Volume 10 — Kentucky Opinions

<p>Judgments — When Void.</p> <p>A proceeding to sell the lands of infants and married women must conform to the provisions of the Revised Statutes, and a judgment rendered in such a case is void when such provisions are not complied with.</p> <p>Pleading Mere Conclusions.</p> <p>A petition will he held insufficient where its allegation was that a judgment was void, and it does not aver the facts on which that mere legal conclusion was based. The facts relied on to render a judgment void must be pleaded.</p> <p>Exhibits.</p> <p>A pleading that is bad on its face cannot be helped out by an exhibit.</p>

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

<p>Right of Elected Person to Qualify as Clerk of the Court of Appeals.</p> <p>One elected as clerk of the Court of Appeals, upon presenting the certificate of the board of examiners, showing that a majority of the votes cast for clerk of the Court of Appeals were cast for him, and offers to execute his official bond with sufficient sureties and to take the oath prescribed by law, there is no legal authority to refuse to permit him to do so.</p>

<p>Bail Bond — Forfeiture of Bail.</p> <p>To enable the commonwealth to recover on a forfeited bail bond it is only necessary to show that there has been a substantial compliance with the provisions of the statute in regard to giving and accepting bail.</p>

<p>Principal and Surety — Defense.</p> <p>It is no defense for sureties on a note to show that the money secured by their principal was used for illegal purposes. Their contract primarily was with the creditor who loaned the money to the principal upon the security.</p>

<p>Criminal Law — Obstruction of Public Highway.</p> <p>One cannot be guilty of obstructing a public highway by erecting a fence across it where there has been a proceeding to change a highway and the new way has been opened and used by the public in lieu of the one obstructed; the establishment of the new is a discontinuance of the old, and this is true even in the absence of a formal order accepting the new or abolishing the old road.</p>

<p>Quieting Title — Duty of Plaintiff to Furnish Proof.</p> <p>A plaintiff asking the chancellor to quiet his title is required before he can succeed to make his right to the relief asked reasonably clear, and where the court from the evidence is unable to arrive at a satisfactory conclusion upon the merits of the controversy, the court will affirm the judgment of the chancellor.</p>

<p>Criminal Law — Sale of Whisky by Merchant Without License.</p> <p>A merchant is one who sells or deals in goods, wares and merchandise, and it is not necessary that he should have a fixed place of business in order to be guilty of selling liquor as a merchant without a license, under the statute prohibiting such sales by unlicensed merchants.</p>

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

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

<p>APPEAL FROM BALLARD COURT OF COMMON PLEAS.</p>

<p>Construction of Will.</p> <p>A will which, provides, “I own a brick house and certain lots of ground belonging thereto, in Warsaw * * '* these, the said house and lots, I give and bequeath to my niece, Sally Elmore, wife of Oliver Elmore, and her children; but I design and it is my will that this property shall be for the use and benefit of my mother; Mary Spencer, during her natural life, then to descend to said Sally Elmore and her children as aforesaid,” where the mother died before the testator, it was held that the devise was in fee simple to Sally Elmore and all of her children in equal parts, including one born after the execution of the will.</p>

<p>Insurance Policy — Notice and Proof of Loss.</p> <p>When an insurance company refuses to pay a loss on other grounds than its failure to receive notice and proof of loss, and goes into court asking for a cancellation of the policy, it cannot justify itself by showing that proper proof had not been made of such loss.</p> <p>Assignment of Policy.</p> <p>When a policy provides that “if this policy shall be assigned before a loss without the consent of the company indorsed hereon” the policy shall be void, it is held that although parties may agree that a contract reduced to writing shall not be modified unless the agreement for such modification be by writing, still a subsequent agreement by parol to modify will be valid; and where it is shown that the company, by its agent, agreed to the assignment of the policy by parol the company is bound by it.</p>

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

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

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

<p>APPEAL PROM MADISON COURT OP COMMON PLEAS.</p>

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p>

<p>Principal and Surety — Agreement to Forbear Without Consent of Sureties.</p> <p>Any valid agreement by which a creditor agrees to forbear to sue the principal for any appreciable time after the debt falls due, if made without the consent of those bound for the debt as sureties, and with a knowledge that they are sureties, will discharge them.</p>

