Statutes-Sureties.

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 evidence, the court should give such cautionary direc-
tions to the jury as to restrict their effect upon the verdict within the legitimate par-
pose of their admission.-Taylor vs. Moran

...............127

2. In an action of slander, words spoken pending the action, and set up in an
amended petition, were admitted in evidence without objection or any admonition to
the jury as to the weight or effect they were to give to them; the court instructed the
jury that the plaintiff had a right to recover, as well for slanderous words spoken
after as before the action was brought, and that in determining the amount of dam-
ages they were to consider all the facts and circumstances proven in the cause; the
case was submitted to the jury and argued by counsel, after which the court said to
the jury, in another instruction, that the plaintiff could not recover in this action for
words uttered since the filing of the original petition, but that evidence thereof was
admissible on the question of malice, and that they could not regard the words as
substantive slanders, for which they might give damages in the action. Held, That
the error was not cured by this caution. It should have been full and explicit as to
the purpose for which alone the evidence was admissible, embracing specifically the
the idea that such evidence could not be considered by them to increase the dam-
ages. Ib...........
.......127
3. The specific words in which the slander is conveyed must be set forth in the pe-
tition, 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.-
Ib...........

........

.........

4. The rule of evidence in actions of slander formerly was that the plaintiff must
prove the precise words. That rule has been no further relaxed than to admit proof
of the substance of the words. It is not enough to prove words of the same effect or
import, or conveying the same idea. The words must be substantially the same
words, and it is not sufficient that they contain substantially the same charge, but in
different phraseology; equivalent words of slander will not do.-Ib.................................................. 127
5. While the proof of speaking the words is for the jury, the correspondence be-
tween the words spoken and laid is for the court.—Ib......
.127

STATUTES-

Mere change of phraseology in revising the statutes not a sufficient reason to be-
lieve that the legislature intended to change the law. (1 Met., 621.)-Johnson vs.
Offutt...........

BURETIES-

19

1. If one sign a note as surety, to be obligatory upon him upon the condition two
others, who are named, should sign it as his co-sureties, and the note is left with his
principal to procure the names of the other sureties to be signed to it, and.
facts are known to the payee at the time the note is delivered to him, if the condi-
tion be not complied with the note will not be obligatory upon the surety. (2 Met.,
542.)-Bivins ve. Helaley
78

2. See the opinion for a particular statement of the evidence, in support of the de-
fense supra, held not sufficient to sustain it, or discharge the surety.-Ib............ 78
3. A surety, who pays a debt, is entitled to stand in the place of the creditor as to
all liens and equities to which he has a right to look as a security for the payment of
his debt. This general quitable principle is well settled.-Havens vs. Foudry...247

Treaties-Weights and Measures.

4. In such case it must be shown that, at the time the surety paid the debt, the
creditor had a valid and subsisting lien or equity such as a court of equity would
have enforced at his instance for the satisfaction of his debt.-Ib.....................247
5. A creditor is allowed to be substituted to any securities provided by the princi-
pal debtor for the indemnity of his sureties. But, as the equity is derived through
the sureties, and as a consequence of their liabili y for the debt, whatever act or
omission of the creditor may operate to discharge or release them from liability has
the effect to destroy his equity. (10 Leigh, 206; Ib., 387.)-Ib..................................................... ..247

6. Where a judgment against the principal debtor and his sureties is replevied by
him with other sureties-the defendants in the judgments, who are only sureties for
the debt, refusing to join in the bond-the latter are released from liability. The ex-
ecution of the replevin bond in such cases merges the judgment, and releases the
original sureties. (1 B. Mon., 303; 1 Met., 252.)--Ib...........

..247

7. Where, in such case, the original sureties, thus released from liability, were in-
demnified by mortgage against loss, the sureties in the replevin bond who pay the
debt, have no equity, as against other lien holders, under such mortgage.-Ib.....247
TREATIES-

1. Treaties take effect, as to the governments making them, from the date of their
execution, unless they contain stipulations to the contrary. But in regard to indi-
vidual rights the rule is that the ratification of the treaty must be deemed its date.—
Yeaker vs. Yeaker.....
33

2. See the opinion as to the scope, construction and effect of certain treaty stipu
lations between the United States and the Swiss Confederation in relation to the
question of the right of citizens of Switzerland to acquire or hold by devise or de-
scent an interest in real estate or its proceeds in Kentucky.-Ib..............
34

See Constitutional Law.

USAGE-

1. There is a strong and increasing disinclination of the courts to allow the general
laws of the country to be varied by proof of local usages. Such an usage is binding
only on the ground that the party, sought to be charged, contracted with reference to
it. It must appear that he had actual knowledge of it, or the evidence must be such
as to clearly authorize the presumption that he had knowledge of it.-Caldwell, &c.
vs. Dawson

2. To make such a custom admissible it must be of such age, such uniformity of
observance, such certainty and fixedness of character, and of such notoriety, that a
jury would feel clear in saying that it was known to the party sought to be affected
by it. (1 Met., 562.)—Ib..................

121

3. The fact that one party had knowledge of the usage, and supposed it would
enter into the contract, is not sufficient, nor can it enter into the contract, though
both parties had knowledge of it, if it appears they did not contract with reference
to **
Ib.................

VENDOR AND PURCHASER-

See Notice. Contracts. Conveyances.

WEIGHTS AND MEASURES-

1. Congress has not passed a law to fix the standard of weights and measures as it
is authorized to do by the Constitution. The laws of the State must, therefore,
govern the subject. See acts of the General Assembly adopting the standards fur-

Witness-Wills.

nished by the Secretary of the Treasury under a resolution of Congress. (Act of
1839, 3 Stat. Law, 583; Revised Statutes, chap. 105, sec. 1.)-Caldwell, &c. vs. Daw-

son................................................................

