon. 303. 
 
 19. Where a sheriff levied on property of the principal debtor 
 to satisfy the execution, and by negligence and unreasonable delay 
 released the levy, and became responsible to the creditor whom he 
 paid, and took an assignment of the debt to himself, and levied an 
 execution on the property of the surety — Held : That the surety 
 was released. Miller v. Dyer, 1 Duv. 263. 
 
 20. A principal in a note, desiring an extension of time, agreed 
 to execute a new note with the same sureties. The principal and 
 one of the sureties signed the new note, and delivered to the 
 agent of the obligee, who, upon assurances that the other surety 
 would sign it, surrendered the old note. The other surety never 
 signed the note, and it having been adjudged by the circuit court 
 that the sureties were not bound on the new note, judgment was 
 rendered against the principal, and the petition dismissed as to 
 the sureties, when the obligee instituted suit on the old note. 
 Held: The execution of the new note was no bar to a recovery 
 against the sureties on the old one. Williams v. Martin, 2 Duv. 
 492. 
 
 Iir. REMEDY OF SURETY AGAINST HIS CO-SURETY. 
 
 1. A surety in a note, against whom an execution had issued, is 
 not bound to contribute to one who, without his request, replevied 
 the debt for the principal, and has been compelled to pay it. 
 Hoskins v. Parsons, 1 Met. 253 ; Kouns v. Bank Ky., 2 B. Mon. 
 303. 
 
 2. A surety is not entitled to the benefit of an indemnity pro- 
 cured by his co-surety by the use of his own means. Johnson v. 
 Givens, 3 Met. 92, 93. 
 
 3. But when two persons are jointly liable, as the sureties of an 
 administrator, and one, by paying a sum exceeding his share of 
 the liability, procures from two of the four distributees a bond to 
 indemnify him against such liability, the chancellor, all the parties 
 being before him, should not allow the two, who were bound to 
 indemnify the surety, to collect their shares, but should require 
 the surety not indemnified to pay the other two distributees. 
 Johnson v. Givens, 3 Met. 92, 93. 
 
STTRETIES. 491 
 
 4. One, of several sureties, having paid the debt, can not recover 
 the shares of the other sureties of them, unless the principal is 
 insolvent. The law on this subject has not been changed by the 
 Eevised Statutes. Lee v. Forman, 3 Met. 115, 116; Boiling v. 
 Doneghy, 1 Duv. 220 ; Daniels v. Ballard, 2 Dana, 296. 
 
 5. Where a judgment against a principal and his sureties has 
 been replevied by the principal, with others as his sureties, those 
 in the judgment refusing to enter into the bond, and the sureties 
 in the replevin bond pay the debt, they have no right to partici- 
 pate in the benefits of a mortgage made by the principal to the 
 original sureties, to indemnify them against loss on account of 
 various liabilities for him, of which the debt replevied was one. 
 Havens v. Foudry, 4 Met. 251, 252. 
 
 6. Whether the sureties of a statutory guardian, in his bond 
 executed in the county court, is liable for contribution to the 
 surety of the same guardian, in his bond given in the circuit court 
 to procure a decree to sell the real estate of the ward. Quere. 
 Johnson v. Chandler, 15 B. Mon. 590. 
 
 IV. KEMEDT OF SURETY AGAINST HIS PRINCIPAL. 
 
 1. If the surety be sued jointly with the principal, and be com- 
 pelled to pay the judgment, the latter will have no right, when 
 sued by the former, to resist the recovery of the full amount paid 
 for him, on the ground that the defense by the surety was unskill- 
 fully made. Bice v. Bice, 14 B. Mon. 418. 
 
 2. If a surety pays off the obligation on which he is bound, and 
 at the time of payment stipulates with the obligee for the right to 
 sue in his name, he may maintain the action for reimbursement 
 in the name of the obligee. Smith v. Latimer, 15 B. Mon. 77. 
 
 3. A surety, who has paid the debt of his principal before judg- 
 ment against the latter, is entitled to have the judgment, when 
 rendered against the principal, indorsed for his benefit. Alexan- 
 der V. Lewis, 1 Met. 409. 
 
 4. The provisions of the Code of Practice, giving remedies to 
 sureties against their principals by motion, does not repeal section 
 8, chapter 97, of the Eevised Statutes, giving a surety who has 
 paid the debt a right to an assignment, and to control subsequent 
 executions on the judgment. Alexander v. Lewis, 1 Met. 410. 
 
 5. Section 4 of chapter 97 of the Eevised Statutes, giving a 
 remedy by attachment in favor of sureties of officers, fiduciaries, 
 and private persons, against their principals, is repealed by the 
 Civil Code. Patterson v. Caldwell, 1 Met. 493. 
 
492 srEVEYOE and surveys. 
 
 6. A surety, having from a third person a bond of indemity 
 against "damage, loss, or liability," which he may incur by 
 reason of his suretyship, can not, if there be other sureties bound 
 with him who are insolvent, recover, on his bond of indemnity, 
 more than his pro rata of the whole liability. For any excess he 
 must look to his co-sureties. Taylor v. Nunn, 2 Met. 205, 206. 
 
 7. A surety, until he pays the debt of his principal, has no 
 available demand which amounts to a set-off or equitable discount, 
 and the insolvency of his principal will not alter the rule. Walker 
 V. McKay, 2 Met. 295, 296. 
 
 8. Where a surety pays the debt which the principal owes, the 
 law implies that the latter requested such payment to be made, 
 and also implies a promise to repay him. But if the surety is 
 under no legal obligation to pay, no such implication arises. 
 Kimble v. Cummings, 3 Met. 329, 330 ; Spillman & Duff v. Smith, 
 15 B. Mon. 134. 
 
 9. If no execution issues on a replevin bond until more than 
 twelve months after its maturity, and the surety pays the execu- 
 tion without the request of the principal, he can not recover the 
 amount. Kimble v. Cummings, 3 Met. 330. 
 
 SUEVETOE AND SUEVBTS. 
 
 1. If a survey made west of the Tennessee river, on a military 
 warrant, be variant from the entry, the patent emanating thereon 
 will be void. Ashbrook v. Quarles, 15 B. Mon. 24. 
 
 2. Title under a land warrant commences with the actual survey. 
 Farker v. Patrick, 16 B. Mon. 569. 
 
 SUEVIVOESHIP. 
 
 1. The husband has a potential right of survivorship for his life 
 in so much of the separate estate of the wife, as may remain at her 
 death undisposed of, under the powers incident to the estate. 
 Brown v. Alden, 14 B. Mon. 146. 
 
 2. If a married woman becomes entitled to a fund, as survivor of 
 her mother, and her husband dies without having reduced it to 
 possession, and the wife marries again, and dies, the second hus- 
 
TAVERNS, TIPPLING-HOUSES, AND COFFEE-HOUSES. 493 
 
 band will be entitled to the fund. Bice v. Thompson, 14 B. Men. 
 379, 380. 
 
 3. A sale by the husband, with the assent of the wife, of her 
 choses in action, of which he had a right to immediate possession, 
 will defeat her right of survivorship. Wright v. Arnold, 14 B, Mon. 
 642. 
 
 4. Siirviving partners can not sell or convey the interest of de- 
 ceased partners in partnership land, even though it be necessary 
 to sell them, to pay partnership debts. Galbraith v. Gedge, 16 B. 
 Mon. 635. 
 
 5. A conveyance in 1823, to husband and wife, absolutely and 
 without limitation, made them tenants by the entity, and the 
 whole estate would go to the survivor. Babbitt v. Scroggins, 1 Duv. 
 274; 6 Dana, 388; 1 Dana, 243. 
 
 TAVEENS, TIPPLING-HOUSES, AND COFFEE-HOUSES. 
 
 I. License for keeping. 
 II. Civil liabilities of keepers. 
 III. Offenses by keepers. 
 
 I. LICENSE FOR KEEPING. 
 
 1 A license to keep a tavern, can-ies with it the right to vend 
 ardent spirits, at retail, without a special license for that purpose. 
 Commonwealth v. Kamp, 14 B. Mon. 385, 386.i 
 
 2. The power conferred on country courts, and the general 
 council of cities to license taverns, does not give them power to re- 
 fuse altogether to license any taverns. The discretion given in 
 such cases, is not an arbitrary one, but a judicial discretion, to be 
 exercised according to the legislative intention. Louisville v. Mc- 
 Kean, 18 B. Mon. 11. 
 
 3. The city council of Louisville may reftise altogether to license 
 coffee-houses. Louisville v. McKean, 18 B. Mon. 12. 
 
 4. A house of entertainment, in which spiritous liquors are not 
 sold, is not required to have a license. Louisville v. McKean, 18 B. 
 Mon. 14. 
 
 5. On application for a tavern -license, the county court has a 
 large margin of discretion, which the court of appeals will not con- 
 
 iBut see act, approved January 27, 1867, page 10, Session Acts. 
 
494 TAVERNS, TIPPLINQ-HOUSBS, AND COFFEE-HOUSES. 
 
 trol, unless it has been manifestly abused. Nepjp v. Commonwealth, 
 2 Duv. 546. 
 
 II. CIVIL LIABILITIES OF KEEPERS. 
 
 1. A tavern-keeper is bound to take extraordinary care of tbe 
 baggage of his guest. It is not necessary in order to render him 
 liable, that the baggage should be in his special keeping ; it is 
 generally sufficient that it is under his implied care. Packard v. 
 Northcraft, 2 Met. 442. 
 
 2. Unless a tavern-keeper has given his guest notice, that if his 
 goods are left in the public room, he will not be responsible, he will 
 be answerable if they be left there, and are thereby lost, even 
 though he may have said to his guest, that he had better take them 
 to his room. Packard v. Northcraft, 2 Met. 442. 
 
 3. An inn-keeper is bound to receive and entertain all appli- 
 cants, whether adults or infants, who are apparently responsible, 
 and of good conduct; if he refuse, he will be liable to indictment, 
 and also to the action of the person aggrieved. Watson v. Cross, 2 
 Duv. 148. 
 
 4. An inn-keeper has a lien on the baggage of his infant guest, 
 for the price of his entertainment, and also for money furnished 
 the infant to buy necessaries. Watson v. Cross, 2 Duv. 148, 149. 
 
 III. OFFENSES BY KEEPERS. 
 
 1. If one be indicted as a coffee-house keeper, for setting up a 
 faro-bank, and found guilty, the law fixes his fine at five hundred 
 dollars. Buford v. Commonwealth, 14 B. Mon. 28. 
 
 2. One licensed as a merchant, to sell ardent spirits, will be re- 
 sponsible as a tippling-house keeper, if liquor sold by him, in what- 
 ever quantity, be drunk on or adjacent to his premises. Curd & 
 Ward V. Commonwealth, 14 B. Mon. 387. 
 
 3. An indictment for keeping a tippling-house, need not aver 
 that the defendant had no license to retail liquor. Commonwealth 
 V. Allen, 15 B. Mon. 1, 2; Commonwealth v. Harvey, 16 B. Mon. 2. 
 
 4. If, on the trial of an indictment for keeping a tippling-house, 
 the defendant shows a license from the county court, the propriety 
 of the order granting the license can not be questioned. Common- 
 wealth V. Craves & Clay, 18 B. Mon. 35. 
 
 5. If a licensed tavern-keeper has been fined three hundred dol- 
 lars for a breach of his bond, to which proceeding his surety was 
 no party, the latter may, when judgment is sought against him, 
 deny that there was any breach, and have that question tried 
 again. Margoley v. Commonwealth, 3 Met. 406. 
 
TAXATION. 495 
 
 TAXATION. 
 
 I. Taxation by the Common-wealtli. 
 II. Taxation by towns, cities, and counties. 
 
 I. TAXATION BY THE COMMONWEALTH. 
 
 1. Savings banks are monied corporations of "loan or dis- 
 count," and subject to taxation as such, to be paid" by the corpora- 
 tion. Louisville Savings Bank v. Commonwealth, 14 B. Mon. 411. 
 
 2. One who sets up billiard tables in a city or town, under a 
 license granted by the local authorities, is only required to pay to 
 the Commonwealth one hundred dollars on all the tables kept under 
 the license, and not one hundred dollars on each table. Metz v. 
 Commonwealth, 2 Met. 15-17. 
 
 3. The only statute law of Kentucky, defining the property sub- 
 ject to, or exempt from, taxation, is contained in sections 1—3 
 article 5, chapter 83, page 248, volume 2, Eevised Statutes. Xiou- 
 isville V. Commonwealth, 1 Duv. 296. 
 
 4. The tax laws apply to persons only, and not to political 
 bodies exercising, in different degrees, the sovereignty of the' 
 State. Louisville v. Commonwealth, 1 Duv. 297. 
 
 5. Whatever property, owned and used by the city of Louis- 
 ville, in its local or commercial capacity, as a private corporation, 
 or for its own profit, is subject to taxation ; but property held and 
 used for charitable purposes, and for carrying on the municipal 
 government of the city, is exempt. Louisville v. Commonwealth, 
 1 Duv. 296-298. 
 
 II. TAXATION BY TOWNS, CITIES, AND COUNTIES. 
 
 1. The city of Lexington has no power to tax property not actu- 
 ally within the city limits. Johnson v. Lexington, 14 B. Mon. 658 ; 
 Covington v. Powell, 2 Met. 231. 
 
 2. The extension of the boundary of a city, by the legislature, 
 for the mere purpose of taxing property thus brought within its 
 limits, is unconstitutional. Covington v. Southgate, 15 B. Mon. 
 498, 499. 
 
 3. An act, extending the limits of the town, so as to include lands, 
 and subject them to taxation, for town purposes, will not be uncon- 
 stitutional, as taking private property for public use, without com- 
 pensation, unless it be manifest that the burthen is imposed without 
 any view to the interest of the owner of the property, and merely to 
 increase the town revenue. iSharp v. Lunavan, 17 B. Mon. 228 
 
496 TENDER. 
 
 4. Where a town is extended by improvement, so as to give 
 those living adjacent to the original town boundary, all the 
 advantages enjoyed by citizens of the town, the legislature has 
 power to extend the town boundary, so as to include them, and 
 subject them to taxation, for town purposes, as other citizens of the 
 town ; and whether the boundary, as thus fixed, is where it should 
 be, or where necessity required it to be, is not a subject for judicial 
 inquiry or scrutiny. Sharp v. Dunavan, 17 B. Mon, 231. 
 
 5. A petition to enforce a lien in favor of the city of Louisville, 
 against real property for taxes, must aver that the taxes had been 
 lawfully assessed in the mode prescribed by the charter. Louis- 
 ville v. Bank Ky., 3 Met. 149 ; Maltus v. Shields, 2 Met. 557. 
 
 TENANTS IN COMMON. 
 See Joint Tenants and Tenants in Common. 
 
 TBNDEE. 
 For legal tender, see Money, 
 
 1. A conditional tender is not good, and will not stop the run- 
 ning of interest ; and a refusal afterward to pay money, as ten- 
 dered, will deprive a tender of all legal availability. NanU v. 
 Loher, 1 Duv. 305. 
 
 2. When the debtor, after making a tender, used the money ten- 
 dered, as well as the land for which he owed it, apprehending no 
 danger as to the title, and making the tender only to get an 
 unreasonable advantage, he will not be exonerated from interest. 
 Nantz V. Loher, 1 Duy. 305. 
 
 TIPPLING-HOUSE. 
 
 See Taverns, Etc. 
 
 TIME. 
 
 1. A statute which provides that it shall be in force from its 
 passage, must be regarded as being in force during the whole of 
 the day on which it is approved by the governor. Mallory v. 
 mies, 4 Met. 54. 
 
TOWNS. 497 
 
 2. "When computation of time is to be made from an act done, 
 the day on which it is done, is to be included. Mallory v. Jiiles, 
 4 Met. 55; Batman v. Magowan, 1 Met. 533; Chiles v. Smith, 13 B. 
 Men. 460. 
 
 3. A motion for a new trial must be made within three judicial 
 days after the verdict or decision, and in computing the time, both 
 the day of the judgment and the day of making the motion, must 
 be included. Long v. Hughes, 1 Duv. 387. 
 
 4. Equity will not ordinarily regard time as of the essence of a 
 contract for the sale of land, but when there is a want of mutuality 
 in the obligation, time is essential in equity as well as at law. 
 Magoffin v. Solt, 1 Duv. 97; 2 B. Mon. 282. 
 
 TOWNS. 
 
 I. Eights and powers of town authorities. 
 II. Liabilities of the corporation. 
 
 III. Legislative acts concerning towns. 
 
 IV. Eights of citizens and owners of real estate in towns. 
 V. Officers and records of towns. 
 
 I. RIGHTS AND POWERS OF TOWN AUTHORITIES. 
 
 1. The city authorities of Lexington have no power to tax 
 property not actually within the city. Johnson v. Lexington, 14 
 B. Mon. 648 : Covington v. Powell, 2 Met. 231. 
 
 2. Incorporated towns have power to regrade the streets, and 
 will not be liable to owners of property for damages on account of 
 raising or lowering the streets above or below the adjacent lots. 
 WolfY. C. & L. R. B. Co., 15 B. Mon. 408 ; L. & F. B. B. Go. v. 
 Brown, 17 B. Mon. 777. 
 
 3. The dedication of land, by the proprietor of lands laid off as 
 a town, to be used as a common, confers on the authorities of the 
 the town, when situated on a navigable stream, the right to build 
 wharves and charge and collect wharfage. Newport v. Taylor, 16 
 B. Mon. 804, 805. 
 
 4. The charter of the city of Lexington invests the mayor and 
 councilmen with full power and authority to pass such by-laws 
 and ordinances with adequate penalties, as they shall from time to 
 time deem expedient for the government of the city, not contrary 
 to the Constitution of this State or of the United States. Under 
 this, the mayor and council have power to impose penalties on 
 
 33 
 
8 
 
 TOWNS. 
 
 tavern-keepers, who obtain license after the passage of the ordi- 
 nance, who sell liquor on Sunday in violation of the ordinance. 
 Magowan v. Commonwealth, 2 Met. 7. 
 
 5. The trustees of a town have no power to alien lands dedi- 
 cated to public use for streets, etc. Covington v. McNickle, 18 
 B. Mon. 288. 
 
 II. LIABILITIES OF THE CORPORATION. 
 
 1. A city is not responsible for property burned up, because its 
 authorities had failed to keep the public cisterns in order, or to 
 provide hooks and ladders. Patch v. Covington, 17 B. Mon. 733. 
 
 2. In the absence of a statute, a city is not liable, to one of its 
 citizens, for damages done by a mob, within its limits. Ward v. 
 Louisville, 16 B. Mon. 193. 
 
 3. The city council of Covington is bound to keep the streets and 
 public grounds in repair; and if it fails, mandamus will lie to com- 
 pel the necessary repairs. Hanmar v. Covington, 3 Met. 498, 499. 
 
 III. LEGISLATIVE ACTS CONCERNING TOWNS. 
 
 1. The legislature has no power, against the consent of owners 
 of property adjoining a town or city, to extend its limits so as to 
 include them for the mere purpose of enabling the town to tax 
 such property. Covington v. Southgate, 15 B. Mon. 498, 499. 
 
 2. When a town is extended by improvement so as to give those 
 living adjacent to the original town boundary, all the advantages 
 enjoyed by the citizens of the town, the legislature has power to 
 extend the town boundary so as to include them, and subject them 
 to taxation for town purposes ; and whether the boundary as thus 
 fixed, is just where it should be, or where necessity required it to be, 
 is not a subject for judicial inquiry or scrutiny. Sharp v. Dunavan, 
 17 B. Mon. 231 ; Maltus v. Shields, 2 Met. 557. 
 
 3. Whether the legislature has power to authorize land in a 
 town or city, dedicated to public use as streets or common to be 
 sold. Quere. Covington v. McNichle, 18 B. Mon. 285. 
 
 IV. RIGHTS OE CITIZENS AND OWNERS OF REAL ESTATE IN TOWNS. 
 
 1. The citizens and lot-owners in a town have no right to alien 
 ground dedicated to public use for streets, etc.; nor have the 
 trustees of a town any such power. Alves v. Senderson, 16 B. Mon. 
 168, 169 ; Covington v. McNickle, 18 B. Mon. 288. 
 
TOWNS. 499 
 
 2. The owners of houses and lots in towns and cities, hold them 
 subject to the discreet exercise by the town authorities, of all the 
 power given them by law over the streets and alleys. L. & F. B. 
 B. Co. V. Brown, 17 B. Mon. 777. 
 
 3. Eailroad companies are not liable to the owners of lots in 
 towns or cities, for damages resulting from grades or embank- 
 ments necessary in the construction of their roads through the 
 streets of the town, when done by permission of the proper town 
 authorities, i. & F. B. B. Co. v. Brown, 17 B. Mon. 778. 
 
 V. OPPICERS AND KECORDS OF TOWNS. 
 
 1. A marshal of a town or city is ineligible, after serving two 
 terms, to a third term, in the same manner as a sheriff. HaU v. 
 Eosteter, 17 B. Mon. 785, 786. 
 
 2. The legislature has no power to alter, in any respect, ei ther the 
 time or manner of electing a town marshal for a town, the police 
 court of which was established before the adoption of the present 
 constitution. The time and manner of such elections are fixed by 
 the constitution. Trustees of Owenshoro v. Wehh, 2 Met. 579 ; sec. 
 41, art. 4, Constitution of Kentucky. 
 
 3. An act, providing for the appointment by the governor, or 
 other person, of an officer for a town or city incorporated before 
 the adoption of the present constitution, is unconstitutional. 
 Speed & Worthington v. Crawford, 3 Met. 212. 
 
 4. The journals of the proceedings of a city council, must show 
 that an ordinance reported was adopted, or it will not be valid. 
 Its adoption can not be shown by evidence aliundi. Covington v. 
 Ludlow, , 1 Met. 298. 
 
 5. An ordinance reported to a city council, but which the 
 records do not show to have been adopted, can not be declared by 
 a subsequent council, composed of entirely different persons, to 
 have been adopted by the former council. Covington v. Ludlow, 
 1 Met. 298. 
 
 6. Under the charter of Louisville, the common councilmen are 
 chosen for one year, and aldermen for two years, from the day of 
 the general election, and no longer. They can not hold over after 
 the expiration of the year, and their acts, resolves, and ordinances, 
 as legislative officers of the city, after the expiration of their term, 
 are void. Louisville v. Bigdon, 2 Met. 527, 528. 
 
500 
 
 TRESPASS. 
 
 TRESPASS. 
 
 I. Generally. 
 II. Upon the person. 
 
 III. Upon real property. 
 
 IV. Upon personal property. 
 v. By agents and employees. 
 
 VI. By ofScers executing process. 
 
 I. GENERALLY. 
 
 1. To render one a trespasser by relation, it is necessary that he 
 should have subsequently assented to the trespass, and that it 
 should have been committed for his benefit. Justice v. Mendell, 
 etc., 14 B. Mon. 14. 
 
 2. A city, in the absence of a statute so declaring, is not liable 
 for a trespass committed by a mob within its limits. Ward v. 
 Louisville, 16 B. Mon. 193. 
 
 3. If property be hired for a special purpose, and the hirer use 
 it for a more hazardous purpose, and it is thereby lost, he will be 
 responsible for its value, as if he had wrongfully assumed control 
 of it. Xelley v. White, 17 B. Mon. 131. 
 
 4. Where the calamity of one person, produced without his 
 fault, causes an injury to the rights of another, the latter can not 
 maintain an action, except for the unnecessary continuance of the 
 injury by the wrongful act of the former. Morrison v. Thurman, 
 17 B. Mon. 256. 
 
 5. If the precautions and exertions actually used by one person, 
 to prevent injury to another, be such as might be, and were, rea- 
 sonably deemed sufiScient, he will be excused, although other 
 means, not used, might possibly have been successful. Morrison 
 V. Thurman, 17 B. Mon. 260. 
 
 6. The court should not intimate to the jury whether a trespass 
 complained of was one of " enormity and magnitude," but should 
 leave them to decide its character from the evidence. Botts v. 
 Williams, 17 B. Mon. 689. 
 
 7. Confederate soldiers are liable for trespasses committed by 
 them, in violation of the laws of war, though commanded by their 
 superior officers. Christian Co. Co. v. Rankin & Tharp, 2 Duv. 506. 
 
TRESPASS. 501 
 
 II. UPON THE PERSON. 
 
 1. The cause of action for an injury to the person, dies with the 
 person. Eden v. L. & F. R. B. Co., 14 B. Mon. 206. 
 
 2. A private person may, without a warrant, arrest one guilty 
 of a felony in this State, and carry him immediately before the 
 proper oflScer, to be surrendered up; but he has no right to arrest 
 one charged with having committed a felony in another State, and 
 will be answerable in damages if he does so. Botts v. Williams, 
 17 B. Mon. 692. 
 
 3. A single justice of the peace, who assumes to act as an exam- 
 ining court, in examining and committing one charged with a 
 felony, and an attorney who counsels and advises such commit- 
 ment, and the jailor who receives and confines the defendant in 
 jail under the mittimus of the single justice, will be liable as tres- 
 passer, but a witness who testified on the trial will not be liable. 
 Bevell V. Pettitt, 3 Met. 318. 
 
 4. No recovery can be had under section 3 of the act of March 
 10, 1856, page 509, volume 2, Eevised Statutes, by the widow of one 
 unlawfully killed by another with a pistol. That section is un- 
 constitutional. O'Donoghue v. Akin, 2 Duv. 478, 479. a 
 
 5. A private person, who, without a warrant, arrests one charged 
 with the commission of a felony in another State, will be a tres- 
 passer. Botts V Williams, 17 B. Mon. 696. 
 
 III. UPON REAL PROPERTY. 
 
 1. If one draw oil from a well on the land of another, without a 
 license, the owner of the well may recover the oil, or its value. 
 Sail V. Reed, 15 B. Mon. 490, 491. 
 
 2. The owner of real estate, whether in the actual possession or 
 not, may maintain an action for an injury to the land. Bebee v. 
 Hutchinson, 17 B. Mon. 498. 
 
 IV. UPON PERSONAL PROPBRTT. 
 
 1. One who innocently acquires possession of property taken by 
 a trespasser, without his prior knowledge or subsequent assent, 
 can not be regarded as a trespasser by relation. Justice v. Men- 
 dell, etc., 14 B. Mon. 14. 
 
 2. The value of property taken by a trespasser, may be recov- 
 ered from one who has come to the possession rightfully, and con- 
 verted it to his own use. Justice v. Mendell, etc., 14 B. Mon. 14. 
 
 3. If a slave be caught robbing a hen-roost in the nighttime, 
 and the owner of the roost, only intending to wound, shoots and 
 
5,02 teespIss. 
 
 kills him, he will not be liable to the owner for his value. McClel- 
 land V. Kay, 14 B. Mon. 106. 
 
 4. Timber, when cut down, becomes personal property, and the 
 owner of the land can maintain an action against one who re- 
 moves it, to recover its value. Bebee v. Hutchinson, 17 B. Mon. 
 498. 
 
 5. A member of Morgan's Confederate army, who aided in the 
 capture of a town, but who had nojagency, and neither advised nor 
 counseled the robbing of a bank in the town, is not liable in dam- 
 ages to the bank for such robbery. Witherspoon v. F. Bank Ky., 
 2 Duv. 497, 498. 
 
 V. BY AGENTS AND EMPLOYEES. 
 
 1. A principal is not ordinarily responsible for the forcible tres- 
 passes of an agent. Kountz v. Brown, 16 B. Mon. 582. 
 
 2. But the owners of steamboats are, under our statutes, liable 
 for forcible injuries and trespasses by their agents, Kountz v. 
 Brown, 16 B. Mon. 582 ; section 2, chapter 7, page 202, volume 1, 
 Eevised Statutes. And this liability exists, even though the boat 
 be chartered to others, and the injury be done by officers and crew 
 employed by the charterers. Sparks v. Kate French, 3 Met. 535, 
 536. 
 
 3. Individuals, entering upon the land of another, and trespass- 
 ing in the name, and assuming to act by authority of, a railroad 
 company, in doing acts which the company have no right to do, 
 are individually liable for their trespasses. Waller v. Martin, 17 
 B. Mon. 192. 
 
 VI. BY OFFICERS EXECUTING PROCESS. 
 
 1. An officer, authorized to execute criminal jiroeess, and having 
 such process in his hands, will not be a trespasser if he breaks 
 open, and enters and searches, the dwelling where the person re- 
 sides whose arrest is directed by the writ, although he be not 
 then in the house. Hawkins v. Commonwealth, 14 B. Mon. 396. 
 
 2. A sheriff, who levies on and sells property, under an execu- 
 tion issued on a judgment rendered without service of process on 
 the defendant, will be liable as a trespasser. Board v. Helm, 2 
 Met. 502. 
 
 TEIAL. 
 
 See Practice. 
 
TRUSTS AND TUrSTEES. 503 
 
 TEUSTEBS OF TOWI^S. 
 See Towns. 
 
 TEUSTS AND TETJSTBES. 
 
 I. Generally. 
 II. How trusts may be created. 
 
 III. Trust created by unrecorded deed. 
 
 IV. Who are trustees, how appointed, and when removed. 
 V. Eights, powers, and liabilities of trustees. 
 
 VI. Eights and liabilities of cestui que trust. 
 VII. Liability of trust estate for debts of cestui que trust. 
 VIII. When equity will execute or enforce a trust. 
 IX. When the act of limitation will apply. 
 
 I. GENERALLY. 
 
 1. If property dedicated to religious usages be exchanged for 
 other property, it must be held on the same terms, and subject to 
 the same uses. Harper v. Straws, 14 B. Mon. 52, 53. 
 
 2. If a trustee has a discretion in the performance of a trust, and 
 the performance be at a distance of ten or twelve years, a pur- 
 chaser of the property charged with the trust, will not be respon- 
 sible for the proper application of the purchase-money. Sims v. 
 Lively, 14 B. Mon. 449. 
 
 3. If a will directs that a devisee shall, out of a devise to him of 
 land and slaves, with the help of another fund of uncertain amount, 
 pay a devise made to another, and the devisee of the land and 
 slaves sells them to a purchaser ignorant of any fraud done or 
 intended, he will not be responsible for the application of the pur- 
 chase-money which he has paid. Sims v. Lively, 14 B. Mon. 
 447. 
 
 4. The provisions of the Eevised Statutes concerning trusts, have 
 no application to separate estates of married women. Toombs v. 
 Stone, 2 Met. 521, 522. 
 
 5. A sale of property conveyed in trust for the payment of debts 
 is invalid, unless the maker of the deed unites in the conveyance. 
 Lyon V. Field, 17 B. Mon. 549. 
 
 6. A trust results favorably to those from whom the considera- 
 tion and estate move. Williams v. McClanahan, 3 Met. 423; Perry 
 V. Sead, 1 A. K. Mar. 46. 
 
504 TRUSTS AND TRUSTEES. 
 
 7. A. and H. conveyed real estate owned by them jointly, to the 
 husband of H. to be sold; the husband without effecting a sale 
 conveyed the land to A., reciting a consideration equal to H.'s 
 interest; A. subsequently conveyed the same property to M., and 
 recited a consideration paid. Subsequently M. and A. conveyed 
 the property to a purchaser for fifteen thousand dollars, the notes 
 being madejpayable to M. Upon the parole promise of A. to pay 
 to Mrs. H. her share of the money, eight thousand dollars, M. sur- 
 rendered the notes to her. A. repeatedly, while she held the title 
 to the land and after the transfer of the purchaser's notes to her, 
 acknowledged the interest of H. and promised to pay it to her. 
 Held: There is a valid trust, and that Mrs. H. is entitled to have 
 judgment against A. for the amount of her interest in the prop- 
 erty. Aynesworth v. Haldeman, 2 Duv. 566. 
 
 8. If a husband conveys property to a trustee to be held, and 
 the proceeds paid to his wife who lives apart from him, it will be 
 held a separate use. Gaines v. Poor, 3 Met. 508. 
 
 9. Courts of equity view with jealousy all contracts made between 
 parties occupying fiducial relations, and in such cases the onus pro- 
 bandi is on the fiduciary to show the utmost fairness on his part. 
 Bichardson v. Spencer, 18 B. Mon. 465. 
 
 II. HOW TRUSTS MAT BE CREATED. 
 
 1. If a grantor conveys property for a particular use, and stipu- 
 lates that neither he nor his heirs will ever, in anyway or manner, 
 claim any right to the property, it is an absolute conveyance, and 
 no resulting trust can arise. Benning v. Benning, 14 B. Mon. 607. 
 
 2. ISTor, in such a case, will the mistaken belief of the grantor 
 that he only had an estate for the life of the cestui que trust when 
 he had an estate in fee, alter the case. Benning v. Benning, 14 B. 
 Mon. 608. 
 
 3. Where lands are devised, and after the death of the testator a 
 patent issues to him therefor, the legal title vests in his heirs who 
 hold in trust for the benefit of the devisees. Cohh v. Stewart, 4 
 Met. 256. 
 
 4. If land be sold under execution for more money than is due, 
 and the plaintiff becomes the purchaser, he will be regarded in 
 equity as holding the title in trust for the defendant. Walker v. 
 McEnight, 15 B. Mon. 478. 
 
 5. If land be conveyed to an agent, which was paid for with the 
 money of his principal, the former will hold in trust for the latter. 
 IS'ixon V. Jack, 16 B. Mon. 183. 
 
TRUSTS AND TEUSTEES. 505 
 
 6. A deed of trust, made by one mem'ber of the firm with the 
 assent of the other, is valid. Ely, Clapp etc., v. Sair, 16 B. Hon. 
 237. 
 
 7. On the sale and conveyance of land, the vendee becomes a 
 trustee and holds the unpaid purchase-money in trust for the 
 vendor, or other person to whom it is made payable. Gault v. 
 Trumbo, 17 B. Mon. 685. 
 
 8. A father gave his married daughter three thousand dollars, 
 which she loaned to her husband who executed his notes to her 
 father for the amount, and a mortgage on land to secure the pay- 
 ment. The father afterward foreclosed the mortgage, and bought 
 the land at the decretal sale and took a deed to himself. By his 
 will, the father charged his daughter with an advancement of three 
 thousand dollars, and the husband and wife sued the executor to 
 recover the proceeds of the sale of the land under the mortgage. 
 Held : That this ease does not come within section 20, chapter 80, 
 page 230, volume 2, Eevised Statutes, which applies alone to abso- 
 lute deeds, and that the mortgage being a mere security for the 
 debt, the father was a trustee for the daughter with respect to both 
 the debt and mortgage, and that his estate was liable for the pro- 
 ceeds of the land. Lindsay v. Williams, 2 Duv. 476, 477. 
 
 9. One, who receives a conveyance of property dedicated to 
 public use, will hold subject to that use. Baptist Ghurch v. Pres- 
 byterian Church, 18 B. Mon. 640. 
 
 10. Presumptive or resulting trust is forbidden by sections 20- 
 22, chapter 80, Eevised Statutes, except where the grantee shall 
 have taken a deed in his own name, without the consent of the 
 person paying the consideration, or in violation of some trust. 
 Graves v. Graves, 3 Met. 169. 
 
 11. If a husband buys land with the proceeds of the sale of the 
 wife's slaves sold by the husband and wife, and takes a conveyance 
 to himself, he will not hold in trust for her or her heirs. Mocker 
 V. Gentry, 3 Met. 474. 
 
 12. A valid trust of personal property may be created by parole. 
 Berry v. Norris, 1 Duv. 303. 
 
 13. Any writing by a trustee — even a letter to a person other 
 than the beneficiary — stating the trust, or any language clearly 
 expressive of a trust intended by the party, will create a trust by 
 implication. Aynesworth v. Haldeman, 2 Duv. 568. 
 
 14. Section 20, chapter 8, page 230, volume 2, Eevised Statutes, 
 does not apply to personalty ; nor where a conveyance absolute in 
 
506 TRUSTS AND TEUSTEES. 
 
 form is taken without the knowledge or consent of the party pay- 
 ing the consideration ; nor when it appears that it was not the 
 intention of the parties to divest themselves of all interest in the 
 land but only to effect a sale. Aynesworth v. Haldeman, 2 Duv. 568. 
 
 III. TRUSTS CREATED BY UNRECORDED DEEDS. 
 
 An unrecorded deed of trust will, in equity, prevail even 
 against a creditor, who has notice of it before he acquires a legal 
 right to the property or estate embraced by it. Forepaugh v. 
 Appold, 17 B. Mon. 631. 
 
 IV. WHO ARE TRUSTEES, HOW APPOINTED, AND WHEN REMOVED. 
 
 1. If a trustee by his conduct manifests his unfitness for the 
 particular trust confided in him, the chancellor will remove him 
 and appoint another, Harper v. Straws, 14 B. Mon. 57. 
 
 2. Upon the death of a trustee holding the legal title to personal 
 property, the title passes to his personal representatives who hold 
 for the benefit of those entitled under the trust. Edwards v. Wool- 
 folk, 17 B. Mon. 380. 
 
 3. A factor is a trustee for his principal so long as he retains 
 the property or its representative in his hands, and his assignees 
 or legal representatives take it subject to the same trust which 
 they can not defeat by turning it into money, unless they should 
 pay it away in their representative character before notice of the 
 trust. Fahnestock v. Bailey & Varnon, 3 Met. 50. 
 
 v. RIGHTS, POWERS, AND LIABILITIES OE TRUSTEES. 
 
 1. A trustee named in a deed of trust, is a necessary party to a 
 suit to set aside the deed. Talbott v. Pierce, 14 B. Mon. 203. 
 
 2. A trustee to whom property is conveyed for the payment of 
 debts, can not make a valid conveyance unless the grantor in the 
 deed unites with him. Lyon v. Field, 17 B. Mon. 549. 
 
 3. But if property be conveyed absolutely to a trustee, and the 
 grantor has no further interest in it, the trustee may convey 
 alone. Butler v. Miller, 15 B. Mon. 625. 
 
 4. Trustees are liable to the beneficiaries, for the sale of prop- 
 erty at an unfair and unreasonably low price, when thej could 
 have obtained more. My, Clapp, etc. v. Hair, 16 B. Mon. 238. 
 
 5. An agreement by the trustees of a married woman, that the 
 trust estate shalkbe charged with her debts, will not be sufiicient 
 •to bind the estate ; her contract is indispensable for this purpose. 
 Burch V. Breckinridge, 16 B. Mon. 488. 
 
TRUSTS AND TRUSTEES. 507 
 
 6. A trustee, of a married woman, who advances money beyond 
 the profits of her estate without informing her that she is going 
 beyond her income, and otherwise so demeans himself as to lead 
 her to suppose she was not going beyond it, will not be allowed 
 interest on such advancements, and will be postponed until other 
 creditors are paid. Burch v. Breckinridge, 16 B. Mon. 490. 
 
 7. A trustee, of the separate estate of a married woman, can 
 maintain a suit in his own name alone, to recover possession of 
 the trust property from one who has seized it under execution 
 against the husband of his cestui que trust. McGlanahan v. Beas- 
 ley, 17 B. Mon. 117. 
 
 8. A deed of trust conveying all the notes, bonds, and bills of 
 the grantor, does not vest in the trustee a right to notes assigned 
 to the grantor for collection. Worthington v. Qreer, 17 B. Mon. 
 747. 
 
 9. One, who was both executor and trustee under a will, and 
 made no settlement of his accounts as executor, should be deemed 
 to have held the fund as trustee after two years from the date of 
 his qualification, and having failed to appropriate the trust fund 
 as required, he should be charged with interest after two years, to 
 be computed at biennial rests. Lasley v. Lasley, 1 Dnv. 119. 
 
 10. A trustee may execute the powers conferred by the instru- 
 ment by which the trust is created, in the manner therein desig- 
 nated, without the aid of the chancellor, except when this power 
 is abridged by statute. O'Bannon v. Musselman, 2 Buv. 523. 
 
 11. It is the duty of a trustee to guard in good faith the interest 
 of their beneficiaries, and they ought not to speculate on them, or 
 through means afforded by them. Longest v. Tyler, 1 Duv. 194. 
 
 VI. RIGHTS AND LIABILITIES OF CESTUI QUE TRUST. 
 
 1. If a husband buys an outstanding claim to the lands of his 
 wife, it will inure to her benefit. Young v. Adams, 14 B. Mon. 
 131. 
 
 2. Only the profits of a trust estate held for a married woman, 
 will be subjected to the payment of her debts. Burch v. Breckiur 
 ridge, 16 B. Mon. 488. 
 
 3. Trustees acting unfaithfully toward a cestui que trust, will be 
 responsible for any injury resulting therefrom. White v. Mon- 
 sarrat, 18 B. Mon. 814. '^'■■ 
 
 4. A trustee is liable to his cestui que trust, for loss resulting 
 from a plea of limitation which he has negligently allowed to 
 
508 TRUSTS AND TRUSTEES. 
 
 mature in favor of those liable to the trust estate. Maddox v. 
 Allen, 1 Met. 499. 
 
 5. TRe provisions of the Eevised Statutes, section 17, article 4, 
 chapter 47, which prohibits married women from incumbering or 
 selling their separate real or personal estate, does not apply to a 
 trustee to whom such estate is conveyed for the separate use of a 
 married woman. The rights and powers of trustees with reference 
 to such estates, are not affected by the statute. Lewis v. Karris, 
 4 Met. 356, 357.i 
 
 VII. LIABILITY OF TRUST ESTATE FOR THE DEBTS OF CESTUI QUE TRUST. 
 
 1. Section 23, chapter 80 of the Eevised Statutes rendering 
 trust estates liable for the debts of the beneficiary, is but a re- 
 enactment of section 13 of the act of 1796 on the same sub- 
 ject, and a testator can not vest property or funds in a trustee for 
 the benefit of another, without subjecting it to the debts of the 
 cestui que trust. Samuel v. Salter, 3 Met. 261-263; Eastland v. 
 Jordan, 3 Bibb. 186 ; Pope v. Elliot, 8 B. Mon. 61 ; Johnson v. Ellis, 
 12 B. Mon. 483. 
 
 2. Only the profits of a trust estate conveyed for the use of a 
 married woman, can be subjected to the payment of her debts. 
 Burch V. Breckinridge, 16 B. Mon. 488. 
 
 ■VIII. WHEN EQUITY WILL EXECUTE OR ENFORCE A TRUST. 
 
 1. The chancellor has no power, on the death of the donee of a 
 discretionary power before the power is executed, to assume to act 
 in place of the donee in executing the power, but will divide the 
 subject of the power ^er capita among all the class out of which 
 the donee had a discretion to choose. McG-aughey v. Henry, 15 
 B. Mon. 398 ; Flint v. Spurr, 17 B. Mon. 515, 516. 
 
 2. An executed trust, will be enforced against the maker of the 
 trust and all volunteers under him. Gault v. Trumbo, 17 B. Mon. 
 685. 
 
 3. An action to enforce a trust created by parole, can not be de- 
 feated by proof of the coverture of one of the plaintiffs if the proof 
 also showed that her husband was insolvent and an habitual 
 drunkard, and made no provision for himself or family. Berry v. 
 Worris, 1 Duv. 303. 
 
 IX. WHEN THE ACT OF LIMITATION WILL APPLY. 
 
 * 
 
 1. Whenever'l-the legal right of a trustee holding the legal title 
 to slaves is barred by the statute of limitations, the equitable right 
 
 ^ This case seems to be in conflict with Burch v. Breckinridge, 16 B. Mon. 488. 
 
USURY. 509 
 
 of the cestui que trust, will be bared also. Edwards v. Woolfolk, 17 
 B. Mon. 381 ; Goleman v. Walker, 3 Met. 67. 
 
 2. Express continuing trusts,' which are within the exclusive 
 jurisdiction of courts of equity, are not aifected by the statute of 
 limitations. Jj. L., F. & M. Ins. Co. v. Page & Richard.son, 17 B. 
 Mon. 451. 
 
 3. Constructive trusts are not exempted from the operation of 
 the statute of limitations. Manion v. Titsworth, 18 B. Mon. 601 ; 
 Talbott V. Todd, 5 Dana, 199. 
 
 4. If a trust is openly denied, the statute of limitations will 
 apply. Manion v. Titsworth, 18 B. Mon. 601 ; Bohannon v. 
 Sthresby, 2 B. Mon. 439 ; Findley v. Patterson, 2 B. Mon. 78. 
 
 5. That the property in contest is trust property does not pre- 
 vent the statute of limitations from running against the trustee. 
 Whenever the remedy is legal, the statute will run ; but when there 
 is a relation of trust between the parties, it will not. Maddox v. 
 Allen, 1 Met. 498, 499. 
 
 UNITED STATES COUETS. 
 
 A citizen of another State, when sued in a circuit court of this 
 State, who desires a removal of the cause to the United States 
 court, must file a petition for the transfer at the time he enters his 
 appearance, and the petition must allege that the plaintifP at the 
 time of the institution of the suit, was a citizen of this State. If 
 the motion to transfer is not made at the time of entering his 
 appearance, the right is waived. State Bk. Gin. v. Benton, 2 Met. 
 241, 242 J sec. 12, U. S. Judiciary, Act 1789. 
 
 USUET. 
 
 I. "What is usurious. 
 II. When available as a defense. 
 III. Actions to recover hack usury paid. 
 
 I. WHAT IS USURIOUS. 
 
 A contract for the sale and purchase of a trsiJctVof land at the 
 price of two thousand dollars, payable in two years, with interest 
 payable half yearly at eight per cent, per annum is not usurious, 
 
510 rstTRT. 
 
 and interest at that rate may be collected as stipulated. Tousey 
 V. BoUnson, 1 Met. 664, 665 ; Boswell v. Clarkson, 1 J. J. Mar. 47. 
 
 II. WHEN AVAILABLE AS A DEFENSE. 
 
 1. It can not be presumed from the mere giving of a credit on a 
 note given for eight per cent, interest that it had been paid at that 
 rate. Hicks v. Shouse, 17 B. Mon. 488. 
 
 2. If a residuary devisee receives notes of the executor contain- 
 ing usury, and these be given up and a new note taken, the debtor 
 does not thereby lose his right to have the usury purged from the 
 new^note. Smith v. Broyles, 15 B. Mon. 466, 467. 
 
 3. A firm of bankers held the note of H. for six thousand dollars 
 which one of the firm assigned to his son as an advancement. H. 
 took up the note by giving two notes payable to two other persons 
 who indorsed them to the son. In an action by the- latter on the 
 notes, the obligor alleged and proved that the firm were the own- 
 ers of the note sued on, and that he had paid them large amounts 
 of usury on the transaction. Held: That he was entitled to an 
 abatement for the usury so paid. Humphreys v. Pierce, 1 Duv. 238, 
 239. 
 
 4. If a debtor gives to an assignee of his creditor a new note for 
 the debt embracing the usury, his right to have a deduction is 
 gone, but he may recover it back from the assignor. Stone v. Mc- 
 Connell, 1 Duv. 56 ; Breckinridge v. Churchill, 3 J. J. Mar. 12. 
 
 III. ACTIONS TO RECOVER BACK USURY PAID. 
 
 1. If the obligor in a note authorizes the obligee to raise money 
 to pay the note, he will not be responsible for usurious in- 
 terest paid, although he may have authorized it to be done. 
 Totten V. Cooke, 2 Met. 279 ; Morton & Humphreys v. Legrand, 2 
 Litt. 326. 
 
 2. One who has permitted judgment at law by default on a debt 
 embracing usury, may, after he has paid the debt, maintain an 
 action in equity to recover back the usury, although he knew 
 when the judgment was rendered that the usury was embraced in 
 it. Eoss V. Boss, 3 Met. 276, 277. Pierce v. Hendricks, 3 Litt. 109; 
 Campbell v. McQill, 4 J. J. Mar. 89; 4 Mon. 488. 
 
 3. The act of 1862 to amend the laws of limitations of actions 
 for usury (My^rs' Supplement, 292), has no other effect than to 
 reduce the period within which action to recover usury must be 
 commenced to one year. It does not deprive the borrower of the 
 right to treat payments of usury as payments on the principal and 
 
VACANCY. 511 
 
 legal interest as long as the debt remains unpaid, nor give him a 
 right of action to recover back such payment until the entire debt 
 is paid. Ellis v. Brannin, 1 Duv. 49, 50. 
 
