Volume 1 — Kentucky Opinions

<p>Action on Administrator’s Bond — Surety — Joint Obligors — Necessary Parties — Judgment.</p> <p>Section 39 of the Civil Code relates to the joining or omitting of joint obligors in an action on an administrator’s bond and does not relate to the judgment to be rendered against those before the court.</p> <p>Bame.</p> <p>Section 39, supra, makes a new rule with respect to the form of action on joint liabilities, but it does not affect the rights and equities of the defendants to the same action.</p> <p>Bame.</p> <p>Under this new rule a judgment may be rendered against the party or parties sued, though other parties jointly bound are omitted from the action.</p> <p>Bame.</p> <p>A return of nulla Iona before proceeding may be dispensed with in a suit in equity against an administrator and his sureties who are jointly bound with him.</p>

<p>Exceptions to Depositions Waved.</p> <p>The appellant having failed to except at the time to the decision- of the court, sustaining exceptions to the deposition, must he taken to have waved the objection.</p> <p>Same — Deposition in Another Case.</p> <p>There does not appear to have been such identity of parties, subject-matter, and issues in that suit and this action as would authorize the reading of testimony taken in the former ease as evidence in this.</p> <p>Same — Interested Witness,</p> <p>A defendant is not a competent witness for his codefendant where they are both interested in the issue raised by their joint answer.</p>

<p>■Obligations to Pay Money — United States Treasury Notes.</p> <p>A creditor holding the obligation of a debtor to pay in dollars cannot be legally compelled to accept United States Treasury notes in payment of his debt.</p>

<p>APPEAL PROM GARRARD CIRCUIT COURT.</p>

<p>Deed of Trust for Payment of Debts — Sale by Trustee — Grantor Must Join — Application of tbe Proceeds.</p> <p>Where the grantor in a deed of trust for the payment of debts joins ' with the trustee in a conveyance the title is vested in the purchaser unincumbered by the claim of creditors, and without responsibility on him or charge on the land for the application of the proceeds of the sale.</p>

<p>Sale of Expectancy.</p> <p>A sale of expectancy may be constructively fraudulent, but when it is shown to be fair and for a full consideration it is not voidable by the recipient of the consideration.</p> <p>Judgment — Legalizing Contract.</p> <p>The confirmation by the judgment of the Divorcing Court, recognizing and legalizing a contract, makes it conclusively binding on both parties.</p>

<p>APPEAL FROM BARKEN CIRCUIT COUKT.</p>

<p>Mortgage — Insolvency — Statutes of 1856.</p> <p>A mortgage not made in contemplation of insolvency and without a design to prefer some creditors to the exclusion of others does not come within the provision of the acts of 1856.</p>

<p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p>

<p>APPEAL FROM MASON CIRCUIT COURT.</p>

<p>APPEAL FROM ADAIR CIRCUIT COURT.</p>

<p>Writing — Parol Evidence — Fraud or Mistake.</p> <p>Parol evidence is not admissible to vary tbe terms or import of a -writing, unless it is alleged that there was fraud or mistake in the execution thereof.</p>

<p>APPEALED PROM LINCOLN CIRCUIT COURT.</p>

<p>APPEALED EROM HENDERSON CIROUIT COURT.</p>

<p>Laches.</p> <p>The court’s aid cannot be invoked to reopen a suit, where it is shown that the defendant, more than a year after a judgment of confession, and writ of possession awarded, filed a petition for a new trial, it being held that he was guilty of gross laches.</p>

<p>Indictment — Receiving Stolen Goods — Possession — Proof,</p> <p>1. The possession of personal property is prima facie, though not conclusive, evidence of ownership.</p> <p>Same.</p> <p>2. It is not sufficient to prove that the goods were stolen, but it must be proof that the accused knew they were stolen.</p> <p>Same.</p> <p>3. What was done and said by the party from whom the defendant received the goods is competent as a part of the transaction.</p>

<p>Estoppel.</p> <p>A purchaser of land with notice of renunciation of title by vendor, and of a prior sale of the same land with the concurrence of the vendee under a parol sale, is estopped from claiming title by subrogation.</p>

<p>Gift of Land to Daughter — Devise of Remaining Estate.</p> <p>The testator gave the land in contest to his daughter and her children-for a home, and under that gift she occupied the place as her own for-more than twenty-five years; held, that a devise of his remaining estate-to his other children was not intended to include this property.</p>

<p>Guardian’s Bond — Sureties — Counter-Surety — Indemnity — Clerk’s Mistake — Oral Evidence.</p> <p>1. If the appellant had proceeded against his principal under the Acts of 1856, he might have been released from responsibility as surety-But he only required counter-surety in the County Court, and in that, court the obligors bind themselves to hold himi harmless.</p> <p>Same.</p> <p>2. But in the bond executed in the Circuit Court they became responsible to the ward for the price of land, and' it was intended to release the appellant, but the proper order was omitted by mistake of the clerk, as shown in the evidence received, without objection. Held,. that, as the evidence was not objected to, the competency is admitted,, and the court, therefore, is bound to give effect to the Circuit Court bond.</p> <p>Same.</p> <p>3. A surety on an original bond in the County Court is released from' liability, when a new bond is made on an appeal to the Circuit Court, which is intended to release the original surety.</p>

<p>APPEAL EBOM CLARK CIECUIT COUET.</p>

<p>■Commission Merchants — Duty to Consignor — Good Faith.</p> <p>1. The general rule is that it is the duty of a commission merchant to sell whenever a sale can he made at a profit, or to sell when it is necessary to raise money to meet bills drawn on the property that were maturing, and for failing to do so he is responsible to the consignor.</p> <p>.Same.</p> <p>2. But when the owner provides for meeting the bills and for paying any balance against him, and instructs his merchant to hold the property, then the obligation ceases.</p> <p>Same.</p> <p>3. In the absence of a- peremptory order to sell at any named price or within a given time, some discretion was left to the consignees, and if they held the pork in good faith for a higher price they cannot be made responsible to the consignor for any loss.</p>

<p>Sheriff — Execution — Failure to Return — Damages.</p> <p>A plaintiff in an execution is entitled, on motion, to have a judgment for the amount thereof and 30 per cent, damages, where a sheriff fails to return an execution for thirty days after the return day thereof.</p>

<p>Indictment — Presentment — Filing.</p> <p>An indictment presented to the court in the presence of the grand jury, ■with an order to that effect, is a substantial compliance with section 120 of Criminal Code.</p>

<p>APPEAL EROM ADAIR CIRCUIT COURT.</p>

<p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p>

<p>Conditional Contract — Breach — Damages.</p> <p>1. A sale of personal property, consisting of corn, was made by appellant to appellee; no price was agreed on and no particular amount was specified by appellant, and further conditioned on certain acts of appellee in securing pasturage for watering and feeding his hogs, and this the appellee took time to do. Held as not being a sale so complete as to bind either party.</p> <p>Same.</p> <p>2. But had the contract been binding on Robinson, Loyd had paid nothing and was only entitled to the difference in the price he was to give and the market value.</p>

<p>APPEAL PROM MERCER CIRCUIT COURT.</p>

<p>Title Bond — Eviction — Warranty — Limitations.</p> <p>A. purchased of B. certain lands upon which B. had given a mortgage, a payment having been made to B. by A. B. executes a bond for title to indemnity A. against eviction under the mortgage and to convey the land upon payment of the mortgage debt. The mortgage was never paid and A. was evicted.. Held, that, as there was no breach of the bond, the Statute of Limitations did not begin to run until after the eviction.</p>

<p>Knowledge of Pecuniary Affairs Presumed — Sale of Property in Contemplation of Insolvency — Preference — Limitation — Deed of Trust for the Benefit of Creditors.</p> <p>Knowledge of Pecuniary Affairs Presumed.</p> <p>This court has frequently held that a man must he presumed to have an ordinary intelligent knowledge of his pecuniary affairs, and this presumption may. be strengthened by the facts.'</p> <p>Not Immoral to Secure Debt by Vigilance..</p> <p>It never has been regarded by law as immoral for a tona, fide creditor to secure his debt by vigilance on a failing creditor, nor is samó denounced as fraudulent by our Acts of 1856.</p> <p>Sale, Mortgage, or Lien to Secure One Creditor to the Exclusion of Another.</p> <p>The Statute of 1856 declares equality between creditors generally, and' it makes a sale, mortgage, or lien to secure one creditor to the exclusion of others, when so made by the debtor in contemplation of insolvency and with a view of preference, to inure to the benefit of all.</p> <p>Same — Limitation.</p> <p>The Statute of 1856 does not denounce the transfer of property in contemplation of solvency as fraudulent, and, therefore, requires a creditor to-claim the benefit of a transfer within six months from the delivery of-the property or the recording of the transfer.</p> <p>Amended Petition.</p> <p>The amended petition was never answered and must be regarded a3 ' true, and that Phelps purchased of Parks several mules for the same purpose and same contemplation. “ Several ” must necessarily mean more than one mule.</p> <p>Mortgage — Contemporaneous to Debt.</p> <p>The mortgage by Noble to Chenault was contemporaneous to his becoming Chenanlt’s debtor, and, therefore, within the exception of the Statutes of 1856.</p>

<p>APPEAL PROM PENDLETON CIRCUIT COURT.</p>

<p>APPEAL FROM MADISON CIRCUIT COURT.</p>

<p>Officer — Resignation — Vacancy — Election — Examining Board.</p> <p>Where an officer tenders his resignation before the time to hold an election, to take effect after said time, the office is not vacant, and no* election to fill the office can be legally held.</p> <p>Same.</p> <p>The board for examining the poll-books and giving certificates of election are not required to perform their duties only when legal elections-are held.</p>

<p>Descent and Distribution — Unacknowledged Deed — Dower and Curtesy.</p> <p>An unacknowledged deed executed by husband and wife is ineffectual to pass title where signed by a feme covert, though the title of the husband, as tenant by curtesy of the deceased wife, would pass to the purchaser under the deed.</p>

<p>Pleadings — Contract for Support — Assignment — Consideration — Specific Performance — Necessary Parties.</p> <p>The assignment of the land is averred, but whether the consideration is paid neither appears from the petition nor the written assignment. To have a specific execution of a contract it is essential to aver the payment of the consideration, and as against minor heirs this is indispensable. The court erred in decreeing a title until the payment of the consideration had been averred and proved.</p> <p>The administrator of Allen was a necessary party, as the right of action for the consideration, if unpaid, survived to him and he was an essential party to the determination of the question.</p>

<p>Motion for New Trial After Expiration of Term.</p> <p>Where appellant’s motion to set aside a judgment is made two months after the term at which it was rendered, the chancellor had no power to reopen the case.</p> <p>Negligence of Counsel and Client.</p> <p>Negligence of counsel is no grounds for a new trial, and, moreover, when the appellant absents himself on his own private business from the trial, he is as negligent as his attorney.</p>

<p>MARION CIRCUIT COURT.</p>

<p>Pleading —Answer — Information Sufficient to Form Belief.</p> <p>Where the personal acts of the defendant are alleged and relied upon as the facts which constitute the cause of action against him, he will not be allowed to set up a want of knowledge or information to form a belief as to their existence as a defense to the action.</p>

