Confiscation-Consideration.

5. The usage of nations, if applicable to the case, does not sanction the confisca-
tion of property here belonging to rebels, and debts owing to them, before the com-
mencement of hostilities.-Ib.....

..............

................ 385

6. A sovereign, engaged in a public war, may disregard the usage of nations and
establish a different rule toward the enemy, which shall bind those within his jurio-
diction.-Ib

7. The existence of a public war gives to Congress the power, as a belligerent right,
to confiscate enemy's property on land, though such is not the usage of nations.-
Ib...............

...........380

8. Congress possessed the power to pass the act in question if the existence of civil
war gives to the government all the belligerent rights, against rebellious citizens,
which it possesses against alien enemies during a public war.-Ib......................386
9. The authority to make war for the suppression of rebellion is derived from
those clauses of the constitution which declare that, "the President shall take care
that the laws be faithfully executed," and that Congress shall have power "to pro-
vide for calling forth the militia to execute the laws of the Union, suppress insurree-
tions, and repel invasions."-Ib..............
........380
10. The right, given by the constitution, to make war upon rebels, gives the power
to perform acts of war, and no other power whatever.-Ib.........

..........386
11. The seizure and confiscation of enemy's property on land are not acts of war.
(Brown vs. United States, & Cranch.)-Ib.............................

.........380

12. The constitution does not prohibit the confiscation of the property of alien ene-
mies. The protection received by aliens, residing abroad, with reference to their
property here, is due, not to the constitution, but to international comity, which may
be suspended during war. But the constitution, and not the law of nations, governs
the relations between the government and citizens of the United States. They,
though traitors, must be dealt with according to the constitution-Ib.................386
13. The act under consideration is unconstitutional, because it attempts to author-
ize the confiscation of the property of citizens, as a punishment for treason and other
crimes, without due process of law, by proceedings in rem in any district in which
the property may be, without presentment or indictment by a grand jury, without
arrest or summons of the owner, and upon such evidence of his guilt as would be suf-
ficient proof of any fact in admiralty or revenue cases. (Con., art 3, sec. 2, sub. 3,
and sec. 3, sub. 1; 5th and 6th amendment.)--Ib..............
....385

14. Sunt upon a note. The answer avers that when the rebellion commenced the
plaintiff resided in Missouri, became a secessionist, actually joined the Confederate
government, and moved to Arkansas, where she could better have its protection, and
where she has continued to this time to give aid and comfort to the rebellion by her
means and money: held, upon demurrer, that, if the statements of the answer are
true, the plaintiff cannot, upon common law principles, maintain an action here dur-
ing the war; and her petition should be dismissed without prejudice.-Ib............386

CONSIDERATION-

1. A writing imports prima facie a valuable consideration; but the presumption of
a sufficient consideration ceases to exist whenever the party relying upon the agres-
ment undertakes, though unnecessarily, to show what was the consideration. (7 John.,
321; 1 A. K. Mar., 331.)-Steadman vs. Guthrie............
..........147

2. Future forbearance by the depositers of a banker can form no consideration for
an absolute agreement by guarantors to pay the depositors without reference to such
forbearance.-Ib............
........147

Consideration-Constitutional Law.

3. Contracts, required by the statute of frauds to be in writing, stand upon the
same footing as other written contracts with respect to the consideration, which need
not be expressed in the writing, but may be proved, when necessary, or disproved,
by parol or other evidence; and this whether the consideration be executed or execu-
tory.-Ib..........

4. In an action upon a writing, purporting on its face to be an unconditional guar-
anty, but which does not express the consideration upon which it is executed, the
averments of the petition as to the consideration show that the contract was condi-
tional, depending for its validity upon the performance of certain acts by the promis-
see. Held, That there is no variation between the contract contained in the writing
and that set forth in the petition.-Ib...