 4. So long as a debt exists, usurious interest must be first applied 
 to the discharge of the legal interest and then to the principal ; and 
 no right of action for the usurious interest exists, until the debt is 
 discharged, and limitation does not begin to run until the debt is 
 discharged. Mlis v. Brannin, 1 Duv. 50; Stone v. McConnell, 1 
 Duv. 56; Martin v. Martin, 12 B. Men. 304. 
 
 5. A defendant sued for usury, pleaded that he had sued on the 
 debts embracing the usury, and obtained judgment at law; that 
 execution had issued and been returned "no property," on which 
 he had sued in equity, to subject the interest of the plaintiff in 
 certain lands which had been done, and the debts thus satisfied. 
 Seld: The facts pleaded constitute no defense to the action. 
 Scott V. Shropshire, 2 Duv. 153, 154. 
 
 TJSUEPATIOI^. 
 
 One elected to the office of county attorney, to which he was in- 
 eligible — not having been a licensed practicing attorney for two 
 years — and who exercises the functions and receives the emolu- 
 ments of the office, is guilty of the offense of usurpation, and may 
 be prosecuted by indictment for the recovery of the fine imposed 
 by statute. Commonwealth v. Adams, 3 Met. 9. 
 
 VACAITOY. 
 
 1. If the person chosen clerk of the county court be decided to 
 be constitutionally ineligible, the incumbent has no right to hold 
 the office until the successor is elected and qualified. The office 
 in such a case is vacant, and the county court should appoint a 
 clerk, and for this purpose the county judge alone constitutes the 
 county court. Stevens v. Wyatt, 16 B. Mon 548-550. 
 
 2. The board designated by law to hear and determine contested 
 election cases have no power to declare the office vacant. Leeman 
 V. Hinton, 1 Duv. 40. 
 
 3. If the office of sheriff becomes vacant, the county court should 
 appoint one to hold until the next August election, and until the 
 successor then elected shall qualify, and if no successor is then 
 
512 VENDOR AND VENDEE. 
 
 elected, a vacancy will again occur, and another appointment 
 should be made. Gate v. Boss, 2 Duv. 244, 245. 
 
 4. One elected to fill a vacancy in the ofBce of sheriff, may qual- 
 ify at the next term of the county court after he receive a certifi- 
 cate of election. Gate v. Boss, 2 Duv. 244, 245. 
 
 VBNDOE AND VENDEE. 
 
 1. If a vendor conceals from his vendee his knowledge of facts, 
 important to sustain his title, the vendee can not be prejudiced by 
 such knowledge. Bush v. Madeira, 14 B. Mon. 221. 
 
 2. If personal property be absolutely sold, but before the time 
 of delivery it be destroyed by the act of God, the purchaser must 
 pay for it. Sweeny v. Owsley, 14 B. Mon. 413, 414. 
 
 3. Defect of title to a part of the land held under executed con- 
 tract, will not authorize a rescission, but a deduction pro tanto 
 should be made. Benny v. Wickliffe, 1 Met. 226. 
 
 4. After a decree for a specific execution of a contract, for the 
 sale of land, the purchaser may, if his vendor is insolvent, with- 
 hold the purchase-money until a decision can be had as to alleged 
 defects in the title, not relied on to defeat a specific execution, and 
 may, in order to test the title, bring before the court those from 
 whom he apprehends danger, and have the question settled. 
 Denny v. Wickliffe, 1 Met. 226, 227; Buvall v. Parker, 2 Duv. 
 185, 186. 
 
 5. A vendee, who has proceeded against one claiming a con- 
 flicting title to the land purchased, as a non-resident, in an action 
 to quiet the title, may, although a decree is rendered in favor of 
 his vendor's title, and against that of the non-resident, have 
 indemnity before ho can be compelled to pay for the land, if his 
 vendor is insolvent. Denny v. Wickliffe, 1 Met. 228. 
 
 6. Where two executors were authorized, by a will, to sell and 
 convey land, and one sold and conveyed alone, the contract can not 
 be rendered valid, and enforced against the vendee, by tendering 
 him a deed from one of these devisees, between whom the proceeds 
 of the land were to be divided, even though the title of that 
 devisee to the land sold might be good. Wells v. Lewis, 4 Met. 
 271, 272. 
 
 7. A vendor who retains possession of the land sold, in violation 
 of his contract, will be liable for rent. Hibbard v. Smith, 
 17 B. Mon. 53. 
 
VENDOE AND VENDEE. 513 
 
 8. A vendor, when sued by a remote vendee, on his covenant of 
 ■warrantj'-, can not show, by parole, that the consideration was dif- 
 ferent from that expressed in the deed, or that the deed was pro- 
 cured by fraud; otherwise, if the action be by his immediate 
 vendee. Hunt v. Orwig, 17 B. Mon. 85. 
 
 9. A vendee who.,gives his bond "to make the title," will be 
 required to make a deed of general warranty. Andrews v. Wofd, 
 17 B. Mon. 520. 
 
 10. A vendee is not bound to accept a deed with general war- 
 ranty, without a relinquishment of dower by the wife of the 
 vendor. Andrews v. Word, 17 B. Mon. 521. 
 
 11. A vendor of land adversely held, is liable to his vendee for 
 any fraudulent representations in regard to the possession of the 
 lan'd sold. Graves v. Leathers, 17 B. Mon. 569. 
 
 12. On tbe sale and conveyance of land, the vendee becomes a 
 trustee for the vendor, or other person to whom a balance of pur- 
 chase-money is due. Qault v. Trumbo, 17 B. Mon. 685. 
 
 13. Since the Eevised Statutes of July 1, 1851, a vendor has no 
 lien for unpaid purchase-money, unless it be expressly stated, in 
 the deed, what part of the purchase-money remains unpaid. 
 Chapman v. Stockw'ell, 18 B. Mon, 653 ; Cottman v. Martin, 1 Met. 
 563, 564 ; Gritton v. McDonald, 3 Met. 253.i 
 
 14. If the State sells property on which another has a mortgage, 
 the purchaser has a right to indemnity out of anything due the 
 State for purchase-money; and although the State cannot be sued, 
 if the fund be sued for, the purchaser may defend by showing the 
 incumbrance, and have an abatement for whatever he may be 
 compelled to pay to remove it. Gom'rs Sinking Fund v. Northern 
 BankKy.,1 Met. 193, 194. 
 
 15. To enable a vendee to claim a right of way through the 
 lands of his vendor, he must show that such a passway is indis- 
 pensably necessary to the enjoyment of the land conveyed to him. 
 H4I V. McLeod, 2 Met. 100. 
 
 16. "When a misrepresentation of the quantity of land sold is 
 made by a vendor, though innocently, the purchaser has a right to 
 have what there is of the land, and an abatement out of the pur- 
 chase-money for so much as the land falls short of the representa- 
 tion. Fall V. McMurdy, 3 Met. 369. 
 
 17. If, in such case, the land be situated in a town, and has on 
 it valuable buildings, the abatement in price should not be in the 
 proportion which the deficit bears to the number of acres in the 
 
 ^Neal Y. Davis, IT B. Mon. 143,-18 overruled by these cases. 
 34 
 
514 VENDOR AND VENDEE. 
 
 boundary, but the true criterion is the difference between the 
 value of the property as it is, and as it was represented to be. 
 Fall v. McMurdy, 3 Met. 369. 
 
 18. "Where the vendee of personal property refuses to receive the 
 thing bargained for, the vendor may treat it as his own, and 
 recover the difference between the value aithe time and place of 
 delivery, and the contract price; or he may' sell it, with due pre- 
 caution and diligence, to satisfy his lien for the price, and recover 
 the unpaid balance of the contract price ; or he may consider it as 
 the property of the vendee, and recover the full price ; and, in 
 either case, the election is with the vendor. Cook v. Brandeis & 
 Crawford, 3 Met. 557. , 
 
 19. A contract to sell one hundred and sixty acres of land, for 
 the sum of six thousand four hundred dollars, "being at the rate of 
 forty dollars per acre," is a sale by the acre, and not in gross, and 
 the vendor is entitled to recover for an excess of ten and one- 
 fourth acres, at the contract price. Hutchings v. Moore, 4 Met. 
 113. 
 
 20. A vendee has no right to reject the surplus contained in 
 a boundary of land, over and above the quantity purchased. 
 Hutchings v. Moore, 4 Met. 113. 
 
 VENUE. 
 See Change of Venue. 
 
 VEEDICT. 
 
 See Judgment. 
 
WARRANTY. 515 
 
 WAEEANTY. 
 
 I. "What will amount to a, warranty. 
 II. What will be a breach of warranty. 
 
 III. Who" is liable on a covenant of warranty. 
 
 IV. Who may sue for breach of covenant. 
 V. When right of action accrues. 
 
 VI. When warranty of ancestor will bar his heirs. 
 
 I. WHAT WILL AMOUNT TO A WARRANTY. 
 
 1. There is no implied warranty in the sale of real estate, hnt 
 the vendor impliedly undertakes that he has a right to make sale 
 of the thing sold, and if he has no title at all he will be liable. 
 Com'rs Sinking Fund r. Northern Bank Ky., 1 Met. 193; Bodley v. 
 McChord, 4 J. J. Mar. 476 ; Wilson v. Jeffries, 4 J. J. Mar. 495. 
 
 2. If the vendor, at the time of the sale of an article, makes an 
 assertion or representation respecting the kind, quality, or con- 
 dition of the thing sold, upon which he intends the vendee shall 
 rely, and he does rely on it in making the purchase, it will amount 
 to a warranty ; otherwise, if he merely express an opinion or 
 belief. Lamme v. Gregg, 1 Met. 446; 447. 
 
 II. WHAT WILL BE A BREACH OF WARRANTY. 
 
 1. If a husband and wife convey land, the inheritance of the 
 wife, and after their death the heirs of the wife sue for the land, 
 but fail to recover because they have received assets from the 
 estate of their father equal to the value of the land, it will, in 
 equity, be a substantial breach of the covenant of warranty, 
 which, being satisfied by the heirs, will entitle them to recover 
 the amount of the executor of their ancestor. 2'odd v. Todd, 18 
 B. Mon. 166. 
 
 2. The warranty of one, who has exchanged lands and been 
 evicted, can not be set up against his claim to the land given in 
 exchange for that lost, for the restoration is not only the appro- 
 priate, but the stipulated compensation for the loss. Grimes v. 
 Redman, 14 B. Mon. 238. 
 
 III. WHO IS LIABLE ON A COVENANT OF. 
 
 1. The widow and heirs-at-law of an intestate are only liable on 
 a covenant of warranty, on failure of assets in the hands of hia 
 administrator. Hill v. Golden, 16 B. Mon. 555. 
 
516 WARRANTT. 
 
 2. A woman will not, after she is discovert, be liable on a cove- 
 nant of warranty made during coverture. Falmouth Bridge Co. 
 V. Tibbatts, 16 B. Mon. 642. 
 
 3. 1^0 action can be maintained on a covenant of warranty, in a 
 deed for land held adversely to the vendor, at the time of making 
 the deed. Graves v. Leathers, 17 B. Mon. 668.' 
 
 IV. WHO MAY SXJE FOR A BREACH OF. 
 
 1. A vendee, with special warranty, may, if evicted, sue on the 
 warranty of a remote vendor. Sunt v. Orwig, 17 B. Mon. 82. 
 
 2. The heirs of one, who has conveyed the lands of his wife 
 with warranty, may, after being defeated, on account of their 
 ancestor's warranty, in an action to recover the land thus con- 
 veyed, and to which they were entitled as heirs of the wife, 
 recover the value of the land agixinst the executor of their ances- 
 tor, on his covenant of warranty. Todd v. Todd, 18 B. Mon. 
 166. 
 
 3. Husband and wife conveyed land to H., and he reconveyed 
 to them, and they conveyed to K., who was evicted by paramount 
 title, all the deeds containing covenants of warranty. K. sued H. 
 on his covenant of warranty to the husband and wife. Held: 
 That K. had a right to recover, notwithstanding the covenant of 
 K.'s vendors to H. Hobbs v. King, 2 Met. 142. 
 
 V. WHEN THE RIGHT OF ACTION ACCRUES. 
 
 1. An express warranty of title will not constitute a valid 
 defense to an action for the price of the thing warranted, without 
 an averment of actual eviction, or something equivalent thereto. 
 Tipton V. TripleU, 1 Met. 572, 573. 
 
 2. If an implied warranty be relied on, the defendant must 
 ^Tove the vendor's title defective, and that some one else owns the 
 thing warranted. If this be done, the defense is good without 
 eviction. Tipton v. Triplett, 1 Met. 572, 573. 
 
 VI. WHEN WARRANTY OP ANCESTOR WILL BAR HIS HEIRS. 
 
 The heirs of a warrantor are barred of their right to recover 
 land covered hj the warranty, to the extent of assets received 
 from him, whether by devise, descent, or distribution, although 
 they may iiave the paramount title. Todd v. Todd, 18 B. Mon. 
 166 ; Nunnally v. White, 3 Met. 590 ; Lane v. Berry, 2 Duv. 283 ; 
 .sec. 18, ohap. 80., p. iS2fl, voL 2, Eevised Statutes. 
 
WILLS. 517 
 
 WEIGHTS AND MBASUEES. 
 
 1. Congress has not passed a law fixing a standard of weights 
 and measures, and the laws of the State must govern the subject. 
 For the legal standard adopted in this State, see Acts of 1839, 3 
 Statute Laws, 583, and section 1, chapter 105, page 454, volume 2, 
 Eevised Statutes. Caldwell, Sunter & Go. v. Dawson, 4 Met. 123. 
 
 2. According to this standard, a bushel is a measure containing 
 77.6274 pounds avoirdupois of distilled water, at the temperature 
 of the maximum density of water, and barometer 30 inches at 
 62 degrees Fahrenheit, This is the same as the "Winchester 
 bushel, and contains 2150.42 cubic inches. Caldwell, Hunter & 
 Go. V. Dawson, 4 Met. 123. 
 
 WILLS. 
 
 I. Who may make. 
 II. Execution. 
 
 III. Eevocation, repuTjlication, and codicils. 
 
 IV. Contingent wills. 
 
 V. Of probate, and contesting wills. 
 VI. Testamentary capacity, and undue influence. 
 VII. Construction of wills. 
 VII. Mistakes in wills. 
 
 I. WHO MAT MAKE. 
 
 1. A married woman may dispose of her separate estate by will, 
 and, with the assent of her husband, she may dispose of her per- 
 sonal estate ; but she has no power to dispose of her real estate by 
 will, except in the execution of a written power. George v. Buss- 
 ing, 15 B. Mon. 563-565. 
 
 2. A husband, who has assented to the making of a will by his 
 wife, simply waives his right as her administrator, and may re- 
 voke his assent at any time before the will is probated. George v. 
 Bussing, 15 B. Mon. 563. 
 
 II. EXECUTION. 
 
 1. A strict compliance with the statute regulating the execution 
 and attestation of wills, is not required. A substantial compliance 
 is suflacient. Upchurch v. Upchurch, 16 B. Mon. 112. 
 
518 WILLS. 
 
 2. If the name of the testator be subscribed to a will by another) 
 and he afterward acknowledges it in the presence of witnesses, and 
 one of them writes his own name as a witness, and also the name 
 of the other, who can not write, and they can recognize the paper 
 as the same they attested, it will be sufficient proof of the execu- 
 tion of the will. Upchurch v. Upchurch, 16 B. Mon. 113; Mont- 
 gomery V. Perkins, 2 Met. 449, 450. 
 
 3. The attestation of a witness who is dead will be presumed to 
 have been made according to the statute. Tudor v. Tudor, 17 
 B. Mon. 390. 
 
 4. If a testator requests a witness to attest his will, it will not 
 be necessary that the witness should see him sign it, or that he 
 should formally acknowledge it as his will ; the signature and ac- 
 knowledgment will be inferred from the request to attest it. Tu- 
 dor V. Tudor, 17 B. Mon. 389, 390. 
 
 5. Parole declarations of a testator are not sufficient to make that 
 a will, which otherwise would not be a will. Maxwell v. Maxwell, 
 3 Met. 107 ; Dougherty v. Dougherty, 4 Met. 28, 29. 
 
 6. Since the Eevised Statutes took effect, a will written wholly 
 by the testator, must, to be valid, be signed by him at its conclu- 
 sion. Jones V. Jones, 3 Met. 268 ; sec. 26, chap. 21, Eevised Stat- 
 utes. 
 
 T. A will executed before the Eevised Statutes took effect, must 
 depend, for the validity of its execution, on the pre-existing law. 
 Jones V. Jones, 3 Met. 268. 
 
 8. The presumption is always against a paper which bears self- 
 evident marks of being unfinished, and it behooves those who as- 
 sert its testamentary character to show, by the most unequivocal 
 testimony, that the deceased subsequently adopted it, in its unfin- 
 ished state, as his will. Jones v. Jones, 3 Met. 269. 
 
 9. After a testator's name was signed to a writing, he acknow- 
 ledged it to be his will, in the presence of two witnesses, who sub- 
 scribed it as such. The testator then made his mark to it, between 
 his Christian and surname. Meld: The execution was valid: the 
 mark was unnecessary. Sechrest v. Edwards, 4 Met. 166 ; Swift v. 
 Wiley, 1 B. Mon. 114. 
 
 10. The execution of a will, with the requisite solemnities, is 
 presumptive evidence that the testator knew its contents; and that 
 it conformed to his intention; and it is incumbent on those who 
 seek to avoid it, on the ground that it makes a disposition of the 
 testator's estate, of which he, at the time, was not fully apprised, 
 
WILLS. 519 
 
 to establish the fact aliundi. Sechrest v. Edwards, 4 Met. 168 ; 
 Shanks v. Christopher, 3 A. K. Mar. 144. 
 
 11. A will, to be valid under the statute of wills, must be in 
 writing, with the name of the testator written at the foot, or end. 
 Soward v. Soward, 1 Duv. 131. 
 
 12. So the names of attesting witnesses must be signed at the 
 end, or close, of the will ; and an attestation by witnesses, made 
 on the outside of a folded and sealed sheet of paper on which a 
 will is written, with two blank pages intervening between the end 
 of the will and the signatures of the witnesses, is not valid, and a 
 will so attested can not be established, though the evidence leaves 
 no room to doubt the identity of the paper. Soward v. Soward, 1 
 Duv. 132. 
 
 13. If there is an iinnecessary and unreasonable blank space be- 
 tween the conclusion of a will and the signature of the testator, the 
 will is not legally executed, though it be manifest that he had no 
 intention to do anything more to the will after he signed it. Sow- 
 ard V. Soward, 1 Duv. 134. 
 
 14. But as to what will constitute an unnecessary or unreasona- 
 ble blank space, no rule can be laid down. Soward v. Soward, 1 
 Duv. 134. 
 
 15. If the subscribing witnesses sign a will, as such, in the 
 presence, and with the knowledge, of the testator, it will be a valid 
 execution. Maupin v. Wools, 1 Duv. 223. 
 
 III. REVOCATION, REPUBLICATION, AND CODICILS. 
 
 1. A codicil Is, in effect, a republication of the will, and the 
 whole is to be construed together, as if made at the date of the 
 codicil. Armstrong v. Armstrong, 14 B. Mon. 338. 
 
 2. If a codicil be attested by only one witness, it can not 
 amount to a republication, but it will be considered as showing 
 the intentioh of the testator. Armstrong v. Armstrong, 14 B. Mon. 
 338. 
 
 3. If a will, after having been duly published, be altered by the 
 testator, by striking out one or more devises, it will not operate as 
 a revocation of the whole will, but only of the parts stricken out. 
 Tudor V. Tudor, 17 B. Mon. 389. 
 
 IV. CONTINGENT WILLS. 
 
 1. A testator residing in Kentucky, but temporarily in Missouri, 
 made a will which was attested by two witnesses which he sealed 
 up and left with one of them for four or five years, during which 
 
520 
 
 WILLS. 
 
 time the testator visited Kentucky twice. He then called for the 
 ■will and spoke of it as his will, and expressed an intention to alter 
 it. On his way home he died at Louisville, Ky. The will con- 
 tained this among other clauses: "It is my wish that all the notes 
 and accounts found among my papers (against) my brothers, 
 should be destroyed or handed over to them. Should I never 
 return." Held: That the words "Should I never return" are 
 confined to the notes and accounts, and that although the testator 
 returned to his home in Kentucky, the extrinsic facts show it to 
 have been intended as his will, and that it was not regarded by 
 him as contingent. Massie v. Griffin, 2 Met. 365-368. 
 
 2. A letter written by a husband to his wife, when absent from 
 home under circumstances of danger rendering it doubtful whether 
 he would reach home alive, said : " If I never get back home, I leave 
 you everything I have in the world." Held: That it was a con- 
 tingent will ; and if the husband did not die before his return home, 
 it was not his will. Maxwell v. Maxwell, 3 Met. 107; Dougherty v. 
 Dougherty, 4 Met. 26. 
 
 3. If, in such a case, the alleged testator returns home, the 
 paper can not be revived and made his will by proof of his parole 
 declarations that it was still his will. Maxwell v. Maxwell, 3 Met. 
 109, 110; Dougherty v. Dougherty, 4 Met. 28, 29. 
 
 V. OF PROBATING AND CONTESTING WILLS. 
 
 1. The provisions of the statute of 1797, allowing the certificate 
 of the oaths of witnesses examined on the original probate of a 
 will to be used as evidence on a subsequent trial in the circuit 
 court, refers to the probate by the county court, and not to evi- 
 dence adduced in the circuit court on an appeal. Payne v. Price, 
 16 B. Mon. 100. 
 
 2. On an appeal to the circuit court from an order admitting a 
 will to probate, if the evidence made in the county court is uncon- 
 tradicted, it will be sufficient to establish its execution. Tudor y. 
 Tudor, 17 B. Mon. 390. 
 
 3. The testimony given by witnesses in the county court, on a 
 motion to probate a will, will not be competent under section 40, 
 chapter 106, Eevised Statutes, on the trial in the circuit court, of 
 an appeal from an order refusing probate. But it will be compe- 
 tent as secondary evidence, if the witnesses can not be produced. 
 Thompson v. Blackwell, 17 B. Mon. 623. 
 
 4. The county court of the county of the testator's residence 
 alone, has jurisdiction to probate his will, unless the will has been 
 
WILLS. 521 
 
 destroyed or suppressed, when the chancery court of the county 
 where it ought to have been probated has alone jurisdiction to 
 establish it. Barnes v. Edward, 17 B. Mon. 640. 
 
 5. If both the subscribing witnesses to a will, neither of whom, 
 could read nor write, are unable to identify the paper as the one 
 they attested, and think one of its provisions different from the one 
 they witnessed and which they heard read, and the draughtsman 
 proves it to be the identical paper written by him and witnessed 
 by them, it will be suflSciently identified. Montgomery v. Perkins, 
 2 Met. 460. 
 
 6. A writing, by which the holder of a note directed, in case of 
 her death before it was collected, that her executor or administra- 
 tor should deliver it up to the obligor as a gift, may be established 
 as a will. Knott v. Hogan, 4 Met. 103. 
 
 7. One who has contested the probate of a will in the county 
 court and circuit court, and court of appeals, will not be allowed 
 to question its validity by a petition in equity. Dale v. Hays, 14 
 B. Mon. 315. 
 
 8. In an action brought for distribution, it is not competent 
 under the Code for a defe:(idant, by cross-petition, to attack the 
 will. Sanders v. Sanders, 17 B. Mon. 13. . 
 
 9. But whether since the amendment to the Code allowing cross- 
 petition by a defendant against the plaintiff, or a co-defendant, 
 any one having the right to contest a will by petition in equity, 
 may not do so by cross-petition in an action for distribution under 
 the will. Quere. Sanders y. Sanders, 17 B. Mon. 12,13; Talbott 
 V. Talbott, 17 B. Mon. 1. 
 
 10. Original proceedings in equity to set aside or vacate a will 
 that has been admitted to probate, are now only allowed in two 
 classes of cases. 1. To impeach the final decision of the circuit 
 court afBrming an order of probate upon any grounds that would 
 give a pourt of equity jurisdiction over any other judgment at 
 law. 2. In behalf of non-residents, or others interested in the 
 probate, who were not parties to the proceedings by actual ap- 
 pearance, or personal service of process. Sughey v. Sidwell, 18 
 B. Mon. 260. 
 
 11. That a petition seeking to set aside a will, of which matter 
 the circuit court has no jurisdiction, sought also a division of an 
 estate, will not confer jurisdiction to set aside the will. Hughey 
 V. Sidwell, 18 B. Mon. 260. 
 
622 WILLS. 
 
 12. Proceedings in chancery to contest a will, which were insti- 
 tuted prior to July 1, 1854, are not aiFected by the Code of Prac- 
 tice. Henderson v. Haynes, 2 Met. 343-346. 
 
 VI. TESTAMENTARY CAPACITY AND UNDUE INFLUENCE. 
 
 1. A jury in a will case found a special verdict in substance, 
 that owing to the organization of the testator's mind, and great 
 bodily pain at the time of making the will, he was incapable of 
 making a valid disposition of his estate. Held: That this is not a 
 general verdict against the will on the two grounds on which it 
 was contested, to-wit: incapacity and undue influence, but is 
 expressly limited by the jury to the single ground of want of capa- 
 city. Quiseriberry v. Quisenherry, 14 B. JVIon. 482, 483. 
 
 2. "When a testator had frequently declared that he would make 
 his children all equal in his will, and had also declared that he 
 would give his land to his boys, and his slaves to his daughters, it 
 was error to instruct the jury without qualifications, that such 
 declarations of an intention to create equality, coupled with the 
 fact that the will did not make all equal, was evidence of a want of 
 capacity. Quisenherry v. Quisenherry, 14 B. Mon. 486. 
 
 3. A will is not to be regarded as invalid because not made in 
 accordance with previously-expressed intentions. Quisenherry v. 
 Quisenherry, 14 B. Mon. 488. 
 
 4. In a contest in regard to the validity of a will, evidence of 
 the good character apart of the testator's children, is not admissi- 
 ble to show a want of rational motive for their exclusion from an 
 equitable share of his estate, and therefore a want of testamentary 
 capacity. Tudor v. Tudor, 17 B. Mon. 387, 388. 
 
 5. If a testator has capacity to know his children, and his estate, 
 and to dispose of the latter in a rational manner, according to a 
 fixed purpose of his own, his will will be valid. Tudor v. Tudor, 
 17 B. Mon. 391. 
 
 6. The unreasonable feelings and prejudices of a testator may be 
 relied on as tending to prove his want of capacity, but they do not 
 themselves constitute incapacity, or establish conclusively the 
 want of capacity, even when the testator has not made a rational 
 disposition of his property. Tudorv. Tudor, 17 B. Mon. 395. 
 
 7. That a will, written by the testator, and its provisions are 
 altogether sensible and judicious, is the best evidence of testa- 
 mentary capacity at the time of making the will. Overton V. 
 Overton, 18 B. Mon. 64. 
 
WILLS. 523 
 
 8. It is the duty of the court of appeals, in a will case coming 
 by appeal from the county court to the circuit court, and thence 
 to the court of appeals, to decide questions both of law and fact, 
 and in case the will is established, no new trial will be had in the 
 circuit court, although the judgment may be reversed. But it is 
 otherwise where the validity of the will was tried by a jury on an 
 issue of devisavit vel non out of chancery. Overton v. Overton, 18 
 B. Mon. 64-67; Sechrest Y.Edwards, 4 Met. 167; sec. 28, chap. 106, 
 Eevised Statutes. 
 
 9. The competency of a testator may be proved by other than 
 the subscribing witnesses, although they may testify that he was 
 incompetent. Sechrest v. Edwards, 4 Met. 171 ; Ashley Howard's 
 will, 5 Mon. 199 ; Reed's will, 2 B. Mon. 79. 
 
 10. For a discussion of evidence as to capacity of testators, and 
 the evidence relied on to prove or disprove testamentary capacity, 
 see Sechrest v. Edwards, 4 Met. 169 ; McJDanieVs will, 2 J. J. Mar. 
 331 ; Elliott's will, 2 J. J. Mar. 340 ; Watson v. Watson, 2 B. Mon. 
 74; Reed's will, 2 B. Mon. 79. 
 
 11. Gross inequality in the disposition made by a will, where 
 no reason for it is suggested in the will itself, requires satisfactory 
 evidence that it was the free and deliberate oifspring of a rational, 
 self-poised, and clearly-disposing mind. Harrell v. Harrell, 1 
 Duv. 204. 
 
 12. A testator more than seventy years of age was confined to 
 his bed by an inflammatory disease of a very distressing nature, 
 and of which he died in two days after the will was made. When 
 in health he often resisted the appeals of a second wife, by whom 
 he had no children, to make a will, and declared often, and up to 
 within three weeks of his death, that he would make no will, and 
 was at the time of making the alleged will in a partial stupor, and 
 when aroused was flighty. He devised all his estate to his wife 
 and one son, and his will was held invalid. Harrell v. Harrell, 1 
 Duv. 204, 205. 
 
 13. The mere fact that a will had been drawn up by those in- 
 terested in its provisions, without the request of the testator, will 
 not of itself invalidate it, but would be a strong circumstance 
 against its validity. Jones v. Jones, 14 B. Mon. 474. 
 
 14. Such influences as arise from legitimate social relations must 
 be allowed to produce their natural results, even on last wills and 
 testaments, and there can be no presumption of its unlawful exer- 
 cise merely from the fact that it existed, and may, to some extent, 
 have operated on the testator's mind. Such influences naturally 
 
524 WILLS. 
 
 produce inequality in wills, but a will is not on that account to be 
 condemned. It is only wbere such influence is exercised over the 
 very act of devising, so as to prevent the will from being really 
 the act of the testator, that the law condemns it as a vicious 
 element of the testamentary act. Sechrest v. Edwards, 4 Met 
 174. 
 
 15. That an old servant possessed great influence over the tes- 
 tatrix, and attended to a great deal of her business, is not, in the 
 absence of proof of the exercise of that influence, evidence of an 
 undue influence over the testamentary act. Maupin v. Wools, 1 
 Duv. 223. 
 
 VII. CONSTRUCTION OP WILLS. 
 See Dbvtses and Dbvisbes. 
 
 1. If the devisee dies in the lifetime of the devisor, and there is 
 any one appointed to take in case of the death of the devisee, the 
 legacy does not lapse. But if the devisee dies under other cir- 
 cumstances than those under which the ulterior gift is to take 
 efl'ect, it will be otherwise. Armstrong v. Armstrong, 14 B. Mon. 
 339. 
 
 2. When a devise is made to take effect on two alternate con- 
 tingencies, one of which is too remote, the other valid, although 
 it is void SO' far as it depends on the remote event, it will take 
 efl'ect on the alternative one. Armstrong v. Armstrong, 14 B. Mon- 
 346. 
 
 3. A codicil is in effect a republication of the will, and the 
 whole is to be construed together as if made at the date of the 
 codicil. Armstrong v. Armstrong, 14 B. Mon. 338. 
 
 4. If a will directs the conversion of property, it will be treated 
 after his death as that character of property into which it was 
 directed to be converted, and will be so distributed. Loughborough 
 V. Loughborough, 14 B. Mon. 554. 
 
 5. It is a cardinal rule in the construction of wills, that the 
 intention of the testator is to be collected from the whole will, and 
 that the intention thus ascertained must prevail, if it be agreeable 
 to the rules of law. Daniel v. Thompson, 14 B. Mon. 672. 
 
 6. An estate tail will not be raised by implication upon the 
 words, "dying without issue," whether the first devise was for life 
 or in fee, or without additional words, or whether it devised land, 
 or slaves, or personalty, or all, by the same words. Daniel v. 
 Thompson, 14 B. Mon. 696. 
 
WILLS. 525 
 
 7. The words, "if he die without issue," or, "without leaving 
 issue or heirs of his body," or other words of similar import, are 
 to be interpreted according to their plain, popular, and natural 
 meaning, as referring to the time of the person's death, unless the 
 contrary intention is plainly expressed in the will, or is necessary 
 to carry out its undoubted purpose. Daniel v. Thompson, 14 B. 
 Mon. 708. 
 
 8. A devise of land to A. in fee, limited by the words, "if he 
 die without a lawful heir begotten of his body," is not an estate 
 tail, and A. takes a defeasible fee, subject to be defeated by his 
 dying without such heir living at his death. Daniel v. Thompson, 
 14 B. Mon. 707. 
 
 9. A devise in trust for the use of several during their lives, 
 with remainder in equal parts to their children, if any, but if 
 none, then to the children of the others, is a devise to the children 
 as a class, and they will take per capita, and not by representation. 
 Walters v. Grutcher, 15 B. Mon. 10. 
 
 10. The property of a testator dying after the Revised Statutes 
 went into effect, which is not disposed of by the will, must descend, 
 or be distributed according to those statutes. McQaughey's Adm'r 
 V. mnry, 15 B. Mon. 393. 
 
 11. A testator says : "I will now designate the portion or tracts 
 of land allotted and bequeathed to my beloved wife," and then 
 describes the land, and says: "It is set apart for the exclusive 
 use of my wife, to be disposed of in any way she may think 
 proper as life interest, and at her death, or before, to give said 
 land to any one, or more, of her children, as she may believe them 
 most worthy or needy." The wife survived the testator a short 
 time, and died without exercising the limited power of disposition 
 contained in the will. Held: The wife took but a life estate, with 
 power to dispose of it as prescribed by the will, but having failed 
 to do so, it would pass under the will equally to all the devisees. 
 McQaughey's Adm'r v. Henry, 15 B. Mon. 397. 
 
 12. After several small special legaicies, a testator devised the 
 residue of his estate to be equally divided between his four 
 children, naming them, but in a codicil he directed that the part 
 coming to one of his sons, "is not to be given up to him, but is to 
 be held by the executors, and equally divided between the children 
 of the son, and to be paid over to them when they arrive at age." 
 Held : That the children took an absolute estate. Wallingford v. 
 DeBell, 15 B. Mon. 553. 
 
526 WILLS. 
 
 13. A devise of "all my lands and mansion-house," will pass 
 all the lands of the testator. Mitchell v. Walker, 17 B. Mon. 73. 
 
 14. Extrinsic evidence can only be admitted to aid the construc- 
 tion of a will when there is a latent ambiguity, which arises only 
 when there are two or more objects, persons, or things, to each of 
 which the terms of the will, though not embracing all, are equally 
 applicable. Mitchell v. Walker, 17 B. Mon. 66; Allan v, Vanmeter, 
 1 Met. 276; Massie v. Griffin, 2 Met. 367; Wheeler v. Dunlap, 
 13 B. Mon. 292. 
 
 15. It will not be presumed, in the construction of a will, that 
 the testator intended to draw illegal act, when any other con- 
 struction can be given to the devise. Davis v. Wood, 17 B. Mon. 
 93, 94. 
 
 16. In the construction of wills, effect should be given to every 
 part, if jpossible, in order to fully carry out the intentions of the 
 testator. Morse v. Cross, 17 B. Mon. 740 ; Williamson v. William- 
 son, 18 B. Mon. 375 ; Augustus v. Seabolt, 3 Met. 159. 
 
 17. A testator devised all his estate to his wife, for life, or dur- 
 ing her widowhood, and at her death or marriage, he devised all 
 his estate to his children ; but he also gave the wife power, at her 
 discretion, to dispose of any part of the estate during the continu- 
 ance of her interest' therein. Held: On suit by the devisees, after 
 the widow's death, to recover land sold by her, that she had power 
 to sell it. Morse v. Gross, 17 B. Mon. 741. 
 
 18. The validity and effect of wills made before the Revised 
 Statutes went into effect, must be determined by the law in force 
 when they were made, although the testator may have died since 
 those Statutes took effect. Cunningham v. Cunningham, 18 B. Mon. 
 20 ; Broadwell v. Broadwell, 4 Met. 291. 
 
 19. The word " heir," when used alone by a testator, without 
 any other expression going to show that it was not used in its 
 legal sense, must be understood as being so used. Williamson v. 
 Williamson, 18 B. Mon. 371 ; Allan v. Vanmeter, 1 Met. 277. 
 
 20. The law favors that construction of a will that will cause 
 the interest to vest, and not be contingent. Williamson v. Wil- 
 liamson, 18 B. Mon. 375. 
 
 21. The rule prohibiting perpetuities, as applied to deeds and 
 wills, in which the grant or devise is good in part, and void for 
 remoteness as to part, is, that the limitation must, beyond con- 
 tingency, take effect- within twenty -one years and nine months 
 after the termination of a life, or lives, in being at its creation; 
 otherwise, the limitation is void. Ludwig v. Combs, 1 Met. 132. 
 
WILLS. 527 
 
 22. A devise of the " whole of ray lands " will pass all the land 
 actually owned by the testator, although he owned land of which 
 he had no knowledge. Allan v. Vanmeter, 1 Met. 276-279 ; Dar- 
 nall v. Adams, 13 B. Mon. 273 ; Wheeler v. Dunlap, 13 B. Mon. 292. 
 
 23. When there is nothing in the context of a will from which 
 it is apparent that a testator has used the words in which he has 
 expressed himself in any other than their strict primary sense, and 
 his words so interpreted are sensible with reference to extrinsic 
 circumstances, it is an inflexible rule of construction that the 
 words shall be interpreted in their strict primary sense, although 
 they may be capable of some popular or secondary interpretation, 
 and although the most conclusive evidence of an intention to use 
 them in such popular sense may be tendered. Allan v. Vanmeter, 
 1 Met. 277. 
 
 24. "When the words used to describe the subject of the giit 
 comprehends several objects, parole evidence is not admissible to 
 exclude one or more of them. Allan v. Vanmeter, 1 Met. 279 • 
 Mitchell V. Walker, 17 B. Mon. 66. 
 
 25. "I bequeath to my daughter Corinna all my estate, real and 
 personal. E"ow, in case my daughter should change her name by 
 marrying, the title of the land, and one-half the slaves above 
 named, does not pass to her husband, but I reserve the same to 
 her and her heirs only ; yet her husband may have the use of the 
 same so long as they live together." Held: That Corinna took a 
 fee simple estate in the lands devisecj, and not a life estate, with 
 use to her husband, in the event of her marriage. Henry v. Gon- 
 terman, 1 Met. 468, 469. 
 
 26. " I give to my wife M. my farm, and two negroes, to use as 
 she thinks best during her lifetime, and then to go to my chil- 
 dren ; and should there be a surplus above her support, the pro- 
 ceeds to be equally divided between my children. * * * * 
 Ninthly. Should there be a surplus arising from the farm or tan- 
 yard, above the 'support of my femily, I desire my executors to 
 use it to the best advantage for the benefit of my children." 
 Seld : That the widow was only entitled to so much of the rent of 
 the farm as would support her and the family living with her, and 
 her servants, and the residue was to be received annually by the 
 executors, and used for the benefit of the testator's children. 
 Milner v. Calvert, 1 Met. 475. 
 
 27. The children of a devisee or legatee who dies before the 
 testator, take the estate devised in the will to their father under 
 the wiU in their own right, and they are not chargeable with 
 
628 WILLS. 
 
 debts due to the testator by their father, and which are not men- 
 tioned in the will. Carson v. Carson, 1 Met. 302, 303 ; section 1, 
 article 2. 
 
 28. The rule which gave to the general residuary legatee, what- 
 ever personal estate might fall into the residue after the making 
 of the will, by lapse, invalid disposition, or other cause by which 
 a bequest or devise was defeated, has been changed by sec- 
 tion 20 of the chapter on wills, and does not apply to wills made 
 since the Revised Statutes took effect. Wood v. Wood, 1 Met. 
 515. 
 
 29. As a general rule, when real or personal estate is devised to 
 one for life, with an ulterior devise to another person, the ulterior 
 devise vests absolutely on the death of the testator, and takes . 
 effect in possession whenever the prior devise ceases or fails from 
 any cause whatever. So when a widow renounces the provisions 
 of her husband's will, estate devised to her for life, will go at once 
 to the devisees in remainder. Wood v. Wood, 1 Met. 516. 
 
 30. When a devise is made not to take effect in possession until 
 the termination of a particular estate, words of survivorship are to 
 be regarded as referring to the time fixed for the distribution of 
 the subject of the gift. Wren v. Hynes, 2 Met. 130. 
 
 31. "It is my will and desire that when my youngest child 
 shall arrive at the age of twenty-one years, that the $12,000 set 
 apart in bank stock, shall be equally divided among all my sur- 
 viving children or their heirs." The wil directed the dividends 
 of the stock to be paid to the widow of the testator until the period 
 of distribution. Held: That the bank stock should be divided 
 between those surviving when the youngest child arrived at age, 
 and the heirs of such as were dead, and that the husband of one of 
 the testator's children, who died before the youngest arrived at 
 twenty-one years of age, was not entitled to any part of the fund. 
 Wren v. Hynes, 2 Met. 131-136. 
 
 32. A devise in trust for the use of the testatrix daughter during 
 her life, and after her death for the use of the testatrix three 
 granddaughters, and "their heirs lawfully begotten of their 
 bodies," invests the granddaughters with a remainder in fee. 
 Johnson v. Johnson, 2 Met. 334. 
 
 33. A testator bequeathed to his wife his farm " during her 
 natural life," and after giving sundry other articles for life, pro- 
 ceeds : "It is my desire in case my beloved wife flhall marry, she 
 is only to hold that part of the tract of land and farm which lies 
 eastwardly of the lane and road leading through the plantation. 
 
WITNESS. 529 
 
 After that event may take place, the balance of the devises made 
 to her are not to be effected by the circumstances of her marriage." 
 In a subsequent clause he says: "I give and bequeath the real 
 estate and slaves herein devised to my beloved wife, for life, to be 
 equally divided between the lawfully begotten children of my 
 three brothers, or such of them as may be living, at her death," 
 etc. The widow married — Held : That after her marriage, and 
 until her death, the heirs at law of the testator were entitled to 
 the rent of the land devised to the widow during her widowhood. 
 Augustus V. Seabolt, 3 Met. 160-2. 
 
 34. By a will made in 1835, the testator gave his estate to his 
 children jointly as a class. Between the publication of the will 
 and the death of the testator, in 1858, three of his daughters died, 
 leaving children. Held : The children were entitled to the por- 
 tions devised to their mothers. Benaker v. Lemon, 1 Duv. 213 ; 
 sec. 1, art. 2, chap. 46, Eevised Statutes. 
 
 35. Section 26 of the chapter on wills applies to section 18 of the 
 same chapter, and not to article 2 of chapter 46. Renaker v. 
 Lemon, 1 Duv. 214 ; Bazey v. Killam, 1 Duv. 404. 
 
 36. A codicil should be so construed, if it can be consistently 
 done, as to make it harmonize with the purpose declared in the 
 body of the will. Proctor v. Duncan, 1 Duv. 319. 
 
 WITNESS. 
 
 I. Attendance of. 
 II. Competency of. 
 
 III. When competency of may be restored. 
 
 IV. Examination of. 
 
 V. Credibility and impeachment of. 
 VI. Privileges of. 
 
 I. ATTENDANCE OF. 
 
 1. A witness can not be compelled to attend to give evidence 
 out of the county of his residence, unless his traveling expenses, in 
 going and returning, are first paid or tendered to him. Thurman 
 V. Virgin, 18 B. Mon. 791. i 
 
 2. A party is not entitled to a continuance on account of the 
 absence of a witness residing out of the county, unless he has paid 
 
 ^By an amendment to section 614, Civil Code, page ]7l, Myers' Code, the 
 deposition of a witness residing more than thirty miles from the court, may 
 be read, whether he resides in an adjoining county or not. 
 35 
 
530 WITNESS. 
 
 the witness his traveling expenses in coming to and returning 
 from the place of trial, or tendered it to him. Thurman v. Virgin, 
 18 B. Mon. 791.1 
 
 II. COMPETENCT OP. 
 
 A. In civil cases. 
 
 B. In criminal cases. 
 
 a. In civil cases. 
 
 1. An attorney is a competent witness to prove admissions 
 made by one of the parties to him when he was counsel for both, 
 in a contest with another, about the same matter. Sice v. Hice, 
 
 14 B. Mon. 418. 
 
 2. A plaintiff who is liable for the cost, is not a competent wit- 
 ness for his co-plaintiff. Walker v. McKnight, 15 B. Mon. 476. 
 
 3. That one offered as a witness, is surety for the party offering 
 him, in a matter in nowise connected with the matter in issue, 
 does not render him incompetent. C. c& L. It. B. Co. v. Ingles, 
 
 15 B. Mon. 641. 
 
 4. A stockholder in an incorporated railroad company is a 
 competent witness for the company. C. & L. B. B. Co. v. 
 Ingles, 15 B. Mon. 641 ; Lackey v. B. & L. T. B. Co., 17 B. Mon. 
 48. 
 
 5. The tendency of the law is, to regard all objections to a wit- 
 ness, when his interest is at all uncertain, as going to his credi- 
 bility and not to his competency. 0. & L. B. B. Co. v. Ingles, 
 15 B. Mon. 641. 
 
 6. One, liable for a debt, is not a competent witness to prove 
 facts going to subject property claimed by a third person, to the 
 payment of the debt. Nixon v. Jack, etc., 16 B. Mon. 182. 
 
 7. A party to the record, who is not a party to the issue, is a 
 competent witness, although he may claim an interest in the sub- 
 ject of the action, if he does not attempt to assert his right in that 
 action, and the record can not be used by him as evidence in an 
 action to assert his claim. Nixon v. Jack, etc., 16 B. Mon. 183; 
 Allen V. Shelby, 14 B. Mon. 321. 
 
 8. A partner who had executed a note in the name of the firm 
 
 1 Since this decision, the legislature has, by act approved March 2, 1860, 
 Myers' Supplement, 552, enacted that a. witness shall not be exempt from 
 attending court out of his county, by reason of the failure of the party sum- 
 moning him to pay or tender his traveling expenses, unless the witness, at the 
 time of being summoned, demands the same. 
 
WITNESS. 531 
 
 after its dissolution, is not a competent witness for tlie plaintiff, in 
 a suit on the note, to prove any fact necessary to enable the 
 plaintiff to recover against the- other members of the firm. Mer- 
 ritt V. Pollys, 16 B. Mon. 357, 358. 
 
 9. A witness interested on both sides of an issue, is not com- 
 petent when called by the party in whose favor his interest pre- 
 ponderates. Smead, Collard & Hughes v. Williamson, 16 B. Mon. 
 532. 
 
 10. A fraudulent vendor, who has received a part of the price of 
 the thing sold, is not a competent witness for his creditors, in an 
 attempt to set aside the sale for fraud. Smead, Collard & Hughes 
 V. Williamson, 16 B. Mon. 535. 
 
 11. As a general rule, a vendor is a competent witness for his 
 vendee, but not for his levying creditors. Smead, Collard & 
 Hughes v. Williamson, 16 B. Mon. 536. 
 
 12. A defendant, who has confessed judgment, is a competent 
 witness for his co-defendant who has pleaded. Allen v. Shelby, 14 
 B. Mon. 321. 
 
 13. A surety, in an executorial bond, is a competent witness to 
 prove a will, although the executor is a legatee, if it may be 
 inferred that the executor held his legacy as legatee, and not as 
 executor. Jones v. Jones, 14 B. Mon. 472. 
 
 14. The plaintiff, in an action of assault and battery, collected 
 part of the judgment obtained, after which the judgment was re- 
 versed; the plaintiff then executed bond to the defendant, to 
 refund the money in case he did not recover so much on a second 
 trial. Held: The surety of the plaintiff was not a competent 
 witness for him. Fitzpatrick v. Harris, 16 B. Mon. 565. 
 
 15. The pilot of a steamboat is a competent witness for the 
 owners, when sued for a jettison, alleged not to have been justifi- 
 able. Bentley v. Bustard, 16 B. Mon. 698. 
 
 16. That a witness has a remote contingent interest, does not 
 render him incompetent, but goes to his credibility. Hasley v. 
 Msley, 18 B. Mon. 94. 
 
 17. To render a witness incompetent, on the ground of interest, 
 he must have a direct and certain interest in the event of the suit. 
 A contingent and doubtful interest goes to his credibility. Todd 
 V. Imckett, 18 B. Mon. 128 ; Millett v. Parker, 2 Met. 613. 
 
