Proviso. A bill of discovery may al so be filed. When to be answered. real, personal or mixed, belonging to the defendant, and to that end may bring other parties before the court, and make such decree as may be equitable, under the jurisdiction hereby conferred; and the chancellor shall adjust and settle the title to such tract of land, and decree a conveyance to such person as may become the purchaser, and do complete justice in the case: Provided, That nothing herein contained shall be construed to extend to those articles in the possession of the defendant which are exempted by law from execution. SEC. 38. Be it further enacted, That whensoever any writ of fieri facias, directed to the county in which the defendant resides, shall be returned in substance, "no property found," either as to the whole or any part of the sum directed to be made by such writ, it shall be lawful for the plaintiff to file in the circuit court of the county in which the judgment was rendered, a bill in chancery, to compel the defendant upon oath, to make a full and complete discovery of all choses in action and other property or estate, real, personal or mixed, in which he may have any interest, stating the nature and amount of such interest: and the defendant shall answer such bill on or before the third day of the next term after he shall have been served with a subpœna thereon, and upon his failure to do so, to trial. When the complainant discovered that his patent was not in the cause he should have moved for a continuance, or discontinued his suit; but having chosen to proceed with the cause under such circumstances he must abide the result. A demurrer to the bill was properly sustained. Calmes v. Ament, 1 Mar. 459. 6. A bill of review, to correct a mistake of the surveyor in running a line by the order of the court, when the mistake might have been discovered by due and proper diligence, before the decree, will not lie.-Respass v. McClanahan, 2 Mar. 580. 7. An affirmance of a decree in the court of appeals is a bar to a bill of review, for any errors which were or might have been assigned in that court. Brewer v. Bowman, 3 J. J. Mar. 492. 8. In general bills of review, and bills to impeach decrees for fraud, should terminate by setting aside the decree impeached or reviewed; and if it were obtained on the default of the defendant, he should then be permitted to file his answer, or to plead, so that the matter of the original bill might be litigated between the parties. Mayersback v. Fauntleroy, &c. 3 J. J. Mar. 536. 9. To authorize a bill of review on the ground of a discovery of new matter, the complainant must allege the discovery of matter not brought before the court, or necessarily in issue, upon the original bill.-Tilman v. Tilman, 4J. J. Mar. 118. 國 10. Bills of review are on matters dehors the record, and on errors of law apparent on the face of the decree. Leave of the court must be obtained to file the former. The latter is filed" as matter of course.-Edmondson v. Moseby's Heirs, 4 J. J. Mar. 500. 11. A decree obtained by fraud may be impeached by an original bill, and it is not necessary to obtain leave of the court to file such bill.-Ibid. 4 J. J. Mar. 501. 12. It is error in the court, to refuse leave to file such a bill of review as might have been filed of course; provided the allegations are such as to warrant relief if true.-Ibid. 4 J. J. Mar. 502. 13. A decree being for five hundred and fifty nine acres of land more than was claimed in the bill, or due under the contract exhibited, is a sufficient ground for relief on a bill of review.— Edmondson v. Marshall's Heirs, 6 J. J. Mar. 449. 14. When a bill of review is founded on matters of law, on the face of the record, an answer which brings forward matters of fact should be rejected.--Ibid. J. J. Mar. 450. 15. Three years being the limitation to writs of error, will probably bar a bill of review which seeks to correct errors apparent on the face of a decree or record.—Ibid. the said court may direct an attachment against him immediately, to compel an answer. 307 Court may interests to ex ecution. SEC. 39. Be it further enacted, That when, by the answer of the defendant, it shall appear that he hath any interest in any chose subject certain in action, real, personal or mixed, it shall be lawful for the complainant to take such further steps as may be necessary to bring any other proper parties before the court, and the court shall have power to subject the interest of the defendant in such chose in action, or other property or estate, or so much thereof as may be necessary to the satisfaction of the complainant's demand. Provided however, That nothing herein contained shall be so construed as to apply to any property of the defendant, which is now exempted by law from the payment of debts. 