<p>Suit to Settle Partnership — Duty of Surviving Partner — Inventory — Answer.</p> <p>It is the duty of a surviving partner to cause a full and complete inventory of all partnership effects to be made by competent men in a reasonable time after the death of his deceased partner and exhibit same with his answer in the suit to settle the partnership.</p> <p>The appellant should have been charged, with all sales after the death of his partner until the business was closed, and if the appellant failed to show by proof the amount of receipts and expenditures of each day or month, it may be done by taking an average month, as shown by the books of the firm, as a criterion.</p>

<p>'.Partition of Land— Limitation — Presumption as to Deed — Innocent Purchasers.</p> <p>After an acquiescence of twenty-eight years in a partition of land; and each party taking and controlling the portion assigned him, and after innocent parties have become involved in the title, it will be presumed that the parties made deeds to each other.</p> <p>Execution Sale — Sheriff’s Deed.</p> <p>The legal title must be presumed to be in the appellant from the partition and her possession thereunder; it follows that it passed by the execution sale and sheriff’s deed.</p>

<p>APPEAL PROM LARUE CIRCUIT COURT.</p>

<p>APPEAL EROM NELSON CIRCUIT COURT.</p>

<p>New Trial — Preponderance of Evidence Against Verdict.</p> <p>Where the preponderance of the evidence is decidedly against a verdict, it should he set aside and a new trial granted.</p>

<p>.New Trial — Suit in Equity.</p> <p>In a suit in equity to vacate a judgment rendered by default, the averments of the petition must bring the case within the revisory powers of the court as limited and defined by section 579 of the Civil Code of Practice, and where the facts alleged do not constitute any one of the grounds prescribed by said section a judgment which is sought to be vacated or modified thereby will not be disturbed.</p>

<p>APPEAL PROM m’cRAOKEN CIRCUIT COURT.</p>

<p>APPEAL PROM PENDLETON CIRCUIT COURT.</p>

<p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p>

<p>Assignment for Benefit of Creditors and Purchase Money on Property Conveyed in Trust — Prior Liens — Pleadings — Cross-petition — Blending Proceeds of Land and Personal Property.</p> <p>The trustee brought this suit in equity to have the trust settled, making all the creditors defendants, and appellant and wife filed their answer and cross-petition, insisting that they have a prior lien on the land conveyed in trust for their debts, by reason of a purchase-money claim.</p> <p>The appellant’s answer and cross-petition did not allege that the same real estate conveyed by his deed was embraced in the deed of trust. Held, that without such allegations appellant’s claim to a prior lien cannot be sustained.</p> <p>Where land and personal property are sold on the same terms and upon the same credit and notes taken for the aggregate amount show that the consideration for the land was blended with and formed part of the consideration of each note, all payments on the notes should operate as a payment on the land in the proportion it bore to the whole indebtedness.</p>

<p>Wills — Devise — Land—Estate Tail Converted to Fee-Simple Title — Life Estate by the Curtesy.</p> <p>This devise created an estate tail as defined by the common law, and by the eighth section of chapter 80' of the Revised Statutes estates tail are converted into fee-simple estates. On the death of the legatee, the land in controversy descended to her heir subject to the life estate of the appellee. ,</p>

<p>New Trial — Casualty — Misfortune — Petition — Valid Defense — Answer — Demurrer.</p> <p>The failure of counsel to put in a defense (no doubt resulting from casualty or accident), where it is not alleged that appellants or their counsel were unavoidably prevented from making a defense, will not warrant a reversal.</p> <p>Same Where a petition exhibits the answer which was prepared by the attorney to be filed, but fails to set forth the petition on which the default judgment was rendered, the court cannot know whether the defense thus undisclosed was a bar to the action or not.</p>

<p>■Officers — Constable —Jurisdiction — Collection.</p> <p>The prima facie presumption is that a constable would not undertake to collect claims from persons who were not within his jurisdiction.</p> <p>Destruction of Records — Oral Testimony.</p> <p>Oral testimony is competent to prove the execution of a constable’s bond and his qualifications where the archives of the county clerk’s office have been destroyed.</p>

<p>APPEAL PROM GRANT CIRCUIT COURT.</p>

<p>Headings — Petition — Demurrer —¡Personal Property — Possession — Evidence — Ownership — Bill of Lading — Consignor.</p> <p>Construing the bill of sale with strictness, it shows that appellant had possession of the tobacco, and had at least a qualified interest therein, and that he delivered it to the defendant, who appropriated the proceeds to his own use. But possession of personal property is prima facie evidence of ownership; appellant being-possessed of it according to his petition, which, upon demurrer, is taken as true, the law implies a promise to account for it to his consignee.</p>

<p>Pleadings — Personal Acts of Defendant — Want of Knowledge — Defense.</p> <p>Where the personal acts of the defendant are alleged and relied upon-as the facts constituting the cause of action against him, he cannot set. up a want of knowledge or information as a defense.</p> <p>Sufficient Answer — Demurrer.</p> <p>The allegations in an answer that defendant had no recollection of the-transaction alleged, and that his books containing his memorandum were-taken out of his possession, was sufficient to put the plaintiff on his proof of the allegations in his petition.</p>

<p>APPEAL PROM SCOTT CIRCUIT COURT.</p>

<p>Husband and Wife — Dower — Equitable Interest.</p> <p>Where the husband holds only an equity in land, the wife has no dower interest.</p>

<p>"Widow’s Verbal Contract to Relinquish Dower Not Binding — Return of Consideration— Special Verdict.</p> <p>A married woman is not bound by her verbal contract to relinquish her dower, but had a right to abandon it.</p> <p>■Same.</p> <p>No title to the property paid her in consideration of her relinquishment vested in her. She had no right to abandon the contract and still claim the property.</p>

<p>Conveyance of Land — Mental Incapacity.</p> <p>From the palpable unreasonableness of appellant’s conveyance without consideration, whereby he left himself homeless, it will be inferred that he did not understand the legal effect of the conveyance, and did not know the essential difference between a will and a deed.</p> <p>Deed — Description — Vagueness.</p> <p>A conveyance of land by deed, which recites that it was “ 25 acres of the tract more or less of about 50 acres sold to appellant and his; brother,” is void for uncertainty of description.</p>

<p>APPEAL PROM MCCRACKEN CIRCUIT COURT.</p>

<p> Syllabus of Opinion. </p> <p>1. It is not slander to charge that one has falsely taken an oath prescribed by an unconstitutional and void act of the Legislature.</p> <p>2. The act known as the “ Expatriation Act,” approved March 18, 1862, was unconstitutional.</p> <p>3. A citizen may, with the consent of his State, express or presumed, ■expatriate himself, but no mere act of State legislation oan per se ■denationalize him without his concurrence.</p> <p>4. Such compulsive excision is a heavy punishment, which cannot be Inflicted without judioial conviction of some crime or act, denounced by legislation as a forfeiture of citizenship, any more than a bill of attainder "without judicial conviction can constitutionally punish a citizen.</p> <p>5. Whether a citizen has been guilty of an offense involving the forfeiture of his right to vote is necessarily a judicial question which ■nan be constitutionally decided by the judiciary on a full and fair trial ■on an indictment or a presentment, but cannot be rightfully adjudged «collaterally or incidentally by the officers of the election. Nor can a test oath be constitutionally required in such a case, nor the refusal to take it be deemed a judicial trial and conviction of the imputed offense-.</p> <p>6. A legislative act cannot make voluntary rebellion involuntary-expatriation.</p>

<p>Specific Performance of Executory Contract to Convey Land.</p> <p>In general it may be stated that to entitle a party to a specific performance he must show that he has been in no default in not performing the agreement, and that he has taken all proper steps toward the performance on his own part.</p> <p>Same — Coercion of Title.</p> <p>Where a purchaser or his privies seek to coerce the title a payment of the purchase price must be averred and proven if denied.</p> <p>Same — Grantee Giving Note in Bank with Grantor as Indorser Did Not Discharge Vendor’s Lien.</p> <p>Before the vendor can be made to surrender his title it must appear that he has been paid, or that by his own act the lien has been discharged. The giving a note in bank with him “as indorser and getting the proceeds by the grantor did not discharge the lien; it was not a payment until the note in bank was discharged, or grantor released from liability thereon. Same —■ Original Evidence of Debt.</p> <p>In this case no conveyance has been made, the grantor has given no ■credit, nor changed the original evidence of the indebtedness.</p>

<p>Pleading — Verification by Wife.</p> <p>The wife cannot verify a pleading for her husband, unless she states that she is his agent.</p> <p>Process — Constructive Service — Appeal — Appearance.</p> <p>By an appeal from a judgment rendered on constructive service of -process appearance is entered and the party is bound to present his defense when the judgment is reversed, or move for time to do so.</p>

<p>appeal prom louisville chancery court, jepperson county.</p>

<p>APPEAL PROM DAVIESS CIRCUIT COURT.</p>

<p>APPEAL EROM KENTON CIBOUIT COURT.</p>

<p>APPEAL PROM BOUEBON OIRCUIT COUET.</p>

<p>Resulting Trust — Estoppel — Fraud.</p> <p>A. solicited B. to buy C.’s land, B. authorized A. to make the purchase for B. C., not being acquainted with B., required A. to- execute his notes for the land and C. executed his title bond to A. B. took possession of the land, claimed, cultivated, and paid taxes on it for nine years with A.’s approval. B. having paid A. back all the purchase- money except $25, and with A.’s knowledge and consent, sold the land to D. and executed to him his title bond, agreeing to convey the legal title to D. upon payment of the purchase money. D. agreed with A. to pay him the $25 claimed by A. to be due him on the original purchase price. After this A., by actual or ostensible sale, assigned to E. his bond for title from B., E. at the time being in full possession of the above facts and thereupon C. conveyed the legal title to E.</p> <p>D. sues B. for the legal title. Held, that A.’s participation in B.’s sale to C. estopped him, in equity, from claiming the land as his own. And his subsequent assertion of an adverse title and sale of it to E. was, therefore, fraudulent and void as to D.</p> <p>Same — Equity.</p> <p>After the sale by B. to D. A. held his ostensible equity in trust for D,, and as B. purchased with full notice of that trust, the law imposes the same trust on him.</p> <p>Statute — Construction of — Bond for Title.</p> <p>Sections 20 and 22, Revised Statutes (2 Stanton, p. 230), literally applies only to executed contracts of sale, and not to sales by bond for title.</p>

<p>APPEAL PROM LINCOLN CIROUIT COUET.</p>

<p>APPEAL EROM HENDERSON CIRCUIT COURT.</p>

<p>APPEAL PROM JEPPERSON CIRCUIT COURT.</p>

<p>APPEAL PROM PENDLETON CIRCUIT COURT.</p>

<p>APPEAL EROM JEEEERSON CIRCUIT COURT-COMMON PLEAS DIVISION.</p>

<p>Sale of Wife’s Land by Husband — Ratification.</p> <p>The attempted sale of the wife’s land by her husband might have postponed but cannot have deprived her of the ultimate use of her estate, if she had not been estopped by the subsequent ratification and confirmation of the sale.</p>