 18. A defendant, against whom judgment has gone, is a com- 
 petent witness for the plaintiff, to prove that a defendant who has 
 
532 WITNESS. 
 
 answered is also liable with him. Todd v. Zuckett, 18 B. Mon. 
 130, 131. 
 
 19. An agent is a competent witness for his principal, whether 
 the principal be a private person or corporation, to prove his own 
 acts done for the principal in the usual course of business, although 
 the agent may be directly interested in the result. Weaver v. 
 Bracken Co. Co., 18 B. Mon. 734 ; Thomas v. Davis, 7 B. Mon. 227; 
 Bohannan v. Laird, 4 B. Mon. 405. 
 
 20. If, pending an action for money, the plaintiif transfers the 
 right of action to another without recoarse, who is substituted as 
 plaintiif, and becomes bound for all cost, past and future, he is a 
 competent witness for his assignee. Warner v. Turner, 18 B. Mon. 
 760. 
 
 21. The widow of a fraudulent vendor is a competent witness 
 for other creditors of her husband, who seek to set aside the con- 
 veyance, unless the setting aside of the conveyance would render 
 the estate solvent, and leave something for distribution, but is not 
 competent to impeach claims of the vendee against the estate. 
 Short V. Tinsley, 1 Met. 401. 
 
 22. The drawer and two indorsers of a bill, who are sued jointly, 
 but answer separately, denying the execution of the bill, are 
 competent witnesses for each other. Smith, v. Northern Bank Ky., 
 
 1 Met. 577. 
 
 23. The plaintiff in an action to recover against an inn-keeper 
 the value of a valise lost at the inn, is not a competent witness to 
 prove the contents or value of the valise. Packard v. Northcraft, 
 
 2 Met. 441.1 
 
 24. Persons interested in an issue are incompetent to testify in 
 behalf of themselves; and parties to an issue are incompetent to 
 testify in behalf of themselves, or those united with them in the 
 issue. Chenowith v. Fielding, 2 Met. 519 ; Finnell v. Cox, 3 Met. 248. 
 
 25. One, who is a party to an issue, is incompetent to testify, 
 either for himself, or those who are united with him in the issue. 
 Chenowith v. Fielding, 2 Met. 519. 
 
 26. F. sold land to M., and retained a lien in the deed. M. sold 
 and conveyed the land to C, and C. sold and conveyed it, with 
 warranty, to P. P. instituted an action against C. and P., to 
 enforce his lien against the land. C. and P. answered separately, 
 but each set up the fact that the plaintiff had waived his lien. C, 
 then, in order to render P. a competent witness, paid into court 
 $1,000, to indemnify him, and P. accepted it in discharge of the 
 
 ' This rule has been changed by an amendment to subdivision 6 of section 
 6T0, Civil Code J Myers' Code, page 193. 
 
WITNESS. 533 
 
 liability of C. to him, on account of the alleged lien of F., and 
 was offered, by C, as a witness to prove the facts relied on by 
 them as showing a waiver of lien by P. Held: He was not com- 
 petent. Ghenowith v. Fielding, 2 Met. 519. 
 
 27. The principal in a covenant is a competent witness for his 
 surety, in an action in which they are both sued. Millett v. Parker, 
 2 Met. 612 ; sees. 669, 670, Civil Code. 
 
 28. An attorn ey-at-law is a competent witness in behalf of his 
 client. Hall & Go. v. Benfro, 3 Met. 53. 
 
 29. The payee and indorser of a bill of exchange, for whose 
 accommodation the bill was accepted, is not a competent witness 
 for the accommodation acceptor, in a suit against him by the 
 holder of the bill. Finnell v. Gox, 3 Met. 247, 248 ; Hunter y. 
 Gatewood, 5 Mon. 269 ; Kelly v. Lank, 7 B. Mon. 226. 
 
 30. A husband is not a competent witness in behalf of his wife, 
 on the trial of a motion against her and her sureties, for judgment 
 on a bond given to suspend the sale of property levied on under 
 execution against her husband. Kaye v. Tydings, 3 Met. 533. 
 
 31. When partners sue to recover a debt, one of them can not, 
 pending the action, transfer his interest to his co-plaintiffs, and 
 become a witness for them, by having his name stricken from the 
 action as plaintiff, and theirs substituted. Dougherty v. Smith & 
 
 Wilson, 4 Met. 281. 
 
 32. If a witness is liable for the cost of the action, he is dis- 
 qualified to testify against the party to whom he is liable. 
 Dougherty v. Smith, etc., 4 Met. 281 ; Finnell v. Cox, 3 Met. 246. 
 
 33. An assignor, who is not liable on his assignment, or has 
 been released "from all responsibility in every way," is a compe- 
 tent witness for the assignee. Price v. Gaperton, 1 Duv. 209. 
 
 34. In an ordinary action by an executor, on notes for the pur- 
 chase-money of land sold by him under a power in the will, when 
 the vendee pleaded there was no written memorial, the executor, 
 although a contingent legatee, is a competent witness to prove 
 the execution of such written memorial. Hill v. Spalding, 1 Duv. 
 218. 
 
 35. A trustee, who is only a nominal plaintiff, in a case of for- 
 cible detainer, without any beneficial interest, is a competent 
 witness for the plaintiff. Spalding v. Bull, 1 Duv. 311 ; section 
 674, Civil Code. 
 
 36. One who, if the plaintiff succeeds, will be liable to the de- 
 fendants for negligence, is a competent witness for the plaintiff. 
 C. H. & D. B. B. Go. V. Spratt, 2 Dav. 6. 
 
534 WITNESS. 
 
 b. In criminal cases. 
 
 1. When several persons are jointly indicted, one is not a com- 
 petent witness for the other, and this rule is not altered by the 
 Code of Practice ; but if there is not sufficient proof against one to 
 put him on his defense, the court must, on motion of either party, 
 order him to be discharged from indictment, and permit him to be 
 examined as a witness. Adwell v. Gommonwealth, 17 B. Mon. 319. 
 
 2. When the acquittal of one defendant does not necessarily 
 involve the acquittal of others indicted with him, the wife of one 
 defendant will be a witness for the other when the trials are sep- 
 arate. Thompson v. Commonwealth, 1 Met. 16, 17 ; Cornelius v. 
 Commonwealth, 3 Met. 483. 
 
 3. There are three states of case where the wife can not be a 
 witness for one jointly indicted with her husband. 1. Where her 
 testimony, as in a case of conspiracy, would tend directly to the 
 acquittal of her husband ; 2. Where, as in case of an assault, 
 the interest of all the defendants are identical ; and 3. Where 
 the husband, though not a party to the suit or prosecution, would 
 be concluded by any verdict therein. Cornelius v. Commonwealth, 
 3 Met. 483. 
 
 III. WHEN COMPETENCY MAT BE RESTORED. 
 
 A plaintiff, in an action of assault and battery, collected part of 
 a judgment against the defendant, after which the judgment was 
 reversed. The plaintiff then executed a bond to the defendant to 
 refund the money, in case he did not recover so much on the 
 second trial. Held : The security of the plaintiff was not a com- 
 petent witness for him, and the bond having been given by an 
 agreement between the parties, the court can not compel the 
 defendant to accept other security, in order to render the first 
 security competent ; but the plaintiff may pay into court the 
 amount of the bond on which the surety is liable, and he will be 
 rendered competent. Fitzpatrick v. Sarris, 16 B. Mon. 565. 
 
 IV. EXAMINATION OF. 
 
 1. A question, intended to ascertain the feelings of a witness 
 toward the defendant, in a criminal prosecution, is not irrelevant ; 
 and if the witness deny that he has expressed or entertained feel- 
 ings of hostility against the prisoner, it may be proved by the 
 defense. Cornelius v. Commonwealth, 15 B. Mon. 545, 546. 
 
 2. The object of a cross-examination is to test the credibility of 
 the witness, and the truth of his statements ; and a witness is 
 
WITNESS. 535 
 
 bound to answer questions, the answers of which tend to disgrace 
 him. Rutherford v. Commonwealth, 2 Met. 393. 
 
 V. CREDIBILITY AND IMPEACHMENT OF. 
 
 1. The tendency of the law is to regard all objections to wit- 
 nesses, when their interest is at all uncertain, as going to their 
 credibility, and not to their competency. 0. & L. R. B. Co. v. 
 Ingles, 15 B. Mon. 641. 
 
 2. That a witness has a remote contingent interest does not 
 render him incompetent : it goes to his credibility. Easley v. 
 Easley, 18 B. Mon. 94. 
 
 3. Evidence of the general moral character of a witness, and 
 whether he would be believed on oath, are the only proper in- 
 quiries in impeaching a witness. Thurman v. Virgin, 18 B. Mon. 
 792; Greenleaf on Evidence, 599; 3 Mar. 261. 
 
 4. A party impeaching a witness has no right to inquire as to 
 particular acts of ignominy ; but if the other party, on cross- 
 examination, inquires as to particular acts, the other may pursue 
 the inquiry. Thurman v. Virgin, 18 B. Mon. 792, 793. 
 
 5. When a witness states a fact prejudicial to the party calling 
 him, the latter may be allowed to show that such fact does not 
 exist, by proving that the witness had made statements to others 
 inconsistent with his present testimony ; but when the witness 
 only fails to prove facts supposed to be beneficial to the party, he 
 can not prove by others that the witness had stated the facts 
 sought to be proved to be true. Champ v. Commonwealth, 2 Met. 
 24. 
 
 6. The regular mode of inquiring into the reputation of a wit- 
 ness, is to ask the impeaching witness whether he knows the 
 general reputation of the person in question among his neighbors, 
 and what that reputation is. The inquiry must be as to his 
 general reputation where he is best known, or with those among 
 whom he dwells. If he is asked to state what others say of him, 
 he must be able to state what is generally said by those among 
 whom he dwells, or with whom he is conversant. Henderson v. 
 Hayne, 2 Met. 348. 
 
 7. Evidence of the good character of a witness, whose general 
 reputation has not been impeached, is not admissible. That evi- 
 dence has been introduced, proving that the witness had made a 
 different statement on another occasion from that made on the 
 trial, will not render evidence of his good character admissible. 
 
 Vance v. Vance, 2 Met. 583. 
 
536 
 
 WITNESS. 
 
 8. It is error to instruct the jury that they have aright to dis- 
 regard all the testimony of a witness, if they believe from the 
 evidence that he had sworn to any fact which was not true. Hall 
 & Co. V. Renfro, 3 Met. 55, 56. 
 
 9. If a witness be sworn by one party, who declines to examine 
 him, and he be examined by the adverse party, he is the witness 
 of the latter, and he will not be allowed to impeach him. Musick 
 V. May, 3 Met. 430 ; Higdon v. Higdon, 1 A. K. Mar. 42. 
 
 10. A witness, examined for the defendant in a criminal pros- 
 ecution, may be recalled by the Commonwealth for the purpose of 
 laying a foundation for contradicting him. Scott y. Commonwealth, 
 4 Met. 231. 
 
 VI. PRIVILEGES OP. 
 
 1. Either party to a civil action may call on the other as a wit- 
 ness, but a party, when testifying as a witness, has all the privi- 
 leges belonging to other witnesses. Cole v. Wilson, 18 B. Mon. 216. 
 
 2. The publication of a libel is an indictable offense ; and one 
 sued for a libel can not, when introduced by the plaintiff as a wit- 
 ness, be compelled to answer whether he published the libelous 
 words or not. Cole v. Wilson, 18 B. Mon. 216. 
 
 3. A witness is not bound to answer questions, the answer to 
 which would subject him to a criminal or penal prosecution. 
 Rutherford v. Commonwealth, 2 Met. 393. 
 
LIST OP CASES. 
 
 537 
 
 ALPHABETICAL LIST OF CASES.* 
 
 Abbott V. Daniel, 3 Met. 339. 
 
 Adams ads. Young, etc., 14 B. Mon. 
 
 Adams ads. Commonwealth, 16 B. 
 
 Mon. 338. 
 Adams (color) ads. Smith, 18 B. Mon. 
 
 685. 
 Adams ads. Commonwealth, 3 Met. 6. 
 
 V. Harris, 2 Duv. 141. 
 
 V. Adams, 1 Duv. 167'. 
 
 Exp. Co. V. Bland, 1 Duv. 262. 
 
 V. Rankin, 1 Duv. 58. 
 
 Exp. Co. V. Nock, 2 Duv. 562. 
 
 V. Settles, 2 Duv. 76. 
 
 Ad well ads. Commonwealth, 17 B. 
 
 Mon. 314. 
 Akin ads. O'Donoghue, 2 Duv. 478. 
 ^tna Ins. Co. v. Jackson, etc., 16 B. 
 
 Mon. 242. 
 Albro V. Lawson, 14 B. Mon. 642. 
 Alexander v. Breeden, 14 B. Mon. 154. 
 
 etc. V. Lewis, 1 Met. 407. 
 
 & Co. V. Springfield Bank, 2 Met. 
 
 534. 
 Alexander's Ex'r v. Smith, 2 Duv. 518. 
 Alexander & Lancashire v. Quigley's 
 
 Ex'rs, 2 Duv. 399. 
 Alden, etc. ads. Brown, etc., 14 B. 
 
 Mon. 141. 
 Allen's Ex'r v. Shelby, 14 B. Mon. 320. 
 Allen ads.Commonwealth, 15 B. Mon.l. 
 
 V. Van Cleave & Kelso, 15 B. 
 
 Mon. 236. 
 
 Allen V. Shelby R. R. Co., 16 B. Mon. 4. 
 
 and ux v. Vanmeter's Dev., 1 
 
 Met. 264. 
 
 Allen ads. Maddox, etc., 1 Met. 495. 
 
 V. Brinegar, 2 Duv. 99. 
 
 V. Ramsay's Heirs, 1 Met. 635. 
 
 AUard v. Smifil, 2 Met. 297. 
 Alleorn v. Tuggle, 3 Met. 537. 
 Allen V. Thomas, 3 Met. 198. 
 
 V. Brown, 4 Met. 342. 
 
 and ux v. Shortridge, 1 Duv. 34. 
 
 Alsop's Creditors v. Barbee and ux, 14 
 B. Mon. 522. 
 
 Alves' Ex'r v. Henderson, 16 B. Mon- 
 
 131. 
 Amyx V. Smith, Adm'r, etc., 1 Met. 
 
 529. 
 Anderson, etc. (color) v. Crawford, 15. 
 
 B. Mon. 328. 
 Andrews v. Hord, 17 B. Mon. 578. 
 Anderson v. Anderson, 18 B. Mon. 95. 
 
 County Court v. Stone & Son, 
 
 18 B. Mon. 848. 
 
 Anderson, etc. ads. Logan, etc., 18 B. 
 
 Mon. 114. 
 Anderson ads. Lackey, 1 Met. 319. 
 
 Adm'r, etc. ads. Lusk, 1 Met.. 
 
 426. 
 
 Anderson v. Smith, 3 Met. 491. 
 
 ads. Burrus, 3 Met. 500. 
 
 ads. Watson, 3 Met. 509. 
 
 ads'. Sutton, 2 Duv. 480. 
 
 v.^Bellis, Adm'r, 2 Duv. 388. 
 
 Adm'r V. Campbell, 2 Duv. 384. 
 
 Anthony (slave) ads. Commonwealth, 
 
 2 Met. 399. 
 Appold & Son ads. Porepaugh, 17 B. 
 
 Mon. 625. 
 Applegate v. Applegate, 4 Met. 236. 
 Apperson ads. Bandurat, 4 Met. 30. 
 Applegate & Co. v. Merrill, etc., 4 
 
 Met. 22. 
 Armstrong v. Armstrong, 14 B. Mon. 
 
 333. 
 Armstrong ads. Doyle, 2 Duv. 534. 
 Arnold ads. Wright, 14 B. Mon. 638. 
 
 ads. Hering, 14 B. Mon. 638. 
 
 V. C. & C. Bridge Co., 1 Duv. 
 
 372 
 Arnold v. C. & C. Bridge Co., 14 Duv. 
 
 372 
 Arnold v. Slade, 14 B. Mon. 287. 
 Arthur v. Green, 3 Met. 75. 
 Artis ads. Quisenberry, 1 Duv. 30. 
 Ashbrook ads. Scales, 1 Met. 358. 
 Ashby, etc. ads. Woolfolk, 2 Met. 288. 
 
 V. Woolfolk, 3 Met. 540. 
 
 Askins v. Commonwealth, 1 Duv. 
 275. 
 
 ■•'Thia list embraces 
 and 1 and 2 Duvalljf 
 
 the cases in 14, 15, 16, 17, and 18 B. Monroe ; 1, 2, 3, and i Metcalfe ; 
 
538 
 
 LIST OF CASES. 
 
 Augustus, etc. V. Seabolt, 3 Met. 155. 
 Auditor v. Hamilton, 14 B. Mon. 230. 
 Aulick ads. Rogers, 2 Duv. 419. 
 Ayres, etc. v. Hunter, etc., 15 B. Mon. 
 
 210. 
 Aynesworth v. Haldeman, 2 Duv. 565. 
 
 B. 
 
 Babliitt, etc. r. Scroggins, 1 Duv. 272. 
 Bacon v. McDowell, 1 Duv. 1i. 
 Bailey & Varnon ads. I'ahnestock, 
 
 etc., 3 Met. 48. 
 Baird v. Bell, 1 Duv. 384. 
 & Price V. Commonwealth, 2 
 
 Duv. 78. 
 Baird ads. City of Louisville, 15 B. 
 
 Mon. 246. 
 Baker (of color) v. Winfrey, 15 B. 
 
 Mon. 499. 
 Baker's Adm'r ads. Bibb, 17 B. Mon. 
 
 292. 
 Baker v. Bledsoe, 15 B. Mon. 499. 
 Bakewell v. Howell, 2 Met. 268. 
 Baker v. Grundy's Heirs, 1 Duv. 281. 
 Ballard ads. Edwards, 14 B. Mon. 289. 
 
 ads. Eussell, 16 B. Mon. 201. 
 
 Ball's Adm'r v. Hawkins, 18 B. Mon. 
 
 816. 
 Ballard ads. Shumate, 1 Met. 31. 
 
 V. Capperton, et a?., 2 Met. 412. 
 
 ads. L.& F. E. E. Co., 2 Met. 77. 
 
 ads. L. & O. T. P.^Oo., 2 Met. 
 
 165. 
 Bank Ky. v. Piloher, 17 B.,Mon. 268. 
 Ky. ads. Swigert, 17 B. Mon. 
 
 268. 
 Bank Ky. ads. Cronley, 18 B. Mon. 405. 
 
 . Ky. ads. Sanders, etc., 2 Met. 327. 
 
 Ky. ads. City of Louisville, 3 
 
 Met. 148. 
 Bank Ky. ads. Johnson, 2 Duv. 521. 
 
 Ky. ads. Floyd, et?., 4 Met. 159. 
 
 -^ of Louisville v. Summers, 14 
 
 B. Mon. 306. 
 Bank of Louisville v. Barreok, etc., 
 
 1 Duv. 51. 
 Banks, Adm'r, etc. v. Crabtree, etc., 
 
 1 Met. 482. 
 Banta v. Snapp, 2 Duv. 98. 
 Baptist Church, Lancaster, v. Presby- 
 terian Church, 18 B. Mon. 635. 
 Barnett's Heirs ads. Olarkson, 14 B. 
 
 Mon. 164. 
 Barrett ads. Hill, for "Wintersmith, 14 
 
 B. Mon. 83. 
 Barbee and ux ads. Alsop's Creditors, 
 
 14 B, Mon. 522. 
 Bartlett ads. Shortridge, 14 B. Mon. 
 
 248. 
 Barbee, etc. ads. G-raff & Weyd, 18 B. 
 
 Mon. 9. 
 
 Barrett v. Churchill, 18 B. Mon. 387. 
 Barnett & Miller v. G-jirnett & Thomp- 
 son, 18 B. Mon." 68. 
 Barbee, etc. ads. Lupe & Hambright, 
 
 18 B. Mon. 9. 
 Barbee ads. L. & D. E. E. Co., 1 Met. 
 
 384. J 
 
 Barber's Adm'r v. Hopewell, et al., 1 
 
 Met. 260. 
 Barker v. Curd, 1 Met. 641. 
 Barnett v. Barnett's Adm'r, 1 Met. 
 
 254. 
 Barbaroux v. Waters, 3 Met. 304. 
 Barrett, etc. v. Coburn, 3 Met. 510. 
 Barbaroux v. Barker, 4 Met. 47. 
 Barclay v. Breckinridge, 4 Met. 374. 
 B. & L. E. E. Co. V. Metcalfe, 4 Met. 
 
 199. 
 Barker ads. Barbaroux, 4 liTet. 47. 
 Barkley, etc. v. Glover, etc., 4 Met. 44. 
 Barnes ads. Troutman, etc., 4 Met. 337. 
 
 V. Turner, 4 Met. 114. 
 
 Barrett, etc. ads. Belcher, 4 Met. 307. 
 Barring v. Commonwealth, 2 Duv. 95. 
 Barker & Co. v. Warren, 2 Duv. 155. 
 Barnes and ux v. Edwards (col.), 17 
 
 B. Mon. 632. 
 Basbford ads. Crawford's Adm'r, 16 B. 
 
 Mon. 3. 
 Bassett v. Green, 2 Duv. 560. 
 
 ads. Eurber, 2 Duv. 433. 
 
 Batterton ads. Orr, 14 B. Mon. 100. 
 Bates V. Culver, 17 B. Mon. 158. 
 Batman v. Megowan, 1 Met. 533. 
 
 V. Monroe, 1 Met. 533. 
 
 Bate ads. Kellar, 3 Met. 130. 
 Baura V. Winston, 3 Met. 127. 
 Baxter ads. Gooch, 2 Duv. 389. 
 Beaumont v. Miller, etc., 1 Met. 68. 
 Bean's Adm'r ads. Eyon, 2 Met. 137. 
 Beasley ads. McClanahan, 17 B. Mon. 
 
 HI. 
 Beebee and ux v. Hutchison, 17 B. 
 
 Mon. 496. 
 Beckwith v. Lowe & Co., 14 B. Mon. 
 
 184. 
 Beckett v. Beckett, 17 B. Mon. 370. 
 Bellamy v. Eagsdale, 14 B. Mon. 364. 
 Bell V. Clark, 2 Met. 573. 
 V. Western Eiv. Imp. & Wreck. 
 
 Co., 3 Met. 558. 
 Belcher v. Barrett, 4 Met. 307. 
 Bell, Berkley & Co. v. Hall, 2 Duv. 288. 
 Bellis, Adm'r ads. Anderson, 2 Duv. 
 
 388. 
 Benning V. Benning's Ex'r, 14 B. Mon. 
 
 585. 
 Bentley, etc. v. Bustard, 16 B. Mon. 
 
 643. 
 Bennett, etc. v. Devlin, etc., 17 B. 
 
 Mon. 353. 
 Benedict, etc. ads. Commercial Bank, 
 
 18 B. Mon. 307. -, 
 
LIST or CASES. 
 
 639 
 
 Bentley, etc. ads. Helm, 1 Met. 510. 
 Benton ads. Savings Bank Cincinnati, 
 
 2 Met. 240. 
 Bennett v. McOrocldin; 3 Met. 352. 
 Benton, etc. ads. Stephens, etc., 1 Duv. 
 
 112. 
 Berry ads. Hamilton,, 14 B. Men. 31. 
 Bergen and ux v. Forsyth, lY B. Men. 
 
 551. 
 Berry, et al. v. Graddy, Adm'r Belt, 
 
 1 Met. 553. 
 Berry, etc. ads. Mitchell, et al., 1 Met. 
 
 602. 
 Berryman ads. Hunt, etc., 2 Met. 239. 
 Berry & Johnson v. Randall, 4 Met. 
 
 392. 
 Berry v. ISTorris, 1 Duv. 302. 
 V. Southern Bank Ky., 2 Duv. 
 
 319. 
 Berry ads. Lane, 2 Duv. 282. 
 Beverly, etc. v. Perkins, 1 Duv. 251. 
 Bibb V. Hunter, etc., 2 Duv. 494. 
 
 V. Bibb, lY B. Mon. 292. 
 
 V. Summers, 17 B. Mon. 292. 
 
 . V. Baker's Adm'r, 17 B. Mun. 292. 
 
 V. Tomberlin, etc., 1 Duv. 186. 
 
 Biga;erstaff ads. Lockridge, 2 Duv. 281. 
 Biesenthal v. Williams, 1 Duv. 328. 
 Biggs V. Spencer, 2 Met. 123. 
 Birch V. Funk, etc., 2 Met. 544. 
 Bishop ads. Goldsberry, 2 Duv. 143. 
 Bivins v. Helsey, 4 Met. 123. 
 Blackburn ads. Collins, 14 B. Mon. 
 
 242. 
 Blackwell, etc. v. Thompson, 17 B. 
 
 Mon. 609. 
 Blackwell. etc. v. Fosters, 1 Met. 88. 
 Blanton ads. Smithers, 1 Met. 44. 
 BUikeman v. Hutchison, 3 Met. 80. 
 Black ads. Harrod, 1 Duv. 180. 
 Bland, etc. v. Adams Exp. Co., 1 Duv. 
 
 232. 
 Blackburn ads. Commonwealth, 1 
 
 Duv. 4. 
 Bledsoe ads. Baker, 15 B. Mon. 499. 
 Board v. Helm, 2 Met. 500. 
 Boaz V. Nail, 2 Met. 245. 
 Boehler v. Commonwealth, 4 Met. 3. 
 Boiling V. Doneghy, 1 Duv. 220. 
 Bondurant v. Everett, 1 Met. 658. 
 Bond V. Mullins, 3 Met. 282. 
 Bondurant v. Aperton, 4 Met. 30. 
 Booker ads. White, 4 Met. 267. 
 Bosley ads. Mattingly, 14 B. Mon. 89. 
 
 V. Mattingly, 2 Met. 443. 
 
 Botts, etc. V. Williams, 17 B. Mon. 687. 
 
 etc. ads. Porter, 2 Duv. 365. 
 
 Bowman v. Wickliffe, 15 B. Mon. 84. 
 
 etc. ads.Woodcock, 4 Met. 40. 
 
 ads. Woodcock, 2 Duv. 508. 
 
 etc. V. Commonwealth, 14 B. 
 
 Mon. 390. 
 Bowler v. La^, 3 Met. 311. 
 
 Bowyer ads. Hanson, 4 Met. 108. 
 Bowler v. Vallette, 4 Jlet. 186. 
 Boyer's Adm'r v. Herndon, 14 B. Mon. 
 
 222. 
 Boyd ads. Cook, 16 B. Mon. 556. 
 
 ads. Wells, 1 Duv. 3UU. 
 
 Boren, etc. ads. G-oodman, 1 Duv. 187. 
 Borrou's Adm'r v. Landes, 1 Duv. 299. 
 Brace and ux v. Shaw, etc., 16 B. Mon. 
 
 43. 
 Bracken v. Steamboat Gulnare, 16 B. 
 
 Mon. 444, 
 Bracken Co. Court ads. Weaver, 18 B. 
 
 Mon. 728. 
 Bradley, etc. ads. Lynn, 1 Met. 232. 
 Bramlette v. Cabell's Adm'r, etc., 1 
 
 Met. 319. 
 Brandies, etc. v. Stewart, etc., 1 Met. 
 
 395. 
 Bannon ads. Oldham, 2 Met. 302. 
 Brandies & Crawford ads. Cook, 3 Met. 
 
 555. 
 Brannin's Ex'r ads. Ellis, 1 Duv. 48. 
 Breeden ads. Alexander, 14 B. Mon. 
 
 154. 
 Breckinridge ads. Birch and ux, 16 B. 
 
 Mon. 482. 
 Brenham ads. Freeman, 17 B. Mon. 603. 
 Benton ads. Hazlerigg, 2 Duv. 525. 
 Breeding, etc. v. Stamper, 18 B. Mon. 
 
 175. 
 Breckinridge, etc. ads. Barclay, 4 Met. 
 
 374. 
 Breckinridge ads. Dent andux, 1 Duv. 
 
 245. -i 
 Brittain v. Duling, 15 B. Mon. 138. 
 Brinegar v. Allen, 2 Duv. 99. 
 Briscoe & Lewis ads. M. I. & P. E. K. 
 
 Co., 18 B. Mon. 570. 
 Bright's, Ex'r ads. Eobinson, 3 Met. 30.. 
 Broyles ads. Smith, 15 B. Mon. 461. 
 Brown ads. Duncan, etc., 15 B. Mon. 
 
 186. 
 Bronsou ads. Commonwealth, 14 B. 
 
 Mon. 361. 
 Brown, etc. v. Alden, etc., 14 B. Mon. 
 
 141. 
 Brown, etc. ads. Kountz, 16 B. Mon. 
 ,■'577. 
 Brown ads. L. & F. E. E. Co., 17 B. 
 
 Mon. 763. 
 Brown ads. Hildeburne, 17 B. Mon. 
 
 779. 
 Brown ads. Allen, 4 Met. 342. 
 
 V. Commonwealth, 4 Met. 221. 
 
 V. Story's Adm'r, etc., 4 Met. 
 
 316. 
 Brown v. Early, 2 Duv. 369. 
 Broms v. Commonwealth, 2 Duv. 351. 
 Brown & Long v. Childs & Co., 2 Duv. 
 
 314. 
 Browder, etc. ads. Turner, 18 B. Mon. 
 
 825. 
 
540 
 
 LIST OF CASES. 
 
 Brookover v. Hurst, 1 Met. 665. 
 Brown, etc. ads. Mills, 2 Met. 404. 
 Broadwell, etc. v. Broadwell's Adm'r, 
 
 4 Met. 290. 
 Brooks ads. Commonwealth, 1 Duv. 
 
 150. 
 Browning v. Fountain, 1 Duv. 13. 
 Bronson v. Q-reen, 2 Duv. 234. 
 Bryant v. Proctor, 14 B. Mon. 451. 
 Bruoe ads. Chrisman, 1 Duv. 63. 
 Buckley ads. Henderson, 14 B. Mon, 
 
 292. 
 Buckner, Trustee, etc. v. Sayre, 18 B. 
 
 Mon. 745. 
 Buckles, etc. v. Lambert, 4 Met. 330. 
 Buckner, etc. v. Bush, etc., 1 Duv. 394. 
 Buford V. Commonwealth, 14 B. Mon. 
 
 24. 
 Buford ads. Lee, Ivy & Co., 4 Met. 1. 
 ads. Northern Bank Ky., 1 Duv. 
 
 355. 
 Bullitt V. Clement, 16 B. Mon. 193. 
 Bull & Eayhurn v. Harrigan, 17 B. 
 
 Mon. 349. 
 Bull, etc. V. Harris, etc., 18 B. Mon. 
 
 195. 
 Bullock ads. Caulfield, 18 B. Mon. 
 
 494. 
 Bullock, etc. V. Curry, etc., 2 Met. 171. 
 
 ads. Divine, 3 Met. 418. 
 
 Bull ads. Spalding, 1 Duv. 311. 
 Bullock's Adm'r ads. Husbands and 
 
 ux, 1 Duv. 21. 
 Bunce ads. Jones, 2 Met. 490. 
 Burgen v. Sharer, 14 B. Mon. 497. 
 Burgess v. Jacobs, 14 B. Mon. 517. 
 Burnham v. Cornwall, 16 B. Mon. 284. 
 Burch and wife v. Breckinridge, 16 B. 
 
 Mon. 482. 
 Burns v. Kay, etc., 18 B. Mon. 392. 
 Burbage v. Squires, 3 Met. 77. 
 Burns v. Commonwealth, 3 Met. 13. 
 Burrus v. Anderson, etc., 3 Met. 500. 
 Burn am v. Commonwealth, 1 Duv. 
 
 210. 
 Burgess v. Burgess, 1 Duv. 287. 
 Bush V. Madeira's Heirs, 14 B. Mon. 
 
 212. 
 Bussing, etc. ads. George (of color), 15 
 
 B. Mon. 558. 
 Bustard ads. Bentley, etc., 16 B. Mon. 
 
 643. 
 Bush V. Bush, 2 Duv. 269. 
 Butler v. Miller, 15 B. Mon. 617. 
 
 ads. Commonwealth, 2 Duv. 434. 
 
 Bush ads. Commonwealth, 2 Duv. 264. 
 Byasse v. Reese, 4 Met. 372. 
 
 c. 
 
 Cabell V. Cabell's Adm'r, 1 Met. 319. 
 Cabell's Adm'r ads. Bramlette, 1 Met. 
 319. 
 
 Cabell's Adm'r ads. Carlisle, 1 Met. 
 
 319. 
 Canies ads. Todd, 18 B. Mon. 620. 
 Cane ads. Deshong, 1 Duv. 309. 
 Caldwell ads. Patterson, et al., 1 Met. 
 
 489. 
 Calvert, etc. ads. Milner, etc., 1 Met. 
 
 472. 
 Caldwell, etc' v. Dawson, 4 Met. 121. 
 Calvert, etc. v. Sasseen, 4 Met. 245. 
 Campbell v. Finch, 2 Met. 107. 
 Camp v. Western Union Telegraph 
 
 Co., 1 Met. 164. 
 Campbell v. Hillman, 15 B. Mon. 508. 
 
 v. Mayhugh, 15 B. Mon. 142. 
 
 ads. Woods, 14 B. Mon. 422. 
 
 Campbell's Adm'r v. Cowan, 17 B. 
 
 Mon. 522. 
 Campbell v. Anderson, 2. Duv. 384. 
 Campbell Turnpike Co. v. Dye, etc., 
 
 17 B. Mon. 761. 
 Caperton, et al. ads. Ballard, 2 Met. 
 
 412. 
 Caperton ads. Price, 1 Duv. 207. 
 Carroll ads. Wickliffe, 14 B. Mon. 169. 
 Carpenter & Q-rigsby v. Strother's 
 
 Heirs, 16 B. Mon. 289. 
 Carr and ux v. Estill, 16 B. Mon. 
 
 309. 
 Carney, etc. v. Walden, 16 B. Mon. 
 
 388. 
 Caruth v. Thompson, etc., 16 B. Mon. 
 
 572. 
 Carpenter v. Miles, 17 B. Mon. 598. 
 Carothers & Applegate v. Moore, 17 
 
 B. Mon. 669. 
 Carter v. Thorn, etc., 18 B. Mon. 613, 
 Carlisle v. Cabell's Adm'r, 1 Met. 319. 
 Carothers, etc. ads. Murray, etc., 1 Met. 
 
 71. 
 Carson v. Carson, 1 Met. 434. 
 Carson, etc. v. Carson's Ex'r, etc., 1 
 
 Met. 300. 
 Cary, etc. ads. Worthington, 1 Met. 
 
 470. 
 Carico's Adm'r, etc. ads. White's 
 
 Adm'r, etc., 2 Met. 232. 
 Carson v. Carson, 2 Met. 96. 
 Carieo ads. Hardin's Ex'r, 3 Met. 289, 
 Carson, etc. ads. Green, 4 Met. 76. 
 Caskey v. Lewis, 14 B. Mon. 27. 
 Case, Davidge & Co. v. Colston, 1 Met. 
 
 145, 
 Cate V. Boss, 2 Duv. 243. 
 Caulfield v. Bullock, 18 B. Mon. 494. 
 Cecil ads. Terrill, etc., 3 Met. 347. 
 Cessna v. Sledman, 1 Duv. 188, 
 Chadwell's Adm'r ads. Whitehead, 2 
 
 Duv. 432. 
 Chandler's Heirs ads. Johnson's Heirs, 
 
 15 B. Mon. 584. 
 Champ's Heirs ads. Collins, 15 B. Mon, 
 
 lis. ||^ 
 
LIST OF CASES. 
 
 541 
 
 Ohambers and ux v. Davis, etc., 15 B. 
 
 Mon. 522. 
 Chambers and ux v. Davis, 17 B. Mon. 
 
 526. 
 Chapman, etc., v. Stockwell, 18 B. 
 
 Mon. 650. 
 Chambers v. Keene, etc., 1 Met. 289. 
 Chambers ads. Tipton, 1 Met. 565. 
 Champ V. Commonwealth, 2 Met. IT. 
 Chamberlin ads. Kadford, 4 Met. 237. 
 Chandler v. Commonwealth, 4 Met. 
 
 66. 
 Cheshire and ux v. Payne, etc., 16 B. 
 
 Mon. 618. 
 Chelf V. Penn, etc., 2 Met. 463. 
 Chenowith v. Fielding, 2 Met. 517. 
 Chinn ads. "Walters, 1 Met. 499. 
 Chiles V. Drake, 2 Met. 146. 
 Chinn v. Mitchell, 2 Met. 92. 
 Chiles & Thomas v. Monroe, 4 Met. 
 
 72. 
 Childs & Co. V. Brown & Long, 2 Duv. 
 
 314. 
 Chrismas v. Eussell, 2 Met. 112. 
 Christian County Court v. Eankin & 
 
 Tharp, 2 Duv. 502. 
 Churchill v. Churchill, 4 Met. 466. 
 C. H. & D. K. R. Co. V. Spratt, 2 
 
 Duv. 4. 
 Claywell ads. Emerson, 14 B. Mon. 18. 
 Clarkson v. Barnett's heirs, 14 B. Mon. 
 
 164. 
 Clark V. Jones, 16 B. Mon. 121. 
 — — V. Commonwealth, 16 B. Mon. 
 
 206. 
 Clark V. Pinnell, 16 B. Mon. 329. 
 Clary ads. Finer, 17 B. Mon. 645. 
 Clark, etc. v. Clark, 17 B. Mon. 689. 
 
 V. Seaton, 18 B. Mon. 226. 
 
 Clark's Ex'r v. Trail's Adm'r,l Met. 35. 
 Heirs v. Lusk, et als., 1 Met. 
 
 447. 
 Clark ads. Bell, 2 Met. 573. 
 Clark County Court v. Winchester 
 
 & Mount Sterling Turnpike Co., 3 
 
 Met. 140. 
 Clay V. Clay, 3 Met. 548. 
 
 V. Clay, 2 Duv. 295. 
 
 Clark, etc. ads. Phillips, 4 Met. 348. 
 Clarkson, etc. v. Clarkson's Adm'r, 1 
 
 Duv. 268. 
 ■Olinkenbeard v. Clinkenbeard, 3 Met. 
 
 330. 
 Clement ads. Bullitt, 16 B. Mon. 193. 
 Cleaveland ads. Collins, 17 B. Mon. 
 
 459. 
 Cleaver and ux v. Kirk's Heirs, 3 Met. 
 
 270. 
 Clem (alias Clemons) v. Common- 
 wealth, 3 Met 10. 
 Clough V. Ogle, 2 Duv. 145. 
 Clutz's Adm'r v. Orth and "Wallace, 18 
 
 B. Mon. 2t8B. 
 
 Cobb &"Wood V.Wagoner, 17 B.Mon. 
 
 562. 
 Coburn ads. Barrett, etc., 3 Met. 510. 
 Cobb V. Stewart, etc., 4 Met. 255. 
 Coffey V. Wilkinson, etc., 1 Met. 101. 
 Coffman, etc. v. Wilson, etc., 2 Met. 542. 
 Collins, etc. v. Blackburn, 14 B. Mon. 
 
 252. 
 Collins V. Champ's Heirs, 15 B. Mon. 
 
 118. 
 Collins ads. Jackson Delphia (color), 
 
 16 B. Mon. 214. 
 Collins V. Cleaveland, 17 B. Mon. 459. 
 
 ads. McBrayer, 18 B. Mon. 833. 
 
 Cole V. Wilson, 18 B. Mon. 212. 
 Collier, etc. ads. Keene, 1 Met. 415. 
 Collins ads. Miles, 1 Met. 308. 
 Colston ads. Case, Davidge & Co., 1 
 
 Met. 145. 
 Cole V. Pell, 2 Met. 262. 
 Coleman, etc. v. Commonwealth, 2 
 
 Met. 382. 
 Collins V. Merrill, etc., 2 Met. 163. 
 Coleman v. Walker, etc., 3 Met. 65. 
 Collyer v. Higgins, 1 Duv. 6. 
 Collins V. L. & N. E. E. Co., 2 Duv. 
 
 114. 
 Commonwealth ads. Jones, 14 B. 
 
 Mon. 1. 
 Commonwealth for Ashby v. Gill, 14 
 
 B. Mon. 20. 
 Commonwealth ads. Buford, 14 B. 
 
 Mon. 24. 
 Commonwealth for Harris v. Teal, etc., 
 
 14 B. Mon. 29. 
 Commonwealth ads. Shoemaker, 14 B. 
 
 Mon. 225. 
 Commonwealth ads. Powell, 14 B. 
 
 Mon. 225. 
 Commonwealth v. James, 14 B. Mon. 
 
 228. 
 Commonwealth ads. Lawson, 14 B. 
 
 Mon. 225. 
 Commonwealth v. Eucker, 14 B. Mon. 
 
 228. 
 Commonwealth ads. Dougherty, 14 B. 
 
 Mon. 239. 
 Commonwealth v. Nazareth Literary, 
 
 etc., 14 B. Mon. 266.. 
 Commonwealth v. Benevolent Insti- 
 tution, 14 B. Mon. 266. 
 Commonwealth v. Bronson, 14 B. 
 
 Mon. 361. 
 Commonwealth ads. Louisville Sav- 
 ing Bank, 14 B. Mon. 409. 
 Commonwealth v. Morgan, 14 B. Mon. 
 
 392. 
 Commonwealth ads. Hawkins, etc., 14 
 
 B. Mon. 395. 
 Commonwealth ads. Bowman, etc., 14 
 
 B. Mon. 390. 
 Commonwealth ads. Curd &Ward, 14 
 
 B. Mon. 386. 
 
542 
 
 LIST OF CASHES. 
 
 Coramonwealtli v. Kamp, 14 B. Mon. 
 
 385. 
 Commonwealtli ads. Kapp, 14 B. Mon. 
 
 615. 
 Commonwealth v. Allen, 15 B. 
 
 Mon. 1. 
 Commonwealtli ads. Taylor, 15 B. 
 
 Mon. 11. 
 Commonwealtli ads. Cornelius, 15 B. 
 
 Mon. 539. 
 Commonwealth v. Craig, 15 B. Mon. 
 
 534. 
 Commonwealth v. Hutton, 15 B. Mon. 
 
 537. 
 Commonwealth v. Kennedy, 15 B. 
 
 Mon. 531. 
 Commonwealth v. Harvey, 16 B. 
 
 Mon. 1. 
 Commonwealth ads. Clark, 16 B. Mon. 
 
 206. 
 Commonwealth v. Shouse, 16 B. Mon. 
 
 325. 
 Commonwealth ads. Waltson, 16 B. 
 
 Mon. 15. 
 Commonwealth v. Adams, 16 B. Mon. 
 
 338. 
 Commonwealth ads. Dryden, 16 B. 
 
 Mon. 598. 
 Commonwealth v. Bobinson, 16 B. 
 
 Mon. 609. 
 Commonwealth ads. Graham, 16 B. 
 
 Mon. 587. 
 Commissioner's Sinking Fund v. The- 
 obald, 17 B. Mon. 459. 
 Comley v. Com'th 17 B. Mon. 403. 
 Commonwealth ads. Comley, 17 B. 
 
 Mon. 403. 
 Commonwealth ads. Ad well, 17 B. 
 
 Mon. 310. 
 Commonwealth v. Cummins, 18 B. 
 
 Mon. 26. 
 Commonwealth v. Hazlerigg, 18 B. 
 
 Mon. 29. 
 Commonwealth v. Graves & Cary, 18 
 
 B. Mon. 32. 
 Commonwealth ads. Bitte, 18 B. Mon. 
 
 35. 
 Commonwealth ads. Meredith, 18 B. 
 
 Mon. 49. 
 Commonwealth v. Crump, etc., 18 B. 
 
 Mon. 469. 
 Commonwealth v. Jack & Warner, 18 
 
 B. Mon. 469. 
 Commonwealth v. Prewitt & Servant, 
 
 18 B. Mon. 469. 
 Commonwealth v.Witcher, 18 B.Mon. 
 
 469. 
 Commonwealth v. Harris, 18 B. Mon. 
 
 469. 
 Commonwealth v.Talbott, 18 B. Mon. 
 
 459. 
 Commonwealth v. Northcraft & 
 
 Thomas, 18 B. Mon. 469. 
 
 Commonwealth v. Emberg, etc., 18 B.- 
 Mon. 469. 
 Commonwealth ads. Bice, 18 B. Mon. 
 
 472. 
 Commonwealth ads. Bice, 18 B. Mon. 
 
 485. 
 Commonwealth v. White, 18 B. Mon. 
 
 492. 
 Commonwealth v. Spraggins, 18 B. 
 
 Mon. 512. 
 Commonwealth v. Kitty, 18 B. Mon. 
 
 572. 
 Commercial Bank v. Benedict, 18 B. 
 
 Mon. 307. 
 Comas ads. Ludwig (of color), 1 Met. 
 
 128. 
 Commonwealth v. Magowan, 1 Met.. 
 
 368. 
 Commonwealth ads. Murphy, 1 Met. 
 
 365. 
 Commonwealth v. Pajme, 1 Met. 
 
 374. 
 Commonwealth ads. Thompson, 1 Met. 
 
 13. 
 Commonwealth v. Thornton, etc., I 
 
 Met. 380. 
 Commonwealth ads. Tipper, 1 Met. 6.. 
 
 V. Van Tuyl, 1 Met. 1. 
 
 V. Anthony (a slave), 2 Met. 399.. 
 
 ■ ■ ads. Champ, 2 Met. 17. 
 
 ■ V, Coleman, etc., 2 Met. 382. 
 
 ads. Corbin, etc., 2 Met. 380. 
 
 V. Jane (a slave), 2 Met. 30.< , 
 
 V. Kennedy, 2 Met. 36. 
 
 V. McClanahan, 2 Met. 8. 
 
 V. McEeady, 2 Met. 376. 
 
 ads. McHall, 2 Met. 394. 
 
 ads. Magowan, 2 Met. 3. 
 
 ads. Mershon, etc., 2 Met. 371. 
 
 ads. Metz, etc., 2 Met. 14. 
 
 V. Patterson, etc., 2 Met. 374. 
 
 ■ V. Powell, 2 Met. 10. 
 
 ads. Rutherford, 2 Met. 387. 
 
 ads. Turner, 2 Met. 619. 
 
 ads. Tweedy, 2 Met. 378. 
 
 ads. Tyra, 2 Met. 1. 
 
 Combs, etc. ads. Dodd, 3 Met. 28. 
 etc. V. Jefferson Pond Draining 
 
 Co., 3 Met. 72. 
 Commonwealth v. Adams, 3 Met. 6. 
 
 ads. Burns, 3 Met. 13. 
 
 ads. Clem (alias Clemens), 3 Met. 
 
 10. 
 Commonwealth ads. Cornelius, etc., 3 
 
 Met. 232. 
 Commonwealth ads. Cornelius, 3 Met. 
 
 481. 
 Commonwealth ads. Devoto, 3 Met.. 
 
 417. 
 Commonwealth v. Dudley, 3 Met- 
 
 221. 
 Commemwealth v. Poster, 3 Met. 1. 
 V. Garland, etc., 3 Met. 478. 
 
LIST OF OASES. 
 
 543 
 
 Commonwealth ads. Glackan, etc., 3 
 
 Met. 232. 
 Common wealth v. Haughey, 3 Met. 
 
 223. 
 Commonwealth v. Howard, 3 Met. 407. 
 
 ads. Jane (a shiye), 3 Met. 8. 
 
 V. Kelcher, 3 Met. 484. 
 
 V. Lee & Bledsoe, 3 Met. 229. 
 
 ads. Lowe, 3 Met. 237. 
 
 V. Morgoley, etc., 3 Met. 405. 
 
 V. Moore, 3 Met. 477. 
 
 V. Perrigo, 3 Met. 5. 
 
 T. Eunnion & Hayes, 3 Met. 2. 
 
 ads. Schneider, 3 Met. 409. 
 