<p>Assignment or Mortgage — Rights of Creditors.</p> <p>The creditors of one who has made a sale, assignment or mortgage in violation of the Act of 1856 have the right to have such a transfer adjudged as a transfer of all the debtor’s property for the equal benefit of all of his creditors, provided one.or more of them brings an action for that purpose within six months after the instrument is recorded or the property delivered.</p> <p>Mortgage Set Aside for Fraud.</p> <p>A creditor who has not procured a judgment and execution and a return of nulla bona cannot maintain a suit to subject property or set aside a mortgage because made in fraud of creditors.</p>

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

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

<p>Dower — Estoppel.</p> <p>When the land in which a married woman claims dower was sold under decretal sale in an action to which she was a party, and having failed then to assert claims, she is estopped to enforce it now.</p>

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

<p>Purchase-Money Lien.</p> <p>Where the recital in a deed states that each share was conveyed for a named sum, “for which said party of the second part executed his notes,” such recital is sufficient to show that the whole purchase-money remained unpaid and to retain a lien.</p> <p>Innocent Purchaser.</p> <p>In order to be an innocent purchaser it is not only necessary that the party should buy and obtain legal title without notice of an equity in another, but also that he should have paid the purchase money before receiving such notice.</p>

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

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

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

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

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

<p>Appeals from Quarterly- Court.</p> <p>Where a defendant against whom judgment by default was taken in the quarterly court appeals to the circuit court, he may file his answer after the appeal, and the case is to be tried de novo. The fact that no issue was tendered in the quarterly court will not prevent him from filing his answer in the circuit court after appeal.</p>

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

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

<p>Public Sale of Personal Property.</p> <p>When a sale of personal property is public and competition unrestrained, tbe knowledge of tbe party selling tbe property that the purchaser intends to hold it for another, and to protect it from his creditors, will not enable the purchaser to avoid payment of his note executed for the purchase price of said property.</p> <p>Waiver of Exemption. e</p> <p>One who stands by and permits his property to be sold without asserting any claim of exemption waives any such right of exemption.</p>

<p>Executor — Duty in Taking Sale Notes.</p> <p>It is the duty of an executor in taking sale notes to act with the same prudence and vigilance as is to be expected of a prudent man in the management of his own affairs, and when he thus acts, and from the real and personal property in possession of men signing a sale note, he believes them responsible for the amount of said note, and he accepts it, his inability to collect the note will not prevent him from taking credit for the amount of the note in final settlement.</p>

<p>Agreement to Convey Real Estate — Will.</p> <p>The mere intimation by a testator to his relative as to what he intends in the future to do with his estate is not a contract that can be enforced after his death, but an agreement to give land to a relative is a good consideration for his agreeing to return and live near his relative, and when the donee is put in possession and complies ■with the contract he is entitled to the land.</p>

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

<p>Purchase of Property — Lien—Assignment of Lien Notes.</p> <p>The party who purchases the property and gives the lien to secure his own notes holds the property subject to the lien, although the notes have been assigned and no suit at law instituted on them; but where he assigns the notes of third parties in payment, before the holder can reach the property he must make a good faith effort to collect the notes of the obligor.</p>

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

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

<p>Usury — Renewing of Debt.</p> <p>As long as a debt exists upon -which usury has been paid, although the evidences of such indebtedness have been several times renewed, usury paid at any time may be reclaimed as long as any part of the debt remains unpaid.</p>

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

<p>Slander — Words Not Actionable.</p> <p>The following words spoken are held not to be actionable: “By the time Bill Pillow steals a few more board trees from me I will be able to get another -. I am certain he stole a board tree from me. He had a tree of mine made into boards without my permission. Can you make it out anything but stealing? It is stealing.”</p> <p>Words Actionable in Slander.</p> <p>To charge one with being a thief is actionable, but where such words are followed by others of an explanatory nature showing that simply a trespass has been committed, such a charge is not slanderous.</p>

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

<p>Criminal Law — Homicide—Self-D efense — Instruction.</p> <p>An instruction in a murder case where self-defense is relied upon is correct which in effect says to the jury that a man cannot hunt up his adversary and provoke a difficulty, and then shelter himself from punishment under an assault that he has provoked.</p>

<p>Criminal Law — False Swearing.</p> <p>The court must have had jurisdiction in the cause in which one has sworn falsely, or he will not be guilty of false swearing. The administration of an oath in a case over which the court has no jurisdiction is like every other part of the proceeding, a mere nullity.</p>