<p>APPEAL FROM KENTON CIRCUIT COURT.</p>

<p>APPEAL FROM BOONE CIRCUIT COURT.</p>

<p>APPEAL EROM JEEEERSON CIRCUIT COURT.</p>

<p>Administrator’s Settlement.</p> <p>The payments to Conrad and wife, for which the administrator obtained judgment, were made expressly in discharge of their portion as distributees out of the admitted surplus in the administrator’s hands. The administrator having made the payment with the means of full knowledge of what was in his hands it is to be presumed that he paid them no more than they were entitled to.</p>

<p>Pleading — Contract — Written Evidence.</p> <p>What was the subject of the proposition, though doubtless understood by the parties, is not shown by the letter in evidence, and it is not stated in the petition that it was shown by the letter in which the defendant says that he accepted the proposition. There was, therefore, no contract evidenced by writing.</p>

<p>APPEAL PROM PRANKLIN CIRCUIT COURT.</p>

<p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p>

<p>APPEAL EROM BOYLE CIRCUIT COURT.</p>

<p>Objections to Evidence.</p> <p>The evidence introduced on the trial was not objected to, and therefore no question as to its admission in the court below can be raised or considered in this court for the first time.</p> <p>Statutes of Fraud — Mutual Promises.</p> <p>Mutual promises do not have to be in writing in order to make them obligatory on the parties.</p> <p>Same.</p> <p>In order to uphold a mutual promise it is not necessary that a consideration shall pass from the promisee to a promisor; it is sufficient if the promisee parts with property or suffers some loss or prejudice.</p>

<p>Iiregularities in Proceedings Waived.</p> <p>All objections to the informality and irregularities were waived by the parties, as there were no exceptions taken to the proceedings.</p>

<p>APPEAL TROM HART CIRCUIT COURT.</p>

<p>APPEAL PROM RUSSELL CIRCUIT COURT.</p>

<p>Liability for Taking Property Under Military Order.</p> <p>An order for confiscation of property must be produced as a defense, if sought to be available as justification.</p>

<p>APPEAL PROM MADISON COUNTY CIRCUIT COURT.</p>

<p>Parol Exchange of Land.</p> <p>The only principle upon which appellant was entitled to relief was upon the restoration of the land he obtained from the appellee to him, and an equitable interest and settlement of rents and improvements by each party.</p> <p>Judgment for Sale of Land from Quarterly Courts.</p> <p>Land cannot be sold under an execution on a judgment from a quarterly court.</p>

<p>¡Specific Performance — Exchange of Land.</p> <p>Specific performance of an executory contract for the exchange of lands when neither party is in position to convey the legal title will not be enforced.</p>

<p>Robbery — By Military Order.</p> <p>A defendant was not legally responsible for taking a horse when done in obedience to the order of his military commander.</p>

<p>Award of Arbitrators — Notice. .</p> <p>An appeal from an award of arbitrators operates as notice thereof, and the service of a copy on him is thereby dispensed witly even though such an award was not made out and returned and copies delivered ten days before the term of court at which judgment is rendered.</p> <p>Evidence — Presumption of.</p> <p>The signature of an umpire in an award of arbitrators, where submitted to “ two arbitrators cmd thevr umpire,” and where signed by the two arbitrators will not invalidate the award, the presumption being that it was the award of all.</p>

<p>Larceny.</p> <p>A mare was forced out of the immediate possession of the owner and escaped to the commons, and was afterward taken away by intimidator. Held, that this was larceny and not robbery.</p>

<p>APPEAL EROM ERANKLIN CIRCUIT COURT.</p>

<p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p>

<p>APPEAL EROM m’cRACKEN CIRCUIT COURT.</p>

<p>APPEAL EROM PENDLETON CIRCUIT COURT.</p>

<p>APPEAL PROM HENDERSON CIRCUIT COURT.</p>

<p>Answer — Burden of Proof.</p> <p>The burden of proving allegations in an answer of a partial defense as to excessive interest devolves on the defendant.</p>

<p>AUREAL FROM HARRISON CIRCUIT COURT.</p>

<p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p>

<p>APPEAL PROM CLARKE CIRCUIT COURT.</p>

<p>Instructions — Bill of Exceptions.</p> <p>Where the instructions were not made a part of the bill of exceptions, signed by the judge, they are no part of the record, and will not be considered by this court.</p>

<p>Tender of Answer When Regarded as Piled.</p> <p>When an answer is tendered and regarded as filed on trial without objections the omission to note the filing must be regarded as waived. Answer — Cross-petition.</p> <p>Before a judgment can be rendered on an answer it must be made a cross-petition.</p>

<p>APPEAL EROM GREENUP CIRCUIT COURT.</p>

<p>Default Judgment.</p> <p>In a suit on a note where no answer was put in, nor allegation of payment by appellees, the appellants were entitled to a judgment by default,</p>

<p>Will — Bequest — Gift.</p> <p>One of the beneficiaries under a will may dispose of liis share to the other legatees by gift, and vest them with the perfect right to dispose of it as they please to the exclusion of the husband of their deceased sister.</p>

<p>New Trial — Verdict Contrary to Evidence.</p> <p>This court cannot interpose and award a new trial after the same was refused by the court below on the grounds that the verdict was contrary to the evidence.</p>

<p>APPEAL FROM FLEMING CIRCUIT COURT.</p>

<p>APPEAL FROM MONROE CIRCUIT COURT.</p>

<p>APPEAL FROM FLEMING CIRCUIT COURT.</p>

<p>Assignment of Claim in Hands of Attorney for Collection — Breach of Covenant.</p> <p>Appellee had placed various claims in the hands of an attorney for collection and took his receipt for same. He by written indorsement assigned said claims to appellant, covenanting that if said claims “ should not net to said Davis $1,050 when collected I’ll make up the deficiency.”</p> <p>In a suit on the covenant the appellant alleged in his petition that he had only collected of said claims the net amount of $886, and that no more could be collected. The court below sustained a demurrer to the petition. Held, that the averments of the petition clearly show a breach of the covenant.</p>

<p>APPEAL FROM MARION CIRCUIT COURT.</p>

<p>Principal and Agent — Good Faith — Fraud.</p> <p>Where appellant pretended to sell whiskey for appellee at $1.50 per gallon to induce him to accept the supposed price under the mistaken belief, wrongfully induced by appellant, that he had in good faith sold the whiskey at that price to Smith, with the intention to profit by this imposition, and the appellant did so profit by the sale of the whiskey at a greatly advanced price. Held, that appellee could recover the value o-f the whiskey at the time of the pretended sale from appellant and those in combination with him in the perpetration of the fraud.</p>

<p>APPEAL EROM MCLEAN CIRCUIT COURT.</p>

<p>Husband and Wife — Coverture — Title Bond — Wife’s Note.</p> <p>Tbs wife sold land and executed her title bond therefor, receiving part of the consideration; afterward the contract was canceled and she executed her note to her grantee for the amount which she had received on the purchase price, taking up the title bond.</p> <p>Suit having been brought on the note, she pleaded her coverture at the time of the execution of the note. Reid, that she will not be permitted to hold both the land and the consideration for it. If she is not bound on the note she is bound on her title bond.</p>

<p>'Church Property — Dedication — Deed of Trust' — Use — Legal Title — Trustees— Combination — Worship — Control — Abandonment by Part of Congregation — Rights of Those Remaining.</p> <p>The lot was conveyed to the trustees for the purpose of having a church built thereon for the use and benefit of the congregation for the purpose of worship.</p> <p>The trustees were only invested with the control, and in nowise vested with a legal title Or the right to sell the property.</p> <p>It does not follow that after a majority of the original congregation had abandoned the use of the property, having left some of the original numbers there to worship in the old house, who continued to worship there, and being of the’ same persuasion, they could not be ousted by the trustees.</p>

<p>APPEAL PROM MONTGOMERY CIRCUIT COURT.</p>

<p>Pleadings — Preparation.</p> <p>A judgment rendered in a cause submitted before preparation for trial will, on that account, be reversed and remanded to the lower court for further preparation.</p>

<p>APPEALS PROM JESSAMINE CIRCUIT COURT.</p>

<p>Writ of Possession.</p> <p>A writ of possession can only authorize the dispossessing of the parties to the suit; it has no effect on a stranger.</p>

<p>Principal and Agent — Ratification.</p> <p>Herndon, the president of appellee’s board of managers, did many things without consulting the board, of which he was a member, and his acts were generally approved without objections of other members of the board.</p> <p>Same — Authority of Agent a Question of Fact for the Jury.</p> <p>The question of authority in the agent of appellee to execute the notes was a fact, upon which it was the province of the jury to pass.</p> <p>New Trial — Weight of Evidence.</p> <p>Where the evidence is conflicting and the question of fact has been submitted to the jury with proper instructions, if the weight of evidence is against the verdict, this court will not interpose after a motion for a new trial has been refused by the court below.</p>

<p>Turnpike — Subscription to Capital Stock — Special Covenant — Construction of Agreement — Substantial Compliance.</p> <p>The vagueness of the contract as to the particular line, the length of the road to be built, together with the difficulty of a literal compliance with the contract, locating the road on the line, and other circumstances tending to explain the intention of the parties, requires a liberal construction of the agreement.</p> <p>It seems that the company substantially performed the conditions upon which the subscription was made.</p>

<p>Trustee of Jury Fund, Renewal of Bond — Sureties.</p> <p>. The trustee of the jury fund of Daviess county, without an order from court, filed a second bond, which was approved as the first one had been, and contained the name of only one of the original sureties. Held, that the second bond was not a cumulative one, but a renewal in entirety.</p>

<p>APPEAL EROM ERANKLIN CIRCUIT COURT.</p>

<p>Betting on Elections — Indictment.</p> <p>“ It is not a penal offense under any statute to bet that a certain individual will not be elected to a certain office at a certain election, unless he be a candidate for that office, or is voted for to fill it, or is intended or expected to be voted for, or is expected to be a candidate for it.”</p> <p>Instructions.</p> <p>Where the averments of an indictment are not supported by the evidence the court should instruct for defendant.</p> <p>Same.</p> <p>An instruction that “ if the jury believe from the testimony, beyond a reasonable doubt, that the defendant agreed to give Carter a cow in the event of Morrow’s election, and said Carter was to give defendant a cow in the event of Ingram’s election, and such election was held, they should find defendant guilty of betting on the election, unless the jury should believe the bet was withdrawn or annulled before the election.” Meld to be erroneous.</p>

<p>Judgment — Execution — Injunction.</p> <p>Although, the appellant had a strict legal right to an injunction to prevent the collection of the executions, so far as he had paid them subsequent to the judgment, yet he had no right to stay the collection of that part of the judgment which remained unsatisfied.</p>

<p>APPEAL FROM ADAIR CIRCUIT COURT.</p>

<p>Sale of Land — Fraud — Misrepresentation — Failure of Title — Assignment of Note — Proper Parties — Defense — Burden of Proof.</p> <p>Where the defendant interposes the" plea of fraud, misrepresentation, and failure of title in a suit by an assignee of a purchase-money note to enforce its collection the grantor or his representative is a necessary party, and the issue devolves on the defendant a burden of proving it.</p>

<p>APPEAL PROM ANDERSON CIRCUIT COURT.</p>

<p>Discontinuance of Suit — Cross-petition.</p> <p>When Lindsey discontinued his suit against Oldham, who was thereby put out of court, his cross-petition against Riddell had no basis upon which to stand, therefore fell dead.</p>

