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Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised April 21, 2008

KENTUCKY MISCELLANEOUS
 

Many early Kentucky biographies are being transcribed by volunteers and are available at the following website:
      http://www.rootsweb.ancestry.com/~kygenweb/kybiog/
 

See the published abstracts and indexes to military records by Virgil D. White and others for Duncans who served in the various wars. Some of the other books with military records:
      "George Rogers Clark and His Men; Military Records 1778-1784" by Margery Heberling Harding
      "American Militia in the Frontier Wars, 1790-1796" by Murtie June Clark, 1990
      "Cornstalk Militia" (ca 1812) by G. Glenn Clift
 

Many of the early KY state and county records have been published in books by various authors. The DAR has published many early records. A substitute 1790 and 1800 KY census has been published using tax records. Periodicals by several KY Historical or Genealogical Societies have published state and county and family records.
 

Extensive genealogies of Kentucky families have been published in "Genealogies of KY Families From The Register of the KY Historical Society", Vol. A-M; Vol O-Y, by Gen. Pub. Co., 1981
 

Fluvanna Co. VA Deed (FHL film 31,468)
      5-191: 27 Sept. 1808, John Duncan and wife Jane (both signed) to Elijah May, will of John Peyton decd willed to John Duncan undivided 1/3 part of 3000 acres in States of KY and OH as also a distant chance of one undivided third part of 1000 acres left by John Peyton to his emancipated slaves (will in Fluvanna Co.), for $500, sell legacy. Wit. John Snead, Robt. Caruthers?, John Quailes, Asa M. Dickensen, Thomas Lee.
 

COURT RECORDS

"Reports of cases at common law and in chancery decided by the Court of Appeals of the Commonwealth of Kentucky, during Fall term 1808 and Spring and Fall terms 1809" ("Kentucky Reports" Vol.4) by Geo. M. Bibb, Second edition, Vol.I; Vol.4, pgs.368 to 369 (California State Law Library 12/2003 and 2/2004) (MAD: not Joseph Duncan of Allen & Warren Co. KY who was still living after 1809)
      REEDER'S adm'r. vs. DUNCAN'S adm'rs.; Court of Appeals of Kentucky; 4 Ky. 368; 1 Bibb 368; May 24, 1809, Decided.
      (opinion) BLEDSOE, at a former day of this term, moved, in behalf of Reeder's administrator, for a supersedeas to a decree in chancery, perpetually enjoining said administrator from proceeding at law on his judgment against the administrators of Duncan.
      A note of hand was given by Duncan, in his lifetime, for payment of a sum of money to Edwards, as administrator of Reeder; Edwards sued the administrators of Duncan -- plea payment, verdict and judgment for the plaintiff. Duncan's administrators exhibited their bill for relief against the judgment, alleging that the note had been paid by Duncan in his lifetime; that a settlement had been made between Duncan and Edwards; that no receipt was taken; that the note was to have been destroyed or delivered up by Edwards; and that the witnesses to these facts were unknown at the trial at law, but had been discovered since.
      The testimony satisfies the mind, without doubt, that the settlement had been made by Duncan in his lifetime; that the note was particularly mentioned as settled, as not being then present, but to be destroyed or delivered up by Edwards: whereupon the court below decreed a perpetual injunction, with costs.
      This court was of opinion that the unconscionable act of setting up the note after Duncan's death, instead of cancelling it, was a ground of equitable jurisdiction: that as neither of the administrators of Duncan were present at the settlement, and had no means of tracing the settlement made by Duncan in his lifetime, but by enquiry in the country, their case formed an exception to the general rule of refusing relief in equity upon a defence which might have been made at law; and so the motion was overruled.
 