<p>Conveyance — Vendor’s Lien. *</p> <p>Neither the vendor or his assignee will lose his lien by attempting to coerce payment at law, and although the judgment is satisfied by the execution of the replevin bond, the lien still exists until the debt is actually paid.</p> <p>Principal and Surety.</p> <p>A surety on the replevin bond who pays off the lien is entitled to be substituted to the rights of the lien holder as against the principal debtor for whom he paid it.</p>

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

<p>Criminal Law — Homicide—Murder and Manslaughter — Self-Defense.</p> <p>If one provokes a combat, or produces the occasion, in order to have a pretext for killing his adversary or doing him great bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat. But if he provokes the combat or produced the occasion without any felonious intent, intending an ordinary battery merely, the final killing in self-defense will be manslaughter only, and not murder.</p> <p>Evidence — Coolness and Deliberation.</p> <p>In a charge of murder the coolness and deliberation with which the slayer acted may furnish strong evidence that his act was prompted by malice and was not caused by sudden heat of passion excited by provocation, but the inference to be drawn from his coolness and deliberation under provocation is one of fact for the jury, and they should be left to make it or not as their own judgments may dictate, free from any direction of the court.</p>

<p>Wife’s Lease Subject to Claims of Husband’s Creditors.</p> <p>A wife may bold a freehold or an estate of inheritance against her husband’s creditors, hut a husband is entitled to the wife’s chattels, unless they are the separate property of the wife.</p>

<p>Collection of Tax — Statute of Limitations.</p> <p>The collection of taxes may be barred by the statute of limitations.</p> <p>Prevention of Running of the Statute.</p> <p>The running of the statute of limitations against the collection of taxes may be prevented by relisting delinquent taxes regularly by the proper officer.</p>

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

<p>Damages from Vicious Horse. t</p> <p>TRe owner of a vicious Rorse is required to so confine him as to prevent Rim from injuring tRe stock of otRers; but wliere tRe owner is not aware of the vicious habits of Ris Rorse Re is only bound to use such means as an ordinary prudent man would Rave used in order to Rave kept a Rorse of like temper within Ris own enclosure, in order to Rave prevented Rim from injuring the property of otRers.</p>

<p>Corporations Accepting Conveyances.</p> <p>Property conveyed to a corporation is to be held under the conveyance and charter as if they constituted but one instrument.</p> <p>Powers of Corporation.</p> <p>A corporation derives its powers from its charter, and these cannot be enlarged by contract with third persons, although their exercise as to particular parts of corporate property may be limited by such contracts, when to do so will not affect the rights of the public by impairing its ability to accomplish the purposes of its creation.</p>

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

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

<p>Duty of Justices to Provide for County Jail.</p> <p>It is the duty of the justices, to provide a county jail and to determine the necessity for building a new one, and they may be proceeded against and penalties imposed for a dereliction of duty in regard to it.</p> <p>Levy of Taxes.</p> <p>Where under a special act a county is authorized to levy a tax of twenty cents on the hundred dollars for a specific purpose, it is not permitted to levy such tax in addition to the general tax for such purpose. The general law and the special act must be construed together to ascertain the legislative intent.</p>

<p>Criminal Law — Homicide—Opinion Evidence.</p> <p>It is a general rule that non-expert witnesses are not permitted to give their opinions as evidence, hut witnesses may testify to the result of their observations made at the time in regard to common appearances or facts, and a condition of things which cannot be reproduced and made palpable to the jury.</p>

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

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

<p>Contract to Pay Money — Interest.</p> <p>Where a contract provides for the payment of interest until maturity, there is no agreement to pay interest annually; and after the maturity of an obligation to pay money it will only bear legal interest unless there is an express agreement.</p>

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

<p>Consideration of Contract.</p> <p>The maker of a note has a right to give and the holder to accept, additional security for a note given for a pre-existing debt for which the maker was bound, and his desire to further secure the debt is a sufficient consideration to uphold the executed contract of assignment.</p> <p>Consideration for Assignment of Note.</p> <p>The statute has not made the. inadequacy of the consideration, or the absence of any consideration, for the assignment a valid defense to an action by an assignee, however the circumstances may affect the rights of the maker of the note and of the assignee, when the former sets up a defense or set-off arising after notice.</p> <p>Defense or Set-Off in Equity.</p> <p>A party seeking to make a defense or set-off in equity beyond that given by the statute must show affirmatively the existence of the facts necessary to raise the equity.</p>