.....147

5. A writing was as follows: "We the undersigned agree to guaranty the deposi-
tors of W. E. C., in the payment in full of their demands against said C., on ao-
count of money deposited with him. We have entire confidence in his ability to meet
all demands." In an action against the guarantors, the petition alleged that public
confidence in C. was impaired, and that it was executed in consideration that the
plaintiff and the 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 conven-
iently pay them, and to prevent "a run upon him" and of sustaining his credit.
Held, That the plaintiff is not estopped from relying upon the alleged consideration,
which is not inconsistent with the writing. The writing neither estops the plaintiff
nor the defendants from showing the consideration upon which it was founded.-
Ib............

147

6. In such case, the petition should allege forbearance by all the depositors.
Where, however, it is averred that the guarantors designed the paper as a guaranty
to such of the depositors as might give the forbearance to C., and that they executed
it in consideration of such forbearance to be given by the several depositors; in a
suit by one, it is not necessary to allege forbearance by all.-Ib.........................148
7. If the alleged guaranty was given in consideration that the several depositors
would forbear to demand their deposits, the giving of forbearance would be sufficient.
An agreement to give it, without doing so, would not.-Ib...............................
8. If the consideration was forbearance to C. during the panic, or until he could
conveniently pay, his failure, and the close of his house a few days after the execu-
tion of the guaranty, dispensed with the necessity of further forbearance; and for-
bearance until that time formed a sufficient consideration to support the contract.-
Ib...........

..148

....... 148

9. One who advanced money to enable another to conceal his crime and stifle a
prosecution against him, cannot recover. Otherwise where the offense is not a fel-
ony. And his assignee occupies no better attitude.-Barclay vs. Breckinridge....374

CONSTITUTIONAL LAW-

1. There is no provision of the constitution of Kentucky, which indicates an in-
tention to deprive the legislature of the power which it possessed, without constitu-
tional grant, to punish a person for challenging, in this State, any one, whether a
citizen or alien.-Moody vs. Commonwealth........
1

2. By the constitution of the United States where a treaty, made under the au-
thority of the United States, conflicts with a law of the State, the law must give
way to the extent of its conflict with such treaty. Yeaker vs. Yeaker............... 33

Constitutional Law-Contracts.

3. It is a well settled rule that where a State law is deemed unconstitutional, be-
cause opposed to the constitution, laws and treaties of the Federal government, it is
only void so far as it contravenes the constitution, laws or treaties. Ib. 33
4. The first section of the act of May 24th, 1861, (Session Acts, page 2,) forbidding
the rendition of judgments for money for the period therein named, is constitution-
al. The principles settled in the case of Johnson ve. Higgins, (3 Met., 567,) holding
it to be constitutional, are approved.-Barkley, &c. vs. Glover, &c......... 44.
5. Any attempt by the Legislature so to change the remedy as to impair the obli-
gation of a contract is prohibited by the constitution.-Berry, &c. vs. Ransdall...292
6. A statute of limitation, which does not allow a reasonable time after its pas-
sage for the commencement of suits on existing causes of action, is unconstitutional.
(4 Wheat., 207; 3 Peters, 290; 2 Greenleaf, 294; 8 Mass., 430.) Thirty days is not
a reasonable time-Ib.

See Confiscation.

CONTRACTS-

1. In a sale of a tract of land the bond, executed to the purchaser, recited that
certain sum was to be paid on the 1st of March next after the date of the writing,
and the residue in two annual instalments, for which the purchaser executed his
notes, absolute in their terms. The bond stipulated that possession was to be given
on a named day, and a deed to be made with general warranty "when the first pay-
ment is made." Suit was brought upon the note given for the last instalment of the
purchase money, the first payment having been made, the vendor having failed to
make the deed. Held, That the contract to convey and the contract to pay are mu-
tual executory agreements, not dependant upon each other. The failure to convey
cannot avail as a defense to defeat the action.-Hutchings va. Moore.................110
2. Sale of a farm "containing 160 acres, more or less," particularly described in
the bond for a conveyance, for the consideration of $6,400, "being at the rate of
forty dollars per acre," (as the bond recites,) held to be a sale by the acre, and not
in gross, and the purchaser liable to pay for a surplus of eleven and a half acres con-
tained in the tract-he cannot surrender the surplus land to his vendor.-Ib.........110
3. It has been held that in the sale of a tract of land of about 135 acres, a deficit
of two acres was large enough, considering the price of the land, ($30 per acre,) to
entitle the purchaser to relief. (Reed vs. Quisenberry, Mos. Opin., winter term, 1849.)
Argu.-Ib....