1833. Proviso. IN FORCE FROM ITS PASSAGE. AN ACT authorizing the sale of slaves in certain cases: Approved Jan. 31, 1833. if SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That it shall be lawful for any court of equity, upon the petition of all the owners of any slave or slaves held by two or more, either in coparcenary, joint-tenancy, or in common, or if any of the owners be under the age of twenty-one, upon the petition of the guardian of such infants, and the adult owners, there be any, to order all such slaves to be sold, either on a credit or for ready money, at such time and place as the court in its discretion may direct, taking care in its order to require, when the sale is to be on a credit, the purchaser to give bond and approved security for the purchase money; and the court shall possess all necessary power, by the appointment of a commissioner and otherwise, to carry into effect any order which may be made, and the purchaser under such order shall be vested with all the right, title and claim of the owners. SEC. 2. Be it further enacted, That any one or more of several joint tenants, or tenants in common, of any slave or slaves, may file his, her, or their bill in equity against the other joint tenants, or tenants in common, for partition; and if, on the hearing of the cause, it shall appear to the court that partition in kind cannot be made, it shall be lawful for the court to decree a sale, and make such orders and decrees therein as may be necessary and proper for that purpose. 306 TITLE 39. CHARITABLE USES. Commission or goods given to hospitals &c. Their orders shall be per formed. AN ACT to redress the mis-employment of lands, goods and stocks of money, here tofore given to certain charitable uses.-English Statutes at Large, 2 vol. 708.(a) WHEREAS lands, tenements, rents, annuities, profits, hereditaers authorized ments, goods, chattels, money, and stocks of money, have been hereto enquire of tofore given, limited, appointed and assigned, as well by the queen's mis--employment of lands most excellent majesty, and her most noble progenitors, as by sundry other well disposed persons; some for relief of aged, impotent and poor people, some for maintenance of sick and maimed soldiers and mariners, schools of learning, free schools, and scholars in universities, some for repair of bridges, ports, havens, causways, churches, sea-banks and highways, some for education and preferment of orphans, some for or towards relief, stock or maintenance for houses of correction, some for marriages of poor maids, some for supportation, aid and he'p of young tradesmen, handicraftsmen and persons decayed, and others for relief or redemption of prisoners or captives, and for aid or case of any poor inhabitants concerning payments of fifteens, setting out of soldiers and other taxes; which lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money and stocks of money, nevertheless, have not been employed according to the charitable intent of the givers and founders thereof, by reason of frauds, breaches of trust, and negligence in those that should pay, deliver and employ the same: For redress and remedy whereof, Commission ers to enquire Be it enacted by authority of this present Parliament, That it shall and may be lawful to and for the lord chancellor or keeper of of the gift of the great seal of England for the time being, and for the chancellor lands and goods of the duchy of Lancaster for the time being for lands within the County Palatine of Lancaster, from time to time to award commis to charitable uses. (a) The above act has never been repealed, nor is there any thing in it of so peculiar and local a character, as to exclude it from adoption, under the rule embracing all English statutes of a general character prior to 4 James, I.—Gass & Bonta v. Wilhite, &c. MS. Opinion, Spring Term, 1834. 309 Four com missioners at the least. The enquiry sions under the great seal of England, or the seal of the County Palatine, as the case shall require, into all or any part or parts of this realm respectively, according to their several jurisdictions as aforesaid, to the bishop of every several diocese and his chancellor, (in case there shall be any bishop of that diocese at the time of awarding of the same commissions,) and to other persons of good and sound behaviour, authorizing them thereby, or any four or more of them, to enquire as well by the oaths of twelve lawful men or more of the county, as by all other good and lawful ways and means, of all and singular such gifts, limitations, assignments and appointments aforesaid, and of the abuses, breaches of trusts, negligences, mis-imployments, not imploying, concealing, defrauding, mis-converting or mis-government of any lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money or stocks of money, heretofore given, limited, appointed or assigned, or which hereafter shall be given, limited, appointed or assigned, to or for any of the charitable and godly uses before rehearsed: (b) And after the said commissioners or any four or more of them (upon calling the parties interested in any such lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money and stocks of money) shall make enquiry by the oaths of twelve men or more of the said county (whereunto the said parties interested shall and may have and take their lawful challenge and challenges,) and such enquiry, hearing