<p>Execution •— Levy —■ Venditioni Exponas.</p> <p>Had the execution been so levied on Joe, as to authorize a sale, the venditioni exponas addressed to a sheriff of a different county did not authorize the caption or sale of Joe after he had gone to Montgomery county from Fleming, where the levy purported to have been made; the only legal process to take and sell him by_ execution was a new fi. fa. to Montgomery county.</p> <p>Same — Refusal to1 Surrender Joe.</p> <p>If either of the appellants refused to surrender Joe to be sold by the sheriff of Montgomery county under the venditioni exponas he violated no law.</p>

<p>APPEAL EROM WASHINGTON CIRCUIT COURT.</p>

<p>APPEAL EROM OWEN CIRCUIT COURT.</p>

<p>Sale of Wife's Land.</p> <p>The sale of the wife’s land to the husband’s father and the reconveyance by the father to the husband did not vest the wife’s title in husband, as there was no consideration for the sale.</p> <p>Same — Bona Fide Purchaser.</p> <p>The subsequent conveyance of the land by the husband and wife was by fraud and coercion, yet as Johnson was a dona fide purchaser for a valuable consideration without notice the appellants, since her death, cannot reclaim title.</p> <p>Same — Equity.</p> <p>The appellants are equitably entitled to recover from appellee their interest in the amount paid to him for the land.</p>

<p>Interested Witness — Bias.</p> <p>The rule of law is if the witness regards himself interested this excludes his evidence because of the bias this estimated interest has on his mind, and does not depend on the fact whether he is interested.</p> <p>Mortgage on Stock of Goods.</p> <p>When all the original stock on which the mortgage was given had been sold the lien created by the mortgage was gone, as the stock purchased after the mortgage was not subject to it, because a man cannot legally sell or convey property to which he has no title.</p> <p>Levy of Execution — Indemnifying Bond.</p> <p>An officer may require an indemnifying bond before he levies an execution, and unless he does so and notifies the execution plaintiff that he desires such bond it is his duty to levy, and he may waive such bond until he does levy or entirely if he desires, and the deputy may do this as well as the sheriff.</p> <p>New Trial.</p> <p>Newly-discovered evidence of accumulative nature, which could have been discovered by ordinary diligence, is not sufficient to entitle the appellee to a new trial.</p>

<p>APPEAL PROM BOYLE CIBCUIT COURT.</p>

<p>County Court Has No Jurisdiction to Divide Personal Property.</p> <p>A County Court has no jurisdiction to divide heirs’ personal property, which cannot be done in kind.</p>

<p>Devise of an Estate Charged with the Support of Another.</p> <p>Where an estate was devised to a son, charged with the support of the testator’s relict for life, the property itself was charged with this burden; in the dereliction of the son, any other one that she might select may discharge the duty and would be entitled to compensation therefor, which would be a charge on the property and have a prior lien to the son, his vendee, or any execution purchaser of the property sold to pay son’s debts.</p>

<p>Parol Gift of Land — Estoppel — Statutes of Fraud — Innocent Purchaser.</p> <p>Where the father by parol gave land to his son, and the son, with the knowledge and consent of the father, sold the land in controversy to Caswell, who sold it to Sullivan. The son made a deed to Caswell, which •had never been acknowledged or recorded. After Sullivan and Caswell had been in possession of the land for ten years the father conveyed it to the wife and children of another son.</p> <p>Held, that the wife and children are not innocent purchasers for value, and they stand in no better attitude than their vendor, who was estopped by his conduct to plead the Statutes of Fraud.</p>

<p>APPEIAX PROM TRIMBEE circuit court.</p>

<p>APPEAL EROM MONTGOMERY OIROUIT OOURT.</p>

<p>APPEAL KROM MERCER CIRCUIT COURT.</p>

<p>Principal and Agent — Usurious Interest.</p> <p>Where an agent loans money for his principal at a usurious rate of interest, taking a note to himself, and thereafter assigning it to his principal, in a suit on the note, it would be purged of all legal interest.</p>

<p>Note — Want of Consideration — Burden of Proof.</p> <p>In a suit on a note, where the plea of no consideration is relied on as defense, which was controverted by reply, the burden of proof is on the defendant.</p> <p>Purchase of Land by Insolvent Husband — Deed to Wife — Fraud.</p> <p>The proof shows that the land was paid for by the husband, and the deed made to the wife while he was insolvent, and after the note was executed. Held, that the conveyance to the wife was procured to be made to her in fraud of the rights of the holder of the note.</p>

<p>APPEAL FROM BOONE CIRCUIT COURT.</p>

<p>AUREAL FROM FRANKLIN CIRCUIT COURT.</p>

<p>Express Company — Responsibility for Goods Taken by Robbers — Reasonable Time to Deliver — Offer to Deliver.</p> <p>Where an Express Company has reasonable time to deliver goods or a reasonable time to offer to deliver them they are responsible for the value of the goods lost by the reason of being taken by robbers.</p>

<p>Instructions — Undue Importance Given Isolated Fact.</p> <p>There is great danger of giving undue importance to isolated facts by singling them out and giving a special instruction on them.</p>

<p>APPEAL PROM PULASKI CIRCUIT COURT.</p>

<p>Attachment — Grounds — Affidavit — Bond — Exemption.</p> <p>The allegation that the defendant had departed from this State with the intent to defraud his creditors is a ground for an attachment, and the allegation that the defendant had voluntarily left the county of his residence and had gone into a Confederate State and had remained there for more than thirty days is also grounds for an attachment.</p> <p>Same — Affidavit Before Sale of land.</p> <p>Before real estate can he ordered sold under an attachment the plaintiff must file an affidavit to the effect that the defendant has no personal property or not enough thereof to satisfy the debt.</p> <p>Same — Bond.</p> <p>There must be a bond executed, as required by section 440 of the Civil Code, to the defendant for restoring the property to him should it turn out that the attachment was wrongfully sued out, before an attachment can be issued.</p> <p>Same — Wife Entitled to Exempt Property of Her Husband.-</p> <p>The wife having been left in the possession of the property had the right to protect and defend it for her husband, and her claim of its exemption from attachment made in her answer should have been respected.</p>

<p>Will — .Construction — Intention of Testator.</p> <p>The intention of the testator, when clearly and distinctively announced, will not be disturbed, however singular, when -it contravenes no public policy nor principle of law.</p> <p>The executor may convey a legal title to testator’s land after it has reverted to the estate, for the purpose of carrying out the provisions of the will.</p>

<p>Distribution of Decedent’s Estate — Bond of Distributee.</p> <p>The court will require the distributee or legatee, before receiving his distributive share or legacy, to execute a bond with good security to pay back the amount received by him,.if any debts appear against the estate within five years.</p>

<p>Debtor — Pretended Insolvency — Purchase of Claim — Fraud.</p> <p>Buying in of Grissman’s debts with his own money, at a discount from his creditors, they believing him insolvent when he was solvent, was a fraud on them and a sufficient legal reason why no court would assist him to procure the profits thus made by his own fraudulent act.</p>

<p>life Estate — Vendible interest.</p> <p>The remainder after a life estate is a vendible interest, however remote and contingent.</p>

<p>Sale of Land — Title Bond — Resale by Vendee to Vendor by Parol Agreement — Specific Performance — Statutes of Fraud.</p> <p>Quire sold to Harrod a tract of land and executed his title bond, agreeing to convey the legal title when the purchase money was paid.</p> <p>Harrod sold back to Quire a part of the same land at a stipulated price per acre to be credited on Harrod’s purchase-money note. Quire took possession of the land resold to him and improved it. In a suit to enforce the collection of the purchase-money lien on the land first sold, this court held, that a resale and delivery of the possession was a sufficient consideration to uphold the agreement to give a credit therefor, and where the legal title is in the vendor, and a resale is made to him by the vendee, in parole, and possession delivered and this is used as a defense to his suit seeking specific execution, it is clearly not within the statutes, and should be allowed.</p>

<p>Reversal for Third Time — Want of Preparation — Widow — Equitable Dower — Sale of Land.</p> <p>Where a widow is entitled to equitable dower she is interested in the sale to enforce a lien on land and is, therefore, a necessary party.</p> <p>Where two' tracts of land are to be sold to satisfy separate liens on each, it is error to order a sale in gross for the amount due on both tracts.</p>

<p>APPEAL FROM MASON CIRCUIT COURT.</p>

<p>AUREAL EROM HENDERSON CIRCUIT COURT.</p>

<p>Employer — Employee — Discharge.</p> <p>If the plaintiff was discharged, without just cause, and before the end of the time, for which the defendant had engaged her services, she had the right to maintain an action for the loss of wages, if she was unable by reasonable effort to obtain other employment.</p> <p>Contract.</p> <p>In every contract by which the services of one person are engaged to another, there exists mutual obligations and reciprocal duties, and which is not expressed or implied by law for the breach of which either party may terminate the engagement.</p> <p>Duty of Employee.</p> <p>Fair dealing, punctuality in payment of wages, and general good treatment are duties incumbent on the employer-, for a breach of which the employee can have his action.</p> <p>Duty of Employer.</p> <p>The employee is bound to treat the employer with respect, to be faithful and reasonably diligent, and to obey all reasonable orders, within the scope of his employment, which may be given by the employer or his agent, for the breach of which the employer may discharge him.</p> <p>Character or Conduct of Employee.</p> <p>In some service the character and conduct of the employee is immaterial to the employer and forms no element or consideration'; tliei'e are others implied in the nature of the service that do constitute elements of the contract and consideration.</p>

<p>APPEAL PROM MERCER CIRCUIT COURT.</p>

<p>Bill of Exceptions Must Contain All the Instructions Given by the Court.</p> <p>It is not stated in any of the numerous bills of exceptions that any or either of them contain all the instructions given by the court to the-jury; we cannot, therefore, consider alleged errors in the instructions or in refusing to instruct the jury on this appeal.</p> <p>Error in Admitting Evidence Cured.</p> <p>The court- cannot exclude evidence until lie knows what it is, and if not competent the error is obviated by withdrawing it from the consideration of the jury.</p>

<p>Public Office Created by the Legislature Cannot be the Subject of Private Property.</p> <p>The offices in question, forming a part of the municipal government of the city of Lexington, are not private but public offices, created for the convenience of the local community, forming a part of the instrumentality by which the power and protection of the State is extended to those in a particular municipality.</p> <p>Such offices cannot be subject of private property; they belong to the public and they are to be filled for the benefit of the public.</p> <p>The compensation is allowed to the officer that the public may have reasonable assurance that the services will be ijroperly performed. It is the compensation alone that gives to the office pecuniary value.</p> <p>If the appointment for election to an office could be regarded as creating a contract between the public and the officer the constitutional guarantee of the contract from legislative interference would be the guarantee of his right under the contract.</p> <p>In those cases in which it is essential to the public interest that the officer shall have the right to hold the office for a fixed period the Constitution itself in creating the office has fixed the period for which it is to be held.</p> <p>Where the compensation of officers, as fixed when they take the office, shall be assured to them, the Constitution has prohibited the diminution of it during that period, and these are restrictions on the legislative power, and there are no such restrictions with regard to municipal offices.</p> <p>An incumbent has the vested right in the compensation already earned which may be regarded as property of which he cannot be deprived.</p> <p>The incumbent of an office which is created for the benefit of the public and which the Legislature may abolish at any time has no vested or absolute right in the office or the unexpired time.</p>