<p>Recitals in a Deed — Consideration.</p> <p>The recitals in a deed import a valuable consideration paid for tbe land as between tbe parties to tbe deed, and also to strangers when tbe deed is prior in date to tbe equity asserted against it, otherwise when tbe equity asserted is prior in date.</p> <p>Confession and Avoidance — Burden of Proof.</p> <p>A plea that tbe defendant is an innocent purchaser is in tbe nature of a confession and avoidance, in which tbe burden of proof is always on tbe party pleading it.</p>

<p>Judicial Sale After Confirmation — Not Set Aside.</p> <p>After a judicial sale lias been confirmed it cannot be set aside for mere deficiency in quantity or for errors in tbe boundary.</p>

<p>•Criminal Law — Manslaughter—Instructions.</p> <p>One convicted onlj of manslaughter cannot he heard to complain of even an erroneous instruction relating only to the law of murder.</p> <p>Malice — Proof of Drunkenness.</p> <p>Drunkenness may he proved in a murder case to rehut proof or inference of malice, hut for no other purpose; and where one charged with murder'is convicted only of manslaughter, an offense of which malice is not an ingredient, he is not prejudiced by the refusal of the court to instruct on that subject.</p>

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

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

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

<p>Liability of Corporations.</p> <p>Tbe capital and property of a corporation, although it may have ceased to exist, is a trust fund for its creditors, and will be seized by a court of equity and applied to the payment of its debts.</p> <p>Statute of Limitations.</p> <p>When, by reason of the dissolution of a corporation, and its officers, agents and managers having left the state, there was no one left upon whom to serve process, the statute of limitations ceased to run against one having a cause of action against it.</p>

<p>Sale of Real Estate — Vendor’s Lien — Renewal of Lien Notes.</p> <p>A vendor, who in liis conveyance of real estate retains a lien for the balance of purchase money, does not lose his lien by taking new notes. The lien goes with the debt into the hands of its owner and the assignment of such notes carries with it such lien.</p>

<p>Appeals — Motion for New Trial.</p> <p>Nothing is brought before the court of appeals in an appeal where no motion for a new trial has been made, except the pleadings, verdict and judgment, and the grounds alleged must be specific as to the errors relied upon for a reversal.</p> <p>Assignment of Errors.</p> <p>An assignment that the verdict is against the law and the evidence will only authorize this court to consider the evidence on which the verdict is based.</p>

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

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

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

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

<p>Assignee of Note — Diligence.</p> <p>Where the assignee of a note obtained judgment against the obligors therein soon after it became due in June, 1877, but shows only that he caused execution thereon to issue on the - day of ■-, 1877, which was returned nulla bona, he fails to exhibit facts showing when execution was issued, and that he proceeded diligently, and hence the assignor is discharged.</p> <p>Duty of Assignee of Note.</p> <p>The assignee of a note must show affirmatively that he has used due diligence in coercing collection from the obligors to entitle him to recover against his assignor.</p>

<p>Criminal Law — Homicide—Instructions—Malice Aforethought.</p> <p>An intentional killing does not necessarily imply the crime of murder. Á killing in self-defense, for instance, would be an intentional killing, and yet not wrongful in the eye of the law. A predetermination to do a wrongful act without lawful excuse, is not, of necessity, that malice aforethought which is an essential element in the crime of murder.</p> <p>Instructions Construed Together.</p> <p>Instructions in a murder case should be construed together, and where one, if standing alone might be error, when considered with others given may not be erroneous. Where, taking all instructions given together, they fairly construe the law of the case, a judgment will not be reversed on account of one of them being erroneous when construed alone.</p>

<p>Rescission of Contract — Recovery for Use and Occupation.</p> <p>Where in a contract to trade real estate one of the parties takes possession under the contract and has the use of the land for two years, and the contract is rescinded by a judgment of the court, the owner may recover the value of said use and occupation less the value of lasting improvements made thereon.</p>

<p>APPEAL PROM BALLARD COURT OP COMMON PLEAS.</p>

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

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p>

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

<p>Conveyance by Husband and Wife — Waiver of Homestead.</p> <p>When a husband and wife join in a conveyance of the whole estate without limitation either in the deed or certificate of acknowledgment, the same amounts to a waiver of the homestead right.</p>