4. In a contract in writing for the delivery of a specified quantity of charcoal, at
a fixed price, if the purchaser receive more than he is entitled to, he must pay for
the excess what it is worth, whether he had knowledge of it or not.-Caldwell, da
. Dawson.......

.121

5. In a suit upon such contract, to entitle the plaintiff to recover for the excess, the
petition should allege the value thereof.-Ib..........

.121

6. A conditional promise for the payment of money becomes absolute as soon as
the condition is fulfilled, and may be declared on as if it had never existed. For as
the engagement of the promisor finally, results in such cases in an unqualified obliga-
tion, the law implies an unqualified promise for its fulfillment. (1 Smith's Leading
Cases, 628.)-Steadman vs. Guthrie...................................................................................................................................... 147
7. A parol agreement between debtor and creditor that a buggy of the former
should be valued by two men to be thereafter selected for that purpose, the oreditor
to take it at such valuation and credit the amount he held on the debtor; if the val-
uation should exceed the amount of the note the creditor to pay the excess. There

Contracts.

had been no valuation, no change of possession, when an attachment, sued out by
another creditor of the debtor, was levied upon the property. Held, That the agree-
ment passed no right, legal or equitable, to the property, and that the attachment be
sustained.-Calvert vs. Sasseen ......

................ 245
8. For a breach of the agreement, supra, by either party to it, an action for dám-
ages would be the only remedy.—Ib.....

............245
9. The intention of the parties, to be gathered from the entire instrument-and the
meaning or effect of a particular word-must always determine the question of con-
struction of the contract.- White vs. Booker

..........

.........

...267
10. After reciting that B. had bought of W. 100 hogs, of a certain description, to
be delivered at the time, place and price specified, the agreement stipulates that "B.
feeds and returns him, W., 250 hogs, no hog to weigh less than 220 pounds, and each
and every hog to be well fatted, and no sow with pig, and to average 300 pounds
gross." Held, That hogs fed by others than himself, of the requisite description,
might be furnished by B. in fulfillment of his contract.-Ib...............
..267
11. A note given, "we or either of us, directors of Centreville and Jacksonville
Turnpike Co., promise to pay," &c., is the individual obligation of those who signed.
It is not the obligation of the corporation.- Whitney vs. Sudduth................................................296
12. 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 a place of performance, is presumed to be made with reference to the law
of the place at which the agreement is made. These presumptions are conclusive.
The same rule applies to both parties to the contract.-Short, &c. ve. Trabue,
&c.............
299

......

.......

13. The indorser of a note promises, upon certain conditions, which are not ex-
pressed in the contract of indorsement, but which are implied by law, that he will
pay it; but not that he will pay it at the place named in the note for payment. His
promise is general for the payment of the note, on the implied conditions; and such
general promise, not specially to be performed elsewhere, is governed by the lex loci
contractus, which must determine the conditions upon which he is to be held liable.
Ib............
299
14. In an action against the indorser of a note, payable in one State and indorsed
in another, the laws of which differ, the liability of the indorser depends upon the
law of the place of indorsement, and not upon that of the State where it is payable,
nor upon the lex domicilii.—Ib.......
.299
15. The indorsement, by a citizen of Louisiana, made in Kentucky, on a note pay-
able to him in Louisiana, is governed by the law of Kentucky.—Ib..................................................... 299
16. A party, in order to obtain here, the benefit of the law of another State, should
aver, as well as prove, that that was the place of the contract.-Stern vs. Free-
...309
17. A person is not liable upon a contract which he makes as the agent or trustee
of another, with authority to do so.-Lewis vs. Harris............
.353
18. An agreement to pay for lottery tickets delivered to a party by the managers of
a lottery, or return them not sold, made in Delaware, and not prohibited by the laws
of that State, and containing no stipulation to do any act in violation of the laws of
any other State, is valid; and notes and mortgages executed by such party, in con-
sideration thereof, is enforceable here, although such party may have violated the
laws of another State in his disposition of the tickets.-Jameson vs. Gregory......363.
19. In contracts, called "contracts of sale or return," the property in the goodes