<p>Excessive Interest in Note for Purchase Money Not Usurious.</p> <p>A rate of interest of 10 per cent., promised in a purchase-money note, is not for the loan or forbearance of money or other thing; but is as much a part of same as the principal itself.</p>

<p>Wills — Construction of — Property over.</p> <p>A testator is deemed to have died intestate as to particular property not specifically alluded to by will, a reversionary interest of which had not been disposed of by any other clause of the will.</p>

<p>Weight of Evidence — Verdict of Jury.</p> <p>If the verdict of a jury is palpably against the evidence the judgment will be reversed.</p>

<p>Counterclaim.</p> <p>A counterclaim must be a cause of action.</p> <p>License to Enter on Land.</p> <p>A license from a stranger to enter on land is not a cause of action against the actual occupant but is only matter of defense against an action for having entered.</p> <p>Adverse Possession — Occupancy by Enclosure.</p> <p>Where there is no actual adverse possession an actual possession by the occupant is constructively coextensive with the defined limits of his claim of possession.</p> <p>Deeds Evidence of Boundary.</p> <p>Though a deed may pass no title it may be admitted as evidence of boundary.</p>

<p>APPEAL PROM DAVIES'S CIECUIT COUET.</p>

<p>APPEAL FROM MADISON CIRCUIT COURT.</p>

<p>Evidence — Preponderance of — New Trial — Reversal.</p> <p>A mere preponderance of evidence on the side of the appellant cannot be available in this court for reversal when the court below had refused a new trial on that ground.</p>

<p>Statute — Construction of — Divorce — Alimony.</p> <p>Section 6, article 3, chapter 47 (2 Lev. Stat. 21), provides that pending an application for a divorce a court may allow the wife maintenance.</p> <p>Sufficiency for maintenance.</p> <p>By “ sufficient ” estate of her own, mentioned in the foregoing section, is meant, as we understand it, that unless the wife has an estate of her own, the profits of which are sufficient for her comfortable maintenance, that an allowance shall be made out of the estate of the husband to supply the deficiency, or such an amount in- view of the value of the husband’s estate as shall be deemed equitable. It was never contemplated by the Legislature that no allowance should be made out of the husband’s estate if the wife, by using and consuming the principal of her own estate, could maintain herself, but the allowance for deficiency from husband’s estate must be made on equitable terms.</p>

<p>APPEAL FROM NICHOLAS CIRCUIT COURT.</p>

<p>APPEAL PROM KENTON CIRCUIT COURT.</p>

<p>Nonresident — Appointment of Attorney for.</p> <p>Attorney must be appointed, for nonresident constructively summoned, sixty days before judgment can be rendered against him.</p> <p>Void Sales.</p> <p>Legal sales made for benefit of creditors, -where affidavits are not made as required by section 251, Civil Code, are void.</p>

<p>Liquor License — Description of Place — Sufficiency of —Privilege Not Confined to Particular House.</p> <p>A license to keep a tavern on a farm sufficiently designates the place and does not confine the privilege to any particular house, but only requires that it should be within the limits of the farm.</p> <p>A license to keep a tavern in a town sufficiently specified the place ' and operated as a personal franchise coextensively with the boundary of the town and as locomotive as the grantee himself, and would authorize the keeping of a tavern and the retailing of liquors in any house in that town, i</p>

<p>Payment — When to be Credited on Note No Date Being Stated — Pleading Consideration — Misprision.</p> <p>By failing to state the date of the payment of $250 on the mortgage debt, if nothing appeared in the record from which the time could be fixed, the credit should have been entered as of the date of the maturity of the debt.</p> <p>The petition need not set out the consideration for the assignment of a note.</p> <p>If the case was heard before it stood for trial, that according to section 578, Civil Code, is a clerical misprision, which cannot be corrected on appeal, but by motion when judgment was rendered.</p>

<p>Pleadings — Value — Amount — Damages — Judgment — Jury — Supersedeas Bond — Attorney’s Fees.</p> <p>Allegations of value or of amount of damage shall not be considered as true by the failure to controvert them.</p> <p>The assessment of the value of rents cannot be done without proof.</p> <p>No attorney fee can be recovered in a suit on a supersedeas bond.</p>

<p>APPEAL PROM BOYLE CIRCUIT COURT.</p>

<p>APPEAL EROÍC LIVINGSTON CIRCUIT COURT.</p>

<p>Bills — Notes — Last Indorser.</p> <p>According to commercial ■ and banking usages tbe last indorser has the right to check for proceeds of a bill of exchange.</p>

<p>' APPEAL EROM LOUISVILLE CHANCERY COURT.</p>

<p>APPEAL PROM BULLITT CIRCUIT COURT.</p>

<p>Sale of Land — Contract Rescinded — Rents — Interest.</p> <p>Where the contract for the sale of a house and lot was rescinded by agreement of the parties, the rents of the estate sold are to' be regarded as equivalent to the interest on the price to be paid for same.</p>

<p>APPEAL PROM NELSON CIRCUIT COURT.</p>

<p>Antenuptial Contract.</p> <p>Where parties in contemplation of marriage entered into an agreement by which their property was to be kept separate, and neither was to have an interest in the other’s estate, and were not to claim courtesy or dower after death. Held, that by the terms of the contract the survivor could not retain the property in his own right, under the statute, as administrator of his deceased wife.</p>

<p>APPEAL PROM MCLEAN CIRCUIT COURT.</p>

<p>Recognizance — Forfeiture of.</p> <p>A party having appeared in court, as required in a bond, and having been released on his own recignizance, his sureties on the bond were released from any obligation.</p>

<p>Landlord — Tenant — Rent — Lien.</p> <p>Landlords have a lien on the produce of the farm, and if sold by the tenant, are entitled to the proceeds of the sale.</p>

<p>A Deed Absolute in Terms May Only be Surety for Debt.</p> <p>There being a borrowing and lending, prima, facie, the deeds are to be considered as the surety for the indebtedness.</p> <p>Same;</p> <p>The presumption of law may be strengthened by parol evidence.</p>

<p>ARPEAD RROM MONTGOMERY CIRCUIT COURT.</p>

<p>APPEAL FROM TAYLOR CIRCUIT COURT.</p>

<p>APPEAL EROM JEEEERSON COUNTY CIRCUIT COURT.</p>

<p>APPEAL EROM GREENUP CIRCUIT COURT</p>

<p>Writing — Mistake.</p> <p>Where the execution of a writing is admitted, and the defendant relies on a mistake, the allegation of the answer stood controverted,- and. the affirmative was on him.</p>

<p>APPEAL EEOM MEECEE CIRCUIT COUET.</p>

<p>APPEAL PROM GREEN CIRCUIT COURT.</p>

<p>APPEAL EROM CENTER CIRCUIT COURT.</p>

<p>Instructions — Evidence — In Support of.</p> <p>A mere abstract proposition of law should not be submitted to the jury without evidence upon which to base it,</p> <p>Adverse Possession.</p> <p>Before one can recover against a party in the possession of land he must show in himself a superior legal title.</p>

<p>APPEAL PROM LAEUE CIRCUIT COURT.</p>

<p>APPEAL PROM PRANKLIN CIRCUIT COURT.</p>

<p>APPEAL FROM CAMPBELL CIRCUIT COURT.</p>

<p>Note Made to One’s Own Order.</p> <p>A note made payable to a party’s own order imports no legal obligation and can only be used as evidence of an indebtedness, not as a foundation of an action.</p>

<p>APPEAL FROM BOURBON CIRCUIT COURT.</p>

<p>APPEAL FROM ADAIR CIRCUIT COURT.</p>

<p>APPEAL FROM SHELBY CIRCUIT COURT.</p>

<p>Affidavit as Evidence.</p> <p>Where an affidavit is not excepted to the court must regard it as evidence.</p>

<p>APPEAL FROM NICHOLAS CIRCUIT COURT.</p>

<p>Instructions — Questions of Law and Facts.</p> <p>Questions of fact and not of law should be submitted to the jury by the instructions.</p> <p>Answer — Construction of — Facts Not Alleged Need Not be Denied.</p> <p>Giving the answer the most favorable construction for appellee only amounts to an admission that there was a judgment for some uncertain amount, which had been replevied and an execution had issued on a replevin bond, but it cannot be understood as admitting that the amount in the execution corresponded with the judgment or replevin bond, because the fact is not alleged.</p> <p>Sale of Land Under Fieri Facias.</p> <p>The statute has only authorized the sale of lands under writs of fieri facias in satisfaction of judgments of replevin bonds, which have the force of judgments.</p>

<p>Insolvency — Preferred Créditors — Assignment — Statute of 1856.</p> <p>Two essential facts must exist before a sale by a debtor will operate as an assignment for the benefit of creditors under the Statute of 1856. First, the insolvency of the vendor; second, that the sale was made to prefer a creditor.</p>

<p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p>

<p>Verdict Against the Evidence — New Trial.</p> <p>There being no evidence to sustain plaintiff’s right of action a jury should have found for the defendant; therefore, the court should have awarded the appellant a new trial.</p>

<p>Decretal Sale of Land — Title Passed.</p> <p>No title passes to the purchaser of land, at a decretal sale, where the-legal title holders are not parties to the suit.</p>

<p>Dissolution of Injunction — Damages Therefrom.</p> <p>Where it appears from the records that the defendant is not in fact, restrained from proceeding against plaintiff on an order for an injunction damages will not be awarded.</p>

<p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p>

<p>APPEAR EROM REWIS CIRCUIT COURT.</p>

<p>APPEAL FROM WARREN CIRCUIT COURT.</p>

<p>Execution Sale — Rescission of Contract.</p> <p>If there are such irregularities in the proceedings out of which an execution sale is made as to render the sale void, the purchaser must tender back the property within a reasonable time after the discovery of the irregularities or offer a good and sufficient reason for not making the tender, before he is entitled to a rescission of the contract.</p>

<p>APPEAL EROM MEADE CIRCUIT COURT.</p>

<p>Depositions — Distance from Courthouse — Exception.</p> <p>Where depositions are read without exceptions, on the trial of the case below, this court will presume that the witnesses resided more than thirty miles from the courthouse.</p>

<p>Fraudulent Conveyance — Deed Lodged for Record Constructive Notice.</p> <p>A conveyance made and the deed lodged in the clerk’s office for registration, while the grantor is solvent, and before the creation of the liability of a surety for the grantor, is not fraudulent.</p> <p>The deed operated as constructive notice from the time it was lodged in the clerk’s office for registration.</p>

<p>APPEAL EROM BALLARD CIRCUIT COURT</p>

<p>Will — Devise — Vested Remainder — Survivorship.</p> <p>The devise was a vested remainder upon the testator’s death, hence, all the surviving children of the testator, at his death, took an immediate vested interest which descended by operation of law to their heirs.</p>