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

.....121

2. According to the standard supra, 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° Fahrenheit. (Homan's Cyclopedia of Commerce,
page, 1943.) This is the same as the Winchester bushel, and contains 2150.42 cubic
inches. Ib...............
.....121
3. Where a contract for the sale of charcoal, by the bushel, designated the place at
which it was to be made, which the seller was to deliver at the furnace of the pur-
chaser, the place of measurement is at the place of delivery; and the delivery being
by wagon the mode of ascertaining the quantity should be by gauging the contents
of the wagon at the place of delivery, unless another mode was provided by con-
tract, or established by usage.-Ib......

WITNESS-

....

........121

That a witness is liable to judgment for costs in the action is a disqualifying in-
terest Dougherty vs. Smith, &c.......

WILLS-

1. "As I intend starting in a few days to the State of Missouri, and should any-
thing happen that I should not return alive, my wish is, that all of my land," &c.,
[going on to devise an estate.] The author of the paper made the contemplated
trip, returned to Kentucky and died. Held, That the instrument is contingent and
inoperative as a will.-Dougherty vs. Dougherty...

..... 25

2. See opinion for the subsequent acts, parol and written declarations of the dece-
dent, held not sufficient to establish a re-execution or re-publication of the instru-
ment as a will.—Ib...........

3. Quere. Can a contingent will, after the happening of the event which was to
terminate its effect, be revived by any kind of a re-execution which would give it the
force of a will?-Ib

25

4. The case of Maxwell's will, (3 Met., 101.) cited and approved.—Ib......... 25
5. After a testator's name had been subscribed to the writing, he acknowledged it
to be his will in the presence of two witnesses, who subscribed as such. The testa-
tor then made his mark to it between his christian and surname. Held, to be a suffi-
cient publication of the instrument as a will-the placing of the mark to it was un-
necessary.--Sechrest vs. Edwards......

6. It is not material whether the names of the attesting witnesses, or that of the
testator, be first subscribed, if the witnesses were present when the testator either
wrote his name or acknowledged it as his signature, and, being called on for that
purpose, actually witnessed or attested that fact. (1 B. Mon., 114.)—Ib............163
7. The provision in regard to the attestation of wills in the statute of 1797 con-
cerning wills, is the same in import and substance as the 5th section of chapter 106 of
the Revised Statutes, (2 vol., 458.)-Ib...............

.......163

8. The execution of an instrument as a will by the testator, with the requisite
solemnities, is presumptive evidence that he knew its contents and that it conforms
to his intentions; and it is incumbent on those who seek to avoid it on the ground
that it makes a disposition of his estate of which he at the time was not fully ap-
prised, or had no knowledge, to establish the fact aliunde. (3 A. K. Mar., 144; 1
Jarman on Wills.)-Ib...........

..............163

Wills.

9. A testator, who was illiterate and could not read, furnished the draftsman with
a previous will which he had made, and directed him to write his will like that
emitting the lards, as they had been deeded. The draftsman did so; and, as he
would write a clause or paragraph, he would read it to the testator, who would ap-
prove what was written. In that way the whole instrument was read to and approv-
ed by him. Held sufficient to show that the testator knew the contents of the instru-
ment.-Ib..........

10. Upon an appeal from an order admitting a will to record or rejecting it, to the
circuit court and thence to the court of appeals, the latter is made the trier of the
facts certified from the circuit court, without reference to and wholly independent of
the finding of the jury; and, by applying the law to the facts, of which the court is
made the sole trier, it determines whether the testamentary paper should be admit-
ted to probate or rejected. The circuit court can only enter the mandate, with direc
tions to the county court to make such orders as may be proper and necessary to
carry out the judgment of this court. (Rev. Statutes, chap. 106, sec. 28; 18 B. Mon.,
61.)-Ib.................

11. Though subscribing witness to a will prove that, at the time the instrument
was published, the testator was not of sound mind, his capacity may be established
by other sufficient evidence. (5 Mon., 199; 2 B. Mon., 79.)-Ib........................164
12. See the opinion for a particular statement of the evidence as to the mental ca-
pacity of the testator to make a will; from which, (to some extent conflicting,) it is
held that, although the mental capacity of the testator was to some extent impaired
by old age and physical infirmities, the facts decidedly preponderate in favor of his
testamentary capacity at the time of the publication of the instrument, which is es-
tablished as his will-there being no sufficient evidence of the existence or exercise
of an unlawful influence over the testator to procure its execution. And refer to 2
J. J. Mar., 331; Ib., 340; 2 B. Mon., 74; Ib., 79; 1 Jarman on Wills, 53, 54.--
Ib...........

...........164

13. A testator, in 1848, devised to his wife all his estate, real, personal and mixed;
in 1853 and 1854 he acquired real estate, and died in 1861. The will gave no direc-
tion about the payment of debts. The widow became administratrix, and sought to
have the after acquired real estate, which descended to the heirs at law, appropriated
to the payment of the testator's debts, and exonerate the personal estate and slaves,
which were ample to pay them. Held, That the real estate could not be thus sub-
jected, in the absence of a clear intention, either express or implied, of the testator
to exonerate the personal estate and slaves. (3 Rawle, Penn. Rep., 236; 6 Mass.,
150.)-Broadwell vs. Broadwell..............
....290

14. The laws in existence at the time the Revised Statutes went into effect govern
wills previously made.--Ib.....
...................290