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

<p>APPEAL PROM CARTER CRIMINAL COURT.</p>

<p>Suit to Set Aside Conveyance — Consideration' of Conveyance.</p> <p>The recital in a deed that it was founded on a valuable consideration is good and binding between the parties to it, hut is no evidence that such consideration has been paid in a contest between a stranger to the conveyance and the parties to the deed.</p>

<p>Criminal Law — Insanity of Accused — Burden of Proof.</p> <p>Where a defendant in a criminal prosecution had been adjudged insane by a judicial inquiry shortly before the commission of the offense charged against him, and this is shown by the evidence, the burden of showing the sanity of the accused is on the prosecution, and it must prove that mental derangement had ceased to exist.</p>

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

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

<p>Mechanic’s Lien — Petition in Bankruptcy.</p> <p>The holder of a mechanic’s lien not having brought a suit in the state court to enforc.e it prior to the defendant’s filing his petition in bankruptcy court for his discharge in bankruptcy, he cannot maintain his suit in the state court.</p> <p>Bona Fide Purchaser — Mechanic’s Lien.</p> <p>A bona fide purchaser without actual or constructive notice cannot be affected by the lien created by the statute.</p>

<p>Parties to Actions — Church Subscription.</p> <p>Where a subscription is made payable to a committee for the benefit of the church, the committee is the proper plaintiff in an action to collect. It is not necessary under the code to join the beneficiary as a party plaintiff.</p>

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

<p>Judgment — Lien—Enforcement—Waiver of Lien.</p> <p>Where parties are entitled to a lien on a judgment, but stand by and permit tbe judgment to be executed upon the land sold and purchase money notes to be bought by an innocent purchaser, they will be held to have waived their lien by failure to enforce it in time.</p> <p>Usury.</p> <p>The right to reclaim usurious interest depends upon the election of the party who paid it, and where one dies without any effort to reclaim the interest others cannot do it for him.</p>

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

<p>APPEAL PROM McCRACKEN COURT OP COMMON PLEAS.</p>

<p>Action for Joint Trespass.</p> <p>Where the action is for a joint trespass committed hy two persons, no joint verdict and judgment can he rendered against such persons for a separate trespass hy each of them, in which the other did not participate.</p>

<p>Measure of Damages.</p> <p>The true measure of damages in an action for breach of warranty-in a machine is the difference between the value of the machine if it had been of sound material as represented, and its real condition as afterwards ascertained; and although the jury had a right to find the damage the defendant had sustained by reason of his deprivation of the use of the machine, that damage could not exceed the deprivation of the use of the machine when needed to cut defendant’s grain.</p>

<p>Petition for Breach of Covenant.</p> <p>To be sufficient a petition for a breach of covenant, the bond sued upon sliould be set forth in substance so as to show the undertaking of the parties, and to make the bond a part of the petition does not supply these averments.</p>

<p>Homestead Exemption — Purchase Money Lien.</p> <p>One is not entitled to a homestead exemption as against a purchase money lien, nor is a debtor entitled to a homestead as to debts created before he occupies the premises as a homestead.</p>

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

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

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

<p>Sufficiency of Petition.</p> <p>Wliere a writing sued on is copied in full in, the petition and imparts a promise to pay the sum sued for, no allegation of any other promise is necessary.</p>

<p>Forfeiture of Death Benefits.</p> <p>Where a member of the Ancient Order of United Workmen is suspended in accordance with the usages and customs of the order for failure to pay his dues, and after notice fails to contribute to discharge the benefits resulting to others, neither he nor those claiming under him have any right to complain.</p>

<p>Quashing Bail Bond.</p> <p>Where one accused of crime in an examining court is committed to jail in default of bail, the amount being fixed at $1,200, and no record appears showing its reduction or that he was discharged by reason of the execution of the bond, and nothing appears in the record to show any authority for taking a bond from him in the sum of $800, but it is sought to hold a surety on such a bond, the bond should be quashed.</p>

<p>'APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p>

<p>Dower.</p> <p>Where the husband has been seized beneficially by an equitable title to real estate, and so continues up to his death, his widow is entitled to dower; but where the husband has no beneficial interest in land, but if it is acquired for the benefit of and conveyed immediately to others, the wife is not entitled to dower therein.</p>

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

<p>Attachment for Contempt.</p> <p>A witness duly subpoenaed may be attached and punished for contempt of court for failing to obey the subpoena, but cannot be so attached and punished where he fails to keep his promise to one of the parties to attend, when he has not been subpoenaed.</p> <p>Waiver of Mileage Fees.</p> <p>Where a witness is subpoenaed, he may waive the payment of mileage and expenses, when be otherwise would be entitled to them, and where he does so and fails to obey the subpoena he may be attached and punished for contempt, notwithstanding no fees have been tendered to him.</p>