 V. Stephenson, 3 Met. 226. 
 
 ads. Tenney, etc., 3 Met. 415. 
 
 ads. Tharp, 3 Met. 411. 
 
 ads. Brown, 4 Met. 221. 
 
 ads. Chandler, 4 Met. 66. 
 
 V. Graddy, 4 Met. 223. 
 
 ads. Heffren, 4 Met. 5. 
 
 ads. Louisville, 4 Met. 63. 
 
 ads. Moody, 4 Met. 1. 
 
 V. Roberts, 4 Met. 219. 
 
 V. Rowland, 4 Met. 225. 
 
 ads. Scott, 4 Met. 227. 
 
 v. Taphorn, etc., 4 Met. 71. 
 
 ads. Askins, 1 Duv. 275. 
 
 V. Blackburn, 1 Duv. 4. 
 
 ads. Boehler, 1 Duv. 3. 
 
 V. Brooks, 1 Duv. 150. 
 
 ads. Burnham, 1 Duv. 210. 
 
 V. Cheek, 1 Duv. 26. 
 
 —- — ads. Cityof Louisville, 1 Duv. 295. 
 
 ads. Terrill & Bullard, 1 Met. 153. 
 
 Hobson and sureties, 1 Duv. 172. 
 
 V. Holland, 1 Duv. 182. 
 
 ads. Johnson, 1 Duv. 244. 
 
 V. Keger, 1 Duv. 240. 
 
 ads. Miller, 1 Duv. 14. 
 
 ads. Mount, 1 Duv. 90. 
 
 ads. Rion, 1 Duv. 235. 
 
 V. Roberts, 1 Duv. 199. 
 
 ads. Shaw, etc., 1 Duv. 1. 
 
 ads. Smith, 1 Duv. 224. 
 
 ads. Straws, 1 Duv. 149. 
 
 ads. Taylor, 1 Duv. 160. 
 
 ads. Wintersall, 1 Duv. 177. 
 
 ads. Rhodus, 2 Dut. 159. 
 
 ads. Hudgens, 2 Duv. 239. 
 
 v. Bush, 2 Duv. 264. 
 
 V. Radford, 2 Duv. 9. 
 
 ads. Mount, 2 Duv. 93. 
 
 — ads. Baird & Price, 2 Duv. 78. 
 
 ads. Pike, 2 Duv. 89. 
 
 ads. Broms, 2 Duv. 351. 
 
 ads. Jones & Kelly, 2 Duv. 81. 
 
 ads. Phillips, 2 Duv. 328. 
 
 ads. Owens, 2 Duv. 349. 
 
 Cumming v. Griggs & Hayes, 2 Duv. 
 
 87. 
 Commonwealth ads. Golligher, 2 Duv. 
 163. 
 
 Commonwealth ads. Butler, 2 Duv. 
 
 435. 
 Commonwealth v. Gray, 2 Duv. 373. 
 
 ads. Hudson, 2 Duv. 531. 
 
 V. Terry, 2 Duv. 383. 
 
 ads. Nepp, 2 Duv. 546. 
 
 ads. Pisher, 2 Duv. 376. 
 
 ads. Mark & Co., 2 Duv. 387. 
 
 ads. Watson & Thompson, 2 Duv. 
 
 408. 
 Commonwealth ads. Jones, 2 Duv. 
 
 554. 
 Commonwealth ads. Viers, 2 Duv. 377. 
 
 ads. Usher, 2 Duv. 394. 
 
 V. Ramsey, 2 Duv. 385. 
 
 Y. Yancey, 2 DHjv. 375. 
 
 ads. Johnson, 2 Duv. 410. 
 
 V. Baring, 2 Duv. 95. 
 
 Connelly, etc. ads. Stone & "Warren, 1 
 
 Met. 652. 
 Conrad ads. Shropshire, etc., 1 Met. 
 
 143. 
 Cook V. Boyd, 16 B. Mon. 556. 
 Cooke ads. Totten, 2 Met. 275. 
 Cook V. Brandies & Crawford, 3 Met. 
 
 555. 
 Cook ads. Scott, 1 Duv. 314. 
 Cooper V. Poston, 1 Duv. 92. 
 Corn, etc. v. Sims, etc., 3 Met. 391. 
 Cornelius, etc. v. Commonwealth, 3 
 
 Met. 232. 
 Cornelius v. Commonwealth, 3 Met. 
 
 481. 
 Cornelius v. Commonwealth, 15 B. 
 
 Mon. 539. 
 Cornwell ads. Burnham, 16 B. Mon. 
 
 284. 
 Corbin, etc. v. Commonwealth, 2 Met. 
 
 380. 
 Corbin v. Marsh, 2 Duv. 193. 
 CoUman's Adm'r v. Martin, et al., 1 
 
 Met. 563. 
 County Court Payette v. L. & B. S. R. 
 
 R. Co., 17 B. Mon. 355. 
 Couch ads. Earle, etc., 3 Met. 450. 
 Courtenay, etc. ads. Hurdt, etc., 4 Met. 
 
 139. 
 C. & L. R. R. Co. V. Ingles, 15 B. Mon. 
 
 637. 
 C. & L. R. R. Co. ads. Wolf, 15 B. Mon. 
 
 404. 
 C. & L. R. R. Co. V. Hortsman, 18 B. 
 
 Mon. 218. 
 Cov. &. Cin. Bridge Co. ads. Phillips, 
 
 2 Met. 219. 
 Cov. & Cin. Bridge Co. v. Arnold, 1 
 
 Duv. 372. 
 Cov. & Cin. Bridge Co. v. Walker, 2 
 
 Duv. 150. 
 tiovington City of v. Southgate, 15 B. 
 
 Mon. 491. 
 Covington City of ads. Kennedy, 17 
 B. Mon. 557. 
 
544 
 
 LIST OP OASES. 
 
 Ooyington City of ads. Patch, 17 B. 
 
 Mon. 722, 
 Covington City of v. McNickle's Heirs, 
 
 18 B. Mon. 262. 
 Covington City of ads. Kearney, 1 Met. 
 
 339. 
 Covington City of v. Ludlow, 2 Met. 
 
 295. 
 Covington City of v. Powell, 2 Met. 
 
 226. 
 Covington City of v. Elliston, 2 Met. 
 
 226. 
 Covington ads. Hammar, et al., 3 Met. 
 
 494. 
 Cowherd's Heirs ads. "Wells, 2 Met. 
 
 519. 
 Cowan, etc. ads. Campbell, 17 B. Mon. 
 
 522. 
 Cox ads. Finnell, 3 Met. 245. 
 
 V. Winston, 3 Met. 577. 
 
 Craig's Adm'r v. Lee, 14 B. Mon. 119. 
 ads. Commonwealth, 15 B. Mon. 
 
 534. 
 Crawford ads. Anderson, etc. (of color), 
 
 15 B. Mon. 328. 
 Crawford's Adm'r v. Bashford, 16 B. 
 
 Mon. 3. 
 Crabtree ads.Worthington, etc., 1 Met. 
 
 478. 
 Crabtree, etc. v. Banks' Adm'r, 1 Met. 
 
 482. 
 Craig, .etc. v. North, 3 Met. 187. 
 Crawford v. Speed & Worthington, 3 
 
 Met. 207. 
 Cravens ads. Miller & Eice, 2 Duv. 
 
 246. 
 Crow's Adm'r v. Crow, 14 B. Mon. 
 
 476. 
 Cromie v. Ky. & Louis. Mut. Ins. Co., 
 
 15 B. Mon. 432. 
 Cronley v. Bank of Ky., 18 B. Mon. 
 
 405. 
 Crottie, etc. ads. Ward, 4 Met. 59. 
 Cross ads. Watson, 2 Duv. 147. 
 Crutoher etc. ads. Walters, etc., 15 B. 
 
 Mon. 2. 
 Crump ads. Commonwealth, 18 B. 
 
 Mon. 469. 
 Crump, etc. v. Poster, et al., 1 Met. 
 
 160. 
 Culver ads. Bates, 17 B. Mon. 158. 
 Culver's Assignee ads. Maiders, 1 Duv. 
 
 164. 
 Gumming V. Griggs & Hayes, 2 Duv. 87. 
 Gumming ads. Coinmonwealth, 18 B. 
 
 Mon. 26. 
 Cummins ads. Kemble, 3 Met. 327. 
 Cunningham's Dev. v. Cumming's 
 
 Heirs, 18 B. Mon. 19. 
 Cunningham ads. Kennedy & Bro., i 
 
 Met. 538. 
 Curd & Ward v. Commonwealth, 14 
 
 B. Mon. 386. 
 
 Curd ads. Eastham, 15 B. Mon. 102. 
 
 ads. Barker, 1 Met. 641. 
 
 Curry, etc. ads. Bullock, etc., 2 Met> 
 
 171. 
 Gurry, etc. ads. Shippin, 3 Met. 184. 
 Curtis ads. Smith & Thornton, 1 Duv. 
 
 281 
 Curlew Coal Oil Co. v. J. & J. J. Grief, 
 
 2 Duv. 527. 
 Curlew Goal Go. v. Grief, 2 Duv. 528. 
 Cypress Pond Draining Co. v. Hooper,. 
 
 etc., 2 Met. 350. 
 
 D. 
 
 Dale V. Hayes, 14 B. Mon. 315. 
 Daniel, etc. v. Thompson, etc., 14 B.. 
 
 Mon. 662. 
 Daniel v. Judy, 14 B. Mon. 393. 
 
 etc. V. Eobinson, 18 B. Mon. 301. 
 
 Daniel v. Toney, 2 Met. 523. 
 Danville, etc., T. P. E. Co. v. Stewart,. 
 
 2 Met. 119. 
 Daniel ads. Abbott, 3 Met. 339. 
 Davis ads. Warfield, 14 B. Mon. 40. 
 
 etc. ads. Jarvis, 14 B. Mon. 529. 
 
 ads. Chambers and ux, 15 B. Mon., 
 
 522. 
 Davis, etc. v. Wood, etc., 17 B. Mon. 
 
 86. 
 Davis, etc. v. Sharon, 15 B. Mon. 64. 
 Davenport v. McCampbell, etc., 17 B. 
 
 Mon. 38. 
 Davis ads. Neale, etc., 17 B. Mon.a42.. 
 • ads. Chambers and ux, 17 B. Mon. 
 
 526. 
 Davis's Ex'r v. Maria Eeeves (of color),. 
 
 1 Met. 589. 
 Dawson v. Goodman, 15 B. Mon. 439.. 
 
 etc. V. Hays, 1 Met. 460. 
 
 ads. Caldwell, etc., 4 Met. 121. 
 
 Dasey v. Killam, etc., 1 Duv. 403. 
 Dean, etc. v. English, 18 B. Mon. 132. 
 
 V. Garnett, 1 Duv. 408. 
 
 ads. Laughlin, 1 Duv. 20. • 
 
 DeBell ads. Wallingford, 15 B. Mon. 
 
 551. 
 Debbie v. Porter, etc., 1 Duv. 190. 
 Denny v. Wickliffe, 1 Met. 216. 
 Denton v. Logan, 3 Met, 434. 
 Dent and ux v. Breckinridge, 1 Duv.. 
 
 245. 
 Deposit Bank, Gynthiana v. Glenn, 1 
 
 Met. 585. 
 Deshong v. Cain, 1 Duv. 309. 
 Develin, etc. ads. Bennett, 17 B. Mon. 
 
 353. 
 Devoto V. Commonwealth, 3 Met. 
 
 417. 
 Diokerson's Heirs v. Talbott's Ex'r, 
 
 etc., 14 B. Mon. 60. 
 Dickerson ads. H. & IST. E. E. Co., 16- 
 
 B. Mon. 297. 
 
LIST OF CASES. 
 
 545 
 
 Diokerson ads. H. & N". K. K. Co., 17 
 
 B. Mon. 173. 
 Dillard, etc. ads. Sage, etc., 15 B. Mon. 
 
 341. 
 Dilland's Adm'r ads. Smith's Adm'r, 
 
 2 Duv. 162. 
 
 Ditto, etc. V. Geoghegan, etc., 1 Met. 
 
 169. 
 Ditto, etc. ads. Geoghegan, etc., 2 Met. 
 
 433. 
 Dizon and ux ads. Tohin's Gd'n, 2 
 
 Met. 422. 
 Dixon, Barrett, etc. ads. Smith's Heirs, 
 
 3 Met. 438. 
 
 Divine v. Bullock, etc., 3 Met. 418. 
 Dodd V. King, 1 Met. 430. 
 Dodd's Heirs v. Combs, etc., 3 Met. 28. 
 Doneghy ads. Scott, 17 B. Mon. 321. 
 Donaldson ads. Gossom, 18 B. Mon. 230. 
 — - — ■ ads. Hazlerlgg, 2 Met. 445. 
 Donahue, etc. ads. Kelly, etc., 2 Met. 
 
 482. 
 Donniphan ads. Norris, 4 Met. 385. 
 Doneghy ads. Pond, etc., 18 B. Mon. 
 
 558. 
 Doneghy ads. Boiling, 1 Duv. 220. 
 Dorsey v. Eeese, 14 B. Mon. 157. 
 Dougherty v. Commonwealth, 14 B. 
 
 Mon. 239. 
 Dougherty v. Smith, Wilson & Co., 4 
 
 Met. 279. 
 Dougherty, etc. v. Dougherty, etc., 4 
 
 Met. 25. 
 Dowd's Heirs ads. Todd, 1 Met. 281. 
 Downs ads. Hedger, 2 Met. 160. 
 Downing, etc. ads. Hanley & Co., 4 
 
 Met. 95. 
 Doyle v. Armstrong, 2 Duv. 534. 
 Drake ads. Chiles, 2 Met. 146. 
 Dragoo v. Devi, 2 Duv. 520. 
 Driskell v. Hanks, 18 B. Mon. 855. 
 Drinkard ads. Eoherts, 3 Met. 309. 
 Dryden v. Commonwealth, 16 B. Mon. 
 
 598. 
 Dudley ads. Morgan, 18 B. Mon. 693. 
 
 ads. Commonwealth, 3 Met. 221. 
 
 Dugan V. Dugan, 1 Duv. 289. 
 Duhme & Co. ads. Young, et al., 4 
 
 Met. 239. 
 Duling ads. Britain, 15 B. Mon. 138. 
 Duncan, etc. v. Brown, 15 B. Mon. 186. 
 Dunavan ads. Sharp's Bx'r, 17 B. Mon. 
 
 223. 
 Dunlap ads. Kyler and ux, 18 B. Mon. 
 
 561. 
 Dunn, etc. ads. Kellogg, 2 Met. 215. 
 Duncan v. Prentice, 4 Met. 216. 
 
 V. Wickliffe, 4 Met. 118. 
 
 V. Lewis, 1 Duv. 183. 
 
 etc. ads. Proctor and ux, 1 Duv. 
 
 318. 
 Dunn, etc. v. Salter, etc., 1 Duv. 342. 
 Dunlap V. Shrieve's Ex'r, 2 Duv. 334. 
 
 37 
 
 Dumesnil v. Dupont, 18 B. Mon. 800. 
 Dupont ads. Dumesnil, 18 B. Mon. 800. 
 Dupuy V. McMullen, 2 Duv. 555. 
 Durant, etc. v. Gabby, 2 Met. 91. 
 Durbin ads. Townes, 3 Met. 352. 
 Duvall V. Parker, 2 Duv. 182. 
 Dye, etc. ads. Campbell T. P. R. Co., 18 
 
 B. Mon. 761. 
 Dyer ads. Miller, 1 Duv. 263. 
 
 E. 
 
 Barle, etc. v. Couch, 3 Met. 450. 
 Earley v. Liter, 2 Duv. 369. 
 
 ads. Brown, 2 Duv. 369. 
 
 Basley's Bx'r v. Easley, 18 B. Mon. 86. 
 Eaves, et al. ads. Vincent, etc., 1 Met. 
 
 247. 
 Eden v. L. & F. E. R. Co., 14 B. Mon. 
 
 204. 
 Edelin ads. Miles, 1 Duv. 270. 
 Edwards v. Ballard, 14 B. Mon. 289. 
 V. Woolfolk's Adm'r, 17 B. Mon. 
 
 376. 
 Edward (of color) ads. Barnes and ux, 
 
 17 B.Mon. 632. 
 Edwards, etc. ads. Seohrist, etc., 4 Met. 
 
 163. 
 Bills V. Kelso, 18 B. Mon. 296. 
 
 V. Brannin's Ex'r, 1 Duv. 48. 
 
 Elliott ads. Neale, 18 B. Mon. 604. 
 
 . V. Threlkeld, 16 B. Mon. 341. 
 
 Elliston ads. City of Covington, 2 Met. 
 
 226. 
 Bllingwood, etc. ads. Ford, 3 Met. 359. 
 Blisha (of color) ex parte, 18 B. Mon. 
 
 675. 
 Bly, Clapp, etc. v. Hair, Nugent, etc., 
 
 16 B. Mon. 230. 
 Embree ads. Taylor, 16 B. Mon. 340. 
 Emerson v. Claywell, 14 B. Mon. 18. 
 Emmons v. Overton, 18 B. Mon. 643. 
 Eminence Mut. Life Ins. Co. v. Jesse, 
 
 1 Met. 523. 
 Enders, etc. v. Williams, 1 Met. 346. 
 English ads. Dean, etc., 18 B.Mon. 132. 
 Eshman, etc. v. Kendrieks, 1 Met. 146. 
 Ermine ads. Johnson, 3 Met. 251. 
 Eshman ads. McClain, 17 B. Mon. 146. 
 Estill ads. Carr and ux, 16 B. Mon. 309. 
 Estham v. Curd, 15 B. Mon. 102. 
 Etlinger, etc. v. Tansey, 1 7 B, Mon. 364. 
 Evans v. Gregory, etc., 15 B. Mon. 
 
 317. 
 Everett ads. Bondurant, 1 Met. 658. 
 Everman and ux ads. Jones, 15 B. 
 
 Mon. 631. 
 Ewing ads. Salve, 1 Duv. 271. 
 
 F. 
 
 Eahnestock & Co. v. Bailey & Varnon, 
 3 Met. 48. 
 
546 
 
 LIST OP CASES. 
 
 Pah ads. Smith, 15 B. Mon. 443. 
 Fairbanks, etc. v. Means, etc., 4 Met. 
 
 323. 
 Pall V. MoMurdy, 3 Met. 364. 
 Parron v. Orear, 2 Duv. 261. 
 Parmers' Bank ads. Northern Bank, 
 
 18 B. Mon. 506. 
 Parmers' Bank ads. Witherspoon, 2 
 
 Duv. 49,6. 
 Parrell ads. Woodcock, etc., 1 Met. 437. 
 Parber v. Bassett, 2 Duv. 433. 
 Penwiok v. Phillips, 3 Met. 87. 
 Perguson ads. Johnson, 2 Met. 503. 
 Perry v. Street, 14 B. Mon. 355. 
 Perguson v. Pox's Adni'r, 1 Met. 83. 
 
 ads. Smith, 3 Met. 424. 
 
 Pernold v. Speer, 3 Met. 439. 
 Perrill & Bullard v. Commonwealth, 1 
 
 Duv. 153. 
 Pidler v. Hall, 2 Met. 461. 
 Pields ads. Lyons, 17 B. Mon. 543. 
 Fielding ads. Chenowith, 2 Met. 517. 
 Pinnell, etc. ads. Clark, 16 B. Mon. 329. 
 
 V. Nesbitt, etc., 16 B. Mon. 351. 
 
 Pinnell v. Sandford, 17 B. Mon. 748. 
 
 V. Cox, 3 Met. 245. 
 
 Pinnell & "Winston ads. Garrett & 
 
 Jones, 2 Duv. 166. 
 Pinch ads. Campbell, 2 Duv. 107. 
 Pisher, etc. v. Kollerts, 16 B. Mon. 398. 
 
 ads. Commonwealth, 2 Duv. 376. 
 
 Pitzpatrick v. Harris, 16 B. Mon. 561. 
 Piremen's Ins. Co. ads. Montgomery, 
 
 16 B. Mon. 427. 
 Poley ads. Hanley, 17 B. Mon. 519. 
 Porrest ads. Trustees Lebanon, 15 B. 
 
 Mon. 168. 
 Pord ads. Heed and wife, 16 B. Mon. 
 
 114. 
 Porsyth ads. Bergen and wife, 17 B. 
 
 Mon. 561. 
 Porpaugh v. Appold and Sons, 17 B. 
 
 Mon. 625. 
 Pord, etc. v. Thompson, etc., 1 Met. 
 
 580. 
 Porline's Adm'r ads. Eodman, 2 Met. 
 
 325. 
 Porrest v. Phillips, etc., 2 Met. 194. 
 Pord V. Bllingwood, 3 Met. 359. 
 Porman ads. Lee, 3 Met. 114. 
 Pord's Ex'r v. Pord, 2 Duv. 418. 
 Poster V. Watson, etc., 16 B. Mon. 377. 
 Posters ads. Blackwell, etc., 1 Met. 88. 
 Poster et al. ads. Snoddy & Brans- 
 ford, 1 Met. 160. 
 Poster et al. ads. Crump, etc., 1 Met. 
 
 160. 
 Poster et al. ads. Locke & Key, 1 Mot. 
 
 160. 
 Poster et al. v. Van Winkle's Ex'r, 1 
 
 Met. 160. 
 Poster ads. Commonwealth, 3 Met. 1. 
 ads. Pettit, 3 Met. 314. 
 
 Poster, etc. ads. Micheson, Adm'r, 3 
 
 Met. 324. 
 Poster, etc. v. Wade, 4 Met. 252. 
 Pox's Adm'r ads. Perguson, 1 Met. 83. 
 Pranklin Academy v. Hall, 16 B. 
 
 Mon. 472. 
 Prancis v. Prancis, 18 B. Mon. 57. 
 Prankfort Bridge Co. v. City of Prank- 
 fort, 18 B. Mon. 41. 
 Pranklin Saving Institution v. M. M. 
 
 Bank of Wheeling, 1 Met. 156. 
 Prazer v. Naylor, etc., 1 Met. 593. 
 Prancis v. Smith, 1 Duv. 121. 
 Preeman v. Branham, etc., 17 B. Mon. 
 
 603. 
 Preeman ads. Sterne, 4 Met. 309. 
 Pritz V. Tudor, 2 Duv. 173. 
 Pry, Ex'r v. Lexington & Big Sandy 
 
 B. K. Co., 2 Met. 214. 
 Fleming v. Limbaugh, 2 Met. 265. 
 Fleece v. Goodrum, etc., 1 Duv. 306. 
 Flint V. Spurr, etc., 17 B. Mon. 499. 
 Flippin V. Hay, et al., 3 Met. 215. 
 Floyd, etc. ads. Bank of Kentucky, 4 
 
 Met. 159. 
 Fugate, etc. v. Eobinson, 18 B. Mon. 
 
 680. 
 Punk, etc. ads. Birch, etc., 2 Met. 
 
 544. 
 Furber v. Bassett, 2 Duv. 433. 
 
 <3r. 
 
 Gabby ads. Watson, 14 B. Mon. 658. 
 
 ads. Durant, etc., 2 Met. 91. 
 
 Gaines' Adm'r v. Poor, 3 Met. 503. 
 Gailbraith v. Gedge, etc., 16 B. Mon. 
 
 631. 
 Garnett & Thompson ads. Barnett & 
 
 Miller, 18 B. Mon. 68. 
 Garrard v. Nuttall, 2 Met. 106. 
 Garland, etc. ads. Commonwealth, 3 
 
 Met. 478. 
 Garnett ads. McManama, 3 Met. 517. 
 
 • ads. Dean, 1 Duv. 408. 
 
 Garnett & Jones ads. Tennell & Win- 
 ston, 2 Duv. 166. 
 Gathright v. Hazzard and ux, 17 B. 
 
 Mon. 557. 
 Gault and ux v. Trumbo, 17 B. Mon. 
 
 682. 
 Gay ads. Overly, 17 B. Mon. 144. 
 Gedge, etc. sids. Gailbraith, 16 B. Mon. 
 
 631. 
 Gentry ads. Hoskin & Hughes, 2 Duv. 
 
 285. 
 Gentry ads. Newland, 18 B. Mon. 666. 
 et al. ads. Hock er, et al., 3 Met. 
 
 463. 
 George (of color) v. Bussing, etc., 15 
 
 B. Mon. 558. 
 Geoghegan, etc. ads. Ditto, etc., 1 Met. 
 
 169. 
 
LIST OF CASES. 
 
 547 
 
 Geoghegan, etc. v. Ditto, etc., 2 Met. 
 
 433. 
 Getting ads. Mclntire, 15 B. Mon. 172. 
 Gibson v. Higdon, 15 B. Mon. 205. 
 Gibbons v. and ads. Young, 2 Duv. 440. 
 Gill ads. Commonwealth for Ashby, 
 
 14 B. Mon. 20. 
 Gilbert, etc. v. Justices of Marshall 
 
 county, 18 B. Mon. 427. 
 Gill V. Johnson's Adm'r, 1 Met. 649. 
 Gilpin, etc. ads. Taylor, 3 Met. 544. 
 Gill T. Givins' Adm'r, etc., 4 Met. 197. 
 Gilbert ads. Tuggle, 1 Duv. 340. 
 Given, Haynes & Co. v. Gordon, 3 Met. 
 
 538. 
 Givens, etc. ads. Johnson, 3 Met. 91. 
 Glackan, etc. v. Commonwealth, 3 
 
 Met. 232. 
 Glenn ads. Deposit Bank Cynthiana, 
 
 1 Met. 585. 
 Glover, etc. ads. Barkely, etc., 4 Met. 
 
 44. 
 Gohen v. Myers, 18 B. Mon. 422. 
 Golden ads. Hill's Heirs,16 B. Mon. 551. 
 Goldsherry v. Bishop, 2 Duv. 143. 
 Golliher v. Commonwealth, 2 Duv. 163. 
 Gonterman ads. Henry's Heirs, 1 Met. 
 
 465. 
 Goodrum, etc. v. Koot, 2 Met. 427. 
 Goodman ads. Dawson, 15 B. Mon. 
 
 .439. 
 Gooch ads. Williams, 3 Met. 486. 
 
 V. Baxter, 2 Duv. 389. 
 
 Goodrum, etc. ads. Green, 4 Met. 274. 
 Goodwin ads. Hayes, 4 Met. 80. 
 Goodman v. Boren, etc., 1 Duv. 187. 
 Goodrum, etc. ads. Pleece, l.Duv. 306. 
 Goodwin and ux ads. Swan, 2 Duv. 
 
 298. 
 Gordon's Heirs v. Gordon, 1 Met. 285. 
 Gordon ads. Given, Haynes & Co., 3 
 
 Met. 538. 
 Gorin ads. Smith, 2 Dav. 157. 
 Gossom V. Donaldson, 18 B. Mon. 230. 
 
 ads. Powell, etc., 18 B. Mon. 179. 
 
 Gowdy, etc. v. Harris, etc., 18 B. Mon. 
 
 195. 
 Gower ads. Smith, etc., 3 Met. 171. 
 
 ads. Smith & Davis, 2 Duv. 17. 
 
 Grace ads. Kuby, 2 Duv. 540. 
 Graves v. Tilford, 2 Duv. 108. 
 
 ads. Henry, 2 Duv. 259. 
 
 V. "Ward, etc., 2 Duv. 301. 
 
 Gray ads. Commonwealth, 2 Duv. 373. 
 Graff & "Weyd v. Barbee, etc., 18 B. 
 
 Mon. 9. 
 Graham v. Commonwealth, 16 B. Mon. 
 
 587. 
 Graham ads. N.T. L. I. Co. , 2 Duv. 506. 
 Graves' Ex'r v. Isaac (of color), 16 B. 
 
 Mon. 365. 
 Graves v. Leathers, 17 B. Mon. 665. 
 Gray ads. Stephenson, 17 B. Mon. 193. 
 
 Graves & Clary ads. Commonwealth, 
 
 18 B. Mon. 32. 
 Graddy, Adm'r of Belt ads. Berry, et 
 
 al., 1 Met. 553. 
 Graham v. Tilford & Barkely, 1 Met. 
 
 112. ^' 
 
 Graham & Knox ads. Maddox, et al., 
 
 2 Met. 56. 
 Graves v. Graves, 3 Met. 167. 
 Graddy ads. Commonwealth, 4 Met. 
 
 223. 
 Graham ads. Story, etc., 4 Met. 319. 
 Greer V. Worthington, 17 B. Mon. 742. 
 Gregory ads. Evans, 15 B. Mon. 317. 
 Gresham, etc. ads. Thumb, 2 Met. 306. 
 Green ads. Johnson and ux, 17 B. 
 
 Mon. 118. 
 Green v. McCampbell, 17 B. Mon. 38. 
 Gregory's Ex'r v. Trustees Shelby 
 
 College, 2 Met. 587. 
 Gregg ads. Lamme, 1 Met. 444. 
 Green ads. Arthur, 3 Met. 75. 
 
 ads. Bassett, 2 Duv. 560. 
 
 Greer, etc. v. Powell, etc., 3 Met. 124. 
 Green v. Hackley, etc., 3 Met. 386. 
 Gresham V. Thumb, 3 Met. 287. 
 Green v. Carson, etc., 4 Met. 76. 
 
 V. Goodrum, etc., 4 Met. 274. 
 
 V. Stevens, 2 Duv. 420. 
 
 Gregory, etc. v. Jameson, 4 Met. 363. 
 
 V. MoEarland, 1 Duv. 59.' 
 
 Green ads. Bronson, 2 Duv. 234. 
 Griffin ads. Shanks, etc., 14 B. Mon. 
 
 153. 
 Griffin, etc. ads. Massie, etc., 2 Met. 364. 
 Griffith ads. Vandever, 2 Met. 425. 
 Grief, J. & J. J. ads. Curlew Coal Oil 
 
 Co., 2 Duv. 527. 
 Griggs & Hayes ads. Gumming, 2 
 
 Duv. 87. 
 Grief ads. Curlew Goal Oil Co., 2 Duv. 
 
 528. 
 Griswold v. Hepburn, 2 Duv. 20. 
 Gi-imes and ux v. Eedmon, 14 B. 
 
 Mon. 234. 
 Griswold, etc. v. Taylor's Adm'r, 1 
 
 Met. ,228. 
 Griswold V. Popham, etc., 1 Duv. 170. 
 Gritton v. McDonald, etc., 3 Met. 252. 
 Grooms, etc. ads. Pinnell, 18 B. Mon. 
 
 501. 
 Gross V. Jones, 3 Met. 295. 
 Grubbs, etc. v. Steele, 15 B. Mon. 570. 
 Grubb V. McCoy, etc., 2 Met. 486. 
 Grubbs' Ex'r ads. Sheets et ux, 4 Met. 
 
 339. 
 Gruell et ux v. Smalley, 1 Duv. 358. 
 Grundy's Heirs ads. Baker, 1 Duv. 281 
 Gudehus ads. Gunn, 15 B. Mon. 447. 
 Gully V. Eay, 18 B. Mon. 107. 
 Gunii V. Gudehus, 15 B. Mon. 447. 
 Guthrie et al. ads. Steadman, 4 Met. 
 
 147. 
 
548 
 
 LIST OF CASES. 
 
 H. 
 
 Hackley, etc. ads. Green, 3 Met. 386. 
 Hagan ads. Stephenson, 15 B. Mon. 
 
 282. 
 Hagan ads. Moore, 2 Duv. 437. 
 
 , etc. ads. JVIasterson, 17 B. Mon. 
 
 325. 
 Hail, etc. v. Reed, etc., 15 B. Mon. 
 
 479. 
 Hair, Nugent & Co. ads. Ely, Clapp, 
 
 etc., 16 B. Mon. 230. 
 Hall & Gideon v. Protection Insurance 
 
 Co., 15 B. Mon. 411. 
 Hall ads. Pranklin Academy, 16 B. 
 
 Mon. 472. 
 Hall V. Hostetter, 17 B. Mon. 784. 
 
 ads. Tidier, 2 Met. 461. 
 
 V. McLeod, 2 Met. 98. 
 
 Halbert, etc. v. McCullough, etc., 3 
 
 Met. 456. 
 Hall & Co. V. Eenfro, 3 Met. 51. 
 Haldeman ads. Aynesworth, 2 Duv. 
 
 565. 
 Hall and ux ads. Thomas, 2 Duv. 233. 
 
 ads. Bell, Berkeley & Co., 2 Duv. 
 
 288. 
 Hall and ux v. Light, Barrett & Co., 2 
 
 Duv. 358. 
 Hamilton v. Berry, etc., 14 B. Mon. 31. 
 
 V. the Auditor, 14 B. Mon. 230. 
 
 Hammond ads. Sasseen, 18 B. Mon. 
 
 672. 
 Hamilton v. Vail, 2 Met. 511. 
 Hampton, etc. v. Morris, Eodmond, 
 
 etc., 2 Met. 336. 
 Hammar, et als. v. City of Covington, 
 
 3 Met. 494. 
 Hanley v. Foley, 18 B. Mon. 519. 
 Hanks ads. Driskell, 18 B. Mon. 855. 
 Hancock, etc. v. Johnson, 1 Met. 242. 
 Haney, etc. v. Tempest, etc., 3 Met. 95. 
 Hanley & Co. v. Downing, etc., 4 Met. 
 
 95. 
 Hanson, etc. v. Bowyer, 4 Met. 108. 
 Hanby, etc. v. Logan, 1 Duv. 242. 
 Hancock v. Wilhoite, 1 Duv. 313. 
 Hart, etc. v. Soward, 14 B. Mon. 301. 
 Harris ads. Heironeimus, 14 B. Mon. 
 
 313. 
 Harris v. Price, 14 B. Mon. 414. 
 
 ads. Young, 14 B. Mon. 556. 
 
 Harper v. Straws, 14 B. Mon. 48. 
 Harrison County Court v. Smith's 
 
 Adm'r, 15 B. Mon. 155. 
 Harris ads. Patton, 15 B. Mon. 607. 
 Harlow ads. Shelton, etc., 15 B. Mon. 
 
 547. 
 Harris ads. Pitzpatrick, 16 B. Mon. 
 
 561. 
 Harvey ads. Commonwealth, 16 B. 
 Mon. 1. 
 
 Harregan ads. Bull & Eayburn, 17 B. 
 
 Mon. 349. 
 Harris, etc. ads. Love, 18 B. Mon. 122. 
 ads. Commonwealth, 18 B. Mon. 
 
 469. 
 Harron v. Johnson, etc., 3 Met. 578. 
 Hardin's Ex'r v. Carrico, 3 Met. 289. 
 Hartley v. Hartley, 3 Met. 56. 
 Harris, etc. ads. Lewis, etc., 4 Met. 
 
 353. 
 Harlan v. Lumsden, etc., 1 Duv. 86. 
 Harmon v. Wilson, Hicks, etc., 1 Duv. 
 
 322. 
 Harrell, etc. v. Harrell, etc., 1 Duv. 
 
 203. 
 Harrod v. Black, etc., 1 Duv. 180. 
 Harris v. Adams, 2 Duv. 141. 
 ■ , etc. ads. Bull, etc., 18 B. Mon. 
 
 195. 
 Harris, etc. ads. Gowdy, etc., 18 B. 
 
 Mon. 195. 
 Harris, etc. ads. Newland, etc., 18 B. 
 
 Mon. 195. 
 Harlan's Heirs v. Seaton's Heirs, 18 B. 
 
 Mon. 312. 
 Harris ads. Trabue's Ex'r, 1 Met. 597. 
 Harding ads. Neale, 2 Met. 247. 
 Hartley, etc. ads. Todd, 2 Met. 206. 
 Harvey v. Payne, 2 Met. 451. 
 Hatton V. Commonwealth, 15 B. Mon. 
 
 537. 
 Haughey ads. Commonwealth, 3 Met. 
 
 223. 
 Havens, etc. v. Poudry, etc., 4 Met. 247. 
 Hawkins, etc. v. Commonwealth, 14 
 
 B. Mon. 395. 
 Hawkins & Co. v. Eiley, 17 B. Mon. 
 
 101. 
 Hawkins v. Ball's Adm'r, 18 B. Mon. 
 
 816. 
 Hawkins v. Lambert, etc., 18 B. Mon. 
 
 99. 
 Hays V. Goodwin, 4 Met. 80. 
 Hayden's Adm'r, etc. v. Hayden's 
 
 Adm'r, etc., 3 Met. 189. 
 Havs, et al. ads. Plippin, 3 Met. 215. 
 
 ads. Dale, 14 B. Mon. 315. 
 
 Hayden, etc. ads. Eichardson, etc., 18 
 
 B. Mon. 242. 
 Hayes ads. Dawson, etc., 1 Met. 460. 
 Haynes, etc. ads. Henderson, etc., 2 
 
 Met. 342. 
 Hayden and ux v. Stone et ux, 1 
 
 Duv. 396. 
 Haycraft ads. "Wilde, 2 Duv. 309. 
 Hazzard et ux ads. Gatbright, 17 B. 
 
 Mon. 557. 
 Hazlerigg v. Donaldson, 2 Met. 445. 
 ads. Commonwealth, 18 B. Mon. 
 
 29. 
 Hazlerigg v. Brenton, 2 Duv. 525. 
 Hazlewood v. Terry & Bell, 1 Duv. 104. 
 Healey v. Thompson, etc., 4 Met. 257 » 
 
LIST OP CASES. 
 
 549 
 
 Hedger, etc. v. Ronnaker, 3 ilot. 255. 
 Hedger v. Downs, 2 Met. 160. 
 
 V. "Ward, etc., 15 B. Mon. 106. 
 
 ads. Hobbs, etc., 15 B. Mon. 106. 
 
 Heed and ux v. Pord, 16 B. Mon. 114. 
 Heironimus v. Harris, 14 B. Mon. 
 
 313. 
 Heffren v. Commonwealth, 4 Met. 5. 
 Helm V. Bentley, etc., 1 Met. 510. 
 Helm's Ex'r v. llookesby, etc., 1 Met. 
 
 49. 
 Helm ads. Board, 2 Met. 500. 
 Helsley ads. Bivins, 4 Met. 78. 
 Hensley ads. Perry, 14 B. Mon. Hi. 
 Henderson v. Buckley, 14 B. Mon. 
 
 292. 
 Henry, etc. ads. McGaughey, Adm'r, 
 
 15 B. Mon. 383. 
 Henry's Heir v. Gonterman, 1 Met. 
 
 465. 
 Henderson, etc. v. Hayne, etc., 2 Met. 
 
 342. 
 H. & BT. K. B. Co. V. Leavell, 16 B. 
 
 Mon. 358. 
 H. & N. E. K. Co. V. Dickerson, 17 B. 
 
 Mon. 173. 
 H. & N. K. E. Co. V. Moss, 2 Duv. 242. 
 Henry v. Graves, 2 Duv. 259. 
 Hepburn ads. Griswold, 2 Duv. 20. 
 Hei'don ads. Boyer's Adm'r, 14 B. 
 
 Mon. 222. 
 Herring v. Arnold, etc., 14 B. Mon. 
 
 638. 
 Herr, etc. ads. Lehmer, 1 Duv. 360. 
 Hibbard v. Smith, etc., 17 B. Mon. 52. 
 Hicks V. Shouse, 17 B. Mon. 483. 
 Higdon ads. Gibson, 15 B. Mon. 205. 
 
 ads. City of Louisville, 2 Met. 523. 
 
 Higgs v. Wilson, 3 Met. 566. 
 Higgins ads. Johnson, 3 Met. 566. 
 
 ads. Colyer, 1 Duv. 6. 
 
 Hill, for Wintersmith, v. Barrett, etc., 
 
 14 B. Mon. 83. 
 Hillman ads. Campbell, 15 B. Mon. 
 
 508. 
 Hill V. Golden, 16 B. Mon. 551. 
 
 ads. Parish, 2 Duv. 396. 
 
 Hill's Heirs ads. Golden, 16 B. Mon. 
 
 551. 
 Hildeburn, etc. v. Brown, 17 B. Mon. 
 
 779. 
 Hill & Million ads. Newby & Taylor, 
 
 2 Met. 530. 
 Hills ads. Mallory, etc., 4 Met. 53. 
 Hill's Adm'r v.' Spalding's Ex'r, 1 
 
 Duv. 216. 
 Hinton ads. Lehman, 1 Duv. 37. 
 
 ^v. Mitchell, etc., 1 Duv. 382. 
 
 Hobson and sureties v. Common 
 
 wealth, 1 Duv. 172. 
 Hobbs V. Hedger, 15 B. Mon. 106. 
 
 V. King, 2 Met. 139. 
 
 etc. V. King, etc., 3 Met. 249. 
 
 38 
 
 HockoT, et al. v. Gentry, et al., 3 Met. 
 
 463. 
 Hodges V. Shields, 18 B. Mon. 828. 
 Hoffman, etc. ads. Jones, 18 B. Mon. 
 
 656. 
 Hogan ads. Knott's Adm'r, 4 Met. 99. 
 HoUawav ads. Jackson, Cox & Co., 14 
 
 B. Moil. 133. 
 Holland ads. Commonwealth, 1 Duv. 
 
 182. 
 Holt ads. Magoffin, 1 Duv. 95. 
 
 V. Thompson, 1 Duv. 301. 
 
 Hooper, etc. ads. Cypress Pond Drain- 
 ing Co., 2 Met. 350. 
 Hopewell, et al. ads. Barber's Adm'r, 
 
 1 Met. 260. 
 Horine v. Moore, 14 B. Mon. 311. 
 Hortsman v. C. & L. E. E. Co., 18 B. 
 
 Mon. 218. 
 Hord V. Miller, 2 Duv. 103. 
 Hostetter ads. Hall, 17 B. Mon. 784. 
 Hoskins v. Parsons, 1 Met. 251. 
 - — & Hughes V. Gentry, 2 Duv. 285. 
 How ads. Maysville T. P. Co., 14 Mon. 
 
 426. 
 Howard ads. Judy, etc., 2 Met. 44. 
 Howell ads. Bakewell, 2 Met. 268. 
 Howard ads. Commonwealth, 3 Met> 
 
 407. 
 Howard ads. Eice, 1 Duv. 31. 
 
 ads. Turners, 2 Duv. 112. 
 
 Hubble V. Murphy, 1 Duv. 278. 
 
 ads. Murphy, 2 Duv. 247. 
 
 Hudgens v. Commonwealth, 2 Duv. 
 
 239. 
 Hudson V. Commonwealth, 2 Duv. 531. 
 Huffman and ux ads. Eobinson, 15 B. 
 
 Mon. 81. 
 Huffman v. Eout, 2 Met. 50. 
 
 V. Thomas, 2 Duv. 105. 
 
 Hughey, etc. v. Sidwell's Heirs, 18 B. 
 
 Mon. 259. 
 Hughes, etc. v. Shrieves, etc., 3 Met. 
 
 547. 
 Hughes ads. Long, 1 Duv. 387. 
 
 V. Todd, 2 Duv. 188. 
 
 Humphrey v. Pierce, 1 Duv. 237. 
 Hunt V. Wilson, 14 B. Mon. 44. 
 Hunter, etc. v. Ayres, etc., 15 B. Mon. 
 
 210. 
 Hunt V. Orwig, 17 B. Mon. 73. 
 
 etc. V. Berryman, 2 Met. 239. 
 
 Hunter, etc. v. Kichardson, 1 Duv. 
 
 247. 
 Hunter ads. Bibb, 2 Duv. 494. 
 Hurst ads. Brookover, 1 Met. 665. 
 Hurt, etc. v. Courteiiay, etc., 4 Met. 
 
 139. 
 Huston V. Hagar, 1 Duv. 24. 
 Husbands v. Smith's Adm'r, 14 B. 
 
 Mon. 208. 
 Huston, et al. v. Peters, Hardin, etc., 
 
 1 Met. 558. 
 
550 
 
 LIST OF CASES. 
 
 Husbands and ux v. Bullock's Adm'r, 
 
 1 Duv. 21. 
 Hutchings v. Moore, 4 Met. 110. 
 Hutchison, etc. v. Blakeman, 3 Met. 
 
 80. 
 Hutchison ads. Beebee and wife, IV B. 
 
 Mon. 496. 
 Hutchison & Co. v. Stillwell, 18 B. 
 
 Mon. 116. 
 Hutchison, etc. v. James, etc., 1 Duv. 
 
 75. 
 Hynes' Adm'r ads. Wron, 2 Met. 129. 
 
 Ingles ads. C. & L. K. B. Co., 15 B. 
 
 Mon. 63?-. 
 Ingram's Adm'r ads. Lambert, 15 B. 
 
 Mon. 265. 
 ' Isaac V. Swan, 1 Duv. 211. 
 (of color) 7. Graves' Ex'r, 16 B. 
 
 Mon. 365. 
 
 Jaclcson, Cox & Co. v. Holloway, 14 
 
 B. Mon. 133. 
 Jacobs ads. Burgess, 14 B. Mon. 517. 
 Ex'r ads. Simralls' Heirs, 14 B. 
 
 Mon. 502. 
 Jackson, Owsley & Co. ads. Thomp- 
 son, 14 B. Mon. 114. 
 Jack, etc. ads. Nixon, 16 B. Mon. 174. 
 Jackson Delphia (of color) v. Collins, 
 
 16 B. Mon. 214. 
 Jackson, Owsley & Co. ads. jEtna In- 
 surance Co., 16 B. Mon. 242. 
 Jackson v. Robinson, 18 B. Mon. 1. 
 Jack & Warner ads. Eobinson, 18 B. 
 
 Mon. 469. 
 Jackson v. Payne's Ex'r,. 2 Met. 567. 
 
 V. Speed, 2 Duv. 426. 
 
 James ads. Commonwealth, 14 B. 
 
 Mon. 228. 
 Jamison ads. Phillips' Heirs, 14 B. 
 
 Mon. 579. 
 James, etc. v. Yates, 3 Met. 343. 
 
 V. Ward, 2 Met. 271. 
 
 Jamison ads. Gregory, etc., 4 Met. 363. 
 James, etc. ads. Hutchison, 1 Duv. 75. 
 Jane, etc. ads Tomlin, 14 B. Mon. 160. 
 (a slave) v. Commonwealth, 3 
 
 Met. 18. 
 Jane (a slave) v. Commonwealth, 2 
 
 Met. 30. 
 Jane (of color) v. Prater's Adm'r, etc., 
 
 2 Met. 453. 
 Jarvis v. Davis, etc., 14 B. Mon. 529. 
 Jarboe ads. Knott, 1 Met. 504. 
 Jefferson Pond Draining Co. v. Combs, 
 
 etc., 3 Met. 72. 
 Jennings ads. Wheeler, 16 B. Mon. 
 
 476. 
 
 Jennings v. M&nk's Ex'r, 4 Met. 103. 
 
 etc. ads. Terrill, etc., 1 Met. 450. 
 
 Jesse ads. Eminence Mut. Ins. Co., 1 
 
 Met. 523. 
 Jenkins, etc. v. Smith, etc., 4 Met. 
 
 380. 
 Johnson, etc. ads. Phillips, 14 B. Mon. 
 
 172. 
 Johnson v. City of Lexington, 14 B. 
 
 Mon. 648. 
 Johnson ads. Hancock, 1 Met. 242. 
 
 V. Johnson, etc., 2 Met. 331. 
 
 V. Ferguson, 2 Met. 503. 
 
 V. Erwine, 3 Met. 251. 
 
 V. Givens, etc., 3 Met. 91. 
 
 • V. Bank Ky., 2 Duv. 521. 
 
 V. Eiggins, 3 Met. 566. 
 
 V. Offut, 4 Met. 19. 
 
 ■ V. Commonwealth, 1 Duv. 244. 
 
 V. Commonwealth, 2 Duv. 410. 
 
 • — — ads. Sebastian, 2 Duv. 101. 
 Johnson's Heirs v. Chandler's Heirs, 
 
 15 B. Mon. 584. 
 Johnson and ux. v. Green, 17 B. Mon. 
 
 118. 
 Johnson's Adm'r ads. Gill, 1 Met. 649. 
 
 etc. ads. Harrow, 3 Met. 578. 
 
 — — Ex'r V. Wiseman's Ex'r, 4 Met. 
 
 357. 
 Johnson, etc. ads. Minnis, 1 Duv. 171. 
 
 Adm'r v. Vickers, 1 Duv. 266. 
 
