
    
      Yeizer vs. Stone's heirs.
    
    Covenant.
    Case 26.
    Error to the Rockcastle Circuit; Joseph Eve, Judge.
    
      infants. Costs. Prochain ami.
    
    It seems that where an infant suing by hisp rocharn ami, rcoovers below, and the defendant prosecutes here, and the' judgment is reversed, the judgment for costs here, shall be against the prachain ami, and not the infant.
    April 26.
    
      Crittenden and Green, for plaintiff; Robertson, for defendant.
    
   Chief Justice Bibb

delivered the Opinion of the Court.

It seems to this court, that Yeizer was a mere trustee, without any beneficial interest, the friendly agent accepting the deed of trust from Rod-ham Kenner, for the sjaves therein mentioned, for the purpose of executing the uses and trusts in favor of said plaintiffs, “to the best of his discretion,” The plea of Yeizer, that said slaves were not the property of the grantor at the date of said deed, but had been previously sold by said Rodham to Lawrence Kenner; that said Rodham had procured the slaves to be run off beyond the limits of this Commonwealth, without the knowledge or consent of Yeizer, and that’they had come to the possesson of said Lawrence, who held them from Yeizer by a superior title, was a good defence to the action, and ought to have been received under the circumstances stated in the affidavit, although offered after issue joined upon other pleas It is, therefore, considered by the court, that the judgment of the circuit court be reversed, and that the cause be remanded for such farther proceedings, as may comport with the opinion of this court herein expressed.

And it is further considered, that the plaintiff recover of the defendants his costs in this court, and in this behalf expended; and it is ordered that Samuel Stone, who prosecuted this suit, as next friend and guardian of said infant plaintiffs below, pay the cost adjudged against the said infants in this court.

The Chief Justice, however, does not admit the plaintiffs ought to be périnitted to sustain an action at law upon the covenant of Yeizer, nor does he admit the sufficiency of the averments to show a breach of the trust as undertaken by Yeizer.  