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

<p>Dower.</p> <p>Where a widow has accepted the provisions of the husband's will she is not entitled to dower.</p> <p>Bond for Deed.</p> <p>Where the holder of a title bond has paid for the land he is entitled to, and where the ancestor executed such bond in a proper proceeding, the court should order the heirs to execute a deed, and it is error for the court to order the land sold to pay plaintiff’s lien. Plaintiff in such a case is entitled to the conveyance of the land.</p>

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

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

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

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

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p>

<p>Demand Before Suit — Estates.</p> <p>The failure to make requisite preliminary proof and to demand ■ payment before commencing suit against a personal representative on a demand due from the decedent must he taken advantage of by affidavit and rule.</p>

<p>Construction of Terms of a Will.</p> <p>Where in his will a testator states “I give the same forever to the following parties, or their heirs, who were once my slaves under the laws of Kentucky, viz.: Ned Jackson, Cordelia, wife of Marshall’s' Dan, and her children, and Harriett and her children” (describing certain property), it is held that the property begueathed was to be taken in three parts only, ope to Jackson, one to Cordelia and one to Harriett.</p>

<p>Construction of Will.</p> <p>Where a will provides that certain described land shall be equally divided between the testator’s four children, stating that “I wish the property entailed .to them and their heirs, and should either of my children die without issue, I wish the portion that might have fallen to the deceased to be equally divided among the others above named,” it was held that each of said children named took an absolute fee in the land devised.</p>

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

<p>Consideration of Note.</p> <p>Where a debtor seeking to be discharged in bankruptcy is met by a creditor, who resists such discharge, and the debtor gives to his creditor a note for the amount of his claim, in consideration that he will cease to resist such discharge, such note is without consideration and is. not collectable. The consideration of the execution of the note is against public policy, and is immoral and void.</p>

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

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

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

<p>Description of Land in Judicial Sale.</p> <p>Where land is not particularly described in a judgment ordering its sale, it will be ground for reversal wben presented on appeal, but will not be considered as a ground for reversal wben tbe appeal is from an order confirming a report of sale.</p>

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

<p>Consideration.</p> <p>Where a sister, at the instance of her brother, left her home and went with him to another state, and while there performed valuable services for him, such services constitute a sufficient consideration to uphold a note executed to such sister by the brother.</p>

<p>Sheriff’s Return Conclusive.</p> <p>Where land is levied upon and sold by the sheriff, all that as a matter of law constituted a part of the land was embraced in the levy and sale, and the legal effect of the sheriff’s return could not be enlarged or restricted by parol evidence. In such a case the return is conclusive on the parties to the writ.</p> <p>When Chattels Are Regarded as Fixtures.</p> <p>When chattels are attached to the realty or adapted to use in connection with the purpose for which the premises are being used and for which they are specially adapted, such chattels must be regarded, between vendor and vendee, as fixtures.</p>

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

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

<p>APPEAL FROM HENDERSON COURT OF COMMON PLEAS.</p>

<p>Punitive Damages in Trespass.</p> <p>Wliere a defendant in a damage suit for unlawfully searching plaintiff’s premises for stolen goods, not having a search warrant, does so in a high-handed and lawless manner, the jury are authorized to assess punitive damages.</p> <p>Proof of Averments of Answer.</p> <p>When an answer, in a case for unlawful search, sets up that the search was made by an officer and men under his authority, but on the trial there is no attempt to justify under a search warrant and no instruction asked or given on that subject, the plaintiff is entitled to. recover.</p>

<p>Usury.</p> <p>Where a debtor’s obligation is evidenced by a promissory note drawing a legal rate of interest, and payments are made from time to time and new notes taken for the balance at such settlements, the debt is the same debt notwithstanding renewals, and the defendant may set up the defense of usury on the note sued on even where the usury exacted was paid on some former note evidencing the debt.</p>

<p>Sale of Personal Property.</p> <p>To vest the legal title to personal property in the vendee, the thing bought must be set apart from other property of a like kind belonging to the vendor, so that the vendee can identify and take possession of his property.</p> <p>Right of Creditors.</p> <p>Where the law declares a purchase of personal property void because no delivery of property, such a purchaser can acquire by such purchaser no equity as against the vendor’s creditors.</p>