 Jones V. Commonwealth, 14 B. Mon. 1. 
 
 V. Lipscomb, 14 B. Mon. 296. 
 
 ads. Everman and ux, 15 B. Mon. 
 
 631. 
 Jones ads. Clark, 16 B. Mon. 121. 
 
 V. Hoffman, etc., 18 B. Mon. 656. 
 
 V. Bunn, 2 Met. 490. 
 
 ads. Gross, 3 Met. 295. 
 
 V. McCauley, 2 Duv. 14. 
 
 Ex'r V. Jones' Widow and Heirs, 
 
 14 B. Mon. 464. 
 Jones, etc. v. Shelbyville P., L. & M. 
 
 Ins. Co., 1 Met. 58. 
 Jones, etc. v. Lusk, etc., 2 Met. 356. 
 
 Adm'r ads. Matthews, 2 Met. 
 
 254. 
 
 Jones, etc. v. Jones, etc., 3 Met. 266. 
 
 & Kelly V. Commonwealth, 2 
 
 Duv. 81. 
 
 Jones V. Commonwealth, 2 Duv. 554. 
 Judy ads. Daniel, 14 B. Mon. 393. 
 
 etc. V. Howard, 2 Met. 44. 
 
 Julian V. Pilcher, 2 Duv. 254. 
 Justice V. Mendall & McClanahan, 14 
 
 B. Mon. 12. 
 Justices of Marshall Co. v. Gilbert, 18 
 
 B. Mon. 427. 
 
 K. 
 
 Kamp ads. Commonwealth, 14 B. Mon. 
 385. 
 
LIST OF CASES. 
 
 551 
 
 Kasey ads. Lane, 1 Met. 410. 
 
 Kate French (steamer) ads. Sparks, 3 
 
 Met. 533. 
 Kay ads. McClelland, 14 B. Mon. 103. 
 Kaye v. Kean, 18 B. Mon. 839. 
 Kay V. Tydings, etc., 3 Met. 527. 
 Kean ads. City of Louisville, 18 B. 
 
 Mon. 9. 
 Kean ads. Kaye, 18 B. Mon. 839. 
 Kearney v. City of Covington, 1 Met. 
 
 339. 
 Keene v. Collier, etc., 1 Met. 415. 
 
 etc. ads. Chambers, 1 Met. 289. 
 
 Keger ads. Commonwealth, 1 Duv. 
 
 240. 
 Keifer, etc. ads. Phillips, 2 Met. 478. 
 Keith V. Wilson, 3 Met. 201. 
 Keezer ads. Northern Bank of Ky., 2 
 
 Duv. 169. 
 Kellar v. Sinton's Ex'r, 14 B. Mon. 
 
 307. 
 Kelly V. Kelly, 2 Duv. 363. 
 
 V. White, 17 B. Mon. 124. 
 
 Kelso ads. Ellis, 18 B. Mon. 296. 
 Kelly, etc. v. Smith & Shotwell, 1 
 
 Met. 313. 
 Kellogg, etc. V. Dunn, etc., 2 Met. 215. 
 Kelly, etc. v. Donahue, etc., 2 Met. 
 
 482. 
 Kellar v. Bates, 3 Met. 130. 
 Keleher ads. Commonwealth, 3 Met. 
 
 484. 
 Kellar ads. Pegard, 4 Met. 260. 
 Kemper, etc. v. Kemper's Adm'r, 1 
 
 Duv. 401. 
 Kendall v. Spradling, 14 B. Mon. 33. 
 Kennedy ads. Commonwealth, 15 B. 
 
 Mon. 531. 
 Kentucky Seminary v. Wallace, 15 
 
 B. Mon. 35. 
 Kennedy v. City of Covington, 17 B. 
 
 Mon. 567. 
 Kendrick ads. Erhman, etc., 1 Met. 
 
 146. 
 Kentucky Trust Co. Bank ads. San- 
 ford, etc., 1 Met. 106. 
 Kennedy v. Commonwealth, 2 Met. 
 
 36. 
 Kennedy & Bro. v. Cunningham, 2 
 
 Met. 538. 
 Killam, etc. ads Dozey, 1 Duv, 403. 
 Kimble v. Cummings, 3 Met. 327. 
 King, etc. ads. Hobbs, 2 Met. 139. 
 Kinsolving v. Pierce, 18 B. Mon. 792. 
 King, etc. ads. Hobbs, etc., 3 Met. 249. 
 King ads. Dodd, 1 Met. 430. 
 Kirkpatrick ads. Stokes, 1 Met. 138. 
 Kirk's Heirs ads. Cleaver and ux, 3 
 
 Met 270. 
 Kelly V. Commonwealth, 18 B. Mon. 
 
 522. 
 Knott V. Jarboe, 1 Met. 504. 
 Knott's Adm'r v. Hogan, 4 Met. 99. 
 
 Kollert ads. Eisher, 16 B. Mon. 398. 
 Kountz v. Brown, etc., 16 B. Mon 
 
 577. 
 Kentucky & Louisville Mut. Ins. Co. 
 
 ads. Cromie, 15 B. Mon. 432. 
 Kyler and ux v. Dunlap, 18 B. Mon. 
 
 561. 
 Kyle V. Taylor and ux, 2 Met. 47. 
 
 Lackey v. E. & L. T. E. Co., 17 B. 
 
 Mon. 63. 
 Lackey v. Anderson, 1 Met. 319. 
 Lambert v. Ingram's Adm'r, 15 B. 
 
 Mon. 265. 
 Lambert, etc. ads. Hawkins, 18 B. 
 
 Mon. 99. 
 Lainme v. Gregg, 1 Met. 444. 
 Lampton ads. Montgomery, 3 Met. 
 
 519. 
 Lambert ads. Buckles, etc., 4 Met. 
 
 330. 
 Lam V. Berry, 2 Duv. 282. 
 Langhorn v. Payne, 14 B. Mon. 624. 
 Lansdale v. Mitchell, 14 B. Mon. 
 
 348. 
 Langsford ads. Williams, 15 B. Mon. 
 
 566. 
 Lane & Bartlett v. Robinson, 18 B. 
 
 Mon. 623. 
 Lane v. Kasey, 1 Met. 410. 
 Lanier, etc. ads. Vickery, etc., 1 Met. 
 • 133. 
 Landrum v. Towbridge, Dwight & 
 
 Co., 2 Met. 281. 
 Lane ads. Bowler, 3 Met. 311. 
 Landes ads. Barron's Adm'r, 1 Duv. 
 
 299. 
 Larue ads. Talbott, 14 B. Mon. 195. 
 Lashbrook v. Patton, 1 Duv. 316. 
 Lasley's Ex'r v. Lasley, 1 Duv. 117. 
 Lasley ads. Stone, 2 Duv. 267. 
 Latimer ads. Smith, 15 B. Mon. 75. 
 Laughlin v. Dean, 1 Duv. 20. 
 Lawson v. Commonwealth, 14 B. Mon. 
 
 325. 
 Lawson ads. Albro, 17 B. Mon. 642. 
 Lawrence, etc. ads. Phoenix Ins. Co., 
 
 4 Met. 9. 
 Laycock ads. Wood, 3 Met. 192. 
 Leavell ads. H. & N. E. E. Co., 16 B. 
 
 Mon. 119. 
 Lee's Adm'r v. Smead, Collard & 
 
 Hughes, 1 Met. 628. 
 Lee V. Foreman, 3 Met. 114. 
 
 V. Waller, etc., 3 Met. 61. 
 
 & Bledsoe ads. Commonwealth, 
 
 3 Met. 229. 
 Lee, Ivy & Co. v Buford, 4 Met. 7. 
 Leet V. Lockett, 4 Met. 55. 
 Lee V. Lee, 1 Duv. 196. 
 V. Lee, 2 Duv. 134. 
 
552 
 
 LIST or CASES. 
 
 Lehman v. Hinton, 1 Duv. 37. 
 Lehmer, etc. v. Herr, etc., 1 Duv. 360. 
 Lemon, etc. ads. Eenaker, 1 Duv, 212. 
 Lexington L., P. & M. Ins. Co. v. 
 
 Page & Kichardson, 17 B. Mon. 412. 
 L. & B. S. K. E. Co. ads. Co. Court, 
 
 Fayette 17 B. Mon. 355. 
 Lexington, City of ads. Johnson, 14 
 
 B. Mon. 648. 
 Lexington, City of ads. "Wendover, 15 
 
 B. Mon. 258. 
 L. & D. K. E. Co. V. Barbee, 1 Met. 
 
 384. 
 L. & B. S. E. E. Co. ads. Fry's Ex'r, 2 
 
 Met. 314. 
 Letcher v. Stagner, 2 Duv. 423. 
 Letty (of color) ads. Martins, etc., 18 
 
 B. Mon. 573. 
 Letton, etc. v. Young, etc., 2 Met. 558. 
 Levy ads. Lieber, Griffin & Co., 3 Met. 
 
 292. 
 Levy ads. Van Buskirk, 3 Met. 133. 
 Levi V. Mendell, 1 Duv. 77. 
 
 ads. Dragoo, 2 Duv. 520. 
 
 Lewis ads. Caskey, 15 B. Mon. 27. 
 
 ads. Alexander, etc., 1 Met. 407. 
 
 ads. Quinker, 2 Met. 284. 
 
 ads. Duncan, 1 Duv. 183. 
 
 etc. ads. Tudor, 3 Met. 378. 
 
 V. Harris, 4 Met. 353. 
 
 Lieher, Griffin & Co. v. Levy, 3 Met. 
 
 292. 
 Light, Barrett & Co. ads. Hall and ux, 
 
 2 Duv. 358. 
 Limehaugh ads. Fleming, 2 Met. 265. 
 Lindsay v. Eutherford, etc., 17 B. 
 
 Mon. 245. 
 Lindsay and ux v. Williams' Ex'r, 2 
 
 Duv. 475. 
 Lipscomb ads. Jones, 14 B. Mon. 296. 
 Lisle V. Eogers, 18 B. Mon. 528. 
 Liter ads. Early, 2 Duv. 369. 
 Lively ads. Sims, 44 B. Mon. 433. 
 Lober ads. Nantz, 1 Duv. 304. 
 Lockridge v. Biggerstaff, 2 Duv. 281. 
 Locke & Key v. Foster, 1 Met. 160. 
 Logan, etc. v. Anderson, etc., 18 B. 
 
 Mon. 114. 
 Logan ads. Denton, 3 Met. 434. 
 
 ads. Hawley, 1 Duv. 242. 
 
 Lloyd's Adm'r v. McCauley, 14 B. 
 
 Mon. 535. 
 Long, etc. ads. Smith and ux, 1 Met. 
 
 486. 
 Long V. Hughes, 1 Duv. 387. 
 Longest's Adm'r v. Tyler's Ex'r, 1 
 
 Duv. 192. 
 Looney ads. Mt. Sterling & Jefl'erson- 
 
 ville T. E. Co., 1 Met! 550. 
 L. & F. E. E. Co. ads. Eden, 14 B. 
 
 Mon. 204. 
 L. & F. E. E. Co. V. Ballard, 4 Met. 
 
 117. 
 
 L. & F. E. E. Co. V. Brown, etc., 17 B. 
 
 Mon. 76. 
 L. & F. E. E. Co. V. Milton, 14 B. 
 
 Mon. 75. 
 Louisville Savings Bank v. Common- 
 wealth, 14 B. Mon. 409. 
 Loughborough's Dev. v. Loughbor- 
 ough's Ex'r, 14 B. Mon. 549. 
 Louisville, City of v. University of 
 
 Louisville, 15 B. Mon. 642. 
 Louisville, City of ads. "Wilson, 2 Duv. 
 
 499. 
 L. & N. E. E. Co. V. Tandell, 17 B. 
 
 Mon. 586. 
 L. & N. E. E. Co. V. Thompson, 18 B. 
 
 Mon. 755. 
 L. & N. E. E. Co. ads. Collins, 2 Duv., 
 
 114. 
 Louisville & Oldham T. E. Co. v. 
 
 Ballard, 2 Met. 165. 
 Louisville v. Bank Ky., 3 Met. 148. 
 
 V. Commonwealth, 4 Met. 63. 
 
 Union Benevolent Association 
 
 ads. Sayre, 1 Duv. 143. 
 L. & P. E. E. Co. V. L, C. E. W. Co., 
 
 2 Duv. 175. 
 L. & P. E. E. Co. v. Smith, 2 Duv. 
 
 556. 
 Louisville, City of v. Baird, 15 B. 
 
 Mon. 246. 
 Louisville, City of v. "Ward, 16 B. 
 
 Mon. 184. 
 Louisville, City of v. Kean,18 B. Mon.9. 
 
 V. "Vicaro, 18 B. Mon. 9. 
 
 V. Zanone, 1 Met. 151. 
 
 V. Higdon, 2 Met. 526. 
 
 V. Bank Ky., etc., 3 Met, 148. 
 
 V. Commonwealth, 1 Duv. 295. 
 
 Love V. Harris, etc., 18 B. Mon. 122. 
 Lovelace ads. Smith, 1 Duv. 215. 
 Lowe, etc. v. Beckwith, 14 B. Mon. 
 
 184. 
 Lowe V. Commonwealth, 3 Met. 237. 
 Luckett ads. Todd, 18 B. Mon. 125. 
 Ludwig (of color) v. Combs, 1 Met. 
 
 128. 
 Ludlow ads. City of Covington, 1 Met., 
 
 295. 
 Lumsden ads. Harlan, 1 Duv. 86. 
 Lupe & Hambright v. Barbee, etc., 18 
 
 B. Mon. 9. 
 Lusk V. Anderson's Adm'r. etc., 1 Met. 
 
 426. 
 Lusk et al. ads. Clark's Heirs, 1 Met. 
 
 447; 
 Lusk, etc. ads. Jones, etc., 2 Met. 356. 
 Luttrell V. M. &. L. E. E. Co. 18 B. 
 
 Mon. 291. 
 Lyle & Eubank, v. Povnter, 1 Duv. 
 
 357. 
 Lynn v. Bradley, etc., 1 Met. 232. 
 Lyons v. Field, 17 B. Mon. 543. 
 Lytle V. Lytle, 2 Mot. 127. 
 
LIST or CASES. 
 
 553 
 
 M. 
 
 Madeira's Heirs ads. Bush, 14 B. Mon. 
 
 212. 
 M. I. & P. E. R. Co. V. Briscoe & Levi, 
 
 18 B. Mon. 570. 
 Maddox, etc. v. Allen, 1 Met. 495. 
 et al. V. Graham & Knox, 2 Met. 
 
 56. 
 Magowan ads. Commonwealth, 1 Met. 
 
 368. 
 Maginnis ads. Montjoy, 2 Duv. 186. 
 Magoffin V. Holt, 1 Duv. 95. 
 Maiders v. Culver's Assignee, 1 Duv. 
 
 164. 
 Malier ads. Petty, 14 B. Mon. 246. 
 
 etc. ads. Petty, 15 B. Mon. 591. 
 
 M. & L. K. E. Co. V. Punnell, etc., 15 
 
 B. Mon. 47. 
 M. & L. E. E. Co. ads. McMillan, 15 
 
 B. Mon. 218. 
 Maloney ads. Vanbussum, 2 Met. 550. 
 Maltby, etc. v. Eiggs, etc., 2 Met. 88. 
 Maltus V. Shields, 2 Met. 553. 
 Mallory, etc. v. Hiles, 4 Met. 53. 
 Manion's Adm'r v. 'Titsworth, 18 B. 
 
 Mon. 582. 
 Mansfield's Heirs ads. "Wyatt, etc., 18 
 
 B. Mon. 779. 
 Martin v. Martin, 16 B. Mon. 8. 
 Martin ads. Walker, 17 B. Mon. 181. 
 Mclntire, Martin, etc. v. McDonald, 
 
 14 B. Mon. 544. 
 Martin, etc. v. Letty, etc. (of color), 
 
 18 B. Mon. 573. 
 Marston v. Commonwealth, 18 B. Mon. 
 
 485. 
 Maria Eeeves (of color) ads. Davis' 
 
 Ex'r, 1 Met. 589. 
 Martin, et al. ads. Cattman's Adm'r, 
 
 etc., 1 Met. 563. 
 Martin, etc. ads. Williams, 1 Met. 42. 
 Margoley, etc. v. Commonwealth, 3 
 
 Met. 405. 
 Maraman v. Trunnell, 3 Met. 146. 
 Marks' Heirs, etc. ads. Eussell's Heirs, 
 
 3 Met. 37. 
 Marr's Adm'r v. Prather, 3 Met. 196. 
 Marshall v. Miller, 3 Met. 333. 
 Martin v. Pettit. 3 Met. 314. 
 
 ads. Williams, 2 Duv. 491. 
 
 Maraman's Adm'r v. Maraman, 4 Met. 
 
 84. 
 Martin ads. Pace & Young, 2 Duv. 
 ■ 522. 
 Martin (of color) ads. Winn, 4 Met. 
 
 211. 
 Marks & Co. ads. Commonwealth, 2 
 
 Duv. 387. 
 Marsh ads. Corbin, 2 Duv. 193. 
 Masterson v. Hagan, etc., 17 B. Mon. 
 
 325. 
 
 39 
 
 Mason's Heirs ads. Morrow, 2 Met. 
 
 114. 
 Massie, etc. v. Griffins, etc., 2 Met. 
 
 364. 
 Mattingly ads. Boslcy, 14 B. Mon. 89. 
 
 ads. Mitchell, 1 Met. 237. 
 
 V. Bosley, 2 Met. 443. 
 
 Matthews v. Jones' Adm'r, 2 Met. 254. 
 Mattingly's Heirs v. Eead, 3 Met. 524. 
 Matson v. Matson, 4 Met. 262. 
 Matheney v. Wolf, 2 Duv. 137. 
 Maupins' Ex'r v. Wools, etc., 1 Duv. 
 
 223. 
 Maxwell, etc. v. Maxwell, 3 Met. 101. 
 Maysville T. E. Co. v. Howe, 14 B. 
 
 Mon. 426. 
 Maysville & Lexington E. E. Co. v. 
 
 Luttrell, 18 B. Mon. 291. 
 Maysville & Mount Sterling T. E. Co.. 
 
 ads. Eobb, 3 Met. 117. 
 Mayhugh ads. Campbell, 15 B. Mon. 
 
 142. 
 McArthur, etc. ads. Sanford, 18 B, 
 
 Mon. 411. 
 McArthur v. Tucker, 18 B. Mon. 411. 
 McAtee ads. Windsor, 2 Met. 430. 
 McAfee ads. Trapnall, 3 Met. 34. 
 McBrayer v. Collins, 18 B. Mon. 833. 
 McClelland v. Kay, 14 B. Mon. 103. 
 McClure v. McKee, 14 B. Mon. 263. 
 McCauley's Adm'r v. Lloyds, 14 B. 
 
 Mon. 535. 
 McCane ads. Patton, 15 B. Mon. 555. 
 McCampbell ads. Davenport, 17 B. 
 
 Mon. 38. 
 MoClane v. Esham, 17 B. Mon. 146. 
 MoClanahan v. Beasley, 17 B. Mon. 
 
 111. 
 McClanahan ads. Oldham, 2 Duv. 416. 
 McCalla's Adm'r v. Patterson, et al., 
 
 18 B. Mon. 201. 
 McClanahan ads. Commonwealth, 2 
 
 Met. 8. 
 McCoy, etc. ads. Grubb, 2 Met. 486. 
 McCready ads. Commonwealth, 2 Met. 
 
 376. 
 McClanahan, etc. ads. Williams' 
 
 Adm'r, 3 Met. 420. 
 McCreary, etc. ads. Tevis' Ex'r, 3 Met. 
 
 151. 
 McCracklin ads. Bennett, 3 Met. 322. 
 McCullough, etc. ads. Halbert, etc., 3 
 
 Met. 456. 
 McConnell, etc. ads. Stone, 1 Duv. 54. 
 McCauley ads. Jones, 2 Duv. 14. 
 McDowell ads. Nichols, 14 B. Mon. 6. 
 McDonald ads. Martin, 14 B. Mon. 
 
 544. 
 McDonald, etc. v. Meadows, 1 Met. 
 
 507. 
 McDonald, etc. ads. Gritton, 3 Met. 
 
 252. 
 McDowell ads. Bacon, 1 Duv. 74. 
 
654 
 
 LIST OF CAKES. 
 
 McPall V. Commonwealth, 2 Met. 394. 
 McFarland ads. Gregory, 1 Duv. 59. 
 McGaugheys Adm'r v. Henry, etc., 
 
 15 B. Mon. 383. 
 MoGuire ads. Watson, etc., 17 B. Mon. 
 
 31. 
 McGill's Creditors v. McGill's Adm'r, 
 
 2 Met. 258. 
 McGrath, etc. ads. Thornton, etc., 1 
 
 Duv. 349. 
 Mclntire ads. Gettings, 15 B. Mon. 
 
 172. 
 McKee ad.s. McClure, 14 B. Mon. 263. 
 
 V. Pope, 18 B. Mon. 549. 
 
 McKay v. Merrifield, 14 B. Mon. 322. 
 
 V. McKay, 18 B. Mon. 8. 
 
 ads. Walker, 2 Met. 294. 
 
 McKnight ads. Walker, et nx, 15 B. 
 
 Mon. 467. 
 McKrell v. Metcalfe, 2 Duv. 533. 
 McLean v. Nixon, 18 B. Mon. 769. 
 McLfod ads. Hall, 2 Met. 98. 
 McMillan v. M. & L. R. R. Co., 15 B. 
 
 Mon. 218. 
 McMurdy ads. Fall, 3 Met. 364. 
 McManama v. Garnett, 3 Met. 517. 
 Mcilullen ads. Dupuy, 2 Duv. 555. 
 JlcNickle's Heirs ads. City of Coving- 
 Mton, 18 B. Mon. 262. 
 Meadows ads. McDonald, etc., 1 Met. 
 
 507. 
 Meader v. Turpin, 4 Met. 93. 
 Means, etc. ads. Fairbairu, etc., 4 Met. 
 
 323. 
 Meade, etc. v. Nevill, 2 Duv. 280. 
 Meekin v. Thomas, 17 B. Mon. 710. 
 Magowan, etc. ads. Batman, 1 Met. 
 
 533. 
 Magowan v. Way, etc., 1 Mot. 418. 
 
 v. Commonwealth, 2 Met. 3. 
 
 V. Pennebaker, 3 Met. 501. 
 
 Mendell & McClanahan ads. Justice, 
 
 14 B. Mon. 12. 
 Mendell ads. Levi, 1 Duv. 77. . 
 Merrifield ads. McKay, 14 B. Mon. 
 
 322. 
 Merritt, etc. ads. Potts, 14 B. Mon. 
 
 406. 
 Mercer v. Tinsley, 14 B. Mon. 273. 
 Merritt v. Pollys, etc., 16 B. Mon. 355. 
 Meredith v. Commonwealth, 18 B. 
 
 Mon. 49. 
 Merritt, etc. ads. Collins, 2 Met. 163. 
 Mershon, etc. v. Commonwealth, 2 
 
 Met. 371. 
 Metz, etc. v. Commonwealth, 2 Met. 
 
 14. 
 Metcalfe ads. B. & L. R. R. Co., 4 Met. 
 
 199. 
 Metcalfe's Ex'r v. Poindexter's Ex'r, 
 
 4 Met. 50, 
 Metcalfe ads. McKnee, 2 Duv. 533. 
 Meyar v. Meyar, 3 Met. 298. 
 
 Meyburg ads. Parson, 1 Duv. 206. 
 Milton ads. L. &. F. R. R. Co., 14 B. 
 
 Mon. 75. 
 Mills, etc. V. Pead, etc., 14 B. Mon. 
 
 180. 
 Miller ads. Butler, 15 B Mon. 617. 
 
 ads. Swazle, 17 B. Mon 564. 
 
 ads. Marshall, 3 Jlet. 333. 
 
 V. CoiTimon wealth, 1 Duv. 14. 
 
 v. Dyer, 1 Duv. 263. 
 
 V. Miller, 1 Duv. 8. 
 
 V. Thornton, 1 Duv. 369. 
 
 ads. Hord, 2 Duv. 103. 
 
 Miles ads. Carpenter, 17 B. Mon. 598. 
 Mills ads. Vaughan, 18 B. Mon. 633. 
 Miles V. Collins, 1 :Het. 308. 
 JNUller, etc. ads. Beaumont, 1 Met. 68. 
 Milner, etc. v. Calvert, etc., 1 Met. 472. 
 ililler, etc. ads. Patterson, 2 Met. 493. 
 Millett V. Parker, etc., 2 Met. 608. 
 Mills V. Brown, etc., 2 Met. 404. 
 JUllett V. Pottingcr, etc., 4 Met. 213. 
 Miles V. Edelin. 1 Duv. 270. 
 Miller, etc. ads. Sarah, etc., 1 Duv. 259. 
 j\[iller s Dev. ads. Page and wife, 2 
 
 Duv. 168. 
 Miller & Rice v. Cravens, 2 Duv. 246. 
 Minnis v. Johnson, etc., 1 Duv. 171. 
 Mitchell V. Landsdale, 14 B. Mon. 348. 
 V. Walker, 17 B. Mon. 61. 
 
 ads. Walker, 18 B. Mon. 541. 
 
 V. Mattingly, 1 Met. 237. 
 
 ads. Chinn, 2 Jlet. 92. 
 
 ads. Hinton, 1 Duv. 382. 
 
 et al. V. Berry, etc., 1 Met. 602.. 
 
 Mitchell s Ex'r, etc. ads. Rogers, 1 
 
 Met. 22. 
 Mitcheson's Adm'r v. Foster, etc., 3 
 
 Met. 324. 
 M. M. Bank of Wheeling ads. Frank- 
 lin Saving In.stitution, 1 Met. 156. 
 iloberly and ux ads. Smith, 15 B. 
 
 Mon. 70. 
 Montgomery v. Firemen's Ins. Co., 16 
 
 B. Mon. 427. 
 Monroe ads. Williams, 18 B. Mon. 514. 
 Montgomery, etc. ads. Newland, etc., 
 
 18 B. Mon. 195. 
 Monsarrat, etc. ads. White, etc., 18 
 
 B. Mon. 809. 
 Monroe, etc. ads. Batman, 1 Met. 
 
 533. 
 Montgomery, etc. v. Perkins, etc., 2 
 
 Met. 448. 
 Montgomery v. Lampton, 3 Met. 519. 
 Monks' Ex'r ads. Jennings, 4 Met. 106. 
 Monroe ads Chiles & Thomas, 4 Met. 
 
 72. 
 Montjoy v. Maginnis, 2 Duv. 186. 
 Moore ads. Horine, 14 B. Mon. 311. 
 
 V. Moore, 14 B. Mon. 259. 
 
 ads. Ruggles, 18 R. Mon. 821. 
 
 V. Hagan, 2 Duv. 437. 
 
LIST OF CASKS. 
 
 555 
 
 Moore, etc. v. Carothers, etc., 17 B. 
 
 Mem. 6B9. 
 Moore's Admr v. Shepherd, 1 Met. 97. 
 Moore ads. Common weiilth, 3 Met. 477. 
 
 V. Simpson, 3 Mot. 349. 
 
 Moore's Heirs, etc. ads. Kussell's Ex r, 
 
 etc., 3 Met. 436. 
 Moody V. Commonwealth, 4 Met. 1. 
 Moore ads. Hutchisdn, 4 Met. UO. 
 
 V Poj'er s Ex r, 1 Duv. 327. 
 
 ads. LSnedaker, 2 Duv. 542. 
 
 V. Worthington, 2 Duv. 307. 
 
 Moore s Heirs v. Shepherd, 2 Duv. 126. 
 Morgan ads. Commonwealth, 14 B. 
 
 Mon. 392. 
 Morgan v. Winn's Adm'r, 17 B. Mon. 
 
 233. 
 Morgan v. Dudley, 18 B. Mon. 692. 
 
 ads. Slaughter, 1 Met. 27. 
 
 Morrison, etc. v. Thurman, etc., 14 B. 
 
 Mon. 367. 
 Morrison, etc. v. Thurman, etc., 17 B. 
 
 Mon. 249. 
 Morse, etc. v. Cross, 17 B. Mon. 726. 
 Morton v. Warring s Heirs, 18 B. Mon. 
 
 72 
 Morrison, etc. v. Tate, 1 Met. 569. 
 Morris & Eodnian ads. Hampton, etc., 
 
 2 Met. 336. 
 Morrow v. Mason's Heirs, 2 Met. 114. 
 Morrison ads. Shultz, 3 Met. 98. 
 Moran ads. Taylor, 4 Met. 127. 
 Moss ads. H. & N. K. R. Co , 2 Duv. 242. 
 Moss ads. Wigginton, 2 Mel. 38. 
 
 V. Rowland's Ex'r, 1 Duv. 321. 
 
 Mount V. Commonwealth, 2 Duv. 93. 
 
 . V. Conunon wealth, 1 Duv. 90. 
 
 Mouatjoys Admr v. Search, etc., 4 
 
 Met. 97. 
 Moxley V. Moxley, 1 B. Mon. 167. 
 M.ixley s Adm r v. Moxley, 2 Met. 309. 
 Mt. Sterling & Jett'ersonville T. R. 
 
 Co. V. Eooney, 1 Met. 550. 
 Muhlenbufg v. Sattler, etc., 3 Met. 285. 
 Muir s Admr ads. Killman, etc., 4 
 
 Met. 282. 
 Mullins ads. Bands, 3 Met. 282. 
 
 ads. Smith, 3 Met. 182. 
 
 Mullikin v. Winter, 2 Duv. 256. 
 Munford v. Taylor, 2 Met. 599. 
 Murphy v. Simpson, 14 B. Mon. 419. 
 
 V. Commonwealth, 1 Met. 365. 
 
 ads. Hubble, 1 Duv. 278. 
 
 v. Hubble, 2 Duv. 247. 
 
 Murray, etc. v. Carothers, etc., 1 Met. 
 
 71. 
 Murrell, etc. ads. Applegate & Co., 4 
 
 Met. 22. 
 Musick V. Ray, 3 ilet. 427. 
 Musselman ad.*. O Bannon, 2 Duv. 523. 
 Myers.ads. Gohen, 18 B. Mon. 423. 
 
 V. Williams, 1 Duv. 356. 
 
 ads. Weatherford, 2 Duv. 91. 
 
 N. 
 
 Nail ads. Boaz, 2 Met. 245. 
 
 Nail V. Proctor, 3 Met. 447. 
 
 Nantz V. Lober, 1 Duv. 304. 
 
 Naylor, etc. ads. Frazer. etc., 1 Jlet. 
 
 593. 
 Nazareth Literary & Benevolent In- 
 
 .■ititute V. Commonwealth, 14 Si. 
 
 Mon. 266. 
 Neale, etc. v. Davis, 17 B. Mon. 142. 
 Neal, etc. v Elliott, 18 B. Mon. 604. 
 Needham v. Page, 3 B. Mon. 466. 
 Necl V Harding, 2 Met. 247. 
 Nelson Co. Court v. Washington Co. 
 
 Court, 14 B. Mon. 92. 
 Nepp V. Commonwealth, 2 Duv. 546. 
 Nesliitt, etc. ads. JTinnell, 16 B. Mon. 
 
 351. 
 NeviU ads. Meade, 2 Dnv. 280. 
 Newland, etc. v. Montgomery, etc., 1* 
 
 B. Mon. 195. 
 Newland, etc. ^ . Harris, etc., 18 B. 
 
 Jlon. 195. 
 Newland v. Gentry, etc., 18 B. Mon. 
 
 666. 
 Newport V. Taylors Ex'r, 16 B. Mon. 
 
 699. 
 Newby & Taylor v. Hill & Million, 2 
 
 Mot. 530. 
 Newton v. West, 3 Met. 24. 
 
 V. Prather, 1 Duv. lUO 
 
 New York Life Ins. Co. v. Graham, 2 
 
 Duv. 506. 
 Newdigate ads. Plummer, 2 Duv. 1. 
 Nichols V. McDowell, 14 B. Mon. 6. 
 Nicholas ads. True, 2 Duv. 547. 
 Nikirk v. Nikirk, 3 Met. 432. 
 Nixon V. Jack, etc., 16 B. Mon. 174. 
 
 ads. McLean, 18 B. Mon. 769. 
 
 Nock ads. Adams Exp. Co., 2 Duv. 564. 
 Nolle V. Thompson, etc., 3 Met. 121. 
 Northern Bank Ky. ads. Ward, 14 B. 
 
 Mon. 351. 
 Northern Bank Ky. ads. Sinking Fund 
 
 Commissioners, 1 3Iet. 174. 
 Northern Bank Ky. ads. Smith's 
 
 Adm r, 1 Met. 575. 
 Northern Bank Ky. v. Keiser, 2 Duv. 
 
 169. 
 Norris (of color) v. Patton's Adm'r, 
 
 15 B. Mon. 575. 
 Northern Bank v. Farmers' Bank, 13 
 
 B. Mon. 506. 
 Northern Bank v. Buford, 1 Duv. 335. 
 Northcraft s Admr ads. Packard, 2 
 
 Met. 439. 
 North ads. Craig, etc., 3 Met. 187. 
 Norris v. Doniphan, 4 Met. 385. 
 
 ads. Berry, 1 Duv. 302. 
 
 North V. Robinson, 1 Duv. 71. 
 Nunn ads. Taylor, 2 Met. 199. 
 
556 
 
 LIST OF CASES. 
 
 Nannally, etc. v. White's Ex'r, etc., 3 
 
 Met. 584. 
 Nutt, etc. ads. Seoomb, Voorhies & 
 
 Co., 14 B. Mon. 324. 
 Nuttall ads. Garrard, 2 Met. 106. 
 Nutter, etc. v. Eussell, etc., 3 Met. 163. 
 
 o. 
 
 O'Bannon v. Musselman, 2 Duv. 523. 
 O'Donoghue v. Akin, 2 Duv. 478. 
 Offutt ads. Johnson, 4 Met. 19. 
 Ogden, etc. v. Vallette, 4 Met. 186. 
 Ogle V. Clough, 2 Duv. 145. 
 Oldham v. Brannon, 2 Met. 302. 
 
 V. McClanahan, 2 Duv. 416. 
 
 ads. Bobbins, 1 Duv. 28. 
 
 Orear v. Parrow, 2 Duv. 261. 
 Orr V. Batterton, 14 S. Mon. 100. 
 Orth & Wallace v. Clutz's Adm'r, 18 
 
 Mon. 223. 
 : Owens V. Commonwealth, 2 Duv. 349. 
 Orwig ads. Hunt, 17 B. Mon. 73. 
 Overly v. Gay, 17 B. Mon. 144. 
 Overton's Heirs v. Overton's Ex'r, 18 
 
 B. Mon. 61. 
 Overton ads. Emmons, 18 B. Mon. 643. 
 Overfield v. Sutton, 1 Met. 621. 
 Overly's Ex'r v. Overly's Dev., 1 
 
 Met. 117. 
 
 Pace & Toung v. Martin, etc., 2 Duv. 
 
 522. 
 Packard v. Northcraft's Adm'r, 2 Met. 
 
 439. 
 Page ads. Lexington Ins. Co., 17 B. 
 
 Mon. 412. 
 Page and ux v. Miller's Dev., 2 Duv. 
 . 168. 
 
 j'age ads. Needham, 3 B. Mon. 466. 
 Parish v. Hill, 2 Duv. 396. 
 Parker ads. Spurrier's Heirs, 15 B. 
 
 Mon. 274. 
 Parker v. Patrick, 15 B. Mon. 567. 
 
 ads. Duvall, 2 Duv. 183. 
 
 .Parsons ads. Hoskins, 1 Met. 251. 
 Parker, etc. ads. Millett, 2 Met. 608. 
 Parson, etc. ads. Young, 2 Met. 499. 
 Parrott ads. Sanders, etc., 1 Duv. 292. 
 .Parsons v. Meyburg, etc., 1 Duv. 206. 
 Patton V. Shanklin, 14 B. Mon. 15. 
 
 ■ V. McCane, 15 B. Mon. 555. 
 
 V. Harris, 16 B. Mon. 607. 
 
 Patton's Adm'r ads. Norris (of color), 
 
 15 B. Mon. 575. 
 Patrick ads. Parker, 16 B. Mon. 567. 
 Patch V. City of Covington, 17 B. Mon. 
 
 722. 
 Patterson, et al. ads. McCalla's Adm'r, 
 
 18 B. Mon. 201. 
 Patterson, et al. v. Caldwell, 1 Met. 489. 
 
 Patterson, etc. v. Miller, etc., 2 Met. 
 
 493. 
 Patterson, etc. ads. Commonwealth, 2 
 
 Met. 374. 
 Patten ads. Lashbrook, 1 Duv. 316. 
 Payne, etc. ads. Kogers, 14 B. Mon.. 
 
 167. 
 Payne v. Witherspoon, 14 B. Mon. 
 
 270. 
 Payne ads. Langhorne, 14 B. Mon. 624. 
 ads. Vandever, etc., 17 B. Mon. 
 
 14. 
 Payne v. Commonwealth, 1 Met. 370.. 
 
 ads. Harvey, 2 Met. 451. 
 
 Ex'r ads. Jackson, 2 Met. 567. 
 
 etc. V. Price, etc., 16 B. Mon. 86.. 
 
 ads. Cheshire and ux, 16 B. Mon. 
 
 618. 
 Pearce, etc. ads. Mountjoy's Adm'r, 4 
 
 Met. 97. 
 Pearce ads Humphreys, 1 Duv. 237. 
 Peed, etc. ads. Mills, etc., 14 B. Mon. 
 
 180. 
 Pegard v. Kellar, 4. Met. 260. 
 Pell V. Cole, 2 Met. 252. 
 Penn, etc. ads. Chelf, 2 Met. 463. 
 Pennebaker, etc. ads. Magowan, 3 Met. 
 
 501. 
 Perry v. Hindsley, 14 B. Mon. 474. 
 Perkins, etc. ads. Montgomery, etc., 2 
 
 Met. 448. 
 Perrigo ads. Commonwealth, 3 Met. 5. 
 Perkins ads. Beverly, etc., 1 Duv. 251. 
 Perry v. Perry, 2 Duv. 312. 
 Perry v. Seitz, 2 Duv. 122. 
 Peters, Hardin & Co. ads. Huston, et 
 
 al. 1 Met. 558. 
 Petty v. Malier, 14 B. Mon. 246. 
 
 V. Malier, etc. 15 B. Mon. 591. 
 
 Pettit ads. Poster, 2 Met. 314. 
 
 ads. Martin, 3 Met. 314. 
 
 ads. Kevill, 3 Met. 314. 
 
 ads. Stribling, 3 Met. 314. 
 
 Phelps, etc. v. Winslow's Trustee, 18 
 
 B. Mon. 431. 
 Phillips V. Johnson, etc., 14 .B. Mon. 
 
 172. 
 Phillips V. Cov. & Cin. Bridge Co., Z 
 
 Met. 219. 
 Phillips V. Keifer, etc., 2 Met. 478. 
 
 ads. Tucker, 2 Met. 416. 
 
 ads. Penwick, 3 Met. 87. 
 
 V. Tucker, 3 Met. 69. 
 
 V. Clark, etc., 4 Met. 348. 
 
 V. Stiles, etc., 2 Duv. 313. 
 
 V. Ditto, 2 Duv. 449. 
 
 V. Commonwealth, 2 Duv. 328. 
 
 Phillips' Heirs v. Jamison, 14 B. Mon. 
 
 579. 
 Phillips, etc. ads. Forest, 2 Met. 194. 
 Phoenix Ins. Co. v. Lawrence, etc., 4 
 
 Met. 9. 
 Pierce ads. Talbott, 14 B. Mon. 195. 
 
LIST OF OASES. 
 
 557 
 
 Pierce ads. Kinsolving, 18 B. Mon. 
 
 T82. 
 Pike V. Commonwealth, 2 Duv. 89. 
 Piloher ads. Bank Ky., etc., 17 B. Mon. 
 
 268. 
 Pilcher ads. Julian, 2 Duv. 254. 
 Pindell's Assignee v. Vimont's Ex'r, 
 
 14 B. Mon. 400. 
 Piner v. Clary, 17 B. Mon. 645. 
 Pindell v. Grooms, etc., 18 B. Mon. 
 
 501. 
 Plummer v. Newdigate, 2 Duv. 1. 
 Poyne's Ex'r ads Moore, 1 Duv. 327. 
 Pointer & Conway ads. Wintersmith, 
 
 etc." 2 Met. 457. 
 Poindexter's Ex'r ads. Metcalfe's Ex'r, 
 
 4 Met. 50. 
 Pollard ads. Western, 16 B. Mon. 315. 
 Pollys, etc. ads. Merritt, 16 B. Mon. 
 
 355. 
 Pond, etc. V. Doneghy, 18 B. Mon. 558. 
 Ponds, etc. ads. Watts, etc., 4 Met. 61. 
 Pool v. Webster & Co., 3 Met. 278. 
 Poor ads. Gaines' Adm'r, 3 Met. 503. 
 Popham, etc. ads. Griswold, 1 Duv. 
 
 170. 
 Pope's Ex'r ads. Kowan's Adm'r, 14 
 
 B. Mon. 102. 
 Pope ads. McKee, 18 B. Mon. 549. 
 Porterlield's Ex'r ads. Wayland, 1 Met, 
 
 638. 
 Porter v. Botts, 2 Duv. 365. 
 
 etc. ads. Debbie, 1 Duv. 190. 
 
 Boston adsi Cooper, 1 Duv. 92. 
 
 ads. Thompson, 1 Duv. 389. 
 
 ads. Eogers, etc., 1 Met. 643. 
 
 Potts V. jMerrill, etc., 14 B. Mon. 406. 
 Pottinge'r, etc. ads. Mellett, etc., 4 Met. 
 
 213. 
 Powell V. Commonwealth, 14 B. Mon. 
 
 225. 
 Powell V. Gossom, 18 B. Mon. 179. 
 ads. City of Covington, 2 Met. 
 
 226. 
 Powell ads. Commonwealth, 2 Met. 10. 
 
 etc. ads. Grear, etc., 3 Met. 124. 
 
 Powers, etc. v. Sutherland, 1 Duv. 
 
 151. 
 Poyntz ads. Temple, Barker & Co., 2 
 
 Duv. 276. 
 Poynter ads. Lyle & Eubank, 1 Duv. 
 
 57. 
 Prater's Adm'r, etc. ads. Jane (of 
 
 color), 2 Met. 453. 
 Prather ads. Marr's Adm'r, 3 Met. 196. 
 
 ads. Newton, 1 Duv. 160. 
 
 Presbyterian Church ads. Baptist 
 
 Church, Lancaster, 18 B. Mon. 635. 
 Prewett and servant, ads. Gossom, 18 
 
 B. Mon. 469. 
 Prentice ads. Duncan, 4 Met. 216. 
 Preston and wife ads. Wickliffe's Ex'r, 
 
 4 Met. 178. 
 
 40 
 
 Price ads. Harris, 14 B. Mon. 414. 
 etc. ads. Paynes, etc., 16 B. Mon. 
 
 86. 
 Price ads. Kidgely, 16 B. Mon. 409. 
 
 ads. ToUes, 17 B. Mon. 410. 
 
 V. Caperton, 1 Duv. 207. 
 
 Proctor ads. Bryant, 14 B. Mon. 451. 
 Protection Ins. Co. v. Hall & Gideon, 
 
 15 B. Mon. 411. 
 Proctor ads. Hall, 3 Met. 447. 
 Proctor and ux v. Duncan, etc., 1 Duv. 
 
 318. 
 Pryor v. White, 16 B. Mon. 605. 
 Punnett, etc., ads. M. & L. K. E. Co., 
 
 15 B. Mon. 47. 
 
 Q. 
 
 Quinsenberry v. Quinsenberry, 1 Duv. 
 192. 
 
 Quinsenberry v. Artis, 1 Duv. 30. 
 
 Quinsenberry's Heirs v.Quinsenberry's 
 Dev., 14 B. Mon. 481. 
 
 Quinker ads. Lewis, 2 Met. 284. 
 
 Quigley's Ex'r v. Alexander & Lan- 
 cashire, 2 Duv. 399. 
 
 R. 
 
 Kadford ads. Commonwealth, 2 Duv. 9. 
 
 vs. Chamberlin, 4 Met. 237. 
 
 Kagsdale ads. Bellamy, 14 B. Mon. 364. 
 Ramsey's Heirs ads. Allen, 1 Met. 635. 
 Ramsey v. Commonwealth, 2 Duv. 385. 
 Eankin ads. Euggles, 18 B. Mon. 821. 
 Eandall, etc. v. Smith, 3 Met. 491. 
 Eandall ads. Berry & Johnson, 4 Met. 
 
 292. 
 Eandall v. Shropshire, 4 Met. 327. 
 Eankin ads. Adams, 1 Duv. 58. 
 & Tharp ads. Christian County 
 
 Court, 2 Duv. 502. 
 Eapp V. Commonwealth, 14 B. Mon. 
 
 615. 
 Raymond v. Reed, 16 B. Mon. 345. 
 Ray ads. Gully, 18 B. Mon. 107. 
 
 etc. V. Burrus, 18 B. Mon. 392. 
 
 Raymond, etc. v. Smith, etc., 1 Met. 65. 
 Eay ads. Musick, 3 Met. 427. 
 
 V. Sellers, 1 Duv. 234. 
 
 Eayne's Adm'r v. Smith, 2 Duv. 430. 
 Eead ads. Mattingly's Heirs, 3 Met. 
 
 524. 
 Redman ads. Schurman, 2 Duv. 82. 
 Redmon ads. Grimes and ux, 14 B. 
 
 Mon. 234. 
 Redman ads. Robinson, 2 Duv. 82. 
 Reese ads. Dorsey, 14 B. Mon. 157. 
 Reed, etc. ads. Hail, etc., 15 B. Mon. 
 
 479. 
 Eeed ads. Raymond, 16 B. Mon. 345. 
 Reese ads. Byassee, 2 Met. 472. 
 Eenfro ads. Hall & Co., 3 Met. 51. 
 
558 
 
 LIST OF CASES. 
 
 llonnalcer ads. Hedger, etc., 3 Met. 255. 
 
 V. Lemons, etc., 1 Duv. 212. 
 
 Eevill, etc. v. Pettit, 3 Met. 314. 
 Hhodus V. Commonwealth, 2 Duv. 159. 
 Rice V. Thompson, 14 B. Mon. 377. 
 
 V. Rice, 14 B. Mon. 417. 
 
 V. Commonwealth, 18 B. Mon. 485. 
 ads. Commonwealth, 18 B. Mon. 
 
 472. 
 Richmond & Lancaster T. K. Co. ads. 
 
 Lackey, 17 B. Mon. 43. 
 Richardson, etc. v. Hay den, etc., 18 B. 
 
 Mon. 242. 
 Richardson, Adm'r v. Spencer, Mar- 
 shall, etc., 18 B. Mon. 450. 
 Richardson ads. Hunter, etc., 1 Duv. 
 
 247. 
 Richmond & Lexington T. P. Co. v. 
 
 Rogers, 1 Duv. 135. 
 Ridgely v. Price, 16 B. Mon.- 409. 
 Riggs V. Maltby & Co., 2 Met. 88. 
 Riley ads. Trundell's Adm'r, 17 B. 
 
 Mon. 396. 
 Riley ads. Hawkins, etc., 17 B. Mon. 
 
 101. 
 Rion V. Commonwealth, 1 Duv. 235. 
 Ritte V. Commonwealth, 18 B. Mon. 
 
 35. 
 Robinson v. Redman, 2 Duv. 82. 
 
 V. Robinson, etc., 1 Duv. 162. 
 
 V. Huffman and ux, 15 B. Mon. 81. 
 
 V. Commonwealth, 16 B. Mon. 609. 
 
 ads. Jackson, 18 B. Mon. 1. 
 
 ads. Lane & Bartlett, 18 B. Mon. 
 
 623. 
 Robinson ads, Pugate, etc., 18 B. Mon. 
 
 680. 
 Robinson ads. Daniel, etc., 18 B. Mon, 
 
 301. 
 Robinson ads. Tousey, 1 Met. 663. 
 
 V. Bright's Ex'r, 3 Met. 30. 
 
 ads. North, 1 Met. 71. 
 