and examining thereof, set down such orders, judgments and decrees, as the said lands, tenements, rents, annuities, profits, goods, chattels, money and stocks of money, may be duly and faithfully employed, to and for such of the charitable uses and intents before rehearsed respectively, for which they were given, limited, assigned or appointed by the donors and founders thereof: which orders, judgments and decrees, not being contrary or repug- sioners orders nant to the orders, statutes or decrees of the donors or founders, shall by the authority of this present parliament stand firm and good, according to the tenor and purport thereof, and shall be executed accordingly, until the same shall be undone or altered by the lord chancellor of England, or lord keeper of the great seal of England, or the chancellor of the County Palatine of Lancaster, respectively altered. (b) The use created by the covenant entered into by those composing the society called Shakers, cannot, in this country, where there is no established religion, and where all are viewed as equally orthodox by the constitution, be deemed a superstitious use. Every religious use must be pronounced a pious use. Neither the legislature nor the judiciary can discriminate and say what is a pious and what a superstitious use, without an infringement upon the constitutional guaranty upon The commissioners orders. The commis shall be exeсиted. The commissioners orders of the freedom of religion. The property secured by the covenant of association to the exclusive purposes of the society as a religious community, is freed from the claims of its seceding members. -Gass & Bonta v. Wilhite, &c. MS. Opinion, Spring Term, 1834. JUDGE UNDERwood dissenting. See a Digest of the cases and a summary of the law upon this subject in an appendix to 4 Wheat. also 3 Peters, 481. or Colleges, halls in Oxford Cambridge, Westminster, chester, Cathe dral Churches. City, town corporate, college, hospital, free school. Ordinary's jurisdiction. None shall be commissioner or juror, which within their several jurisdictions, upon complaint by any party grieved to be made to them. 2. Provided always, That neither this act, nor any thing therein contained, shall in any wise extend to any lands, tenements, rents, annuities, profits, goods, chattels, money or stocks of money, given, limited, appointed or assigned, or which shall be given, limited, appointed or assigned, to any college, hall or house of learning within the universities of Oxford or Cambridge, or to the colleges of Westminster, Eaton or Winchester, or any of them, or to any cathedral or collegiate church within this realm. 3. And provided also, That neither this act, nor any thing therein, shall extend to any city, to town corporate or to any the lands or tenements given to the uses aforesaid within any such city or town corporate, where there is a special governor or governors appointed to govern or direct such lands, tenements or things disposed to any the uses aforesaid, neither to any college, hospital or free school, which have special visitors or governors, or overseers appointed them by their founders. 4. Provided also, and be it enacted by the authority aforesaid, That neither this act nor any thing therein contained, shall be any way prejudicial or hurtful to the jurisdiction or power of the ordinary, but that he may lawfully in every cause execute and perform the same, as though this act had never been had or made. 5. Provided also, and be it enacted, That no person or persons that hath or shall have any of the said lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money or stocks of money in his hands or possession, or doth or shall pretend title theregoods in ques- unto, shall be named a commissioner or a juror for any of the causes aforesaid, or being named shall execute or serve in the same. hath any part of the lands or tion. of the lands, bona fide. 6. And provided also, That no person or persons which hath Purchasers purchased or obtained, or shall purchase or obtain, upon valuable consideration of money or land, any estate or interest of, in, to or out of any lands, tenements, rents, annuities, hereditaments, goods or chattels, that have been or shall be given, limited or appointed to any the charitable uses above-mentioned, without fraud or covin, having no notice of the same charitable use, shall not be impeached by any decrees or orders of the commissioners above-mentioned, for or concerning the same his estate or interest: And yet nevertheless, Recompence by those which Be it enacted, That the said commissioners, or any four or more of break the trust. them, shall and may make decrees and orders for recompence to be made by any person or persons who being put in trust, or having notice of the charitable uses above-mentioned, hath or shall break the same trust, or defraud the same uses, by any conveyance, gift, grant, lease, demise, release or conversion whatsoever, and against the heirs, executors and administrators of him, them or any of them, having assets in law or equity, so far as the same assets will extend. |