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

<p>APPEAL PROM JEFFERSON COURT OF COMMON PLEAS.</p>

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

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

<p>Appeals in Divorce Cases.</p> <p>No appeal will lie to the court of appeals from a judgment rendering a divorce.</p>

<p>Abandonment of Homestead.</p> <p>One who surrenders bis borne for sale, removes therefrom, and for two years thereafter is not occupying the premises as a home, must be held to have abandoned the same, and be cannot thereafter assert a homestead claim thereon.</p>

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

<p>Debt of Corporation.</p> <p>Where a corporation owes a debt, and third persons, without any consideration, moving from the debtor or even a request from it, execute their note to the creditor for the debt, it is neither payment, novation, nor accord and satisfaction.</p> <p>Novation.</p> <p>There can be no such thing as a novation by agreement to which the debtor is not a party.</p> <p>Accord and Satisfaction.</p> <p>There can be neither accord nor satisfaction in a case where the note of a third person is given for another’s debt, where the same is not given or accepted, or agreed to be accepted, in discharge or satisfaction of the debt.</p> <p>Liability of Private School Corporation.</p> <p>A private corporation engaged in conducting a college like an individual is not exempt from the payment of its debts incurred in the conduct of its school, and there is no public policy which forbids the sale of its property to pay its indebtedness.</p>

<p>Exemption from Taxation.</p> <p>Tiie public benefits from the organization of a lodge known as Independent Order of Odd Fellows is deemed consideration for exempting its property from taxation, and the lodge’s building is exempt from taxation even though a part of it is rented out to enable the lodge to discharge its indebtedness incurred in erecting the building.</p>

<p>Adverse Possession of Real Estate.</p> <p>A merely constructive possession of real estate under a grant cannot interfere witb a senior patent where the party is in possession claiming to the extent of that boundary.</p>

<p>Judgment Not Reversed on Evidence.</p> <p>In an action at law on a note where no equitable defense is pleaded, parties are entitled to a trial by jury, and where such a suit is transferred to equity on appellant’s motion over the appellee’s objection and exception, the judgment of the court must be considered as standing in the place of the verdict of a properly instructed jury, and will not be disturbed unless flagrantly against the weight of the evidence.</p>

<p>Rent of Premises Sold.</p> <p>A voluntary alienation of real estate entitles the alienee to the rents falling due after the alienation, and where a sale is made under a judgment it is a sale in which the court acts for and at the instance of the owners, and is the same as if made hy the owners in person, and the purchaser at such a sale is entitled to the rents falling due after such sale.</p>

<p>Approval of Attachment Bond.</p> <p>To recover on an attachment bond it is not required that the bond should show on its face that it was approved. The taking of an attachment bond amounts to an approval by the officer, and the parties are bound by it.</p>

<p>Criminal Law — Circumstantial Evidence.</p> <p>“ Where in a trial for burglary circumstantial evidence alone is relied upon by the prosecution, it is not enough to show that the accused stated when arrested that the goods charged to be stolen could be found at a designated place, his knowledge concerning the location of the goods forms but one link in the chain, and before the accused could be convicted it was necessary to connect this fact with the house alleged to have been broken, and that, too, at the time when the breaking occurred.</p> <p>Felony.</p> <p>The term felony used in the definition of the crime of burglary embraces any crime which wás a felony at common law, whether it is now punished as a felony or not, and it was not error for the court to charge the jury that breaking into a dwelling in the night time with intent to steal any property of another therefrom was burglary.</p>

<p>Rescission of Contract for Fraud.</p> <p>■Where the vendor of mortgaged real estate has reason to believe, notwithstanding the mortgage is recorded, that the vendee is mating-the purchase believing the title clear of encumbrance, and would not purchase it if he knew of the existence of the mortgage debt, the silence of the vendor is a fraud upon the vendee, and rescission of the contract of purchase should be decreed.</p>

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

<p>Relief from Contract on Account of Mistake of Law.'</p> <p>In some cases a party may be relieved against a contract entered into by mistake of law. Where he agrees without consideration to remain bound upon a contract from which in law he has been released and the agreement is made in ignorance of his legal rights, the court may refuse to enforce the agreement and treat it as a nullity.</p> <p>Mistake of Law.</p> <p>A mistake of law will not relieve against a contract founded upon a valuable consideration.</p> <p>Fraudulent Representation.</p> <p>Before one can have relief because of a fraudulent representation it must be shown that he was misled to his prejudice, and also that 'the misrepreséntation superinduced the agreement.</p>