 Bobb V. Maysville & Muhlenburg T. 
 
 P. Co., 3 Met. 117. 
 Robinson, etc. v. "West, etc., 14 B. 
 
 Mon. 3. 
 Roberts v. Drinkard, 3 Met. 309. 
 
 ads. Commonwealth, 4 Met. 219. 
 
 Eobbins v. Oldham, 1 Duv. 28. 
 Roberts ads. Commonwealth, 1 Duv. 
 
 199. 
 Rodman v. Porline's Adm'r, etc., 2 
 
 Met. 325. 
 Rogers v. Payne, etc., 14 B. Mon. 167. 
 
 V. Rogers, 14 B. Mon. 108. 
 
 ■ V. Rogers, 15 B. Mon. 364. 
 
 V. Aulick, 2 Duv. 419. 
 
 ads. Lisle, 18 B. Mon. 528. 
 
 V. Mitchell's Ex'r, etc., 1 Met. 22. 
 
 etc. V. Poston, 1 Met. 643. 
 
 Roll, etc. ads. Tinsley and ux, 2 Met. 
 
 509. 
 Root ads. Goodrum, etc., 2 Met. 427. 
 
 Root ads. Whitehead, etc., 2 Met. 584. 
 Rookesby, etc. ads. Helm's Ex'r, 1 
 
 Met. 49. 
 Ross V. Koss, 3 Met. 274. 
 
 V. Gate, 2 Duv. 243. 
 
 Rout ads. Hoffman, 2 Met. 50. 
 Rouse ads. Snyder, 1 Met. 625. 
 
 v. Howard, 1 Duv. 31. 
 
 Rowan's Ex'r v. Pope's Adm'r, 14 B. 
 
 Mon. 102. 
 Rowan's Creditors v. Rowan's Heirs, 
 
 2 Duv. 412. 
 
 Rowland, etc. ads. Commonwealth, 4 
 Met. 225. , 
 
 Rowland's Ex'r ads. Moss, 1 Duv. 321. 
 
 Royse v. Royse, 2 Duv. 537. 
 
 Rucker ads. Commonwealth, 14 B. 
 Mon. 228. 
 
 Ruby V. Grace, 2 Duv. 540. 
 
 Euggles V. Moore, 18 B. Mon. 821. 
 
 Runnion & Hay ads. Commonwealth, 
 
 3 Met. 2. 
 
 Russell ads. Ballard, 16 B. Mon. 201. 
 
 ads. Chrismas, 2 Met. 112. 
 
 etc. ads. Nutter, etc., 3 Met. 163. 
 
 Russell's Ex'r v. Moore's Heirs, etc., 3 
 
 Met. 439. 
 Russell's Heirs v. Mark's Heirs, etc., 3 
 
 Met. 37. 
 Rutherford, etc. ads. Lindsay, 17 B. 
 
 Mon. 245. 
 Rutherford v. Commonwealth, 2 Met. 
 
 387. 
 Ryon V. Bean's Adm'r, 2 Met. 137. 
 
 s. 
 
 Sage, etc. v. Dillard, 15 B. Mon. 340. 
 Salter ads. Samuels, etc., 3 Met. 259. 
 
 ads. Dunn, etc., 1 Duv. 344. 
 
 Salve V. Ewing, 1 Duv. 271. 
 Sanders v. Sanders, 17 B. Mon. 10. 
 Sandiford ads. Pinnell, 18 B. Mon. 74S, 
 Sandford, etc. v. McArthur, 18 B. Mod, 
 
 411. 
 Sandford, etc. v. Ky. Trust Co. Bank, 
 
 etc., 1 Met. 106. 
 Sanders, etc. v. Bank Ky., 2 Met. 327, 
 
 V. Parrott, 1 Duv. 292. 
 
 Sandifer ads. Whitaker, 1 Duv. 281. 
 Sarah, etc. v. Miller, etc., 1 Duv. 259, 
 Sasseen ads. Calvert, 4 Met. 245. 
 
 V. Hammond, 18 B. Mon. 672. 
 
 Salter, etc. ads. Muhling, 3 Met. 285. 
 Savings Bank Cincinnati v. Benton, 
 
 2 Met. 240. 
 Sayre ads. Buokner, 18 B. Mon. 745. 
 V. Louisville Union & Benevolent 
 
 Association, 1 Duv. 143. 
 Scales V. Ashbrook, 1 Met. 358. 
 Schwein v. Simms, et al., 2 Met. 209. 
 Schneider v. Commonwealth, 3 Met. 
 
 409. 
 
LIST OF CASES. 
 
 559 
 
 Sohurman v. Eedmond, 2 Duv. 82. 
 Scott V. Doneghy, 17 B. Mon. 321. 
 
 V. Commonwealth, 4 Met. 227. 
 
 V. Cook, 1 Duv. 314. 
 
 V. Shropshire, 2 Duv. 153. 
 
 Scroggins ads. Babhitt, etc., 1 Duv. 272. 
 Seaton ads. Clark, etc., 18 B. Mon. 226. 
 Seaton's Heirs V. Harlan's Heirs, 18 B. 
 
 Mon. 312. 
 Seabolt, etc. ads. Augustus, etc., 3 Met. 
 
 155. 
 Sebastian v. Johnson, 2 Duv. 101. 
 Secomb, Voorhies &' Co. v. Nutt, etc., 
 
 14 B. Mon. 324. 
 Sechrest, etc. v. Edwards, etc., 4 Met. 
 
 163. 
 Seitz aSs. Perry, 2 Duv. 122. 
 Sellers ads. Kay, 1 Duv. 254. 
 Seltles.ads. Adams, 2 Duv. 76. 
 Shanklin ads. Patton, 14 B. Mon. 15. 
 Shanks, etc. v. Griffin, 14 B. Mon. 153. 
 Sharp ads. "Western, 14 B. Mon. 177. 
 Sharer ads. Burgen, 14 B. Mon. 497. 
 Sharon ads. Davis, etc., 15 B. Mon. 64. 
 Shaw, etc. ads. Brace and ux, 16 B. 
 
 Mon. 43. 
 Sharp's Ex'r ads. Dunavan, 17 B. Mon. 
 
 223. 
 Shaw, etc. v. Commonwealth, 1 Duv. 1. 
 Shepard v. Moore's Heirs, 2 Duv. 125. 
 Shean, etc. ads. Vertrees, 2 Met. 291. 
 Sheets and ux v. Grubb's Ex'r, 4 Met. 
 
 339. 
 Shelby ville & Eminence T. P. Co. a,ds. 
 
 Shelbyville Trustees, 1 Met. 54. 
 Shelbyville ¥., L. & M. Ins. Co. ads. 
 
 Jones, etc., 1 Met. 58. 
 Shelbyville Trustees v. S. & B. T. Co. 
 
 1 Met. 54. 
 Shepard, etc. ads. Moore's Adm'r, 1 
 
 Met. 97. 
 Shelby ads. Allen's Ex'r, 14 B. Mon. 
 
 320. 
 Shelton, etc. v. Harlon, 15 B. Mon. 
 
 547. 
 Shelby E. K. Co. ads. Allen, 16 B. 
 
 Mon. 4. 
 Shelby E. E. Co. ads. Wight, 16 B. 
 
 Mon. 4. 
 Shields ads. Maltus, 2 Met. 553. 
 
 V. Hodges, 18 B. Mon. 828. 
 
 Shippin V. Curry, etc., 3 Met. 184. 
 Shoemaker v. Commonwealth, 14 B. 
 
 Mon. 225. 
 Shortridge v. Bartlett, 14 B. Mon. 248. 
 Shouse ads. Commonwealth, 16 B. 
 
 Mon. 325. 
 Shouse ads. Hicks, 17 B. Mon. 483. 
 Short V. Tinsley, etc., 1 Met. 397. 
 Shouse, etc. v. Utterback, etc., 2 Met. 
 
 52. 
 Shorts & Co. V. Trabue & Co., 4 Met. 
 
 299. 
 
 Shortridge, etc. ads. Allen and ux, 1 
 
 Duv. 34. 
 Shropshire ads. Scott, 2 Duv. 153. 
 Shrieve's Ex'r ads. Dunlap, 2 Duv. 334. 
 Shropshire ads. Eaudall, 4 Met. 327. 
 Shreve, etc. ads. Hughes, etc., 3 Met. 
 
 547. 
 Shropshire v. Shropshire, 14 B. Mon. 
 
 285. 
 Shropshire v. Conrad, 2 Met. 143. 
 Shumate v. Ballard, 1 Met. 31. 
 Shultz V. Morrison, etc., 3 Met. 98. 
 Sidwell's Heirs v. Hughey, 18 B. Mon. 
 
 259. 
 Sims V. Lively, 14 B. Mon. 433. 
 Sims V. Spalding, 2 Duv. 121. 
 Simpson ads. Murphy, 14 B. Mon. 419. 
 Simrall's Heirs v. Jacobs' Ex'r, etc., 
 
 14 B. Mon. 502. 
 
 Sims, et al. ads. Schwein, 2 Met. 209. 
 Simpson ads. Moore, 3 Met. 349. 
 Sims, etc. ads. Corn, etc., 3 Met. 391. 
 
 et al. ads. Spalding, 4 Met. 285. 
 
 Sinton's Ex'r ads. Kellar, 14 B. Mon. 
 
 307. 
 Sinking Eund ComAissioners v. 
 
 Northern Bank Ky., 1 Met. 174. 
 Skillman, etc. v. Muir's Adm'r, 4 Met. 
 
 282. 
 Slade V. Arnold, 14 B. Mon. 287. 
 Slaughter v. Morgan, 1 Met. 27. 
 Sloan Sam (of color), v. Weddington, 
 
 15 B. Mon. 147. 
 
 Slone V. Slone, 2 Met. 339. 
 
 Smalley ads. Gruell and ux, 1 Duv. 358. 
 
 Smead, Collard & Hughes ads. Leslie's 
 
 Adm'r, 1 Met. 628. 
 Smead, Collard & Hughes v. "William- 
 son, 16 B. Mon. 492. 
 Smith's Adm'r ads. Husbands, 14 B. 
 
 Mon. 208. 
 Smith, etc. ads. Alexander's Heirs, 2 
 
 Duv. 518. 
 Smith's Adm'r v. Dilland's Adm'r, 2 
 
 Duv. 152. 
 Smith & Davis v. Gower, 2 Duv. 17. 
 
 V. Gorin, 2 Duv. 157. 
 
 ads. Eayne's Adm'r, 2 Duv. 430. 
 
 V. Terrill, 14 B. Mon. 256. 
 
 V. Moberly and ux, 15 B. Mon. 70. 
 
 V. Latimer, 15 B. Mon. 75. 
 
 V. Spillman & Duff, 15 B. Mon. 
 
 123 
 Smith ads, Sweeney, 15 B. Mon. 325. 
 
 V. Broyles, 15 B. Mon. 461. 
 
 V. Eah, 15 B. Mon. 443. 
 
 ads. Taylor, 17 B. Mon. 536. 
 
 V. Stone, 17 B. Mon. 168. 
 
 V. Adam (of color), 18 B. Mon. 
 
 685. , 
 Smith ads. Tyler, etc.. Trustees of 
 
 Eddyville, 18 B. Mon. 793. , 
 Smith ads. AUard, 2 Met. 297. 
 
560 
 
 LIST OF CASES. 
 
 Smith ads. Taney, 2 Met. 408. 
 
 ads. Anderson, 3 Met. 491. 
 
 ads. Baker, 3 Met. 364. 
 
 V. Ferguson, etc., 3 Met. 424. 
 
 V. Muilins, 3 Met. 182. 
 
 ads. Kandall, etc., 3 Met. 491. 
 
 V. Commonwealth, 1 Duv. 224. 
 
 — — ads. L. & P. K. W. Co., 2 Duv. 
 
 506. 
 Smith ads. Francis, 1 Duv. 121. 
 
 V. Lovelace, 1 Duv. 215. 
 
 Smith's Adm'r ads. Harrison County 
 
 Court, 15 B. Mon. 155. 
 Smith, etc. ads. Hibbard, 17 B. Mon. 
 
 42. 
 Smith's Adm'r v. Northern Bank Ky., 
 
 1 Met. 575. 
 Smith's Adm'r, etc. ads. Amyx, 1 Met. 
 
 529. 
 Smith, etc. ads. Raymond, etc., 1 Met. 
 
 65. 
 Smith and ux v. Lbng, etc., 1 Met. 
 
 486. 
 Smith & Shotwell, ads. Kellv & Co., 1 
 
 Met. 313. 
 Smither's Adm'r v. Blanton, 1 Met. 44. 
 Smith, etc. v. Wilson, 2 Met. 235. 
 Smith's Heirs v. Dixon, Barrett, etc., 
 
 3 Met. 438. 
 
 Smith, Wilson & Co. ads. Dougherty, 
 
 4 Met. 279. 
 
 Smith, etc. ads. Jenkins, 4 Met. 380. 
 
 ads. Gower, 3 Met. 171. 
 
 Smith & Thornton v. Curtis, 1 Duv. 
 
 281. 
 Smith's Ex'r ads. Venable, 1 Duv. 195. 
 Snapp V. Banta, 2 Duv. 98. 
 Snoddy & Bransford v. Poster, et al., 
 
 1 Met. 160. 
 Snedaker v. Moore, 2 Duv. 542. 
 Snyder v. Kouse, 1 Met. 625. 
 Southgate ads. City of Covington, 15 
 
 B. Mon. 491. 
 Southern Bank Ky. v. White & Mc- 
 
 Mahan, 1 Duv. 290. 
 Southern Bank Ky. ads. Berry, 2 Duv. 
 
 379. 
 Soward ads. Hart, etc., 14 B. Mon. 301. 
 
 etc. V. Soward, etc., 1 Duv. 126. 
 
 Sparks' Ex'r v. Dunavan, 17 B. Mon. 
 
 223. 
 Sparks v. Steamer Kate French, 3 
 
 Met. 533. 
 Spalding v. Simms, et al., 4 Met. 285. 
 Spalding's Ex'r v. Hill's Adm'r, 1 
 
 Duv. 216. 
 Spalding v. Bull, 1 Duv. 311. 
 
 ads. Sims, 2 Duv. 121. 
 
 Spencer & Marshall ads. Kichardson, 
 
 Adm'r, 18 B. Mon. 450. 
 Speed & Worthington v. Crawford, 3 
 
 Met. 207. 
 Speed ads. Jackson, 2 Duv. 426. 
 
 Speer ads. Pernold, 3 Met. 459. 
 Spencer v. Biggs, 2 Met. 123. 
 Spillman & Duff v. Smith, 15 B. Mon. 
 
 123. 
 Spradling ada. Kendall, 13 B. Mon. 33. 
 Spraggins ads. Commonwealth, 18 B. 
 
 Mon. 512. 
 Springfield Bank ads. Alexander & 
 
 Co., 2 Met. 534. 
 gpratt ads. C, H. & D. K. E. Co., 2 
 
 Duv. 4. 
 Spurrier's Heirs v. Parker, 16 B. Mon. 
 
 274. 
 Spurr, etc. v. Flint, 17 B. Mon. 499. 
 Squires ads. Burbage, 3 Met. 77. 
 Stamper ads. Breeding, etc., 18 B. Mon. 
 
 175. 
 Standiford v. Wingate, 2 Duv. 440. 
 Stacker v. Whitlock, 3 Met. 244. 
 Stagner ada. Letcher, 2 Duv. 423. 
 Stedman ads. Cessna, 1 Duv. 188. 
 Stephens, etc. v. Benton, etc., 1 Duv. 
 
 112. 
 Steadman v. Guthrie, et al., 4 Met. 147. 
 Stern v. Freeman, 4 Met. 309. 
 Stewart, etc. ads. Cobb, 4 Met. 255. 
 Steamer Kate French ads. Spark, 3 
 
 Met. 533. 
 Stephenson ads. Commonwealth, 3 
 
 Met. 226. 
 Stephens v. Wilson, etc., 14 B. Mon. 
 
 88. 
 Steele ads. Grubbs, etc., 15 B. Mon. 
 
 570. 
 Stephenson v. Hagan, 15 B. Mon. 282. 
 Steamboat Crystal Palace v. Vander- 
 
 pool, 16 B. Mon. 302. 
 Steamboat Gulnare ads. Bracken, 16 
 
 B. Mon. 444. 
 Stevens v. Wyatt, etc., 16 B. Mon. 542. 
 
 ads. Green, 2 Duv. 420. 
 
 Stevenson v. Gray, etc., 17 B. Mon. 193. 
 Stewart, etc. v. Brandies, etc., 1 Met. 
 
 395. 
 Stewart ads. Danville, etc., T. P. Co., 
 
 2 Met. 119. 
 Stibbins v. Stibbina, 1 Met. 476. 
 Stiles, etc. ads. Phillips, 2 Duv. 313. 
 Stillwell ads. Hutchings & Co., 18 B. 
 
 Mon. 776. 
 Stockton & Curtis ads. Sams, 14 B. 
 
 Mon. 232. 
 Stone ads. Smith, 17 B. Mon. 168. 
 Stone & Son ads. Anderson Co. Court, 
 
 18 B. Mon. 848. 
 Stookwell ads. Chapman, 18 B. Mon. 
 
 650. 
 Stokes V. Kirkpatriok, 1 Met. 138. 
 Stone & Warren v. Connelly, etc., 1 
 
 Met. 652. 
 Stone, etc. ads. Toombs, etc., 2 Met. 520. 
 Story's Adm'r, etc. ads. Brown, etc., 4 
 
 Met. 316. 
 
LIST OF CASES. 
 
 561 
 
 Story, etc. v. Graham, 4 Met. 319. 
 
 Stowell, Chamberlain & Co. ads. Tay- 
 lor & Son, 4 Met. ITS. 
 
 Stone V. McConnell, etc., 1 Duv. 54. 
 
 and ux ads. Hayden and ux, 1 
 
 Duv. 396. 
 
 Stone V. Lasley, 2 Duv. 26T. 
 
 Straws ads. Harper, 14 B. Mon. 48. 
 
 Strother's Heirs ads. Carpenter & 
 Gi-igsby, 16 B. Mon. 289. 
 
 Stribling v. Pettit, 3 Met. 314. 
 
 Straws V. Commonwealth, 1 Duv. 149. 
 
 Street ads. Terry, 14 B. Mon. 355. 
 
 Stuart, etc. v. Wilder, 17 B. Mon. 55. 
 
 Sudduth, etc. ads. "Whitney, 4 Met. 296. 
 
 Summers ads. Bank Louisville, 14 B. 
 Mon. 306. 
 
 Summers ads. Bibb, 11 B. Mon. 292. 
 
 Sutton, etc. ads. Tunstell, 11 B. Mon. 
 345. 
 
 Sutton ads. Overfield, 1 Met. 621. 
 
 Sutherland ads. Powers, 1 Duv. 151. 
 
 Sutton V. Anderson, 2 Duv. 480. 
 
 Sutz V. Perry, 2 Duv. 122. 
 
 Swazee y. Miller, 17 B. Mon. 564. 
 
 Swan ads. Isaacs, etc., 1 Duv. 277. 
 
 ads. Goodwin and ux, 2 Duv. 298. 
 
 Sweeny v. Owsley, 14 B. Mon. 413. 
 
 V. Smith, 15 B. Mon. 325. 
 
 ads. Wile, 2 Duv. 161. 
 
 T. 
 
 Talbott's Bx'r v. Dickerson's Heirs, 14 
 
 B. Mon. 60. 
 Talhott V. Pierce, 14 B. Mon. 195. 
 
 V. LaEue, 14 B. Jlon. 195. 
 
 ads. Commonwealth, 18 B. Mon. 
 
 469. 
 Talbott's Heirs v. Talbott's Heirs, 17 
 
 B. Mon. 1. 
 Tanner and ux v. Van Bibber, 2 Duv. 
 
 550. 
 Tansey, etc. ads. Etlinger, etc., 17 B. 
 
 Mon. 364. 
 Taphorn, etc. ads. Commonwealth, 4 
 
 Met. 71. 
 Tate ads. Morrison & Co., 1 Met. 569. 
 Taylor's Ex'r ads. Newport, 16 B. 
 
 Mon. 669. 
 Taylor, Shelby & Co. v. Williams, 17 
 
 B. Mon. 489. 
 Taylor's Adm'r ads. Griswold, 1 Met. 
 
 228. 
 Taylor and wife v. Kyle, 2 Met. 47. 
 Taylor & Son v. Stowell, Chamber- 
 lain & Co., 4 Met. 175. 
 Taylor V. Commonwealth, 15 B. Mon. 
 
 11. 
 Taylor v. Embree, 16 B. Mon. 340. 
 
 V. Smith, 17 B. Mon. 536. 
 
 • ads. Munford, etc., 2 Met. 599. 
 
 V. Nunn, 2 Met. 199. 
 
 41 
 
 Taylor v. Gilpin, etc., 3 Met. 544. 
 
 V. Commonwealth, 1 Duv. 160. 
 
 Teal, etc. v. Commonwealth for Har- 
 ris, 14 B. Mon. 29. 
 Tempest, etc. ads. Haney, etc., 3 Met. 
 
 95. 
 Tempest v. Poyntz, 2 Duv. 276. 
 Tenny 0. S. ex parte, 2 Duv. 351. 
 etc. V. Commonwealth, 3 Met. 
 
 415. 
 Terrill, etc. v. Cecil, 3 Met. 347. 
 
 ads. Smith, 14 B. Mon. 256. 
 
 etc. V. Jennings, etc., 1 Met. 450. 
 
 Terry & Bell v. Hazelwood, 1 Duv. 104. 
 
 V. Commonwealth, 2 Duv. 383. 
 
 Tevis' Ex'r v. McCreary, etc., 3 Met. 
 
 151. 
 Tevis V. Young, 1 Met. 197. 
 Tharp v. Commonwealth, 3 Met 411. 
 
 .:: V. Tharp's Adm'r, etc., 3 Met. 372. 
 
 Theobald ads. Sinking Eund Commis- 
 sioner, 17 B. Mon. 459. 
 Thompson, etc. ads. Daniel, 14 B. Mon. 
 
 662. 
 Thompson ads. Eice, 14 B. Mon. 377. 
 V. Jackson, Owsley & Co., 14 B. 
 
 Mon. 114. 
 Thompson v. Thompson, 17 B. Mon. 
 
 22. 
 Thompson v. Blackwell, etc., 17 B. 
 
 Mon. 609. 
 Thompson ads. L. & M. K. E. Co., 18 
 
 B. Mon. 755. 
 Thompson v.Commonwealth,l Met. 13. 
 
 V. Vance, etc., 1 Met. 669. 
 
 ads. Holt, 1 Duv. 301. 
 
 V. Boston, 1 Duv. 389. 
 
 ads. Commonwealth, 2 Duv. 408. 
 
 Thomas v. Thomas' Ex'r, 16 B. Mon. 
 
 421. 
 Thomas ads. Meekin, 17 B. Mon. 710. 
 
 ads. Allan, 3 Met. 198. 
 
 ads. Huffman, 2 Duv. 105. 
 
 ads. Hall and wife, 2 Duv. 233. 
 
 Thomas' Ex'r v. Thomas, 15 B. Mon. 
 
 178. 
 Thompson, etc. ads. Commonwealth, 
 
 16 B. Mon. 572. 
 Thom, etc. ads. Carter, 18 B. Mon. 613. 
 Thomasson v. Thomasson, etc., 1 Met. 
 
 51. 
 Thompson, etc. ads. Eord, etc., 1 Met. 
 
 580. 
 Thompson, etc. ads. Wilson, etc., 1 
 
 Met. 123. 
 Thornton, etc. ads. Commonwealth, 1 
 
 Met. 380. 
 Thompson, etc. ads. Turpin, etc., 2 
 
 Met. 420. 
 Thompson, etc. ads. Nolle, 3 Met. 121. 
 Thornton, eto.ads. McGrath,l Duv. 349 
 
 ads. Miller, 1 Duv. 369. 
 
 Threlkeld ads. Elliott, 16 B. Mon. 341. 
 
562 
 
 LIST OF CASES. 
 
 Thiirraan v. Virgin and wife, 18 B. 
 
 Mon. 185. 
 Thurman, etc. v. Morrison, etc., 14 B. 
 
 Mon. 367. 
 Thurman ads. Tiernan, 14 B. Mon. 277. 
 Tliumb V. Gresham, etc., 2 Met. 306. 
 Thum ads. Gresham, 3 Met. 287. 
 Thympson v. Healey, 4 Met. 457. 
 Tiernan v. Thurman, 14 B. Mon. 277. 
 Tilford & Barkley ads. Graham, 1 Met. 
 
 112. 
 Tilford V. Graves, 2 Duv. 108. 
 Tinsley and ux v. Eoll, etc., 2 Met. 509. 
 
 etc. ads. Short, 1 Met. 397. 
 
 ads. Mercer, 14 B. Mon. 273. 
 
 V. Tinsley, etc., 15 B. Mon. 454. 
 
 Tipper v. Commonwealth, 1 Met. 6. 
 Tipton V. Chambers, 1 Met. 565. 
 
 V. Triplett, 1 Met. 570. 
 
 Titsworth ads. Manion's Adm'r, 18 B. 
 
 Mon. 282. 
 Tobin's Guardian v. Dixon and ux, 2 
 
 Met. 422. 
 Todd, etc. v. Caines, 18 B. Mon. 620. 
 Todd's Heirs and Adm'r v. Todd's 
 
 Heirs, 18 B. Mon. 144. 
 Todd's Heirs and Adm'r v. WickliflFe, 
 
 18 B. Mon. 866. 
 Todd V. Luckett, 18 B. Mon. 125. 
 
 V. Dowd's Heirs, 1 Met. 281. 
 
 Todd & Co. V. Hartley, etc., 2 Met. 206. 
 
 V. Hughes, 2 Duv. 188. 
 
 Tolly V. Price, 17 B. Mon. 410. 
 Tomberlin, etc. ads. Bibb, 1 Duv. 186'. 
 Tomlin v., Jayiie, etc., 14 B. Mon. 160. 
 Toney ads. Daniel, 2 Met. 523. 
 Toombs, etc. v. Stone, etc., 2 Met. 520. 
 Totten y. Cook, 2 Met. 275. 
 Tousey v. Kobinson, 1 Met. 663. 
 Townes v. Durbin, 3 Met. 352. 
 Trabue's Ex'r v. Harris, 1 Met. 597. 
 Trail's Adm'r ads. Clark's Ex'r, 1 Met. 
 
 35. 
 Trapnall v. McAfee, 3 Met. 34. 
 Trabue & Co. ads. Short, etc., 4 Met. 
 
 299. 
 Trimble's Heirs v.Ward, 14 B. Mon. 8. 
 Triplett ads. Tipton, 1 Met. 570. 
 
 ads. True, etc., 4 Met. 57. 
 
 Trowbridge, Dwight & Co. ads. Lan- 
 
 drum, 2 Met. 281. 
 Troutman, etc. v. Barnes, 4 Met. 337. 
 Trumho ads. Gault and ux, 17 B. Mon. 
 
 682. 
 . Trundle's Adm'r v. Eiley, 17 B. Mon. 
 
 396. 
 Trustees Lebanon v. Forest, etc., 15 
 
 B. Mon. 168. 
 Trastees Owensboro v. Webb, 2 Met. 
 
 576. 
 Trustees Shelby College v. Gregory's 
 
 Ex'r, 2 Met. 589. 
 Trunnell ads. Maraman, 3 Met. 146. 
 
 True, etc. v. Triplett, 4 Met. 57. 
 
 V. Nicholls, 2 Duv. 547. 
 
 Tucker, etc. v. Phillips, 2 Met. 416. 
 
 ads. Phillips, 3 Met. 69. 
 
 Tudor V. Tudor, 17 B. Mon. 383. 
 
 . V. Lewis, etc., 3 Met. 378. 
 
 . V. Fritz, 2 Duv. 173. 
 
 Tuggle V. Gilbert, etc., 1 Duv. 340. 
 
 ads. Alcorn, 3 Met. 537. 
 
 Tunstell v. Sutton, etc., 17 B. Mon. 345. 
 Turman v. White's Heirs, 14 B. Mon. 
 
 560. 
 Turners v. Howard, 2 Duv. 112. 
 Turner v. Browder, etc., 18 B. Mon. 825. 
 Turner ads. Warner, 18 B. Mon. 758. 
 
 V. Commonwealth, 2 Met. 619. 
 
 ads. Barnes, 4 Met. 114. 
 
 Turpin, etc. v. Thompson, etc., 2 Met. 
 
 420. 
 Turpin ads. Meader, 4 Met. 93. 
 Tweedy V. Commonwealth, 2 Met. 378. 
 Tydings, etc. ads. Kay, 3 Met. 527. 
 Tyler, etc.. Trustees Eddyville v. 
 
 Smith, 18 B. Mon. 793. 
 Tyler's Ex'r v. Longest's Adm'r, 1 
 
 Duv. 192. 
 Tyra v. Commonwealth, 2 Met. 1. 
 
 u. 
 
 University of Louisville ads. City of 
 Louisville, 15 B. Mon. 642. 
 
 Upchurch v.Upchurch,16 B. Mon. 102. 
 
 Usher v. Commonwealth, 2 Duv. 394. 
 
 Utterback, etc. v. Shouse, etc., 2 Met. 
 52. 
 
 V. 
 
 Vail ads. Hamilton, 2 Met. 511. 
 Vallette ads. Bowler & Willis, etc., 4 
 
 Met. 186. 
 Van Bibber ads. Tanner and ux, 2 
 
 Duv. 550. 
 Vanbussum v. Maloney, 2 Met. 550. 
 Vance and ux v. Vance, 2 Met. 581. 
 Vandever v. Grifaths, 2 Duv. 425. 
 Vandever, et al. v. Vandever, et al., 3 
 
 Met. 137. 
 Vancleave & Kelso ads. Allen, 15 B. 
 
 Mon. 236. 
 Vanderpool ads. Steamboat Crystal 
 
 Palace, 16 B. Mon. 302. 
 Vandever, etc. v. Payne, 17 B. Mon. 14. 
 Vance ads. Thompson, IMet. 669. 
 Vanmeter's Devisees ads. Allen and ux, 
 
 1 Met. 264. 
 Vantuyl, ads. Commonwealth,! Met. 1. 
 Van Winkle's Ex'r v. Foster, et al., 1 
 
 Met. 160. 
 Vanbuskirk, etc. v. Levy, 3 Met. 133. 
 Vaughan v. Mills, 18 B. Mon. 633. 
 Venable v. Smith's Ex'r, 1 Duv. 195. 
 Vertrees v. Shean, etc., 2 Met. 291. 
 
LIST OF CASES. 
 
 563 
 
 Vicaro ads. City of Louisville, 18 B. 
 
 Mon. 9. 
 Viekery, etc. v. Lanier, etc., 1 Met. 133. 
 Vickers ads. Johnson's Adm'r, 1 Duv. 
 
 266. 
 Viers ads. Commonwealth, 2 Duv. 311. 
 Vimont's Ex'r ads. Pindell's Assignee, 
 
 14 B. Mon. 400. • 
 
 Vincent, etc. v. Eaves, etal., 1 Met. 247. 
 Violet ads. "Watson, 2 Duv. 332. 
 Virgin and ux ads. Thurman, 18 B. 
 
 Mon. 785. 
 
 Wade ads. Foster, etc., 4 Met. 252. 
 "Waggoner ads. Cobb & "Wood, 17 B. 
 
 Mon. 562. 
 "Wallace ads. Kentucky Seminary, 15 
 
 B. Mon. 35. 
 "Walker and ux v. McKnight, 15 B. 
 
 Mon. 467. 
 "Wallingford v. DeBell & Co., 15 B. 
 
 Mon. 551. 
 Walters, etc. v. Crutcher, etc., 15 B. 
 
 Mon. 2. 
 Walston V. Commonwealth, 16 B. 
 
 Mon. 15. 
 Walden, etc. ads. Carney, etc., 16 B. 
 
 Mon. 388. 
 Waller, etc. v. Martin, 17 B. Mon. 181. 
 Walker v. Mitchell, 18 B. Mon. 541. 
 Waller v. Morgan, 18 B. Mon. 136. 
 Walters v. Chinn, 1 Met. 499. 
 Wall, etc. V. Wayland, 2 Met. 155. 
 Walker v. McKay, 2 Met. 214. 
 
 etc. ads. Coleman, 3 Met. 65. 
 
 Walker ads. C. & C. Bridge Co., 2 
 
 Duv. 150. 
 Waller, etc. ads. Lee, 3 Met. 61. 
 Walker ads. Teates, 1 Duv. 84. 
 Ward ads.Trimhle's Heirs,14B.Mon.8. 
 V. Northern Bank Ky., 14 B. 
 
 Mon. 351. * 
 
 Ward v.City Louisville,16 B.Mon.l84. 
 
 ads. James, 2 Met. 271. 
 
 V. Crotty, etc., 4 Met. 59. 
 
 Warfield v. Davis, 14 B. Mon. 40. 
 Ward, etc. ads. Hedger,15 B. Mon. 106. 
 Warring's Heirs ads. Morton, etc., 18 
 
 B. Mon. 72. 
 Warren v. Barker & Co., 2 Duv. 155. 
 Ward, etc. ads. Graves, 2 Duv. 301. 
 Washington Co. Court ads. Nelson 
 
 Co. Court, 14 B. Mon. 92. 
 Watson V. Violet, 2 Duv. 332. 
 
 V. Cross, 2 Duv. 147. 
 
 V. Maguire, 17 B. Mon. 31. 
 
 V. Gabby, 18 B. Mon. 658. 
 
 ads. Anderson, 3 Met. 509. 
 
 Watson & Thompson ads. Common- 
 wealth, 2 Duv. 408. 
 Watts, etc. V. Pond, etc., 4 Met. 61. 
 Watson, etc. ads. Foster,16 B. Mon.377. 
 
 Waters v. Waters, 1 Met. 519. 
 
 ads. Barbaroux, 3 Met. 304. 
 
 Way, etc. ads. Megowan, etc., 1 Met. 
 
 418. 
 Wayland v. Porterfleld's Ex'r, 1 Met. 
 
 638. 
 Wayland ads. Wall, 2 Mot. 155. 
 Weaver, etc. v. Bracken Co. Court, 18 
 
 Mon. 728. 
 Weatherford v. Myers, 2 Duv. 91. 
 "Webber, etc. v. Webber, etc., 1 Met. 18. 
 Webb ads. Trustees Owensboro', 2 
 
 Met. 576. 
 "Webster & Co. ads. Pool, 3 Met. 278. 
 Weddington, etc. v. Sam Sloan (of 
 
 color), 15 B. Mon. 147. 
 Wells V. Cowherd's Heirs, 2 Met. 314. 
 
 et al. V. Lewis, et al., 4 Met. 269. 
 
 Wendover ads. City of Covington, 15 
 
 B. Mon. 258. 
 Western v. Sharp, 14 B. Mon. 177. 
 West ads. Eobinson, etc., 14 B. Mon. 3. 
 Western v. Pollard, 16 B. Mon. 315. 
 Western Union Tel. Co. ads. Camp, 1 
 
 Met. 164. 
 West ads. Newton, 3 Met. 24. 
 Western Eiv. Imp. & Wreck. Co. ads. 
 
 Bell, 3 Met. 558. 
 Wheeler, etc. v. Jennings, etc., 16 B. 
 
 Mon. 476. 
 Wheeler's Ex'r v. Wheeler, 2 Met. 474. 
 White's Heirs ads. Turman, 14 B. 
 
 Mon. 560. 
 White ads. Pryor, 16 B. Mon. 605. 
 
 ads. Kelly, 17 B. Mon. 124. 
 
 V. White, 2 Met. 185. 
 
 V. Booker, 4 Met. 267. 
 
 (of color) ads. Commonwealth, 
 
 18 B. Mon. 492. 
 White, etc. v. Monsarrat, etc., 18 B. 
 
 Mon. 809. 
 White, Adm'r, etc. v. Carrieo, Adm'r, 
 
 etc., 2 Met. 232. 
 Whitehead, etc. v. Boot, 2 Met. 584. 
 Whitehead v. Chadwell's Adm'r, 2 
 
 Duv. 432. 
 White's Ex'r, etc. ads. Nunnally, etc., 
 
 3 Met. 584. 
 Whitlock ads. Stacker, 3 Met. 244. 
 Whitney v. Sudduth, etc., 4 Met. 296. 
 Whitaker v. Sandifer, 1 Duv. 261. 
 White & McMahan v. Southern Bank 
 
 Ky., 1 Duv. 290. 
 WickliflFe's Ex'r v. Preston and ux, 4 
 
 Met. 178. 
 Wiokliflfe V. Carroll, 14 B. Mon. 169. 
 
 ads. Bowman, 15 B. Mon. 84. 
 
 V. Todd's Heirs, 18 B. Mon. 866. 
 
 ads. Denny, 1 Met. 216. 
 
 ads. Duncan, 4 Met. 178. 
 
 Wigginton v. Moss, 2 Met. 38. 
 Wight v. S. E. E. Co., 16 B. Mon. 4. 
 Williams ads. Myers, 1 Duv. 356. 
 
564 
 
 LIST OF CASES. 
 
 Williams' Ex'rs ads. Lindsay and ux, 
 
 2 Dav. 475. 
 
 Williams v. Williams, 1 Duv. 221. 
 
 V. Martin, etc., 2 Duv. 491. 
 
 v. Woodruff, etc., 1 Duv. 257. 
 
 ads. Biesenthal, 1 Duv. 329. 
 
 V. Langford, 15 B. Mon. 566. 
 
 : ads. Taylor, Shelby & Co., 17 B. 
 
 Mon. 489. 
 Williams ads.Botts, etc.l7 B. Mon.687. 
 
 V. Monroe, 18 B. Mon. 514. 
 
 ads. Enders, 1 Met. 346. 
 
 V. Martin, etc., 1 Met. 42. 
 
 V. Wood, etc., 2 Met. 41. 
 
 V. Gooch, 3 Met. 486. 
 
 Wills V. Boyd, 1 Duv. 366. 
 
 Wilson, Hicks, etc. ads. Harmon, 1 
 
 Duv. 322. 
 Wilson ads. Higgs, 3 Met. 337. 
 Williams' Adm'r v. McClanahan, etc., 
 
 3 Met. 420. 
 
 Wilson ads. Keith, 3 Met. 201. 
 Willis, et al. v. Vallette, 4 Met. 180. 
 Wilhoite ads. Hancock, 1 Duv. 313. 
 Wilson ads. Hunt, 14 B. Mon. 44. 
 Wilde V. Hayoraft, 2 Duv. 309. 
 Wile V. Sweeney, 3 Duv. 16]. 
 Wilmore v. Wilmore, 15 B. Mon. 49. 
 Williamson ads. Smead, Collard & 
 
 Hughes, 16 B. Mon. 492. 
 Wilson ads. Cole, 18 B. JMon. 212. 
 Williamson, etc. v. Williams, etc., 18 
 
 B. Mon. 329. 
 Wilkerson, etc. ads. Coffey, 1 Met. 101. 
 Williamson v. Williamson, etc., 1 
 
 Met. 303. 
 Wilson, etc. v. Thompson, etc., 1 Met. 
 
 123. 
 Wilson V. City of Louisville,2 Duv. 499. 
 
 ads. Smith, etc., 2 Met. 235. ' 
 
 etc. ads. Coffman, etc., 2 Met. 542. 
 
 Windsor v. McAtee, 2 Met. 430. 
 Wingate ads. Standiford, 2 Duv. 440. 
 Wintersmith v. Pointer & Conway, 2 
 
 Met. 457. 
 Winfrey ads. Baker (of color), 15 B. 
 
 Mon. 499. 
 Winn's Adm'r ads. Morgan, etc., 17 B. 
 
 Mon. 233. 
 Winslow, Trustee ads. Phillips, etc., 
 
 18 Mon. 431. 
 Winslow, Trustee ads. Woodward, 18 
 
 B. Mon. 431. 
 Winchester & Mt. Sterling T. K. Co. 
 
 V. Clark Co. Court, 3 Met. 140. 
 Winston ads. Baum, 3 Met. 127. 
 
 ads. Cox, 3 Met. 577. 
 
 Winn V. Sam Martin (of color), 4 Met. 
 
 231. 
 Wintersallv.Commonwealth,l Duv. 77 
 Winter ads. MuUikin, 2 Duv. 256. 
 Wiseman's Ex'r v. Johnson's Ex'r, 4 
 
 Met. 357. 
 
 Witherspoonads.Payne,14B.Mon.270. 
 Witherspoon v. Farmers' Bank, 2 
 
 Duv. 496. 
 Wituher ads. Commonwealth, 18 B. 
 
 Mon. 469. 
 Wolfe V. C. & L. R. E. Co., 15 B. Mon. 
 
 404. 
 Wolff ads. Matheny, 2 Duv. 137. 
 Wood V. Campbell, 14 B. Mon. 422. 
 Wood & Oliver v.Yeatman, 15 B. Mon. 
 
 270. 
 Wood, etc. ads.Davis, etc. 17 B.Mon.86. 
 Woolfolk's Adm'r ads. Edwards, 17 B. 
 
 Mon. 376. 
 Woodward, etc. v. Winslow, Trustee, 
 
 18 B. Mon. 431. 
 Woodcock V. Earrell, 1 Met. 437. 
 Wood's Adm'r v. Wood's Devs, 1 Met. 
 
 612. 
 Wood, etc. ads. Williams, 2 Met. 41. 
 Woolfolk, etc. V. Ashby, etc., 2 Met. 288. 
 Wood V. Laycock, 3 Met. 192. 
 Woolfolk ads. Ashby, 3 Met. 540. 
 Woodcock, etc. v. Bowman, etc., 4 
 
 Met. 40. 
 Woodcock V. Bowman, 2 Duv. 508. 
 Wools, etc. ads. Maupin's Ex'r, 1 Duv. 
 
 223. 
 Worsley's Ex'r v. Worsley, 16 B. Mon. 
 
 455. 
 Word ads. Andrews, 17 B. Mon. 518. 
 Worthington v. Greer, 17 B. Mon. 742. 
 
 V. Gary, etc., 1 Met. 470. 
 
 ads. Moore, 2 Duv. 307. 
 
 etc. V. Crabtree, 1 Met. 478. 
 
 Wren v. Hynes' Adm'r, etc., 2 Met. 129. 
 Wright V. Arnold, etc., 14 B. Mon. 638. 
 Wyatt, etc. ads. Stevens,16 B. Mon. 542. 
 Wyatt, etc. v. Mansfield, 18 B. Mon. 
 
 779. 
 
 Y. 
 
 * 
 
 Taney ads. Commonwealth, 2 Duv. 375. 
 Yandell ads. L. & M. R. R. Co., 17 B. 
 
 Mon. 586. 
 Taney v. Smith, 2 Met. 408. 
 Tates ads. James, 3 Met. 343. 
 Teatman ads. Wood & Oliver, 15 B. 
 
 Mon. 270. 
 Teaker's Heirs v. Teaker's Heirs, 4 
 
 Met. 33. 
 Teates v. Walker, 1 Duv. 84. 
 Toung, etc. v. Adams, 14 B. Mon. 127. 
 
 V. Harris, 14 B. Mon. 556. 
 
 ads. Tevis, 1 Met. 197. 
 
 V. Parsons, etc., 2 Met. 499. 
 
 etc. ads. Letton, etc., 2 Met. 558. 
 
 et al. V. Duhme & Co., 4 Met. 239. 
 
 Toung V. and ads. Gibbons, 2 Duv. 440. 
 
 z. 
 
 Zanoni ads. City Louisville, 1 Met, 151. 
 
565 
 
 INDEX 
 
 A. 
 
 PAGE 
 
 ABANDONMENT 1 
 
 By husband or wife 191 
 
 ABATEMENT 1 
 
 ABSENT DEFENDANTS 378 
 
 ACCORD AND SATISFACTION 2 
 
 ACT OF GOD 2 
 
 ACTIONS— 
 
 General principles 2 
 
 For what an action will lie 3 
 
 For what an action will not lie 5 
 
 ADMINISTRATORS. See Executors. 
 
 ADMISSIONS 7 
 
 As evidence, see Evidence. 
 
 AD QUOD DAMNUM 7 
 
 ADVANCEMENTS 8 
 
 ADVERSE POSSESSION 421 
 
 AFFIDAVITS— 
 
 When used as evidence 9 
 
 For attachments 41 
 
 Required before sale of real estate of non-resident under 
 
 attachment 378 
 
 On demands against decedents' estates 166 
 
 To obtain execution after death of plaintiff. 231 
 
 AGREED CASE ,^ 9 
 
 AGENCY- 
 
 Appointment and revocation 9 
 
 Extent of authority of. 10 
 
 Liability of principal, and how far bound by acts of agent 11 
 
 Liability of agents 12 
 
 ALIMONY....'. 13 
 
 ALIENS— 
 
 Who are and who are not aliens 13 
 
 Disability of aliens " 14 
 
 ALLEGATION AND PROOF— 
 
 In civil cases 14 
 
 In criminal cases 15 
 
 ALTERATION OF WRITING 120 
 
 AMENDMENTS— 
 
 Of pleadings 419 
 
 Of affidavits for provisional remedies 17 
 
 Of writs and returns 17 
 
 42 
 
366 JNDEX. 
 
 APPEALS — PAGE 
 
 To the court of appeals 18 
 
 When an appeal will lie to the court of ajipoals 18 
 
 Within what time an appeal must be taken 21 
 
 When and how taken 21 
 
 To the circuit court 22 
 
 Jurisdiction of circuit court in appeal cases 22 
 
 Practice in circuit court in appeal cases 22 
 
 APPEARANCE 23 
 
 APPRENTICE 24 
 
 ARBITRATION AND AWARD— 
 
 Submission and award 24 
 
 Exceptions to awards 25 
 
 ASSAULT AND BATTERY 26 
 
 ASSETS 26 
 
 ASSIGNMENTS— 
 
 What is and what is not assignable 27 
 
 How an assignment may be made 27 
 
 To what equities an assignment is subject 28 
 
 Voluntary assignments for benefit of creditors 28 
 
 Who may make 28 
 
 AVhat passes 2'.l 
 
 Yalidity of 2'J 
 
 Liabilities of trustees 30 
 
 By operation of law under statute of 1850 30 
 
 What will be an assignment 30 
 
 Effect of 30 
 
 Rights of creditors 32 
 
 Remedies 32 
 
 ASSIGNEE AND ASSIGNOR— 
 
 Rights, duties, and liabilities of assignors 33 
 
 Rights, duties, and liabilities of assignees 35 
 
 ASSIGNEE AND OBLK.iOR— 
 
 Rights of the assignee, and how far his interest will be pro- 
 tected 37 
 
 Eights of the obligor, and w^hat defenses are, and what are not 
 
 available against an assignee 38 
 
 ATTACHMENTS— 
 
 Grounds of 40 
 
 How an attachment is obtained iff; 41 
 
 Affidavit for /. 41 
 
 Execution and return 43 
 
 What is subject to levy under 43 
 
 Disposition of attached property 44 
 
 Proceedings upon attachments 45 
 
 Duties and liabilities of garnishees 45 
 
 Attachment before debt is due 47 
 
 Priority b(;tween attaching creditors. 48 
 
 Priority between attaching creditors and purchasers or holders 
 
 of liens 48 
 
 Liabilities of attaching creditors for wi-ongfuUy attaching 50 
 
 Attachment bonds..'. 78 
 
 ATTORNEYS A'J' LAW— 
 
 Powers and privileges 50 
 
 Duties and responsibilities 51 
 
 When they may testify as to communications made by clients.. 50 
 
 ATTORNEYS IN FACT. See Affenn/. 
 