"Reports of cases at common law and in chancery decided by the Court of Appeals of the Commonwealth of Kentucky, during Spring term 1810 to Fall term 1812, inclusive" ("Kentucky Reports" Vol.5) by Geo. M. Bibb, Second edition, Vol.II; Vol.5, pgs.424 to 427 (California State Law Library 12/2003) (MAD: no county reference)
      DUNCAN vs. LITTELL; Court of Appeals of Kentucky; 5 Ky. 424; 2 Bibb 424; September, 1811, Decided.
      OPINION of the Court, by Ch. J. BOYLE. -- This was an action of assumpsit. Two counts are laid in the declaration: the first charges the defendant as assignor of a bond, but alleges no consideration upon which the assignment was made; the second is a general count for money had and received. Upon non-assumpsit the plaintiff had a verdict and judgment, to which the defendant has prosecuted this writ of error.
      The first question made by the assignment of error, grows out of the bill of exception taken to the opinion of the court overruling the motion of the defendant to instruct the jury to disregard the first count in the declaration. If the count were faulty or defective the motion was a correct one and ought to have been sustained. The count we think was substantially defective in not alleging a consideration upon which the assignment was made. The act of assembly making bonds and notes assignable, which were not so at common law, has provided no remedy for the assignee against the assignor, nor has it placed those instruments upon the footing of bills of exchange. The responsibility of the assignor depends therefore neither upon the provisions of the statute nor upon the custom of merchants, but upon the principles of the common law. This doctrine is abundantly established by the repeated decisions of this court.
      Upon the principles of the common law, an action by the assignee against his assignor, must be founded either upon an express or an implied promise that the assignor will be responsible for the goodness of the debt and the solvency of the obligor.
      In most cases of assignment, there is no express promise made; but where there is such a promise, if made without consideration, no action can be maintained upon it. Whatever may be the rule of ethics with respect to the moral obligation of a promise that is merely voluntary, nothing can be more clear than that its performance cannot be legally enforced. There is no doctrine better settled than that an action cannot be supported upon a naked promise without consideration, for it is an established rule of the common law that ex nudo pacto non oritur actio. This rule does not apply to mercantile instruments, because they are governed by laws founded upon the custom of merchants; nor does it extend to deeds or instruments under seal, since from the solemnity of the instrument, the law implies a consideration. In actions founded upon these instruments therefore it is not necessary to allege or prove a consideration; but in an action upon any other contract, a consideration must be alleged and proven in order to support the action. If this doctrine be correct when applied to express contracts or promises, it requires no argument to shew the propriety of its application to those that are implied by law. If indeed an action cannot be supported upon an express contract or promise made without consideration, the law cannot without the most palpable inconsistency with itself imply a promise where there is no consideration. We are therefore of opinion that the court erred in not sustaining the motion to instruct the jury to disregard the first count of the declaration.
      The second question in this case arises upon a bill of exception taken to the refusal of the court to instruct the jury as in case of a nonsuit. In deciding upon this question, we must put out of the consideration the first count of the declaration, as we have adjudged that that count ought to have been disregarded by the jury. The evidence stated in the bill of exception consists of a record of the proceedings in a suit by the plaintiff as assignee of the defendant, who was assignee of James Duncan, the original obligee, against one Rout, the obligor. From the record it appears that on a plea of payment to James Duncan, Rout, the defendant in the suit, obtained a verdict and judgment. This may be evidence that James Duncan received the money due upon the bond, but it is no evidence that it was received by the defendant in this action, and therefore cannot support the count for money had and received. If the consideration for the assignment to the plaintiff were money paid by him to the defendant, proof of it would have entitled him to a recovery of so much as was actually paid on the count for money had and received. The jury, we think, might presume from the assignment itself that it was made for a valuable consideration, and perhaps they might presume that the consideration paid was equal to the amount due upon the bond; but a question here occurs, whether they could rationally presume that it was money, and not property, that was paid for the assignment. If they could not, the assignment would be no evidence in support of the count for money, had and received; for that will lie only for money, and not for property. A presumption is the inference of one fact from another fact that is admitted or proven, and can only arise where the fact to be infered necessarily or usually accompanies the one from which the inference is to be made, or as the writers upon the civil law would define it, presumption ex eo quod plerumque fit. In the ordinary course of transactions of this sort, it is more usual to give property than money for the assignment, and therefore the presumption, where there is no express proof of the fact, is that property and not money was given. We take notice of what is the ordinary course of business of this sort, because we apprehend that it is the duty of courts judicially to know what is the general course of the transactions of human life. Without such a presumed knowledge, the jury indeed could not without express proof presume that the assignment was made for value, nor would it be possible that one fact in any case could be infered from another, and the doctrine of presumption would be at an end. The court therefore erred in not sustaining the motion for a nonsuit.
      The other points in the cause need not be noticed, since the same object which they have in view, will be attained by the decision of the questions we have already considered.
      The judgment must be reversed with costs and the cause remanded for new procedings to be had not inconsistent with the foregoing opinion.
 

END

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