Contracts-Conveyances.

passes to the purchaser, subject to an option in him to return them within a fixed
time or in a reasonable time; and, if he fails to exercise this option by so returning
them, the sale becomes absolute and the price may be recovered, in an action for
goods sold and delivered. (3 Eng. Law and Eq. Rep., 311; 3 Duer, 336; 14 John-
son, 167.)-Ib.............

20. Where lottery tickets are obtained by a party living in one State, upon an or-
der sent to the vendors in another, the contract must be regarded as having been
made in the latter State, and its legality tested by the laws in force there. (3 Met.,
Mass., 207.)-—Ib.

.364

21. Note given for one hundred dollars worth of sawing," in consideration of
real estate. The labor stipulated to be performed not having been demanded-held
that there is no right of action in favor of the covenantees, and no valid or subsisting
lien upon the property.-Jenkins vs. Smith ....

..........380

22. Where two writings are executed at the same time, with reference to each
other and to the same subject matter, they constitute but one agreement, and are to
be construed as if written on the same piece of paper.-Knott's adm'r. vs. Hogan.. 99

CONVEYANCES-

1. In the absence of an averment that a conveyance was made in another State,
and of proof of what the law of such State is on the subject, the validity of the deed
must be tested by the laws of this State. (3 A. K. Mar., 174.)-Hurdt vs. Courte
may

................. 139

2. A conveyance, though voluntary, is not on that account alone void as to subse-
quent creditors.-Ib...........
..........140

3. Under the statute to protect creditors against fradulent and voluntary convey-
ances, a liberal construction, in allowing to persons who are, or might be, injured by
such a conveyance, the character of creditors, ought to prevail. Argu. (1 Amer.
Lead. Cases, 73.)-Ib

.........140

4. Quere. Is the liability of a sheriff to the plaintiff in an execution, from the time
it is placed in his hands, such an indebtedness as to give to the sheriff the character
of a debtor within the meaning of the statute, supra?—Ib....................................................................... 140
5. Where a sale and conveyance of land, made by one of two executors, is a nul-
lity, and, therefore, the notes executed by the purchaser are without consideration,
it cannot be rendered valid, without the consent of the purchaser, by tendering to
him the deed of the person to whom the land and its proceeds were devised.- Welle
ve. Lewis..................
..........269
6. A deed, though acknowledged and left in the clerk's office for registration, is
not constructive notice to creditors and purchasers, until the tax be paid thereon.
(Rev. Stat., chap. 24, sec. 32.) As to them, the vendee has but an equitable title.—
Phillips vs. Clark................
.348

.............

7. A deed was acknowledged and left for registration, but the tax not paid on it;
the vender, who is insolvent, remained in possession of the lot conveyed, and con-
tracted with a mechanic to build a house upon it. While the building was progress-
ing, the vendees, aware of it, stand by, see it go up, remain passive and silent-the
mechanic not having had any notice of their claim. Held, (in a suit to enforce the
mechanic's lien,) that the property is subject thereto.-Ib................................. 348
8. Sec. 11, of chap. 24, of the Revised Statutes, does not avoid an unrecorded as-
signment in behalf of creditors having notice thereof before the acquisition of a legal
title to the property. (17 B. Mon., 625.) Ward vs. Crotty, &c...

59