INDEX. 567 
 
 ATTORNEYS FOR THE COMMONWEALTH '"^2 
 
 ATTORNEYS FOR NON-RESIDENTS " " 52 
 
 AUDITOR OF PUBLIC ACCOUNTS 53 
 
 AUTHENTICATION .....''"". 53 
 
 BAIL— 
 
 Who has authority to take 54 
 
 Bail bond " 55 
 
 What will discharge bail '' ' 55 
 
 Remedies against bail '" 59 
 
 BAILMENT '...!!!..!!!"...!^!...'.'. 60 
 
 BANKS "...""...''.[..^^. . 61 
 
 BANKRUPTCY "......3. 62 
 
 BASTARDY .' 1........'. 62 
 
 BELLIGERENTS, RIGHTS OF .'....*.'.." 63 
 
 BETTING ON ELECTIONS '."'. Qo 
 
 BILLS OF EXCEPTIONS— 
 
 When it must be offered 66 
 
 What it must contain 66 
 
 How construed in court of appeals 68 
 
 BILLS OF EXCHANGE AND NOTES— 
 
 What constitutes a bill or note 69 
 
 Whether domestic or foreign 7Q 
 
 Assignment of 70 
 
 Acceptance of 7O 
 
 Rights and liabilities of the different parties 71 
 
 Presentment, demand, protest, and notice 71 
 
 Equities to which bills and notes are subject between holders 
 
 and other persons, whether parties or not 73 
 
 In what cases a person will be held promissor, surety, or guar- 
 antor 74 
 
 Blank indorsements 74 
 
 BILLS OF REVIEW— 
 
 Nature of, and for what causes they may be filed 75 
 
 Within what time to be filed 76 
 
 BONDS, STATUTORY— 
 
 Generally «g .;|i 77 
 
 Attachment bonds.'Tr 78 
 
 Bonds by claimants of property levied on 78 
 
 Sale bonds s..... 79 
 
 Indemnifying bonds 80 
 
 Replevy bonds 80 
 
 Injunction bonds 81 
 
 Appeal bonds 81 
 
 BOUNDARY, SOVEREIGNTY, AND JURISDICTION OF KEN- 
 TUCKY :.... 81 
 
 C. 
 
 CARRIERS 82 
 
 CATCHING BARGAINS 130 
 
 CAVEAT EMPTOR. See Contracts. 
 
 CERTIORARI 84 
 
 CHALLENGES TO FIGHT 84 
 
568 INDEX. 
 
 CHALLENGE TO JURORS 332 
 
 CHAMPERTY— 
 
 What contracts are champertous 85 
 
 Effect of champertous contracts 86 
 
 CHILDREN : 86 
 
 CHURCHES AND CHURCH PROPERTY 8T 
 
 CIRCUIT COURTS— 
 
 Original jurisdiction and powers of. 88 
 
 Appellate jurisdiction of 22 
 
 Practice in, in general 443 
 
 CITIZEN 90 
 
 CLAIM AND DELIVERY OF PERSONAL PROPERTY 406 
 
 CLERKS 90 
 
 CODE OF PRACTICE 91 
 
 COMMISSIONERS 92 
 
 COMMONWEALTH 93 
 
 COMMON SCHOOLS 93 
 
 COMPENSATION 93 
 
 COMPROMISE 95 
 
 COMPUTATION OF TIME 496 
 
 CONFISCATION 251 
 
 CONFLICT OF LAWS 95 
 
 CONSIDERATION lli^ 
 
 CONSTABLE 97 
 
 CONSTITUTIONAL LAW— 
 
 General principles 99 
 
 Of the title of acts necessary to their validity 103 
 
 Laws impairing the obligation of contracts.' 104 
 
 Laws to take private property for public use 106 
 
 Laws aifecting the right of trial by jury 107 
 
 Laws imposing taxes 107 
 
 Laws and other matters affecting elections 108 
 
 Laws impairing the rights of corporations 109 
 
 Other laws 109 
 
 CONSTRUCTION OF STATUTES 110 
 
 CONSTRUCTION OF CONTRACTS ^ 126 
 
 CONTEMPTS 112 
 
 CONTRACTS— 
 
 What will constitute or prove a contract 112 
 
 Subject-matter of 114 
 
 Validity of as regards statutes, public policy, or morality 115 
 
 In other respects 118 
 
 In respect to the statute of frauds and perjuries, see Frauds. 
 
 Consideration of contracts 118 
 
 Alteration of 120 
 
 Rescission 121 
 
 Waiver, merger, and discharge 122 
 
 Breach and performance 123 
 
 Construction'. 126 
 
 Catching bargains 130 
 
 CONTRIBUTION 130 
 
 CONVERSION 130 
 
 CONVEYANCES. See Deeds. 
 
INDEX. 569 
 
 PAGF. 
 
 CO-OBLIGORS 132 
 
 COPIES. See Evidence. 
 COEPORATIOXS— 
 
 Creating, organizing, and dissolving 132 
 
 Amendments or alterations of charters 133 
 
 Of tlie different kinds 134 
 
 Subscription for, and transfer of stooli in 134 
 
 Powers, rights, and liabilities of. 137 
 
 Contracts by, and with 139 
 
 Dividends 139 
 
 Powers, rights, and liabilities of officers of. 140 
 
 Records of. 140 
 
 Actions by, and against 140 
 
 COSTS 141 
 
 COUNTY COURTS— 
 
 Jurisdiction and powers of. 143 
 
 Duties and responsibilities of. 144 
 
 COUNTER-CLAIM 145 
 
 COUNTY JUDGE 147 
 
 COURT OF APPEALS— 
 
 When an appeal will lie to 18 
 
 Jurisdiction of. 1° 
 
 When an appeal may be taken to 21 
 
 COURTS OF INQUIRY 230 
 
 COVENANTS. See Contracts and Deeds. 
 
 CREDITORS AND PURCHASERS 147 
 
 CRIMINAL LAW AND PROCEEDINGS— 
 
 General principles of 149 
 
 Self-defense 149 
 
 Intellectual insanity 150 
 
 Moral insanity 1^0 
 
 Drunkenness 1^1 
 
 Provocation 151 
 
 Rational doubt 1?1 
 
 Felonies generally 1^^ 
 
 Treason 1^2 
 
 Murder 1^^ 
 
 Wounding with intent to kill 15^ 
 
 ^.e'l^JuiT ; Ill 
 
 False swearnig ^^2 
 
 Embezzlement 1^4 
 
 Obtaining money under false pretenses 154 
 
 Horse stealing 1^'^ 
 
 Passing counterfeit money 1^? 
 
 Larceny l^j! 
 
 Misdemeanors generally j^J? 
 
 Trials in criminal and penal prosecutions generally loo 
 
 What must be proved 1^° 
 
 Instructions 1^^ 
 
 Verdict and judgment |°° 
 
 Arrest of judgment • :J'^'' 
 
 Proceedings after reversal by the court of appeals law 
 
 CROSS PETITION 416 
 
 CURTESY 4^^ 
 
 CURRENCY ,• 26S 
 
 43 
 
570 INDEX. 
 
 D. 
 
 PAGE 
 
 DAMAGES ]N GENERAL 161 
 
 In actions for torts generally 162 
 
 Libel and slander 163 
 
 Trespass and trespass on the case 163 
 
 Against officers for official misconduct 164 
 
 For failure of sheriffi; to return _;?./« 236 
 
 In actions on contracts generally 165 
 
 For failure to deliver goods sold 165 
 
 On other contracts 165 
 
 On covenants of warranty 165 
 
 On other covenants and bonds 166 
 
 DECEDENTS' ESTATES— 
 
 Verification and proof of demands against 166 
 
 Demand necessary before suit 166 
 
 Preferred debts against 167 
 
 DECREE. See .T,uJgn,cnt 316 
 
 DEDICATION 168 
 
 DEEDS— 
 
 Consideration of 169 
 
 Acknowledgment and registration of 170 
 
 Validity of 170 
 
 Construction and effect of 171 
 
 Conveying lands of married women 172 
 
 Deeds of trust 504 
 
 DEMAND 173 
 
 Of claims against decedent's estate ; 166 
 
 DEPOSITIONS— 
 
 Notice 174 
 
 How transmitted to clerk 174 
 
 Certificate of officer 175 
 
 May be read in ordinary actions, when 175 
 
 Exceptions to 175 
 
 Mileage to adverse party on failure to take after notice 176 
 
 DEPUTY 176 
 
 DESCENT AND DISTRIBUTION— 
 
 Who is entitled to take by 177 
 
 What descends as real estate 177 
 
 What is distributable as personalty ^ 177 
 
 IIow realty descends 178 
 
 How personalty is distributed 179 
 
 DEVISES AND DEVISEES 180 
 
 What estate passes under a devise 181 
 
 Contingent remainder and executory devises ^ 182 
 
 What persons will or may take under a devise 182 
 
 Residuary devises and devisees 183 
 
 Void devises and limitations 183 
 
 Ademption of devises 184 
 
 Election to take devise when necessary 184 
 
 What will be deemed an election 185 
 
 Liabilities and rights of devisees 185 
 
 Construction of devises 187 
 
 See also Construction of Wills 524 
 
 Devises in lieu of dower 188 
 
 Generally 189 
 
 DISTILLER 190 
 
INDEX. 571 
 
 DISCOUNT Yoo 
 
 DISTRESS FOR RENT 190 
 
 DIVORCE 191 
 
 DOWER GENERALLY 192 
 
 Of what a widow may be endowed 193 
 
 How lost 194 
 
 DRUNKENNESS ' 151 
 
 DUELLING 84 
 
 E. 
 
 ELECTION BY DEVISEES— 
 
 When necessary 184 
 
 What will be deemed an 185 
 
 ELECTIONS, POLITICAL— 
 
 When, and how held 195 
 
 Who is entitled to vote at 195 
 
 Beard to compare polls, and their duties and powers 196 
 
 How and before whom elections may be contested.. 196 
 
 Powers of courts in reference to 197 
 
 Liabilities of officers of 197 
 
 ENTRY, FORCIBLE 250 
 
 ENTRY, RIGHT OF 198 
 
 ENTRY AND SURVEY. See Land 335 
 
 EQUITY— 
 
 General principles 1 99 
 
 When equity will take jurisdiction 202 
 
 When not 204 
 
 Relief in, against judgments and proceedings at law 205 
 
 Effect in, of limitation and lapse of time 206 
 
 ESCHEAT : 207 
 
 ESCROW 207 
 
 ESTATE FOR LIFE 207 
 
 ESTATES TAIL 208 
 
 ESTOPPEL— 
 
 By matters of record 209 
 
 By deeds and other writings 209 
 
 By matters enpais 211 
 
 In equity '. 211 
 
 ET CETERA..' 211 
 
 EVICTIONS 212 
 
 EVIDENCE- 
 
 Judicial notice 212 
 
 Presumptions 213 
 
 Burden of proof. 214 
 
 See also Allegation and Proof. 14 
 
 Production of. 216 
 
 See also Witness 529 
 
 Best and secondary 216 
 
 Competency of, generally 217 
 
 Opinion •■• 218 
 
 Parole evidence to vary or explain writings 218 
 
 Admissions and declarations 220 
 
 Documentary evidence in general 221 
 
 Records 222 
 
572 
 
 INDEX. 
 
 PAas 
 
 Private writings, and proof of. 223 
 
 Quantum and effect of evidence 224 
 
 In criminal prosecutions generally 226 
 
 Threats 227 
 
 Dying declarations 227 
 
 Insanity 227 
 
 Confessions 228 
 
 Character of the deceased 229 
 
 Professional opinions 229 
 
 EXAMINING COUETS— , 
 
 To examine persons charged with felony 230 
 
 To examine persons charged with a misdemeanor 230 
 
 EXECUTIONS— 
 
 Fieri facias 231 
 
 ^ When it may issue 231 
 
 To whom to be directed 232 
 
 What real property may be levied on under 232 
 
 What personal property 232 
 
 Partnership and joint property .". 233 
 
 Exemption from levy, and sale under 233 
 
 Liens under 233 
 
 Levy of, and custody of property 234 
 
 Sales under 234 
 
 Satisfaction of. 236 
 
 Return of. 236 
 
 Amendment of return 17 
 
 When quashed 237 
 
 Remedy for wrongful use of. 238 
 
 Venditioni exponas 238 
 
 Capias profuil 238 
 
 EXECUTORS AND ADMINISTRATORS— 
 
 General principles 239 
 
 Appointment 240 
 
 Assets 241 
 
 General powers of executors and administrators' 241 
 
 Rights of 241 
 
 Responsibilities of. 242 
 
 Actions by and against 243 
 
 Who may require account and distribution 244 
 
 Defective vouchers 244 
 
 Compensation 245 
 
 Sales of real estate under power in wills 245 
 
 Foreign administrators 245 
 
 EXCHANGE OF LAND 246 
 
 EXEMPTION FROM EXECUTION 233 
 
 F. 
 
 FAILURE TO PLEAD. See Judgment 317 
 
 FALSE IMPRISONMENT. See Damages 163 
 
 See also Trespass 501 
 
 MARRIED WOMEN. See Husband and Wife 278 
 
 FELONY. See Criminal Law 149 
 
 FERRIES 247 
 
 FINAL ORDERS. 247 
 
 FIXTURES 249 
 
INDEX. 573^ 
 
 FORCIBLE ENTRY AND DETAINER— paqk 
 
 When, and by whom action of may be maintained 250 
 
 Who may issue and try warrant of. 250 
 
 Proceedings in actions of. 250 
 
 Traverse, and proceedings thereon 251 
 
 FORFEITURE , 251 
 
 FORMER ADJUDICATION 252 
 
 FRAUD AND FRAUDULENT CONVEYANCES— 
 
 What is fraudulent as between the parties 254 
 
 What is fraudulent a.s to creditors 255 
 
 In general 255 
 
 Voluntary conveyances 25& 
 
 Mortgages, unrecorded deeds, and deeds of trust 257 
 
 Sale of chattels remaining in possession of the vendor 258 
 
 Fraud committed by fiduciaries 259 
 
 Relief against, in favor of creditors 259 
 
 Relief, as between the parties 260 
 
 FRAUD AND PERJURIES, STATUTE OF— 
 
 What cases are within the statute in general 261 
 
 Ratification of contract made in infancy 262 
 
 Agreement to answer for the debt of another 262 
 
 For the sale of real estate 263 
 
 Agreements not to be performed in -a, year 263 
 
 Loan and possession of property by one who is not owner 264 
 
 When contracts within the statute are available as a defense.... 264 
 
 G. 
 
 GAMING— 
 
 Gaming contracts, see Contracts 115 
 
 The offense of gaming 265 
 
 Permitting gaming 265 
 
 Setting up tables, machines, etc., used in gaming 265 
 
 Recovery of money lost in gaming 266 
 
 GIFTS- 
 
 Inter vivos '^"' 
 
 Causa mortis -'°° 
 
 GRAND JURY 268 
 
 GROWING CROP 269 
 
 GUARANTY— 
 
 Generally 269 
 
 Continuing guarantees 270 
 
 Limited guarantees 270 
 
 Notice of acceptance of. 270 
 
 GUARDIAN AD LITEM. See Infants 299 
 
 GUARDIAN AND WARD— 
 
 Appointment and removal of guardian -'1 
 
 Relation of guardian and ward 271 
 
 Liability of guardian 272 
 
 Settlement of accounts of 272 
 
 Fraud and undue influence of. 273 
 
 Foreign guardian ■^'* 
 
 44 
 
574 INDEX. 
 
 H. 
 
 FAaE 
 
 HABEAS f'ORPUS 274 
 
 HABERE FACIAS POSSESSIONEM 274 
 
 HEIRS— 
 
 Who are heirs, and how they take 275 
 
 Their rights and liabilitifs 276 
 
 When "heirs" is a word of purchase and when of limitation.... 277 
 
 HIGHWAYS. See Roads 464 
 
 HOLIDAY 278 
 
 HOMICIDE. See Criminal Law 149 
 
 HORSE STEALING, iiae Criminal Law.... 149 
 
 HUSBAND AND WIFE— 
 
 Rights and liabilities of husband 278 
 
 The wife's equity as between her and her husband 279 
 
 As between her and her husband's creditors, and purchasers of 
 
 her property 281 
 
 Survivorship 283 
 
 Dealings between 284 
 
 Separate maintenance, see Alimony 13 
 
 • Disabilities of coverture 285 
 
 General estate of the wife and for what it may be made liable... 286 
 
 Separate estate of the wife generally 288 
 
 Powers of the wife to alien or charge her separate estate 289 
 
 Sale under judgment or by trustee 290 
 
 Suits by and against 291 
 
 Conveyances by 291 
 
 I. 
 
 IDIOTS AND LUNATICS 292 
 
 IMPROVEMENTS. See Rents and Im.prorancnts 461 
 
 INDICTMENTS AND PRESENTMENTS— 
 
 Generally 293 
 
 Formal averments 294 
 
 Name of the defendant 294 
 
 Grounds upon which an indictment may be quashed 294 
 
 For betting on elections 295 
 
 Carrying concealed deadly weapons 295 
 
 Challenging to fight 295 
 
 Bribery 295 
 
 Forgery and counterfeiting 295 
 
 Gaming and permitting gaming 296 
 
 Murder 296 
 
 Larceny 296 
 
 Obtaining money, etc., under false pretenses 296 
 
 Perjury and false swearing 296 
 
 Setting up faro banks, etc 297 
 
 Robbery 297 
 
 Permitting disorderly house ; 297 
 
 Shooting at another with intent to kill 297 
 
 Shooting with malice 297 
 
 Tippling houses 297 
 
 Peddling 297 
 
 Permitting unlawful voting 298 
 
 INDORSEMENTS. See Bills of Exchange and Promissory Notes 69 
 
INDEX. 575 
 
 INFANTS AND INFANCY— p^^^ 
 
 Liabilities on contracts 298 
 
 For torts 299 
 
 Of the protection of the riglits and interest of infants 299 
 
 Suits by infants 299 
 
 Suits against infants 299 
 
 Service of process against infants 300 
 
 Saving in favor of infants in statute of limitations, see Limita- 
 tions 346 
 
 Sale of infants' real estate generally 801 
 
 Town lots 302 
 
 The petition 302 
 
 Appointment and report of commissioners 303 
 
 Bond of guardian 304 
 
 Setting aside or confirming the sale 304 
 
 INJUNCTION 305 
 
 INSANITY. See Idiots and Lunatics and (jriminal Law. 
 
 INSTKUCTIONS.. 306 
 
 For instructions in criminal proceedings, see Criminal Law 149 
 
 INSUEANCE— 
 
 What will avoid a policy 309 
 
 Liabilities of insurers 310, 
 
 Duty of the assured 810 
 
 What may be insured 310 
 
 Contributioia between insurers of the same property 310 
 
 INTEREST 311 
 
 See Usat-y 509 
 
 INTERRO(iATORIES 811 
 
 ISSUE 312 
 
 .See Heirs 275 
 
 J. 
 
 JAILOR 312 
 
 JOINT TENANTS AND TENANTS IN COMMON 312 
 
 JOINTURE 314 
 
 JOINDER OF ACTIONS 314 
 
 JUDGMENTS— 
 
 Generally 316 
 
 Effects of judgments 816 
 
 Judgment by default 317 
 
 Judgments on verdicts 319 
 
 Abatement and revivor of. 320 
 
 Form of 320 
 
 Proceedings to enforce 320 
 
 Foreign judgments 322 
 
 Discharge and satisfaction of. 322 
 
 Lost judgments 322 
 
 JUDICIAL DECISIONS 323 
 
 JUDICIAL OFFICERS 323 
 
 JUDICIAL -SALES 324 
 
 ■JURISDICTION, CIVIL— 
 
 Generally 327 
 
 Jurisdiction of county courts 328 
 
 Local jurisdiction 328 
 
576 
 
 INDEX. 
 
 Jurisdiction, Civii- — Continued. pass- 
 
 Jurisdiction of quarterly courts 329 
 
 Jurisdiction of justices of the peace 329 
 
 For jurisdiction of court of appeals, see Appeals 18 
 
 For jurisdiction of courts of equity, see Equity 199 
 
 For jurisdiction of circuit courts, see Circuit Courts 88 
 
 JURY AND JURY TRIAL— 
 
 Generally 330' 
 
 When parties have a right to a trial by jury 331 
 
 What is a waiver of the right of trial by jury 331 
 
 Challenge to jurors 332 
 
 What facts are for the jury 332 
 
 Powers and duties of juries 333 
 
 Misconduct of the jury 334 
 
 Issues out of equity 334 
 
 For verdict, see Judgment 316 
 
 JUSTICE OF THE PEACE 335. 
 
 L. 
 
 LAND 335 
 
 See Descent and Distribution 177 
 
 LANDLORD AND TENANT— 
 
 How the relation is created and destroyed 336 
 
 Relative rights and obligations of landlord and tenant 337 
 
 Notice to quit 338 
 
 Lien of landlord for rent 338 
 
 LAND WARRANT 339 
 
 LAPSE OF TIME. See Equity and Limit at ions 199, 346- 
 
 LEASE. See Landlord and Tenant 338 
 
 LEGACIES AND LEGATEES. See Devise and Devisees 180 
 
 LEGISLATIVE POWER. See Constitutional Law 99 
 
 LEX LOCI ■ CONTRACTUS. See Bills of Exchange, Contracts, and 
 
 Marriages 69, 112, 362 
 
 LIBEL 340 
 
 LICENSE 340 
 
 LIEN 341 
 
 What is, or will create a lien 341 
 
 ..What will destroy or discharge a lien 343 
 
 Rights of priority between holders of liens 344 
 
 Proceedings to enforce liens 346 
 
 LIMITATIONS— 
 
 General principles 346 
 
 How taken advantage of 347 
 
 When the statute begins to run 347 
 
 What will prevent or suspend the running of the statute gen- 
 erally 348 
 
 Suit and judgment 349 
 
 Infancy 350 
 
 Insanity 350 
 
 Non-residence and absence 350 
 
 When the di.sability of one will save the rights of all 350 
 
 Limitations to actions for real property generally 351 
 
 As to occupying claimants 351 
 
 Between landlord and tenants and co-tenants 352 
 
 Limitations to actions other than real property generally 352 
 
INDEX. 577 
 
 Limitations — Continued. paoe 
 
 Judgments, notes, bonds, and other writings 352 
 
 On accounts and for personal property 353 
 
 Merchants' accounts 353 
 
 For fraud or mistake 353^ 
 
 Against sureties 353 
 
 As to trusts and trust property 354 
 
 What will revive a cause of action once barred 355 
 
 Limitations to actions and prosecutions in the name of the 
 
 Commonwealth 355 
 
 LIS PENDENS— 
 
 What is a lis pendens 35fr 
 
 Effect of a lis pendens 357 
 
 LOAN 357 
 
 LOST EECORDS AND WRITINGS 358 
 
 LOTTERIES 359 
 
 LOUISVILLE CHANCERY COURT 359 
 
 LUNATIC 292 
 
 M. 
 MALICIOUS PROSECUTION 359 
 
 MANDAMUS— 
 
 When it will lie, and proceedings thereunder 360' 
 
 When it will not lie..... 361 
 
 MARRIAGE 362 
 
 See Husband and Wife 278 
 
 MASTER AND APPRENTICE 24 
 
 MASTER AND SERVANT 363 
 
 MERCHANT 363 
 
 MILEAGE 364 
 
 MISNOMER 364 
 
 MISPRISION— „., 
 
 What is 364 
 
 What is not ^^^ 
 
 MISTAKE 366 
 
 MOB. See Towns 498 
 
 MONEY 368 
 
 MORTGAGES— „.. 
 
 What is 368 
 
 Effect of. "•••■ 3ba- 
 
 Effect of under statute of 1856, see Assignments dU 
 
 Validity and construction of. 368 
 
 Rights and interest of the parties and others doy 
 
 Registry and priority 3/U 
 
 Foreclosure „„^ 
 
 Equity of redemption ^'^ 
 
 MOTIONS— • 4Q2 
 
 Against officers, see Sheriffs ■• •• ^»^ 
 
 On bonds to suspend the sale of property under execution 371 
 
 Of the notice necessary 371 
 
 45 
 
578 
 
 INDEX. 
 
 FAQB 
 
 NATURALIZATION 372 
 
 NAVIGATION 372 
 
 See also JRiparian Owners 463 
 
 NEGLIGENCE 473 
 
 See also Bailment 60 
 
 NEGOTIABLE NOTES. &%& Bills of Exchange 69 
 
 NEW TRIAL— 
 
 Generally 375 
 
 For newly-discovered evidence 376 
 
 For excessive damages 376 
 
 For other causes 377 
 
 When motion for, to be made 377 
 
 NEWLY-DISCOVERED EVIDENCE— 
 
 See Bills of jReview and New Trial. 75, 376 
 
 NON-RESIDENTS— 
 
 Generally , 378 
 
 Actions against 378 
 
 Attorneys for 52 
 
 NON-RESIDENT EXECUTORS AND ADMINISTRATORS 380 
 
 NOTES. See Bills of Exchange 69 
 
 NOTARY PUBLIC 381 
 
 NOTICE 381 
 
 See also Motions 371 
 
 NUISANCE....' 382 
 
 o. 
 
 OCCUPYING CLAIMANTS 383 
 
 See also Limitations 351 
 
 OFFICE AND OFFICERS 383 
 
 OVERRULED CASES 385 
 
 OHIO RIVER 390 
 
 P. 
 
 PARDON AND REMISSION BY THE GOVERNOR 390 
 
 PARENT AND CHILD 391 
 
 PAROLE CONTRACTS. &ee Fraiids and Perjuries 261 
 
 PARTIES TO CIVIL ACTIONS— 
 
 Who may or must be a party 392 
 
 Who are not necessary parties 397 
 
 Who has a right to be made a party 397 
 
 When the court should order a new party to be made 398 
 
 Who are parties 398 
 
 When and how defect or misjoinder of parties may be taken 
 
 advaintage of 399 
 
 PARTITION OF LAND .■ ] 399 
 
 See also Joint Tenants and Tenants in Common 312 
 
 PARTNERS AND PARTNERSHIP— 
 
 Liabilities of firms and rights of firm creditors 400 
 
 Powers of one partner over partnership property 401 
 
INDEX. 579 
 
 Paktners and Pabtnebship — Continued. paoe 
 
 Bights and remedies of partners as between themselves, and as 
 
 respects third persons 402 
 
 What is partnership property, and how treated 402 
 
 Eights of the creditors and representatives of one of the part- 
 ners 402 
 
 What will dissolve a partnership 403 
 
 Effect of dissolution 404 
 
 Powers of partners after dissolution 404 
 
 PASSWAYS. See Boads 464 
 
 PATENTS FOR LAND 404 
 
 PAYMENTS 405 
 
 PEDDLERS '. 406 
 
 PERSONAL PROPERTY 406 
 
 PLEADINGS IN CIVIL ACTIONS— 
 
 Generally 407 
 
 Petition, what it must contain 408 
 
 How and when defects in may be taken advantage of. 412 
 
 What defects may be cured by answer 412 
 
 Answer 413 
 
 Reply 415 
 
 Cross-petition 416 
 
 Demurrer generally 416 
 
 To the petition .' 416 
 
 To the answer 418 
 
 Amendments of. 419 
 
 Verification of. 419 
 
 POSSESSION— 
 
 Generally 420 
 
 Adverse 421 
 
 POWERS 423 
 
 PRACTICE IN COURT OF APPEALS— 
 
 Generally 424 
 
 What errors and irregularities will be deemed waived if made 
 
 for the first time in court of appeals 427 
 
 What errors and irregularities will not be deemed waived by 
 
 failure to except 429 
 
 What though erroneous or irregular is not available 429 
 
 Damages on dismissal or affirmance 431 
 
 Mandate and proceedings after decision by the court of appeals 432 
 PRACTICE IN CIRCUIT COURTS— 
 
 Before trial generally 433 
 
 On the trial 436 
 
 When causes stand for trial 440 
 
 In ordinary actions 441 
 
 In equity 445 
 
 In special proceedings 446 
 
 See also Motions 371 
 
 Proceedings after trial 447 
 
 PRESUMPTION. See Evidence 213 
 
 PRINCIPAL AND AGENT. See Agents 9 
 
 PRINCIPAL AND SURETY 448 
 
 PRIVILEGE 448 
 
 PRIVILEGED COMMUNICATIONS 448 
 
 PROCESSIONING LAND 449 
 
580 
 
 INDEX. 
 
 PAGE' 
 
 PROHIBITION, WRIT OF 449 
 
 PUBLIC POLICY 449 
 
 PURCHASERS— 
 
 Who are 451 
 
 Rights and liabilities of generally 451 
 
 See also Vendor and Vendee 512 
 
 When purchasers will be affected by equities in others 453 
 
 R. 
 
 RAILROADS 45r 
 
 RECEIPT , 459 
 
 REGISTER of' THE LAND OFFICE 459 
 
 REMAINDER AND REVERSION 460 
 
 RENTS. Bee Landlord and Tenants 338 
 
 RENTS AND IMPROVEMENTS 461 
 
 See also Occupying Claimants 383 
 
 REPLEVY BONDS. Bee Bonds 80 
 
 RESCISSION OP CONTRACT. See Contracts 121 
 
 See also Vendor and Vendee i 512 
 
 REVENUE— 
 
 Failure of sheriffs to pay over, see Sheriffs 475 
 
 REVIVOR 462 
 
 See Judgments 320 
 
 RIPARIAN OWNERS 463 
 
 ROADS AND PASSWAYS— 
 
 Generally 464 
 
 Appointment and report of viewers 465 
 
 s. 
 
 SABBATH 466 
 
 SELF-DEFENSE. See Criminal Law 149 
 
 SET-OFF- 
 
 General principles 466 
 
 What may be pleaded as 467 
 
 In equity 468 
 
 When available against an assignee 469 
 
 SETTLEMENT. Bee Husband and Wife 279 
 
 SHERIFF— 
 
 TheoflBce 470 
 
 Powers of , 471 
 
 Duties of 471 
 
 Liabilities of generally 472 
 
 For failure to pay county creditors 473 
 
 For failure to return executions 474 
 
 Failure to pay money collected 475 
 
 For failure to pay revenue 475 
 
 SHERIFF'S SALE. Bee Executions and Purchasers 231 
 
 SHOOTING AT ANOTHER 476 
 
 For shooting and wounding with intent to kill, see Criminal Law 149 
 
 SLANDER 476 
 
 SPECIAL JUDGE 478 
 
 SPECIFIC EXECUTION 478 
 
 ^ 
 
INDEX. 581 
 
 PAGK 
 
 STEAMBOATS AND STEAMBOAT OWNERS 480 
 
 STOPPAGE IN TRANSITU 481 
 
 SUBSTITUTION 482 
 
 SUMMON.S— 
 
 To whom directed 483 
 
 By whom executed 483 
 
 Manner of service 484 
 
 Return 484 
 
 Summons issued on Sunday void 485 
 
 SUPERSEDEAS 485 
 
 SUPERSEDEAS BOND. See Bond 77 
 
 SURETIES— 
 
 Liability of sureties generally 485 
 
 Sureties in official bonds 486 
 
 What will discharge a surety or be a defense 488 
 
 For discharge by limitation, see Limitations 346 
 
 Remedy of surety against his co-surety 490 
 
 Remedy of surety against his principal 491 
 
 SURVEYOR AND SURVEYS 492 
 
 SURVIVORSHIP 492 
 
 T. 
 
 TAVERNS, TIPPLINa HOUSES, AND COFFEE HOUSES— 
 
 License for keeping 493 
 
 Civil liabilities of keepers 494 
 
 Offenses by keepers 494 
 
 TAXATION— 
 
 By the Commonwealth •. 495 
 
 By towns, cities, and counties 495 
 
 TENANTS IN COMMON. See Joint Tenants 212 
 
 TENDER 496 
 
 Legal, see H/oney 368 
 
 TIPPLING HOUSES. See Taverns 493 
 
 TIME 496 
 
 TOWNS— 
 
 Rights and powers of authorities of. 497 
 
 Liabilities of 498 
 
 Legislative acts concerning 498 
 
 Rights of citizens and owner of real estate in 498 
 
 Officers and records of. 499 
 
 TRESPASS— 
 
 Generally 500 
 
 Upon the person 501 
 
 Upon real property 501 
 
 Upon personal property 501 
 
 By agents and employees 502 
 
 By officers executing process 502 
 
 TRIAL. See Practice 433 
 
 TRUSTEES OF TOWN. See Towns 497 
 
 TRUST AND TRUSTEES— 
 
 Generally 503 
 
 How trust may be created 504 
 
 Trusts created by unrecorded deeds 506 
 
 46 
 
INDEX. 
 
 Trust and Trustees — Continued. paue 
 
 Who are trustees, how appointed, and when removed 506 
 
 Rights, powers, and liabilities of trustees 506 
 
 Rights and liabilities of cestui qui trust 507 
 
 Liability of the trust estate for the debts of the cestui qui trust 508 
 
 When equity will enforce or execute a trust '. 508 
 
 When the act of limitation will apply 508 
 
 IT. 
 
 UNITED STATES COUK'I'S 509 
 
 USURY— 
 
 What is usurious 509 
 
 When available as a defense 510 
 
 Actions to recover back 510 
 
 USURPATION 511 
 
 V. 
 
 VACANCY 511 
 
 VENDOR AND VENDEE 512 
 
 VERDICT. See Judgment 319 
 
 WARRANTY— 
 
 What will amount to 515 
 
 Breach of. 515 
 
 Who is liable on covenant of. 515 
 
 Who may sue for breach of. 516 
 
 When right of action accrues 516 
 
 When warranty of ancestor will bar his heirs 516 
 
 WEIGHTS AND MEASURES 517 
 
 WILLS— 
 
 Who may make 517 
 
 Execution of. 517 
 
 Revocation of. 519 
 
 Republication of 519 
 
 Codicils 519 
 
 Contingent wills 519 
 
 Probating and contestingi 520 
 
 Testamentary capacity 522 
 
 Undue influence ; 522 
 
 Construction of wills 524 
 
 See also Devises and Devisees 187 
 
 WITNESS— 
 
 Attendance of. 529 
 
 Competency of in civil cases 530 
 
 In criminal cases 534 
 
 When competency may be restored 534 
 
 Examination of. 534 
 
 Credibility and impeachment of. 535 
 
ERRATA 
 
 Page 455. First line, ■sixteenth paragraph, read " loanee '' instead of 
 
 " loaner." ^ 
 Page 491. First line, sixth paragraph, read "surety" instead of "sureties." 
 Page 493. Second line, fifth paragraph, read " entirety" instead of "entity.'' 
 Page 503. First line, first paragraph, read "uses" instead of "usages'' 
 Page 507. First line, eleventh paragraph, read "of trustees" instead of "a 
 
 trustee." 
 Page 522. Second line should read " character of apart" instead of " char- 
 acter apart." 
 Page 522. First line, seventh paragraph, read "that a will was written" 
 
 instead of " that a will written." 
 Page 526. Second line, fifteenth paragraph, read " do an " instead of 
 " draw." 
 
LAW CATALOaUB, 
 
 ROBERT CLAEKB. R. D. BAENBT. J. W. DALR. 
 
 Robert Clarke & Co., 
 
 No. 65 West Fourth Street, Cincinnati, Ohio, 
 
 PUBLISH THE FOLLOWING VALUABLE 
 
 LAW BOOKS. 
 
 OHIO AND OHIO STATE REPORTS. 
 
 Reports of Cases Argubb|and Determined in the Supkbme Court of 
 THE State oe Ohio, as fellows: 
 
 Ohio Reports : Vols. 1 to 9, Hammond, 1821 to 1839, " 
 
 " " Vol.10, "Wilcox, 1840 to 1841, 
 
 " " Vols. 11 to 13, Stanton, 1841 to 1 844, }■ 20 vols. $100 00 
 
 " " Vols. 14 to 19, Grlswold, 1845 to 1850, 
 
 " " Vol. 20, Lawrence, 1851, 
 
 Ohio St. Ebpts : Vol. 1, McCook, 1852, 1 vol. 5 00 
 
 " " Vols. 2 to 4, "Warden, 1853 to 1855, 3 vols. 15 00 
 
 « " Vols. 5 to 16, Critchfield, 1855 to 1866, 12 vols. 60 00 
 
 The Set, 36 "Vols.) - - £180 00. 
 
 NASH'S DIGEST OF THE OHIO STATE REPORTS. 
 
 A Digest op the Decisions of the Supreme Court of Ohio, contained 
 
 in the first ten volumes of the Ohio State Reports. By Hon. Simeon 
 
 Nash. 
 
 1 Vol. 8to, - - $3 00. 
 
 • 
 
 This work is a complete Digest of all cases reported in the Supreme Court of Ohioy. 
 from 1852 to I860, extracting in each case, not only the actual point decided, but all 
 the legal propositions recognized by the Court in coming to their final results. It also 
 hints the grounds of a decision, which is often necessary to comprehend the decision it- 
 self. In this way it makes a real digest, not a mere index. In many cases it will an- 
 iwer as a substitute for the Reports themselTes. 
 
ROBERT CLARKE & CO., CINCINNATI. 
 
 GHOLSON AND OKEY'S OHIO DIGEST. 
 A Digest of the Ohio Reports, including the twenty volumes of Ohio 
 Reports, and the first fifteen volumes of Ohio State Reports. By Hou. 
 W. Y. Gholson and Hon. J. W. Okey. 
 
 1 Vol. Eoyal 8to. $10 00. 
 
 In this work, it has heen the object to make a Digest aa distinguished from an Index ; 
 not only to give a convenient reference to the decisions; but an intelligible statement 
 of the points decided. Where the syllabus contaijas a, satisfactory statement, it has 
 been followed ; but in very many cases, especially in the earlier volumes, they are bo 
 imperfect that much labor has been required to perfect them. As early as the fourteenth 
 volume of Ohio Reports, the Judges adopted the practice of preparing the syllabus for 
 publication j in the volumes published after that practice was adopted, this syllabus, 
 being regarded as the condensed opinion of the judges concurring in the decision, and 
 fis containing that alone for which they are considerable responsible, we have generally 
 used without alteration. 
 
 To keep the work within moderate compass, the same statement of any point decided 
 has ordinarily been inserted but once. This has involved much care in the selection of 
 proper titles for the matter digested, and diflSculty in so making the analysis of the 
 titles as to avoid the necessity of repetition ; and has also rendered it necessary that 
 the analysis should be dispensed with, except in the more important titles. Indeed, 
 the matter is so mingled in the syllabus of many cases, especially in the later ones, that 
 an analysis, without a repetition of the same matter^K^er several of the subdivisions, 
 would only mislead. The plan adopted to avoid thisH^ifficulty was this : All the decis- 
 ions that were regarded as proper for any title, have been digested there, and at the 
 end of the title a reference will be found to all other titles, and the volume and page 
 -of the reports, where all other decisions, bearing upon that head, may be found j thus 
 giving under each title a digest of, or convenient reference to, all the decisions beariug 
 upon it. 
 
 Many of the heads have been thoroughly analyzed. The title. Code of Civil Proced- 
 Hre, embracing one hundred and twenty-seven pages, contains thirty sub-divisions, and 
 many of these have been again subdivided. The preparation of this title has required 
 the labor of months ; aud it is believed that it will be found so full and accurate as to 
 be of great assistance to the student, practitioner and judge, and to impress upon them 
 the orderly arrangement of the Civil Code, and to lead to a better understanding of the 
 provisions of that important statute. So the title. Criminal Law, containing more than 
 five hundred sections, will be found to embraca^nder proper subdivisions, the whole 
 body of the law relating to Crimes and Criminal Procedure. Bills and Notes, Corpora- 
 tions, and many other titles are treated in the same manner. 
 
 The work also contains a full lamd accurate Index, showing under each head of the 
 law that has been in any respect elucidated by the Supreme Court, everything that 
 bears upon it. 
 
 TAYLOR'S OHIO SCHOOL SYSTEM. 
 
 A Manual OF the Ohio School System, consisting of an Historical View of 
 its Progress, and a republication of the School Laws in force. By James 
 W. Taylok. 
 
 1 Vol. 8to, - - $1 50. 
 
LAW CATALOGUE, 
 
 THE REVISED STATUTES OF OHIO, 
 The Revised Statutes of the State of Ohio, of a General Nature, in forco 
 August 1, 1860. Collated by Hon. J. R. Swan. With Notes of the Decis- 
 ions of the Supreme Court, and References to Prior Laws, by L. J. 
 Critchfield. 
 
 2 Vols. Eoyal 8vo. - - $12 00. 
 This work possesses the following merits : 
 
 I. The subjects are arranged in chapters alphabetically, with a synopsis at the head 
 of each chapter of its contents. 
 
 II. Laws and sections which have been repealed are omitted, and their repeal noted, 
 
 III. When a new section has been enacted to take the place of a repealed section, the 
 new section has been introduced into the place of the repealed section, printed in smaller 
 type than the rest of the text, a marginal note placed by the side of it, stating that it 
 is an amendatory section, and giving the time when it passed, and when it took eflFect, 
 Former editions of the Statutes have contained no such arrangement. 
 
 IV. The Decisions of the Courts contained in the twenty-nine volumes of the Ohio 
 Keports have been carefully collated and introduced as notes, accompanying the text, 
 to illustrate its construction and subject matter. 
 
 V. It also contains, the Constitution of the United States, Abstract of Naturalization 
 Laws, Old and New Constitutions of Ohio, with copious Indexes. 
 
 No care or expense has been spared to make this work perfect and reliable in all respects. 
 
 It has now the Legislative sanction, having been approved by nearly the unanimous 
 vote of both Houses, and was ordered to be distributed to the following State and County 
 Officers : Governor, Attorney«~0eneral, Supreme Judges, Secretary, Comptroller, Treas- 
 urer and Auditor of State, and" to the Probate Courts, Courts of Common Pleas, Supe- 
 rior and Police Courts, Auditor and Clerks of the various Courts in each County, to the 
 Members of the Senate and House of Representatives of this State, and the Governors 
 of the several States of the Union. 
 
 This book, containing, as it does, all of the Statutes now in force, and the authorita- 
 tive construction of them and of the New Constitution, will be found to be especially 
 useful in the performance of theii duties, to all County Officers, Justices of the Peace, 
 Township Trustees, Clerks of Townships, and City Officers. 
 
 NASH'S PLEADING AND PRACTICE. 
 Pij;ading and Practice under the Civil Codes op Ohio and Kansas. 
 By Hon. Simeon Nash. Third eclition, thoioughly revised, enlarged and 
 improved, to conform to Statutes in force, January, 1864. 
 1 Tol, Royal 8vo. - - $6 00, 
 The Publishers would invite the attention of the Profession to their third and care- 
 fully revised and improved edition of this excellent and highly approved work on 
 Pleading and Practice, under the new Code of Ohio, and that recently adopted in Kansas. 
 The work in its former editions received the approbation of the Profession, and has 
 occupied a high stand as a careful analysis of the principles involved in the Code, and 
 as a basis of uniformity and regularity in the forms and practice of Pleading throughout 
 the State. The forms here supplied will be found convenient and concise, and adequate 
 to nearly every case likely to arise under the requirements of the Code. They have 
 already been much used in practice, and found admirably adapted to the purpose for 
 which they are designed, conducing especially to uniformity, brevity and perspicuity — 
 qualities in forms and proceedings at law which can not be too highly commended. 
 
ROBERT CLARKE & CO., CINCINNATI. 
 
 SWANS PLEADINGS AND PRECEDENTS. 
 
 Commentaries on Pleadings under the Ohio Code, with Precedents of 
 
 Petitions, Answers, Demurrers and Eeplies. By Hon. Joseph K. Swan. 
 
 1 Vol. 8vo. - - »6 00. 
 
 The author has been employed during the vacation of courts, for the past two years, 
 in the preparation of this work. The entire two years, however, could have been profit- 
 ably employed upon a work which consumed many days in determining the tenor of 
 some of its single paragraphs. But no time or labor could result either in a complete 
 work, or in educing, from the provisions of the Code, rules of pleading which could 
 reconcile the various and conflicting views and opinions of the bar and bench of New 
 York and Ohio. The author has endeavored to construe the Code in the spirit which 
 originated its enactments; a mode heretofore not generally adopted. Instead of 
 annotating the sections on pleading by giving the mass of decisions of the circuit 
 judges of New York, or courts elsewhere, he has ventured to treat of the construction, 
 language, certainty and particularity of Code Pleading, and to illustrate it by reference 
 to the rules of pleading at common law, and pointing out the difference between those 
 rules and the system of the Code. It also treats of the law relating to parties to action; 
 the joinder and election of causes of action, the requisites of petitions, answers and 
 demurrers; and contains forms of petitions, answers and demurrers. 
 
 In the Western Law Monthly for January, 1861, will be found a careful review of this 
 work, from a correspondent, and remarks by the editors, to which we refer. We extract 
 the following: 
 
 ''It should receive respectful and candid consideration on account of the author, so 
 well known as a writer on our own laws ; and it requires a thorough examination of 
 the principles .announced, to determine their true value. The book, in our opinion, is 
 a bold one. The introduction, short as it is, announces that the purpose of the book 
 is to enforce and illustrate the difference between the common law system of pleading 
 and the Code system — 'a difference radical and irreconcilable ; frequently overlooked, 
 sometimes perversely disregarded.' And the author, believing that the vindication of 
 the Code from the artificial and technical rules of the common law pleading, must 
 devolve upon the rising young men of the profession who have mastered both systems, 
 dedicates his work *to the young gentlemen of the bar.* * * * 
 
 " The spirit of these rules and of the book, seems to be opposed to all technicality in 
 pleading ; and an earnest denial of the power or propriety of any court to build up, 
 under the Code, any system of artificial or technical rules of construction. * The Code,' 
 he says (page 170), 'originated in a determination to put an end to such a system; the 
 very nature of its rules of pleading, unless perverted, will render even the courts power- 
 less to enforce any prescribed forms, or to demand from pleaders technical language.' 
 
 **We can not cite further the various things worthy of note in this volume, but we 
 have found the book so congenial to our taste and sympathies, in regard to Code plead- 
 ing, as to wish to call the attention of others lo what we conceived to be the key-note 
 of this book. We are happy to know that the present judges of the Supreme Court are 
 said to have very much the same opinions in regard to the Code; and under their 
 administration in the highest court, and a cordial co-operation of the other courts and 
 the bar, we do not see why we may not have the true spirit of Code pleading and 
 practice, as we claim this book shows it forth, everywhere adopted.** 
 
 [The foregoing review of the recent treatise of Judge Swan, upon the subject of 
 Pleading, under the Code of Ohio, is from the pen of a correspondent who has thoroughly 
 examined the work, and is well qualified to speak of its merits and character; and to 
 present, as he has faithfully done, some of the views of its author, and the principles 
 adopted by him as applied to that statute. « * * The work is certainly worthy of 
 the careful reading of every practitioner in our country. The learned author's presen- 
 tation of the principles of the Code, will be fdund highly instructive ; particularly to 
 that class of the profession to whom the book is dedicated.] — Eda. T7. Law Monthly, 
 
LAW CATALOGUE. 
 
 SENEY'S OHIO CODE. 
 The Code of Crvn. Procedure, and the Code of Procedure before 
 Justices of the Peace, for the State of Ohio. With Notes of the Deci- 
 sions of the Courts of Ohio, Keiituolcy, Indiana, and New York. By 
 Hon. Geo. E. Sbney, Judge of the Tenth Judicial District. 
 1 Vol. 8vo. - - $6 00, 
 
 This work contains the Code of Civil Procedure, and the Code of Procedure before 
 Justices of the Peace, with all subsequent Amendments and Supplementary Acts, in 
 force April 1860 ; also, several Statutes of general application under the present system 
 of Pleading and Practice. Brief notes of the published decisions of the courts of Ohio 
 are appended to those sections of either Code, and to the Statutes referred to, to which 
 a judicial construction has been given. Also, notes of the decisions of all the courts of 
 Kentucky, Indiana and New York, upon all provisions of the Codes of either of those 
 States, which are identical, or nearly so, with those of the Ohio Code. 
 
 These notes are compiled from the Ohio State Reports, Ohio Reports, Handy's Cin- 
 cinnati Superior Court Reports, Cincinnati Law Gazette, Cleveland Law Monthly, 
 Western Law Journal, Reports of the Court of Appeals of Kentucky, Supreme Court of 
 Indiana, and the numerous Reports in New York. 
 