<p>APPEAL EROM MADISON CIRCUIT COURT.</p>

<p>APPEAL EROM GALLATIN CIRCUIT COURT.</p>

<p>Warranty of Soundness of Horse.</p> <p>The cause of action for the breach of warranty of soundness in the sale of a horse is a cause of action for the recovery of money to the amount of the damages sustained by reason of the breach. - •</p> <p>Same — Contract.</p> <p>It is also a cause of action on a. contract, although the claim is not expressly stated to be due' on account.</p>

<p>Partnership — Process on One Member — Default Judgment.</p> <p>A defendant on whom process was served had no right to assume that judgment could not be taken before the process was served on his partner and codefendant.</p> <p>■Same — Counterclaim.</p> <p>A counterclaim may be set up by one partner after judgment has been rendered against the other by default.</p> <p>Xaches.</p> <p>One who is guilty of laches cannot complain of a default judgment, though mistaken in his belief of his rights.</p>

<p>APPEAL PROM PLEMING CIRCUIT COURT.</p>

<p>APPEAL PROM HICKMAN CIRCUIT COURT.</p>

<p>Demurrer — Pleadings — 'Sufficient Allegations in Bill to Quiet Title to Land.</p> <p>Where the petitioner fully seta out and alleges title and possession of lands, in a suit in the Chancery Division of the Circuit Court to quiet title to said lands, it is a sufficient compliance with the act of the-Legislature approved March 9, 1854, entitled “An act to quiet the title to lands ” which provides that it shall he lawful for any person having both the legal title and possession of lands to institute and prosecute a suit by petition in equity in the Circuit Court of the county where the lands or some part thereof lie, against any other person setting up claim thereto, etc., and a demurrer to the petition should have been overruled-</p>

<p>Executors and Administrators — 'Delinquent Taxes — Failure to Collect by Deputy — Evidence.</p> <p>An original petition charged a collection of taxes by the deputy sheriff of about $700 unaccounted for, which was traversed by defendants. An amended petition made a vague alternative charge of failure to collect the balance of taxes without alleging that it was collectible or even a failure to return a delinquent tax list. The answer avers a certain portion was not collectible in consequence of insolvency. And to sustain that affirmative defendants offered to prove that when the tax-books were received by the deputy certain taxpayers were insolvent and still continued so. Held, that this proof would repeal any legal liability of negligent failure to collect, and would entitle defendants to exoneration pro tanto mid it was error to exclude the proffered testimony.</p>

<p>ARREAL PROM CHRISTIAN CIRCUIT COURT.</p>

<p>APPEAL PROM M’CRAKEN CIRCUIT COURT.</p>

<p>Commercial Paper — Fraudulent Sales — Purchaser in Good Faith.</p> <p>A purchaser of a promissory note in good faith, for a valuable consideration, before maturity, is held to a bona fide owner, and cannot be deprived of his right to invoke a legal remedy to collect same.</p> <p>Same — Estoppel — Set-off.</p> <p>Where A. sells and transfers to O. the note of B. and on the due date of the note B. voluntarily renews the note to C., he is estopped from setting up a counterclaim of a prior debt due him by A. even though such a right of set-off existed as to the original note.</p>

<p>Partnership — Advancements by One Copartner.</p> <p>Partners in the purchase of lands, in the absence of any agreement or memorandum to the contrary, are presumed to have held equal interests, therein, and in a suit for a settlement of accounts this rule should apply.</p>

<p>Partnership — ■ Joint Owners — Settlement of Accounts.</p> <p>In a suit for a settlement of account between joint owners of lands where sales have been made from time to time by one of the partners and no accounting made, it is proper to have the interest of the other partner valued as of the date of the last sale made by the senior partner and charge the senior partner with interest on such sales made up to such last sale.</p> <p>In a settlement as of a partnership, the account should be settled by charging the senior member with all money received and interest, in so far as was used for his individual purposes, and the junior member should have a judgment against him for this sum, with a lien on the senior member’s undivided interest in the land not sold.</p>

<p>Lands and Conveyances — • Deeds — Construction Description by Metes and Bounds.</p> <p>A deed expresses “ for a consideration of $3,937,” describes the land by metes and bounds, and “ containing 158 acres, 1 rood and 7 poles, be the same more or less.” An action was brought for an unpaid balance due of this sum, and defendant filed an offset claiming to have received only 148 acres and that the land was sold at $25 per acre and not for the bulk sum as shown by the deed. The evidence was contradictory. The court held, that regardless of the fact of the sale, which seemed from the evidence was 5y the acre, it did not appear there was an agreement that either party should account for a. deficiency or excess in quantity, and the deed was made absolute.</p>

<p>APPEAL FROM ANDERSON CIRCUIT COURT.</p>

<p>APPEAL PROM MADISON CIRCUIT COURT. '</p>

<p>APPEAL PROM MADISON CIRCUIT COURT.</p>

<p>APPEAL EROM TRIMBLE CIRCUIT COURT.</p>

<p>APPEAL PROM WASHINGTON CIRCUIT COURT.</p>

<p>APPEAL .FROM MERCER CIRCUIT COURT.</p>

<p>Attachment — Deed Lodged for Record Before Attachment Issue — Fraudulent or Voluntary Conveyance — Pleading.</p> <p>When land has been sold and deed lodged for record before an attachment issues and there is no pleading in the cause assailing_ the deed as fraudulent or voluntary, the attachment will be discharged.</p> <p>Minors — Next Friend — Defense.</p> <p>A next friend cannot defend for minor children; none but a guardian can do this.</p>

<p>APPEAL EROM JEEEERSON CIRCUIT COURT.</p>

<p>Fraudulent Conveyance — Secret Trust — Money Bona Fide Paid by Trustee.</p> <p>Where it is adjudged that land is held by one in secret trust for another, the trustee may assert claim to the extent of money shown to-have been tona fide paid or advanced out of his own means or that he is-honestly bound to pay.</p>

<p>Personal Representative — Action Against — 'Account — Demand — Affidavit — Proof by Personal Representative Only — Successor — Voucher — Settlement.</p> <p>It is the duty of a claimant, before commencing an action against a personal representative, to demand payment and accompany it with proof of the account as well as his own affidavit.</p> <p>Same —■ V oucher.</p> <p>The personal representative must be furnished with a proper voucher by which he can obtain credit in his settlement.</p> <p>Same Proof by Personal Representative.</p> <p>If proof of a claim can only be made by the personal representative and he refuses to make the affidavit, further proof is dispensed with.</p> <p>Representative — Admission — Successor.</p> <p>The mere admission of the correctness of a demand by a representative does not bind his successor in office so as to dispense with proof.</p>

<p>APPEAL FROM OWEN CIRCUIT COURT.</p>

<p>Usury — Judgment at Law — Previous Defense — Recovery Notwithstanding Judgment for Debt.</p> <p>Although a judgment at law cannot be modified by a defense subsisting previous to it, yet usury paid may be recovered by action notwithstanding the judgment for the debt.</p> <p>Married Woman — Bona Fide Payment — Protection.</p> <p>A married woman will be protected to the amount which she has bonafidely paid out of her own estate on land purchased by husband.</p>

<p>APPEAL EROM GARRARD CIRCUIT COURT.</p>

<p>APPEAL PROM MARION CIRCUIT COURT.</p>

<p>Bail Bond —■ Forfeiture —■ Defense.</p> <p>The fact that the defendant was prevented by military power, against his will, from appearing before the adjudged forfeiture, presents a good defense and it was error to sustain a demurrer to the answer.</p>

<p>APPEAL FROM CAMPBELL CIRCUIT COURT.</p>

<p>Wills — 'Devise of Land — Postponement of Partition — Joint Tenancy.</p> <p>Where a will postpones a partition of land devised until the death of one of the devisees, the others are not entitled to have a division until that event happens, hut are entitled to enjoy the estate as joint tenants.</p>

<p>"Nonresident — ‘Petition Taken for Confessed — Bond.</p> <p>It is error to take a petition against a nonresident for confessed who has not appeared to the action, although a corresponding attorney was appointed.</p> <p>Bond.</p> <p>It is error to render a judgment against a nonresident before bond is executed as required by subdivision 2, section 440, Civil Code.</p>

<p>Sheriff — Failure to Return Execution — Sufficient Excuse.</p> <p>While the execution was in force and after it had been paid, it was held up by instruction of the plaintiff; held, that under the circumstances it was a sufficient excuse for the failure to return the execution.</p>

<p>Officers — Constable — Return on Execution Conclusive.</p> <p>Where an officer makes a return on an execution, "that he had collected said debt,” it is conclusive of the fact upon him and his sureties.</p>

<p>Evidence — Contrariety — Weight —■ Credibility.</p> <p>Where there is a contrariety of evidence it peculiarly belongs to the jury to decide upon its weight and the credibility of the witnesses.</p>

<p>APPEAL EBOM OLABK CIRCUIT COUET.</p>

<p>APPEAL PROM KENTON OIEOUIT COUET.</p>

<p>Wüla — Inhibition — Assignment of Legacy.</p> <p>By the terms of a will, a legacy was made to minors, payable to them when they arrived at the age of twenty-one years, respectively, and concludes with the following clause: “But in no event shall the mother of said five last named children inherit or have any part of said fund; but in case any one of the children dies before receiving the bequest, then those living shall have it in equal parts.” Held, that this does not prohibit the assignment by one of said heirs to the mother, of his interest, after he had become twenty-one years of age, the amount of the legacy due to him not having been paid up to the time of said assignment.</p> <p>Samé.</p> <p>No provision being made in a will to affect the disposition of a legacy to a minor after he became of age, it is held to become the property of the legatee in fee simple and may be disposed of at that time in any manner he may prescribe.</p>

<p>Wills — Intention of Division — Devise in Trust for Life not Subject to Devisee’s Debts..</p> <p>A testator devises to his children all of his lands and personalty “to be vested in his executors, in trust for them, it being my express will that said lands, etc., shall not be held liable for any debts now owing, or which may be contracted by my said children or either of them,” and gives his executors discretion to put the. children in possession, and to resume possession at their own pleasure. Also to sell the whole or any part and appropriate the interest to the benefit and support of “the child to whom it may belong during life and then to pass as above.” Held, to be a devise for the personal use of the devisee during life only, and not subject to his debts at any time contracted.</p> <p>Personal Use of Land Devised — 'Descent.</p> <p>Where only the personal use of land and personalty are devised for life, upon the death of the devisee, without issue, the estate descends to his surviving brothers and sisters.</p>

<p>Attachment — Lien for Rent — Proof — Priority of Liens.</p> <p>Where, under an attaching creditor’s demand for rent, the produce of the farm and other personal estate on the premises, on which, under the warrant, he had an exclusive lien, were sufficient to satisfy the same,, the court did not err in applying so much of the proceeds thereof as was necessary to discharge the attachment debt.</p> <p>Same — Creditor.</p> <p>An attaching creditor has no lien on a fruid derived from the sale of a debtor’s property, unless it is derived from a sale of property on which his attachment had been levied.</p> <p>Affidavit —■ Proof.</p> <p>An attachment, without the prescribed affidavit, will be discharged. And where the evidence shows by a preponderance of the proof that the grounds of the attachment are not sustained, it will he dismissed.</p>

