Pearl v. Edwards

6 Ky. 373, 3 Bibb 373, 1814 Ky. LEXIS 71

• Court: Court of Appeals of Kentucky
• Decided: July 8, 1814
• Status: Published

Opinion

OPINION of the Court, by

Judge Owsxet-

— This is an appeal from a judgment of the Nelson circuit 1 ■ , , ' r ■ ■ court, rendered upon the report or commissioners appointed by that court to value the improvements on lands from which Edwards was evicted in a suit at brought by Pearl against him. The assignment of errors- questions the sufficiency of the ord«r appointing the commissioners. That order evidently does not conform to the requisitions -or the occupying claimant law. It is true according to the decision of this court in the case of Daviess, executor, vs. M'Coun, at this term, it ⅛ not necessary for the order to refer specially to the law under which the commissioners are to act; but that an order appointing commissioners in general terms, forms an authority for them to act, and the law being directory gives the rules by which they should be governed in making their estimate and report. The correctness of that decision is not denied, and its application to all cases where there exists no repugnance between the order appointing the commissioners and the law, will be readily admitted ; but in cases like the present, where the order appoints the commissioners for the special purpose of ascertaining the improvements, the powers of the commissioners being- restricted within narrower limits than the law requires, the order cannot authoris© a ilPgment under the occupying claimant law : for as under a general order the commissioners, would be au-thorised and required by the law to make other estimates than that of the improvements, the order confining theqi to the ascertainment of the improvements is repugnant to the law, and is consequently erroneous.

the judgment of Ae court below being founded on the erroneous order appointing the commissioners, if therefore erroneous and must be reversed with costs.