 In the arrangement of the work, where a section of either Code has been repealed and 
 an amended section enacted to supply its place, the amended section is substituted for 
 the repealed section, with a note stating the time when it was passed, and the volume 
 of Laws in which it was published ; also, giving the section repealed. 
 
 As no edition of the Code has been published since 1853, this volume, containing all 
 the subsequent amendments and acts supplementary to the Code, with nearly three 
 thousand notes of judicial decisions, construing its provisions, and determining many 
 interesting and important questions of practice, will be found useful and convenient not 
 only to the Bench and the Bar, but to Justices of the Peace. 
 From Western Law Monthly, 
 
 Whatever contributes to the dissemination of a correct knowledge of the Code of 
 Civil Procedure of this State, and of the practice under it, is of a great value to the 
 whole people. We, therefore, hail with sincere satisfaction the work of Judge Sexet. 
 It bears the impress of the mature and cultivated legal mind and sound judgment 
 characteristic of the author. The plan of the work does not admit of uny discussion 
 on his part. The object of the author has been to furnish a perfect copy of the present 
 Code, with all the light that judicial decisions have thrown upon it, or the practice 
 under it ; entirely divested of all speculations or opinions of his own. In this, he 
 seems to have accomplished all that the present state of authorities admits j giving, at 
 one view, all that is authoritative upon the subject, and saving to the practitioner and 
 the court a vast amount of labor in research, that might in the end have proved less 
 efficacious. The book should be deemed— as practically it is— indispensable to every 
 lawyer, and every student of the Code. And it ought to be in the hands of every 
 Justice of the Peace. It is supplied with a full table of contents, and a copious and 
 minute index. 
 
 From Hon. Milton SutUj^. 
 
 From the cursory perusal of Seney's Ohio Code, which I have been able to give, I 
 regard it as being all that its title page professes. It seems to be a work characterized 
 by good judgment in its design, and much industry and care in its execution. The aid 
 and facility thereby afforded for a correct understanding of the practice under the 
 Code, I think, will insure the work a favorable reception by the legal profession. 
 
RAFFS GUIDE FOR EXECUTORS, ETC., IN OHIO. 
 
 A Guide for Executors and Administrators in the settlement of the 
 Estates of Deceased Persons withhi the State of Ohio, to wliicli is prefixed 
 a brief Comment upon the Statute of Wills, showing how AVills are Exe- 
 cuted and Proved in this State, and their effect in certain cases. By Geo, 
 W. Raff, late Probate Jud^e of Stark County. Third and thoroughly re- 
 vised edition, 
 
 \_In this edition the entire work hoe been thorouglihf revised ; the text, notea and forma have 
 heen enlarged and perfected ; the alterations made in the law since the publication of the former 
 editions have heen properly entered j and no pains have been spared to make the work accurate 
 and complete.'\ 
 
 1 Vol. 8to. - - $2 00. 
 
 The design of this work is to furnish Executors and Administrators with a plain, 
 familiar and accessible guide in the discharge of their duties. It is the result of the 
 observation and experience of the author in an official position which gave him ample 
 opportunity to learn the real wants of those for whose benefit it has been prepared. It 
 makes no pretensions to the title of a Lawyer's Book, nor great learning and research. 
 "What is claimed for it is, that it is more practical in its scope, enters more minutely 
 into the details of the ordinary duties of Executors and Aministrators, and is more ex- 
 plicit in its instructions with regard to the manner in which those duties should be per- 
 formed, than any other work on the same subject published in this State. It does not 
 propose to enable those who consult its pages to dispense with the advice of efficient 
 attorneys j but, on the contrary, invariably insists that counsel should be taken upon 
 all the more difficult questions. 
 
 In the citation of authorities, the author has confinedhimself exclusively to the decis- 
 ions of our own courts, and has preferred, in most instances, to give the law as it has been 
 expounded by the courts, in the form of foot-notes, rather than to embody it in the text. 
 
 The Forms for the use of Probate Judges, Executors, Administrators, Widows, Heirs, 
 Legatees, Creditors, etc., are believed to be more numerous, and adapted to more purposeS| 
 than in any similar work ever published. 
 
 From the Western Lata Monthly. 
 This is a book that has long been needed by persons having the estates of deceased 
 persons to settle. It is the result of several years' experience of the learned author as 
 a Probate Judge, which experience has enabled him to give, in the plainest and most 
 familiar style, all necessary instructions as to the manner in which the duties of Exec- 
 utors, Administrators and Probate Judges, should be performed. We are shown in 
 other works what needs to be done in the- settlement of an estate. Mr. Raff not only 
 gives us this, but also gives full directions how each step should be taken in the settle- 
 ment of the property of a deceased person. It also contains nearly one hundred and 
 fifty different Forms for the use of the above-named officers. 
 
 From Hon. Wm. H. Burke, Probate Judge of Stark County, Ohio. 
 I have thoroughly examined "Raff's Guide," and am constantly in the habit of ap- 
 pealing to it in the discharge of the duties pertaining to this office. I have also at all 
 times recommended it to Executors and Administrators, and it should be in the hands 
 of every man discharging those trusts. The book gives evidence that the author has 
 had that practical experience so requisite in framing a work of this kind, and wanting 
 which, authors are apt to mystify, rather than assist, those who appeal to it for aid. 
 
LAW CATALOGUE. 
 
 SWAN'S NEW TREATISE FOR JUSTICES IN OHIO. 
 A Treatise on the Law relating to the Powers and Duties of Jus- 
 tices OF THE Peace and Constables, in the State of Ohio (and in I^an- 
 sas), with Practical Forms, etc. By Hon. Joseph R. Swan. Eighth edi- 
 tion, corrected and enlarged. Revised to conform to the Statutes, etc., in 
 force May, 1862. 
 
 1 Vol. Boyal 8vo. - - $8 00. 
 The object of this treatise is to enable the magistrate and the Oonstable, in the exer- 
 cise of their respective offices, to understand and apply the common practical rules of 
 Law, as known and recognized in the higher courts of justice. It is not to be regarded 
 as embracing all possible cases that may occur in the ever-changing affairs of human 
 life, but only as a compilation of general rules, accompanied with practical forms, 
 such as may be useful to the Magistrate in the performance of bis duties, and to the 
 Constable in executing the process of the law. 
 
 The first edition was published in 1836. In 1855, the changes in the law were so radi- 
 cal that it became necessary to re-write most of the work. The sixth edition was then 
 issued, embracing the law and forms of the lat^y-passed Justices' Act, together with 
 the provisions of the Code, so far as they apply to proceedings before justices of the 
 peace. The law relating to Agents', Mechanics' and Furnishers' Lien, Limited Part- 
 nerships, Bills of Lading, Mortgage of Goods, and actions against Watercraft, etc., 
 with the necessary forms were then added, and other titles enlarged j especially those 
 which relate to Evidence and Mercantile Law. 
 
 The numerous changes in the law since that time, have rendered another careful re- 
 vision of the work absolutely necessary. In this, the eighth edition, the alterations will 
 be found both numerous and important; being revised so as to conform to the statutes 
 passed prior to the adjournment of General Assembly, May, 1862. The references to 
 the statutes are, to the recent edition, compiled by Swan & Critchfield. Such of the re- 
 ported decisions of the Supreme Court, contained in the twenty volumes of the Ohio 
 Reports, and in the eleven volumes of the Ohio State Reports, as modify the text of the 
 late edition, are also noted, and the text revised. 
 
 RAFF'S ROAD LAWS OF OHIO. 
 The Law relating to Roads and Highways in the State of Ohio ; showing 
 how State, County and Township Roads, and Streets and Alleys are estab- 
 lished, opened, altered, improved and vacated ; with the duties of County, 
 Township and Corporation Officers, Common Pleas and Probate Judges, 
 Surveyors, Viewers, Jurors, and others, in relation thereto, and numerous 
 Forms, etc By George W. Raef, Author of " Manual of Pensions " and 
 " Guide for Executors and Administrators in Ohio. 
 1 Vol. 12mo. - $1 50. 
 This will be found to be a highly important work for County Commissioners, County 
 Auditors, County Treasurers, Common Pleas Judges, Probate Judges, Surveyors, Town- 
 ship Trustees, Township Clerks, Township Treasurers, Justices of the Peace, Supervis- 
 ors, City and Village Councils, City Clerks, Street Commissioners, Viewers, Jurors, 
 Attorneys, and all others directly or indirectly interested in the laws relating to the 
 establishment, vacation, alteration, opening, widening, narrowing, grading, or improv- 
 ing of Eoads, Streets or Alleys in this State. Full instructions are given in this volume 
 for performing every duty required by the laws referred to ; and nearly two hunted 
 Forms adapted to every purpose connected with the discharge of those duties. lAtes 
 of Judicial Decisions are also appended, rendering the work complete in all its parts. 
 
BOBBRT CLARKE * CO., CINCINNATI. 
 
 KENTUCKY REPORTS. 
 
 Eepokts 01' Cases at Common Law and in Equity, argued and decided 
 in the Court of Appeals of the Commonwealth of Kentucky, as follows : 
 
 Bibb, 
 
 
 1808 to 1817, 
 
 
 4 vols. 
 
 $22 00 
 
 A. K. MarshaU, 
 
 
 1817 to 1821, 
 
 
 3 vols, in 2, 
 
 12 00 
 
 Littell, 
 
 " Select Cases. 
 
 1822 to 1824, 
 , 1795 to 1821, 
 
 \ 
 
 6 vols, in 3, 
 
 20 00 
 
 T. B. Monroe, 
 
 
 1824 to 1828, 
 
 
 7 vols, in 3, 
 
 25 00 
 
 J. J. Marshall 
 
 
 1829 to 1832, 
 
 
 7 vols, in 4, 
 
 25 00 
 
 Dana, 
 
 
 1833 to 1840, 
 
 
 9 vols, in 5, 
 
 35 00 
 
 Ben Monroe, 
 
 
 1840 to 1858, 
 
 
 18 vols. 
 
 99 00 
 
 Metcalfe, 
 
 
 1859 to 1863, 
 
 
 4 vols. 
 
 20 00 
 
 Duvall, 
 
 
 1864 to 1865, 
 
 
 1vol. 
 
 00 
 
 
 The Set, 69 Vols, in 44, 
 
 - - $263 00. 
 
 
 The Kentucky Reports enjoy a large celebrity as acknowledged authority in all the 
 Courts of the Union, both Federal and State, and are especially valuable for the many 
 profound and able Decisions they contain upon the subject of conflicting Land Titles, 
 rendered by some of the most enlightened Jurists that have ever adorned the Bench. 
 In every department of the Law, these Reports will be found interesting and useful, 
 and practitioners will find their libraries incomplete without them. 
 
 THE REVISED STATUTES OF KENTUCKY. 
 
 Appkovbd and Adopted by the General Assembly, 1851 and 1852, and in 
 force from July 1. 1852, with all the Amendments subsequently enacted, 
 and Notes of the Decisions of the Court of Appeals of Kentucky. By 
 Hon. Kichakd H. Stanton. With Supplement, embracing the Acts of 
 a General Nature passed by the Legislature of 1859-60. 
 
 [Made Authority in all Courts in Kentuchy, by Aet of General Assembly.^ 
 
 2 Vols, Royal 8vo. - - $12 00. 
 
 This Taluable work, prepared with great aoonracy and labor, by the Hon. R. H. Stan- 
 ton, of Maysville, Ky., contains the Revised Statutes of Kentucky, as originally adopted 
 1851-1852, with all the amendments thereto, and General Laws of the State, enacted since 
 and up to the present time ; thus embodying the whole Statutory System now in force in 
 the State. In addition to the very great convenience of having all the Statutory Law 
 condensed into a single work, well arranged, the text of these volumes is illustrated and 
 enriched by full and copioup notes of the Decisions of the Court of Appeals of Ken- 
 tucky, settling the construction of such provisions as may heretofore have been of 
 doubtful or uncertain meaning. Those engaged in the administration of the law in 
 Kentucky, will be saved much labor of research by thus having, in a small compass and 
 condensed form, the whole practical working of the Statutory System of the State. In 
 tru|^ the work will be found of great value to all classes of persons. 
 
LAW CATALOGUE. 
 
 SUPPLEMENT TO REVISED STATUTES OF KENTUCKY. 
 
 The Genkkal Laws ov Kentucky, enacted by the Legislature since the 
 publication of Stanton's edition of the Revised Statutes, with Notes of 
 Decisions of the Court of Appeals. Arranged under appropriate titles, 
 and thoroughly indexed. 859-865.00 By Harvey Myeks. 
 
 1 Vol, 8to. - - $6 50, 
 
 This volume embraces all the General Laws enacted by the Legislature since 1858, and 
 ap to the present time, including those of the Winter session, 1865-66 ; and with Stan- 
 ton's edition of the Berised Statutes, embraces all the General Laws now in force in 
 Kentucky. 
 
 These laws are arranged under appropriate titles. Notes of the Decisions of the Court 
 of Appeals, construing the Statute Laws of the State are added, and the book thor- 
 oughly indexed. The volume contains all the Amendments to the Codes of Practice not 
 embraced in Stanton's edition of the Code. 
 
 The important changes in the Revised Statutes, and additions to the Statute Laws of 
 the State, especially those of the last session of the Legislature in reference to the col- 
 ored population, render this book desirable to every lawyer and officer connected with the 
 administration of justice throughout the State. 
 
 The volume contains about eight hundred pages, and is uniform in size with Stanton's 
 Statutes. 
 
 MYERS' KENTUCKY CODES OF PRACTICE. 
 
 Codes of Practice in Civil and Criminal Cases for the State of Kentucky; 
 containing all the Amendments adopted since the publication of the Codes, 
 with Notes of tlie Decisions of tiie Court of Appeals of Kentuclty ou their 
 Construction. By Harvey Myers. In press. 
 
 1 Vol, 8vo. - - 87 50. 
 
 This edition embraces : 
 
 1. All the Amendments to the Code made by the Legislature np to the present time. 
 
 2. Notes of the Decisions of the Court of Appeals of Kentucky construing the Code. 
 
 3. Notes of Decisions of the Supreme Court of Ohio, and of the Supreme Court and 
 Court of Appeals of New York, and of the Superior Court of New York City, constru- 
 ing the Code. 
 
 4. Forms for judicial proceedings under the Code. 
 
 No pains have been spared to make this edition of the Code convenient and accepta,- 
 ble to the profession. On all sections which are literally or in substance the same as the 
 Ohio and New York Codes, notes of the Decisions of the Courts of those States constru- 
 ing those sections have been added. Those of the New York Courts are numerous, and 
 it is believed will be found of much value to the practitioner. 
 
 GOFER'S DIGEST OF KENTUCKY REPORTS. 
 A Supplemental Digest of the Decisions of the Court of Appeals of Ken- 
 tucky: embracing 14tli Ben Monroe to 2d Duvall, with an Alpliabeti- 
 cal Table of the Cases decided in the volumes digested. By Martin H. 
 
 ^°^^^- 1 Vol. 8vo. $6 50. 
 
ROBERT CLARKE & CO., CINCINNATI. 
 
 STANTON'S TREATISE FOR JUSTICES IN KENTUCKY. 
 
 A Treatise on the Ijaw relative to the Powers and Duties of Justices 
 OF THE Peace and Constables, in the State of Kentucky, with Forms, 
 etc. Second edition, thoroughly revised, to conform to the Statutes now 
 in force. By Hon. Richard H. Stanton. 
 
 1 Vol. 8to, - - $5 00. 
 
 This new work, which has been prepared with unusual diligence and care by the author, 
 is intended to be a complete and perfect guide to Justices of the Peace and Constables 
 in thfe discharge of their respective duties under the laws of the State. Its arrange- 
 ment is such that, while it presents to the officer a full view of the law which he may 
 be called upon to enforce, whether civil or criminal, it affords him such complete and 
 accurate instructions as to the practical manner of discharging his duties in each par- 
 ticular case, that it will be almost impossible for the least informed among them to go 
 astray. 
 
 Every necessary form which a Justice of the Peace, or other officer may require in 
 the course of his official duties, will be found in its appropriate place in the work ; and 
 the instructions are so full, perspicuous and clear, that it will be found an invaluable 
 official companion to those for whom the treatise is intended, and a highly useful work 
 to the legal profession, and all others having business with those officers. The author 
 has spared no labor to make it just such a work as is now most needed by the class of 
 officers whose duties are so fully and clearly explained, and his well known accuracy 
 and success will commend it to the hearty patronage of all persons in Kentucky con- 
 cerned in the administration of the law. 
 
 STANTON'S MANUAL FOR EXECUTORS, Etc, IN KENTUCKY. 
 
 A Peacticai, Manual for thb use op Executors, Administrators, Guar- 
 dians AND Trustees in Kentucky, with the Law in regard to AVills and 
 the Probate thereof, and Forms for the use of these Officers. By Hon. 
 BicHAED H. Stanton. 
 
 1 Vol. IZmo. - - $1 7B. 
 
 This work affords a convenient and practical guide for the use of those intrusted with 
 the administration of estates or the guardianship of minors in the State of Kentucky. 
 Such persons will find in its pages every form that they may be required at any time to 
 use ; and by faithfully following the instructions given, they will be enabled to perform 
 every duty required of them with ease and accuracy. 
 
 GWYNNE ON SHERIFFS AND CORONERS. 
 
 A Practical Treatise on the Law op Sherifp and Coroner, with Forms 
 and References to the Statutes of Ohio, Indiana and Kentucky. By A. E. 
 
 GWYNNE. 
 
 1 Vol. 8to, - - S3 00. 
 
 This is a work of great importance, not only to the officers for whose use It was pre- 
 pared, but also members of the bar, to suitors, and to purchasers at judicial sales. It 
 amis to present a brief exposition of the principles of law, and the rules of action which 
 eiould guide the Sheriff, or the Coroner when acting as Sheriff, in the performance of 
 his duties. 
 
LAW CATALOGUE, 
 
 DAVIS DIGEST OF INDIANA REPORTS. 
 
 A Digest of the Decisions of the Supreme Court of the Statj: of Indi- 
 ana, comprising the cases reported in the eight volumes of Blackford, 
 and the first sixteen volumes of Indiana Keports; together with the Ke- 
 vised Statutes of the State, as embodied in the edition of Gavin and 
 Hord. By Edwin A. Davis, LL. B. Second Edition. 
 
 1 Vol. 8vo. - - $7 00. 
 
 The following notices of the work show its value to the Legal Profession, 
 and the ability and labor exhibited in its preparation : 
 
 From Hon. Martin M. May. 
 
 I have examined with some care the new Digest of Decisions of the Supreme Court 
 of this State, In one convenient volume, edited by Edwin A. Davis, LL. B., and I 
 assure you that it is but faint commendation of the labors of the author to say that he 
 has been eminently successful in laying the legal profession under obligations for a 
 Digest as rare in its plan and execution, as it is useful to the profession. 
 
 They especially may congratulate themselves that twenty-four volumes of our Supreme 
 Court Reports have been so admirably epitomized to a volume of ordinary size. This 
 is no abridgment of the Keports, but a genuine Digest of them, and while the legal acu- 
 men to analyze and extract the pith of a decision is common, the ability to digest is a 
 much rarer capacity — the former requiring only mechanical skill, the latter a high 
 measure of mental discipline and a familiarity with the logic of the law. When these 
 respective qualifications for the task are considered, the profession will accord to Mr. 
 Davis not only qualifications for the task, but the merit of having prepared the best 
 Digest that has yet appeared in the West. Its systematic arrangement, its comprehen- 
 siveness, its accuracy in references — which I have fully tested — enables me to commend 
 it freely to the profession. 
 
 From Hon, David McDonald, 
 
 The legal profession in Indiana will hail the above-mentioned work as a desideratum 
 which has long been wished for. 
 
 To make a good Digest requires respectable legal learning, a good talent for analyz- 
 ing and arranging the subjects and topics to be digested, and much patient labor. In 
 all these cases, Mr. Davis appears to have been fully competent to the task he has un- 
 dertaken. No lawyer who examines the work can doubt his legal acumen. His analy- 
 sis and arrangement appear to me to be admirable, and that he has bestowed great labor 
 on the work is evident. 
 
 It is no small commendation of the work under review, that it is a Digest not only 
 of all our Supreme Court decisions which have been published, but also of all Indiana 
 statutes now in force. This feature of the Digest will save the practicing lawyer much 
 trouble and labor in hunting up statutes, and will enable him, by the aid of the 
 Digest, to feel sure that he does not overlook any statute bearing on the subject of his 
 inquiry. 
 
 I heartily recommend the work to the patronage of all lawyers, and especially thosa 
 who practice in the State of Indiana. 
 
ROBERT CLARKE & CO., CINCINNATI. 
 
 BICKNELL'S INDIANA CIVIL PRACTICE. 
 The Practice of the Supreme and Circuit Courts of the State of 
 Indiana in Civil Cases. By Gkorge A. Bicknell, L.L. D., Judge of 
 the Second Judicial Circuit and Professor of Law iu the State University. 
 1 Vol. 8to. - - $6 00. 
 After ten years' use, aided by rules of court, by the discussioDS of counsel, by th» 
 learning of the Supreme Court, and by legislative emendation, the Code of Practice 
 introduced by the Revised Statutes of 1852, has attained suflBcient certainty and con- 
 sistency to be a fit subject for systematic consideration. 
 
 In this Book of Practice, the author takes a view of this Jurisdiction of the courts in 
 civil causes, and of the Judges, Clerks, SheriflFs, and Attorneys, so far as their duties 
 in civil causes are concerned; he afterward states the proceedings in the management 
 of civil causes in general from beginning to end, including the practice in causes 
 appealed to the Supreme Court, and in causes appealed to the Circuit Court, from all 
 inferior tribunals ; and finally, the practice in particular cases, and in special and 
 summary proceedings, is stated; and it has been the design of the author throughcut 
 to show, not only what the law is and what ought to be cione, but also how to do it and 
 when to do it. 
 
 From lion. Samuel E. Perkins. 
 "I am pleased with your work, and have commenced citing it in my opinions. It is 
 a vast improvement upon the crude and hasty experiment made by me/' 
 From Hon. Lucian Barbour. 
 "I have been examining your Practice, and find it to be a valuable work; the result 
 of a great deal of study and labor and accurate judgment." 
 From Hon. David McDonald. 
 ''Among the many works which have lately appeared on the practice under * Codes,* 
 I have met with none that seems to me to be more happily conceived and ably ex- 
 ecuted. It will be a great help to the Indiana Lawyers, and will contribute to your 
 reputation (already high) as a man learned in an honorable profession,*' 
 From Hon, Joteph W. Chapman. 
 "'Bicknell'a Practice' is a work of which you may justly feel proud, and is just 
 what was needed by our profession.' 
 
 BICKNELL'S INDIANA CRIMINAL PRACTICE. 
 
 The Practice of the Superior Court of the State of Indiana, in 
 Criminal Cases. By George A. Bicknell. L.L. D. 
 
 1 Vol. 8vo. - - $6 00. 
 
 The Practice of the Superior Court of Indiana in Criminal Cases has never been 
 thoroughly exhibited. There is no book exclusively devoted to it. 
 
 The author has been urged repeatedly, since the publication of his ''Civil Practice," 
 to set forth the Practice in Criminal Cases, and in this book he has undertaken to do it. 
 
 The nature of crime and punishment and criminal responsibility, the extent and 
 essentials of criminal jurisdiction, and the manner in which prosecutions are com- 
 menced, by indictment and by information, are particularly set forth ; all the proceed, 
 ings, general and special, in Criminal Cases, are fully stated, including the practice iu 
 appeals to the Supreme Court, and the principal felonies known to the law of Indiana, 
 are sep?lrately considered, and forms of indictment are given for each, and other 
 necessary forms are given in the course of the woj-k. 
 
LAW CATALOGUE. 
 
 MCDONALD'S TREATISE FOR JUSTICES, ETC., IN INDIANA. 
 
 A Tkeatise on the Law eelative to the Powers and Duties of Justices 
 OF THE Peace and Constables in the State of Indiana, witli Practical 
 Forms and Essays on various Titles of the Common Law. Bj- Hon. 
 David McDonald. Revised to conform to the Statutes in force January 
 1, 1863, by Edwin A. Davis, LL. B., author of the Indiana Digest. 
 
 1 Vol. 8vo, - - $8 00. 
 
 All classes of officers at law will find this work a convenient, complete and accurate 
 guide in the performance of their rarioua official duties ; to the Profession generally it 
 will prove a valuable aid ; and to business men it is a copious fountain of important 
 and useful information. 
 
 It embraces everything relating to trials before JustiSes, with the Law of Evidence, 
 Contracts, Partnerships, Liens, Promissory Notes, and other subjects interesting to 
 every business man. 
 
 The work has been carefully and thoroughly revised to conform to the Statutes now 
 in force, with references to the new revised edition of the Statutes compiled by Messrs. 
 Gavin and Hoed. 
 
 " In our opinion, its general use by Justices of the Peace will tend materially to 
 diminish litigation, obviate the frequency of appeals to higher courts, and further the 
 juster administration of the judicial powers vested in those officers." 
 
 SOLOMON CLATPOOL, WALTER MARSH, 
 A. A. HAMMOND, J. W. GORDON. 
 
 "The work will be especially valuable to those for whom it was particularly designed j 
 and, beside, there are subjects relating to the general practice treated of, which will 
 also render it highly valuable to the Profession generally — to whom I cheerfully 
 recommend it." S. B. GOOKINS, Judge Supreme Court. 
 
 BARTON'S SUIT IN EQUITY. 
 
 History of a Suit in Equity, from its commencement to its final termina- 
 tion. By Charles Barton, of Middle Temple. Kevised and enlarged, 
 with Forms of Bills, Answers, Pleas. Demurrers and Decrees, by James 
 P. Holcombe. "With an Appendix, containing the Ordinances of Lord 
 Bacon, Rules of Practice in Equity in the Circuit Courts of the United 
 States, and the English Orders In Chancery. 
 
 NeT Edition,' 1859. 1 Vol. 8vo, - - $2 BO. 
 
 '* This is a remarkably perspicuous and satisfactory outline of the practice, in which 
 »re explained, analytically and scientifically, the various forms of bills, answers, 
 demurrers, pleas, and other proceedings, from the institution to the completion of a 
 suit in chancery. It is preceded by an historical essay on the jurisdiction and objects 
 of chancery ; the whole of which is a clear and beautiful eoup d'ceil, admirably adapted 
 as an introduction to the study of practice and pleadings in this court. It appeared in 
 1799, and continues to maintain its high rank amidst the numerous works of late." — 
 Eoffman's Course of Legal Study. 
 
 8 
 
LAW CATALOaUE. 
 
 MATTHEWS ON THE LAW OF PARTNERSHIP. 
 
 A Summary of the Law op Partnership. For the use of Business Men 
 By Stanley Matthews, one of the Judges of the Superior Court of Cin- 
 cluuati. 
 
 1 Vol, IZmo. Olotli, SI. 25 I Law Sheep, S1.60. 
 
 This oatline of the Law of Partnership has been sketched for the nse of the business 
 community. It aims to give nothing more than a general view of the principles on 
 which it is based, and the rules for their application. It is not designed to supersede 
 the necessity of professional advice. On the contrary, its chief value, it is thought^ 
 will consist in pointing out the occasions when such assistance is needed, and in enhanc- 
 ing the appreciation of it, when rendered. 
 
 " We have examined Judge Matthews' ' Summary of the Law of Partnership,' and 
 are satisfied it is a carefully compiled and thorough treatise on the subject. The prin- 
 ciples are clearly yet concisely stated, in language almost faultless, and the whole spirit 
 of the work assures us its author has conscientiously discharged his duty. It is an un- 
 pretending volume in size, but it is no less valuable to business men, as well ag the prac- 
 ticing lawyer. "B. STOKER, 
 
 " GEORGE HOADLT, 
 " Judges Superior Court, Cincinnati." 
 
 CURWEN ON ABSTRACTS OF TITLE. 
 
 A Manual of Abstracts of Title to Real Property; containing Prac- 
 tical Directions for tlie Examination of Titles to Real Property; Search- 
 ing Records of Deeds, Wills, Jiulgments, Decrees, Mortgages, Liens ; and 
 the Doctrine of Equity with respect to Vendors' I/iens, Separate Estates 
 of Married Women, Notice of Trusts, etc. Illustrated by refei-ence to the 
 Statutes of Pennsylvania, Ohio, Kentucky, Indiana, Illinois, Iowa and 
 Kansas. By M. E. Cukwen, of the Cincinnati Bar. 
 
 1 Vol. 12mo. Cloth, $1.60 ; Law Sheep, SI. 75. 
 
 This work, believed to be the only one in the United States, upon the subject, is de- 
 gigned to give plain, practical directions for the examination of records relating to the 
 title to lands in the States of Pennsylvania, Ohio, Kentucky, Indiana, Illinois, Iowa 
 and Kansas. The Statutory requirements of these States, in reference to contracts con- 
 cerning lands, deeds, wills, leases, mortgages, liens, judicial sales, and the like, are fully 
 stated, and the authorities referred to. The subject of oil lands and leases is consid- 
 ered, and the usual form of oil leases given. 
 
 Without going into the abstruse learning on the law of real property, thework states, 
 sharply and definitely, the points of law to which the attention of men of property, real 
 estate dealers, auctioneers, and searchers of titles should be directed ; the requisites of 
 a binding contract of sale of land ; the rules of computing the area of land ; the requi- 
 sites of deeds, leases, wills, and judicial titles; the liens which attach to lands; the 
 provisions of the stamp act, and the usual forms of deeds and mortgages. 
 
ROBERT CLARKE & CO., CINCINNATI. 
 
 RAFF'S MANUAL OF PENSIONS, BOUNTY AND PAY. 
 
 A Manual op Pensions, Bounty and Pay; [1789-186.S] ; containing the 
 Laws, Forma and Regulations relating to Pensions, Bounty Land, Bounty 
 Money, Pay, Claims for Horses, and other Property destroyed, etc, etc.; 
 with Notes of Official Decisions, and Opinions of the Attorneys-Genei-al, 
 with reference to the subjects named. By GrEOKSE W. Raff. 
 
 1 Vol. 12mo, - - 52 00. 
 
 The greatest care has been taken to make this work as perfect and complete as possi- 
 ble. It will be found to be an exceedingly useful book to those desirous of obtaining 
 Pensions or Bounty for themselves or others, and to Pension Agents particularly it will 
 be indispensable. The peculiar advantages of this work are ; 
 
 1. It is a convenient size for use. 
 
 2. It contains no superfluous matter, 
 
 3. While aiming at brevity, it is comprehensive — omitting nothing relating to the 
 sabjects treated of that might be useful to those consulting its pages. 
 
 i. The arrangement is so simple that the law, forms, instructions, decisions, etc., can 
 be readily found. 
 
 In respect of size, arrangement and price, it is believed it will be found preferable to 
 any book of a like character published in this country. 
 
 Opinion of Hon. Jos. H. Barrett, Commitnoner of Pennont. 
 
 " It is eminently due to the ability and fidelity with which this Manual has been pre- 
 pared, that I should express the great satisfaction which I have found in its perusal, 
 and my sense of its very great value. In truth, I know of no other work that so nearly 
 approaches my ideal of a convenient and reliable work on Pensions' and the related 
 topics ; and it has my cordial commendation." 
 
 RAFF'S WAR CLAIMANT'S GUIDE. 
 
 A Manual of Laws, Regulations, Insthuctions, Forms and Official 
 Decisions, relating to Pensions, Bounty, Pay, Prize Money, Salvage, 
 Applications for Artificial Limbs, Compensation for Horses, Cars, Steam- 
 boats, Clothing, Slaves, and other Property Lost or Destroyed, Commu- 
 tation of Rations, Travel, etc., and the Prosecution of all Claims against 
 the Government, growing out of the War of 1861-6.5. By George W. 
 Raff, Author of "Pension Manual," " Executor's Guide," etc. 
 1 Vol. 8vo. - - S 4.00 
 This work is devoted exclutively to claima groaning out of the late rebellion, and con- 
 tains full and complete instructions for obtaining the allowance and payment of such 
 claims, with all laws in force applicable to the same. The very latest official regulations 
 and forms have been obtained, and the aim of the author has been to make this the 
 most accurate, reliable and thorough work of the kind extant. 
 
 A very valuable feature of the work is a Digest of Official Decisions, covering about 
 100 pages, comprising many recent opinions which have never been made public. 
 
ROBERT CLARKE A CO., CINCINNATI. 
 
 McLeans circuit court reports. 
 
 EupOKTs OF Cases akgded and decided in the Circuit Coukt op thb 
 United States, for the Seventh District, from 1829 to 1855. By Hon. 
 John McLean, Circuit Judge. 
 
 6 Vols. 8to. - - $33 00. 
 
 These volumes embrace the decisions of Mr. Justice McLean, on the Circuit, from 
 1829 to 1855, together with Rules of Chancery Practice, adopted by the Supreme Court, 
 and a very able Charge delivered by him to the Grand Jury, in December, 1838, on the 
 subject of Military Operations against Canada, and a few Decisions by the District 
 Judges. 
 
 HOLCOMBE'S EQUITY JURISPRUDENCE. 
 
 An Introduction to Equity Jurisprudence, on the basis of Story's Com- 
 mentaries, with notes and references to English and American cases. 
 Adapted to the use of Students. By James P. Holcombe. 
 
 1 Vol. 8to, ■ - $3 00. 
 
 The text of this work is substantially an abridgment of Judge Story's Commentaries 
 on Equity Jurisprudence. The same general plan and arrangement has been pursued, 
 and the elementary principles, which are supposed to possess the most practical value, 
 selected and presented, with appropriate illustrations, in a greatly condensed form. 
 
 GILMAN'S ILLINOIS AND INDIANA DIGEST. 
 
 Digest of the Decisions of the Supreme Courts of the States of Indiana 
 and Illinois, and the Circuit Court of the United States for the Seventh 
 Circuit. By Charles Oilman. 
 
 1 Vol. Svo. - - S3 00. 
 
 JOHNSON'S CHANCERY REPORTS. 
 
 Reports of Cases adjudged in the Court of Chancery est New York, 
 from 1814 to 1823 ; to which is added a General Digested Index of the 
 Cases decided in the Court of Chancery and in the Court for the Correc- 
 tion of Errors on Appeal, from 1799 to 1822, with Tables, etc. By Wil- 
 liam Johnson. 
 
 7 Vols, in 3. Svo. - - $18 00. 
 
 CONSTITUTION OF THE UNITED STATES, ETC. 
 
 The Declaration of Independence, July 4, 1776 ; the Articles of Confed- 
 eration, July '9, 1778, the Constitution of the United States, September 17, 
 1787; Amendments to the Constitution, and Index; and Washington's 
 Farewell Address, September 7, 796. 00 
 
 Svo. 60 pp. - - 2Boi 
 
LAW CATALOGUE. 
 
 BLACKMAN AND MATTHEWS' SURGICAL MALPRACTICE. 
 
 Legal Liability in Cases of Surgical Malpractice in its Principles 
 AND Li&iiTS. By George C. Blackman, M. D., Professor of Surgery in 
 the Medical College of Ohio, etc., and Stanley Matthews, Esq., of the 
 Cincinnati Bar, lately one of the Juclges of the Superior Court of Cincin- 
 nati. In preparation. 
 
 1 Vol. 8vo. - - S 
 
 It will be the aim of this work to meet a want urgently felt both by the Legal and 
 Medical Profession. Trials for Surgical Malpractice are quite frequent throughout the 
 country, and both Counsel and Surgeons are often put to great trouble in their research 
 after cases and reports of trials which bear upon the question at issue. Brof. Blackman 
 will endeavor to present the Surgical branch of the subject in such a manner that the 
 msmbers of the Bar may be able, with less trouble than heretofore experienced, to become 
 acquainted with the modern surgical teachings of our highest authorities which have 
 reference to these trials. To render still further aid, numerous illustrative engravings 
 will be given with the text, which will be of great value in the study of fractures and 
 injuries in the vicinity of the joints, the results of which have given rise to so many 
 trials. Other anatomical and surgical illustrations will be given so as to make the work 
 far more complete and valuable than any yet published. 
 
 The discussions of the limits of legal rights and responsibilities growing out of such 
 cases, in the light of judicial decisions, will be furnished by Judge Matthews. 
 
 HEADINGTON ON BILLS AND NOTES. 
 
 A Summary of the Law of Bills of Exchange, Pkomissoey Notes and 
 Negotiable Bonds. For the use of Business Men. By Nicholas Head- 
 INGTON, one of the Judges of the Court of Common Pleas of Hamilton 
 County, Ohio. In press. 
 
 1 Tol. 12mo. - - e 
 
 FISHER ON PATENTS. 
 
 A Familiar Treatise on the Law and Practice relating to Letters 
 Patent for Inventions in the United States, with a Summary of 
 Foreign Laws upon tlie same STibject, with the necessary Forms and 
 Directions. Designed for Inventors, Mechanics and Manufacturers. By 
 Samuel S. Fisher, Counselor at Law. In preparation. 
 
 IVol. 12mo. - - $ 
 
 DISNEY'S CINCINNATI SUPERIOR COURT REPORTS. 
 Reports of Select Cases decided by the Superior Court of Cincinnati 
 General and Special Terms. Vol. 1, 1855-1859. By William Disney, of 
 the Cincinnati Bar. 
 
 1 Tol. 8to, $6 00. 
 
ROBERT CLARKE A CO., CINCINNATI, 
 
 LEGAL BLANKS. 
 The greatest care has been taken to make this series in every way worthy 
 of patronage. The forms have been carefully prepared by an experienced 
 Conveyancer ; the paper, made expressly for them, is of superior quality, a 
 fine, white wove paper, extra tough, not liable to break when folded ; the 
 type is new and appropriate, and the marginal and faint ruling neatly exe- 
 cuted. 
 
 The following forms are now ready : 
 
 OHIO. 
 
 Warranty Deed — 
 
 (With Dower). 
 Warranty Deed — 
 
 (Without Dower). 
 Mortgage — 
 
 (With Dower). 
 Mortgage— 
 
 (Without Dower). 
 Lease — 
 
 (Long Form). 
 
 Quit Claim Deed— 
 
 (With Dower). 
 Quit Claim Deed — 
 
 (Without Dower). 
 Chattel Mortgage. 
 Bond. 
 
 Assignment of Lease. 
 Assignment op Judgment. 
 Lease — 
 
 (Short Form). 
 
 Power of Attorney. 
 
 KENTUCKY. 
 Warranty Deed — Mortgage. 
 
 (With Lien for Purchase Money). Lease. 
 Warranty Deed— Chattel Mortgage. 
 
 (Without Lieu for Purchase Money). 
 
 ( Other Blanks in preparation.) 
 
 Warranty Dbed^ 
 (With Dower). 
 
 Warranty Deed — 
 
 (Without Dower). 
 
 KANSAS. 
 
 Mortgage — 
 
 (With Dower). 
 Mortgage — 
 
 (Without Dower). 
 
 ( Other Blanks in preparation.) 
 Piioo, - - $1,20 jisr Quire. 
 Assortments sent by m^il on receipt of piioe. 
 
LAW CATALOGUE. 
 
 OHIO JUSTICES' BLANKS. 
 
 No. Blanks 
 
 on a Sheet. Per Quire, 
 
 Affidavit for Attachment 2 $1 00. 
 
 Attachment with Summons Rbtuknabm: 2 " 
 
 Bond FOR Order OF Attachhent 4 " 
 
 Deposition , 4 « 
 
 Deposition with Instructions 2 " 
 
 Execution 4 « 
 
 Execution UNDER 1st Sec. OF Act OF April 7, 1863.. 4 " 
 
 Landlord's Complaint 2 " 
 
 Mittimus 4 " 
 
 Mittimus UNDER IsT Sec. of Act of April 7, 1863.... 4 " 
 
 Mittimus for Adjournment 4 " 
 
 Notice TO Garnishee 4 " 
 
 Notice to Leave Premises 4 " 
 
 Order of Sale 4 " 
 
 Eecognizancb 4 " 
 
 Recognizance of Witnesses 2 " 
 
 Replevin 2 " 
 
 State "Warrant 2 " 
 
 SUBPENA 4 " 
 
 Summons 4 " 
 
 Summons TO Bail 4 " 
 
 Summons IN Forcible Entry AND Detainer 4 " 
 
 Writ OF Restitution • 4 
 
 Constables' Sale 2 50 Cents. 
 
 Protest 2 
 
 Notice of Protest 2 
 
 ( Other Blanks in preparation.) 
 
 The above is an entirely new set of Blanks, just published, for the use of 
 Justices of the Peace of Ohio. They are of the latest and most approved 
 forms, having been carefully prepared by an experienced Justice. They are 
 neat, uniform, and well printed on good white paper, and have the proper 
 blanks for indorsement on the back of each. 
 
 Assortmeite sent by mail, prepaid, on receipt of price. 
 
EGBERT CLARKE & CO., CINCINNATI. 
 
 NEW BLANKS FOR 
 
 Pensions, Arrears of Pay, Bounty Money, etc. 
 
 ■ All Blanks in this Series are revised and corrected to meet the latest requirements of the 
 Departments, 
 
 Forms Used In Drawing Pensions. 
 
 Vouchers of Widow for Payment of Increased Pension, under Act of July 25, 1866. 
 (Form H & I.) 
 
 Voucher of Widow or Mother for Payment of Pension, under the Act of July 14, 1862. 
 (Form H.)» 
 
 Voucher of Guardian of Minor Children for Payment of Increased Pension, under Act 
 of July 25, 1866. (Form J J.) 
 
 Voucher of Guardian of Minor Children for Payment of Pension, under Acts of Feb- 
 ruary 3, 1863 j June 3, 1858; July 14, 1862. (Form J & K.) 
 
 Voucher of Soldier for Payment of Increased Pension, under Act of June 6, 1866. 
 (Form B.)» 
 
 Voucher of Officer or Soldier for Payment of Invalid Pension, under Act of July 14, 
 1862. (Form A.)* 
 
 Forms of Application to Departments for Pensions, Certificates, Back 
 Fay, and Bounty. 
 
 Claim of Soldier for Additional Bounty.* 
 
 Claim of Widow of Deceased Soldier for Additional Bounty. 
 
 Claim of Father of Deceased Soldier for Additional Bounty. 
 
 Claim of Mother of Deceased Soldier for Additional Bounty. 
 
 Claim of Father and Mother of Deceased Soldier for Additional Bounty. 
 
 Claim of Children of Deceased Soldier for Additional Bounty. 
 
 Claim of Soldier for Increased Pension.* 
 
 Claim of Widow of Deceased Soldier for Increased Pension. 
 
 Claim of Officer or Soldier for Invalid Pension. 
 
 Claim of Widow of Deceased Officer or Soldier for Pension. 
 
 Claim of Mother of Deceased Officer or Soldier for Pension. 
 
 Claim of Guardian of Minor Children of Officer or Soldier for Pension. 
 
 Claim of Guardian of Minor Sister of Officer or Soldier for Pension. 
 
 Claim of Officer or Soldier for Arrears of Pay, Bounty Money, etc. 
 
 Claim of Widow for Arrears of Pay, Bounty Money, etc. 
 
 Claim of Father for Arrears of Pay, Bounty Money, etc. 
 
 Claim of Mother for Arrears of Pay, Bounty Money, etc. 
 
 Claim of Adult Children, or Guardian of Minor Children, or their Joint Claim for Ar- 
 rears of Pay, Bounty Money, etc. 
 
 Claim of Brother or Sister of Deceased Officer or Soldier, for Arrears of Pay, Bounty 
 Money, etc. 
 
 Voucher for the Receipt of Additional Bounty.*" (Form No. 5.) 
 
 Claim of Officer for Three Months* Pay Proper.* 
 
 Claim of Officer or Soldier for Bounty after Two Years' Service.* 
 
 Officer's Certificate of Disability.* 
 
 Claim of Payment of Quartermaster's Stores, or Subsistence Supplies. 
 
 Claim of Loyal Owners for Compensation for Slaves. 
 
 * These forma are printed 2 on a sheet. 
 
 We would call the attention of Attorneys, Pension Agents, and others, to the above 
 complete series of Blanks. They have been prepared with great care, and conform in 
 every respect to the latest requisition of the Pension and Second Auditor's Offices. All 
 the forms pertaining to an Application are printed upon one sheet, embracing the De- 
 claration of the Applicant, the Affidavits of Witnesses, the Certiiioate of the Magis- 
 trate, Certiiicate of Surgeon, Power of Attorney, Clerk's Certificate, etc., etc., with am- 
 ple blank spaces and full instructions for filling up. We offer these Blanks to persons 
 desiring to use them, in perfect confidence that no better can be prepared. ' 
 
 Price, $1.00 per Quire. Sent by Mail, prepaid, on receipt of Price. 
 
ROBERT CLARKE & CO., CINCINNATI. 
 
 B^lVKIftXJPTCY BLATSriiS 
 
 ATTORNEYS AND REGISTERS, 
 
 Under the Banhrupt Law of 1867. 
 
 FOR, 
 
 Form 1. Petition by debtor. 
 
 " 2. Copartnership petition. 
 Schedule A 1. Creditors to be paid in 
 
 full. 
 
 Schedule A 2. Creditors holding se- 
 curities. 
 
 Schedule A 
 A 
 
 A.T TOiaiVE YS. 
 
 Oath to schedule A. 
 Oath to schedule B. 
 Form 18. Assignment of bankrupt's 
 
 eflfects. 
 Form 21. Proof of debt with secu- 
 
 rity. 
 Form 22. 
 
 nty. 
 Form 26, 
 
 Creditors unsecured. 
 Liabilities on notes, 
 etc., discounted. 
 Schedule A 5. Accommodation paper. 
 " B 1. Interest in real estate, 
 " B 2. Personal property. 
 " B 3. Choses in action. 
 " B4. Property in expectancy. 
 " B 5. Property claimed as ex- 
 cepted. 
 Schedule B 6. List of books, deeds, 
 papers, etc. 
 
 rOR, KEGISTEIiS 
 Form 4. Order of reference to register. 
 " 5. Adjudication of bankruptcy 
 upon debtor's petition. 
 Form 6. Warrant to messenger and 
 
 return. 
 Form 11. Certified memorandum of 
 
 first meeting of creditors. 
 Form 12. Abstracts of proceedings un- 
 der section four. 
 Form 15, Choice of assignee. 
 " 16. Notification of appointment 
 of assignee. 
 Form 17. Bond of assignee. 
 " 18. Assignment of bankrupt's 
 effects. 
 Form 20. Exempted property. 
 
 Proof of debt without secu- 
 
 Letter of attorney to repre- 
 sent creditors. 
 Form 51. Petition of bankrupt for his 
 
 discharge. 
 Form 54. Creditor's petition. 
 
 " 55. Deposition as to petitioning 
 creditor's claims. 
 Form 56. Deposition of witness to act 
 of bankruptcy. 
 
 Form 21. Proof of debt with security; 
 " 22. Proof of debt without secu- 
 rity. 
 Form 23. Declaration for proof of debt 
 
 by officer of corporation. 
 Form 24. Affidavit for proof of debt 
 
 by agent or attorney. 
 Form 25. Proof of debt with security 
 
 by agent. 
 Form 48, Summons of witness after 
 
 adjudication and return. 
 Form 50. Form of certificate under 
 
 section six. 
 Notice to Creditors — 4 page circular, 
 with ruled.columns for Names, Resi- 
 dence and Amount — 75c. per quire. 
 They have been carefully prepared from the authorized forms, with the 
 assistance of the Clerk of the Court and Registers here, who use these blanks, 
 and recommend their use in order to secure uniformity of practice. 
 
 They are believed to be more conveniently arranged and better adapted 
 to suit the various cases than any other blanlcs issued. They are unifornily 
 printed in good style and on good paper, and are arranged with special 
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 WARDER'S DU BREUIL'S VINEYARD CULTURE: 
 
 Vineyard Culture Improved and Cheapened; by A. Du Breuil, 
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 of Arts and Trades, Paris. Translated by E. and C. Parker, 
 of Longworth's Wine House. With Notes and Adaptations to 
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 also Improved Methods of Artificial Swarming, whereby the 
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 By D. L. Adair, Hawesville, Ky. 8vo., paper, price 50 cents. 
 
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ROBERT CLARKE & CO. 
 
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