<p>Suit to Enforce Lien for Purchase Money on Land — Necessary Parties.</p> <p>The legal title to the land never having been in decedent and the equity which descended to his heirs having been sold, in a suit to settle his estate his widow and heirs had nothing to lose or gain on the result of the suit to enforce the purchase-money lien on the land, and were, therefore, not necessary parties thereto.</p>

<p>Purchase of Property on Which There is a Mortgage — Deferred Payment to . Extinguish Mortgage. '</p> <p>Where a vendee purchases ..property, on which there is a mortgage, and’ executes his note to the vendor for part of the purchase price, it is his; duty, to apply the deferred payment to the extinguishment of the mortgage, notwithstanding the vendor has executed to him a bond to hold him harmless against said mortgage; therefore, he is not entitled to consequential damages by reason of the foreclosure of the mortgage.</p>

<p>APPEAL FROM MARION OIRCUIT OOURT.</p>

<p>APPEAL EBOM CUMBEBLAND COUNTY COUBT.</p>

<p>APPEAL EBOM JEEBEBSON CIEOUIT OOUBT, COMMON PLEAS.</p>

<p>Vendor and Vendee — Acceptance of Deed of Vendor — Tender of Deed in Court.</p> <p>A. sells lands to B. agreeing to make a conveyance of same. B. enters into possession and later files suit against A. for an exhibit of title, alleging that he -had paid for the land and demands a deed of conveyance, suggesting that A. could not make a valid deed on account of certain incumbrances. A. answers, setting out a continuous thirty years' title through heirs who had obtained the land from a commissioner’? sale of a dower interest and delivers to and tenders through the court a deed 'of conveyance: Eeld, that a continuous occupancy and possession of the land for thirty years would constitute perfect title, and B. should accept the deed as tendered. '</p>

<p>APPEAL FROM MEADE CIRCUIT-COURT.</p>

<p>Principal and Surety — 'Indulgence—Renewal — Novation— Defense — Bill of Exceptions — Issual of Execution — Levy — Indemnifying Bond — Submission — 'Amended Petition — Notice.</p> <p>That Jones indulged Thompson from time to time and permitted him to renew his paper is made out, but this was a defense which should have been made to the suit on the note.</p> <p>It is the duty of the clerk issuing an execution to indorse his release of the surety, because the bond and execution gives him the data to act upon.</p> <p>Waiving the question of issuing the execution within a year, it is quite evident that the statute applies only to sureties on the bond and not to a principal therein.</p> <p>The case was submitted November 14, 1854, for trial, yet without notice Daviess was permitted to file an amended petition setting up a novation, which was a new cause of action; and without process thereon, a confession of the amended petition was taken. Held, that this was error; the Civil Code gives to courts a larger diseretionary power to commit amendments, but it was not intended to give unlimited power. No alteration by pleadings or proof should be allowed after submission without notice.</p> <p>If a plaintiff by his own conduct, either through carelessness or for profit, should injure the surety, the law will generally release him, .but it never intended to force an execution plaintiff into extreme l-emedies to make the money out of the principal in order to save the surety.</p>

<p>Bills of Exchange — Indorsement' — Fraud — Atta chmenb —• Answer.— Presumptions.</p> <p>In the absence of proof to the contrary, the presumption is that negotiable paper acquired in the usual course of business and for a valuable consideration, has been indorsed before it came due.</p> <p>Burden of Proof.</p> <p>Where the allegations that an indorsement was fraudulent, without consideration, and made when the bill was past due, are denied, the burden of proof is on the plaintiff.</p> <p>Special Judge — Oath.</p> <p>The objection that a special judge was. not sworn cannot be set up in this court for the first time.</p> <p>Stamping Bills of Exchange.</p> <p>The fact that a bill of exchange had not been stamped according to the acts of Congress does not operate to render it invalid.</p>

<p>APPEAL ER0M KENTON CIRCUIT COURT.</p>

<p>APPEAL PROM CHRISTIAN CIRCUIT COURT.</p>

<p>Promissory Note — Day of Payments Stipulated — Covenant to Extend Time by Payment of Interest Annually.</p> <p>Where a day of payment is stipulated in a promissory note and then a covenant inserted securing to the debtor the privilege of extension at his own pleasure, from year to year, by paying the interest annually, is not in conflict with any law or public policy, but when a failure to pay the interest promply occurs the privilege is forfeited.</p> <p>Lien for Purchase Money.</p> <p>In order to retain a lien on land for purchase money proper and apt words must be used in the deed for that purpose.</p>

<p>Landlord and Tenant — Holding over after Expiration of Lease — Notice — Adverse Possession — Instructions.</p> <p>An open and adverse holding after a lease expires, authorizes the presumption of notice to the landlord, and it is error to instruct the •jury that actual notice must be given by the adverse claimant in possession.</p> <p>Same.</p> <p>Tenant cannot deny title under which he enters, if the lease covered the land in controversy; the lessee became tenant of , the lessor and cannot deny the title under which he held without an adverse possession of fifteen years.</p> <p>Champerty.</p> <p>The Statutes of Champerty do not apply until tenant has held adversely to his landlord for fifteen years.</p>

<p>APPEAL EROM KENTON CIRCUIT COURT.</p>

<p>APPEAL EROM WASHINGTON CIRCUIT COURT.</p>

<p>Antenuptial Contract —• Construction.</p> <p>John Pendleton in anticipation of marriage with Lucy Miller entered into an antenuptial contract with her in which he stipulates that “ After she becomes his wife she may hire out her own slave, rise the proceeds as she pleases, and that she shall have full power and control over her money and property and dispose of the same as she pleases:” Held, That the effect of that instrument is to place the title of the property therein named in his wife after their marriage, with all the rights and powers over same that she would have had if she remained unmarried, and upon her death it went to her personal representative.</p>

<p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p>

<p>Promissory Notes — 'Manner of Computing Interest.</p> <p>The legal manner to calculate interest on a note is down to the first payment, and, if the payment be equal to or larger than the interest, apply the payment first to the discharge of the interest and apply the remainder to a discharge of the principal, as a creditor has the legal right to have the interest discharged before the principal shall be reduced.</p> <p>Novation — Legal Tender — 'Gold and Silver.</p> <p>There cannot be a novation of contract, because nothing but gold and silver coin can be made legal tender. Neither can a creditor claim a novation, where he does not in a reasonable time offer to perform the contract.</p> <p>Commissioner’s Report — Judgment on Notes not Included in Petition. .</p> <p>It is error to include in a commissioner’s report the amount of one of a series of notes given for the purchase of land, where said note is not included in the petition, nor referred to in an amended pleading.</p>

<p>Suits in Equity — Determination — Presence of Other Parties — Infants.</p> <p>It is provided by the fortieth section of the Civil Code that “Where a determination of the controversy between the parties, before the court, cannot be made without the presence of other parties, the chancellor must order them brought in: ” Held, That it is the duty of the court, in exercising general supervision over the rights of infants, to have them brought in as parties to the action.</p>

<p>APPEAL PROM PLEMING CIRCUIT COURT.</p>

<p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p>

<p>Bills and Notes — Alteration of Instruments — Discharge of Indorser.</p> <p>Where the payee of a hill subsequently inserts the name of another as drawee without his authority, the alteration will operate to discharge the indorser from liability.</p>

<p>Pleadings — ’Sufficient Answer — Amended Petition.</p> <p>Appellants deny that they were indebted to their eodefendant in any sum whatever, at the institution of the original action: Held, That this answer though filed in response to the original petition, should be held to sufficiently controvert the more specific averments of indebtedness, made in an amended petition, subsequently filed.</p> <p>Evidence Taken Before Consolidation.</p> <p>Where causes are consolidated without objection, the evidence taken before may be used on the trial of the consolidated ease.</p>

<p>APPEAL PROM LINCOLN CIRCUIT COURT.</p>

<p>ARPEAD RROM MADISON CIRCUIT COURT.</p>

<p>APPEAL PROM MARION CIRCUIT COURT.</p>

<p>APPEAL PROM ESTILL CIRCUIT COURT.</p>

<p>Innocent Purchaser for Value Without Notice — Prior Equitable Rights — Purchase Money Paid or Owing After Notice of Equity Lien.</p> <p>The rule is, that to be a purchaser for value without notice the party must have both received the conveyance and paid the entire consideration; and the rule does not extend further than to give the party ascertaining a prior equitable right the right to enforce his claim against a purchaser to the .extent of purchase money owing or paid after notice of equity.</p>

<p>APPEAL PROM PAYETTE CIRCUIT COURT.</p>

<p>APPEAL PROM CLARK CIRCUIT COURT.</p>

<p>APPEAL PROM LINCOLN CIRCUIT COURT.</p>

<p>APPEAL EROM BARREN CIRCUIT COURT.</p>

<p>Assignment for Benefit of Creditors — Want of Trustee — Sufficient Deed Attachment.</p> <p>• A trust will not fail for the want of a trustee. If a trustee or assignee named in a deed or will refuse to act, the chancellor will appoint one.</p> <p>Deed of Assignment — Sufficiency.</p> <p>The law does not require a deed of assignment to he written in any particular phraseology or according to any technical form.</p> <p>Recording Deed of Trust — Actual and Constructive Notice — Attachment. An attachment will not he sustained where the attaching creditor had actual notice of the assignment before suing out the attachment. The deed of assignment is sufficient notwithstanding the instrument wa: neither acknowledged nor recorded.</p>

<p>APPEAL FROM CALDWELL CIRCUIT COURT.</p>

<p>APPEAL PROM LARUE CIRCUIT COURT.</p>

<p>APPEAL FROM CLARKE CIRCUIT COURT.</p>

<p>Judgment — 'Diligence—'Law and Facts — Jury.</p> <p>Diligence is a question of law to be applied by the court; the facts to be applied by the jury.</p>

<p>APPEAL FROM BULLITT CIRCUIT COURT.</p>

<p>Officers — Constable — Failure to Return Execution Within Thirty Days — Remedy —■ Damages — Failure to Pay over Money Collected on Execution — Remedy — Damages — Jurisdiction of the Circuit Court — Demurrer.</p> <p>Where a constable fails, without excuse, to return an execution for more than thirty days after the return day thereof, the remedy is by motion or suit on his bond, in the court in which the execution issued, and the criterion of damages is 30 per cent, of the amount of the execution.</p> <p>Where a constable fails to pay over money collected on an execution, after demand, the injured party may proceed by motion or suit on his bond, and the criterion of damages is 10 per cent, on the amount of the execution, with interest from the time of the demand, and eos.ts. This remedy is not restricted to the court from which the execution issued; the proceedings may he in the Circuit Court although the execution issued from a quarterly court, as the Circuit Court is a court of general jurisdiction.</p> <p>Demurrer — Record.</p> <p>Where the record fails to show that the court below acted on a demurrer it will be presumed that it was overruled.</p>

<p>APPEAL FROM WASHINGTON CIRCUIT COURT.</p>

<p>Pleadings — Grounds in Amended Petition Inconsistent with the Original Petition — 'Reason for Delay in Filing Amended Petition — Suspicion.</p> <p>The appellees claimed only one-fourth of the land in their original petition but subsequently filed an amended petition claiming the whole property, giving as a reason for not claiming all the property in the original petition, that the writing on which they based their claim, set out in the amended petition, was mislaid. Held, that the reason is so utterly futile and unsatisfactory, considered in connection with the inconsistent character and extent of the two claims, as to cover the whole transaction with suspicion.</p>

<p>Robbery — Examining Trial — Bond to Answer Indictment — Forfeiture — Recognizance Discharges former Bond.</p> <p>If a defendant appears in court in compliance with the bond executed in examining court and enters into a recognizance to appear at the next term of the Circuit Court, his former bond is • discharged.</p> <p>Calling Defendant — 'Duty to be present.</p> <p>It is the duty of a defendant to be present in court and take notice of steps taken in his case and if he fails to appear in "the court below and object to an order of forfeiture it will not be assumed that the order was erroneous because it does not recite that the defendant was . called.</p>

<p>APPEAL EROM LARUE OIROUIT COURT.</p>

<p>APPEAL PROM HOPKINS CIRCUIT COURT.</p>

<p>- Agency — A Claim of Adverse Possession May be Established Through Sales Made by Agent.</p> <p>A good title to lands may be established by adverse possession, through the acts of an agent of a patentee, and although such agent was appointed to sell the lands only, those holding under and by virtue of leases made by said agent have a right to recognize such agency and claim the benefit thereof.</p> <p>Deeds — -Particular Wording Construed.</p> <p>A deed which contains an exception of “ all such parts and parcels of the first described tract of land as are now in the possession of any person or persons and held under any title or claim of title adverse to the -party hereto of the first part ” and “ contains after such exceptions 24,000 acres more or less,” is held not to embrace any lands claimed by said conveyance which had been held by any one for the statutory period of ripening into adverse possession.</p>

<p>Bail — Recognizance —■ Forfeiture in Circuit Court — Criminal and Penal Causes and Pleas of the Commonwealth Transferred to Criminal Court — Summons on Forfeiture to Circuit Court — Judgment in Criminal Court.</p> <p>Becroft was, on the 8th day of August, 1863, indicted in the Campbell Circuit Court, and admitted to bail and appellant became bound as his surety. Becroft failed to answer at the February term, 1864, and his recognizance was adjudged forfeited, whereupon the appellant was summoned to appear in the court at its next April term, and show cause, etc. In the meantime a Criminal Court was established for Campbell county to which all the criminal and penal causes and pleas of the Commonwealth were transferred. Prior to the time the cause should have been moved to the Criminal Court no summons had been served on appellant. On the 23d day of April, 1867, judgment was rendered against appellant in the Criminal Court. Held, that the Criminal Court had no jurisdiction in the matter as appellant was summoned to appear in the Circuit Court.</p>

<p>Attachments — Affidavit — Grounds Set Forth in Verified Petition.</p> <p>When a plaintiff sets forth sufficient grounds of attachment in a verified petition it is not necessary to the validity of the attachment that the same facts should be stated and verified in a separate affidavit.</p> <p>Sufficient Grounds for Attachment.</p> <p>That the defendant had departed from this State with the intent to defraud his creditors and that he so concealed himself that a summons could not be executed on him are sufficient grounds for an attachment.</p> <p>Concealment —• Intention.</p> <p>The concealment which would authorize an attachment involves the intention of the debtor to delay or prevent his creditors from enforcing their demands by avoiding the service of summons.</p>

<p>Commissioner’s Sales — Decretal Orders Mere Offers — Should be Set Aside When Property Sacrificed.</p> <p>It is universally understood that sales by a commissioner under dé-' cret&l orders are mere offers and not sales until confirmed by the oourt, which should always set them aside when the property has been sacrificed and reliable bids to advance the price has been made.</p>

<p>APPEAL PROM MUHLENBURG CIRCUIT COURT.</p>

<p>APPEAL FROM BRECKINRIDGE CIRCUIT COURT.</p>

<p>APPEAL FROM KENTON CIRCUIT COURT.</p>

<p>Criminal Law — -Setting up Lottery — Indictment — -Constitutionality of Act.</p> <p>The offense charged in the indictment is the setting up, promoting, and managing a lottery for money, etc., which is sufficient.</p> <p>Constitutionality.</p> <p>In view of the very large discretion given to the court and jury, the act is not within the inhibition of section 17, of article 13 of the Constitution.</p>

<p>APPEAL FROM HENRY CIRCUIT COURT.</p>

<p>APPEAL FROM M’LEAN CIRCUIT COURT.</p>

<p>APPEAL FROM TODD CIRCUIT COURT.</p>

<p>Mutual Mistake — Consideration — Peremptory Instruction.</p> <p>Money paid by one party to another under a mutual mistake is held to have been paid without consideration and should be refunded, and a peremptory instruction should not be given for defendants.</p>

<p>APPEAL EROM CALLOWAY CIRCUIT COURT.</p>

<p>Laches — Revival of Action.</p> <p>An appellant filed an answer to a cause of action setting out a good defense thereto, at the October term of court, 1860, and March, 1861, was transferred to the equity docket after a survey was made as set out in the answer. The case was continued till October term, 1863, when one of the defendants died, and the case was continued without effort to revive the action. Appellee (complainant) at the April term, 1865, took a rule against appellant to prepare for trial at the July term, but case lingered on the docket until October, 1866, when judgment was rendered against appellant. Held, that appellant was guilty of gross negligence, and not entitled to relief.</p>

<p>Husband and Wife — Voluntary Conveyance by Wife — Estoppel.</p> <p>Where a wife voluntarily parts with her heritage from her father’s estate, and consents and agrees that the price should be applied to the payment of her husband’s debts, the money being so applied, she is estopped from setting up claim thereto, and a court of equity cannot grant the relief sought to reclaim it.</p>

<p>APPEAL FROM LOGAN CIRCUIT COURT.</p>

<p>APPEAL PROM NICHOLAS CIRCUIT COURT.</p>

<p>Executors and Administrators — Transfer of Property.</p> <p>Where personal property is absolutely transferred to a testator’s widow, the legal title at her death passed to her administrator, who alone could make a transfer of it.</p> <p>Same — Liability of Administrator for Default in Transferring Property.</p> <p>Where an administrator refuses to make a transfer of stock left by an estate, though through an erroneous impression, whereby a suit is necessary to enforce said transfer, the administrator will be held liable for the costs of court.</p>

<p>Bills and Notes — Subrogation — Purchase of Equitable Title to Note.</p> <p>A purchase of the interest of a payee in a note becomes invested with the equitable title to same and is subrogated to the rights of the payee, notwithstanding the note be taken from the payee by a void military order and delivered to the maker, and even though this be done seemingly at the instance of both maker and payee.</p>

<p>Landlord and Tenant — Forcible Entry and Detainer.</p> <p>Appellant as tenant to one H. Hines, through his agent, had been in possession of land for about twenty years, which possession had never been surrendered to appellees, claiming same, but though at one time he seemed to conclude to rent of appellee or surrender the place, he afterward declined to either rent or surrender or vacate the premises. However, he did agree to give appellee one-half of the ^hen growing apple crop, done more for the purpose of an equitable settlement rather than .an acknowledgment of tenancy. Meld, that this situation of facts does not establish the relation of landlord and tenant and does not justify a suit of forcible entry and detainer, and judgment for same reversed.</p>

<p>APPEAL EEOM MASON CIRCUIT COUET.</p>

<p>APPEAL EROM CHRISTIAN CIRCUIT COURT.</p>

<p>APPEAL EROM GARRARD CIRCUIT COURT.</p>

“ The court instructs the jury that if they believe from the evidence that the brick were bought by King, and for his benefit and use, and that Prewitt promised verbally to pay for them they must find for defendants.”

<p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p>

<p>APPEAL EROM GREENUP CIRCUIT COURT.</p>

<p>Judgment — Motion for New Trial — Surprise.</p> <p>Whenever by the fault of the plaintiff or other cause of surprise to the defendant, which he could not by ordinary prudence have discovered and avoided, the presumption is strong that an unjust judgment has been rendered and the court on application made at the same term, within the exercise of a sound and just discretion, will set aside the judgment and permit defense to be made, if a sufficient defense be disclosed.</p> <p>Plaintiff by agreement with defendant proposed and conditionally entered into an agreement to comprise his claim upon the execution and delivery by defendant of three notes of $50 each with a mortgage to secure them on the property attached. The notes and mortgage were executed and delivered by defendant, and plaintiff did not return them during the term of court, but proceeded with the action and took judgment by default: Held, that such condition of facts will justify, upon proper motion and affidavit, the setting aside of the judgment and defendant allowed to defend the action.</p>

<p>APPEAL PROM MARION CIRCUIT COURT.</p>

<p>APPEAL PROM CALDWELL CIRCUIT COURT.</p>

<p>APPEAL EROM NICHOLAS CIRCUIT COURT.</p>

<p>APPEAL EROM GRAVES CIRCUIT COURT.</p>

<p>APPEAL PROM GREENUP CIRCUIT COURT.</p>

<p>Demurrer — Pleading — Ordinary Diligence — Suspension of Courts by Legislative Acts.</p> <p>Where the holder of a note fails to bring suit upon same during the life of the obligor, he is ordinarily held to be guilty of negligence. But where the Legislature suspends for a given period all laws requiring Circuit Courts to be held for the trial of causes, and during this suspension the obligor dies, the holder of the note is not held to be guilty of negligence and a lack of diligence in prosecuting his cause should he fail to bring an action on the note until after the death of the obligor. A demurrer to an original and amended bill should, therefore, have been overruled.</p>

<p>Fraudulent Conveyance — Delivery of Goods — Contracts — Sales.</p> <p>While the sale, if dona fide, of tobacco in August, for future delivery, it not then being in such state as could be delivered, would not be invalid on account of such nondelivery, yet if left several months after it might reasonably have been turned over to the purchaser, becomes a badge of fraud on creditors, especially where strengthened, by a subsequent levy by the vendee and the waiving of advertisement of the sheriff by the vendor’s representative, and the sale of the whole amount of the tobacco, worth some $250, for the paltry sum of $50, no one being present at the sale but the sheriff, defendant, and agent of the execution creditor.</p> <p>Same — Bona Fide Sale.</p> <p>When there are badges of fraud established by the plaintiff, it devolves upon the defendant to rebut these by establishing a dona fide sale upon a valuable consideration actually paid.</p>

<p>Divorce — Alimony — Attorney’s Fees — Cost.</p> <p>In a wife’s suit against her husband for alimony and divorce, he is by statute bound to pay a reasonable compensation to her attorneys as a part of the cost.</p> <p>In defending a subsequent suit by the husband against the wife for divorce an additional compensation to her attorney should be restricted alone to the value of his services rendered in defending that suit.</p>

<p>APPEAL PROM JEP PERSON CIRCUIT1 COURT.</p>

<p>Contract — Petition — Answer.</p> <p>Tbe appellant alleges in his petition that tbe wbisky was to be delivered as tbe plaintiff might need or call for it, but all to be delivered in six months, and the answer, without denying this, avers that the whisky was to be delivered at such times and in such quantities as called for within six months. Held, this slight variation cannot be taken as traversing the distinctive allegations of the petition. The answer neither alleges the delivery of the whisky nor any legal excuse for the failure, and was not a bar to the action.</p>