<p>APPEAL FROM HENDERSON COURT OP COMMON PLEAS.</p>

<p>Street Improvement Ordinance. ,,</p> <p>The word “street” used in an ordinance signifies a public thoroughfare in a city or town, and the averment that an ordinance has been passed for the improvement of a named street is sufficient, without adding that, it is a public street.</p> <p>Proof by Record.</p> <p>The passing of a street improvement ordinance, the making and approval of the contract, completion of the work, inspection by the engineer, the. acceptance of the work and the making of the apportionment of the costs of the improvement are all to be proven by the record, and in the absence of an allegation of fraud or collusion the record is conclusive on all these points.</p> <p>Answer.</p> <p>In an answer to a petition to collect an improvement assessment the defendant must point out in what particular the assessment is unequal, illegal, erroneous or void, and not simply aver such facts as a conclusion.</p>

<p>Attorney and Client.</p> <p>In the absence of a special agreement to the contrary debts- are payable in money, and an attorney receiving an account for collection from his client has no authority to accept in payment any thing in lieu of money, but where an attorney does accept orders, etc., as payment, and the orders are collected by him while he is still representing his client, it will constitute payment.</p>

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

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

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

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

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

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

<p>Petition on Vendor’s Lien.</p> <p>An allegation in a petition to enforce a vendor’s lien is bad on demurrer which, avers only that “said land lies in Daviess county, for which a deed has beén made by this plaintiff, Junius May, and the deed duly acknowledged and recorded in county court clerk’s office, a copy of which is herewith filed and made a part hereof, the vendor holding a true and perfect title to same, subject only to the lien retained by the notes sued on herein,” for such averments fail to show that there is a valid lien on the land to secure the notes.</p> <p>Pleading Legal Conclusions.</p> <p>To allege simply that the vendor retained a lien in the deed is the allegation of a mere conclusion of law. Facts and not legal conclusions must be pleaded.</p>

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

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p>

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

<p>Tender of Bill of Exceptions.</p> <p>The appellee is not bound to take notice of a tender of a bill of exceptions to the judge, and he is only bound to take such notice when such a bill is filed in the court ofi the day designated for such purpose; and where the record fails to show that a bill of exceptions was presented on the first day of the term, or that the time was extended to another day, the filing of the same on some other day is not notice to the appellee of its filing.</p>

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

<p>Averments of Administrator’s Appointment.</p> <p>Before one can maintain an action as administrator he must allege that the court having jurisdiction to appoint administrators has appointed him, and that he has executed the required bond, and accepted the trust.</p>

<p>Specific Performance.</p> <p>Where a title bond is executed to convey a described boundary of land at a given price, and it was agreed and stated that the boundary contained 72% acres and eleven poles, and it is ascertained thereafter that the tract contained 75 acres, it was decreed by the chancellor that the vendor should convey all the tract owned by him included in the bond, but that the vendee should pay the vendor for the extra land received.</p> <p>Discretion of Court.</p> <p>The court has a large discretion in enforcing the specific execution of contracts, and the court of appeals will not reverse in the absence of the abuse of such discretion.</p>

<p>Title by Judicial Sale.</p> <p>■Where the court has jurisdiction of the parties and the subject-matter, the purchaser of land decreed to be sold acquires the title, however erroneous the judgment may be.</p> <p>Dower.</p> <p>Where a married woman has consented upon the record by an answer sworn to and filed to take a part of the proceeds of the sale in lieu of her potential right of dower, and it is afterward decreed that she is entitled to dower, it is error for the court not to enforce the . agreement; but such error cannot affect the purchaser. She is entitled out of the proceeds of such sale to receive the.value of her dower.</p>

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

<p>Estoppel.</p> <p>One who stands hy and knows that another is purchasing land to which he has or asserts a claim, will be estopped to set up such claim to the prejudice of such purchaser.</p>

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

<p>Recovery for Services in Building.</p> <p>If the owner in violation of his contract failed to erect a house, he is liable for the value of the contractor’s services rendered in superintending and advising in its erection as far as it has been erected.</p> <p>Allegations in Petition.</p> <p>While a petition for services rendered is defective when it fails to-aver the value of such services, it is sufficient to support a verdict, as it states a cause of action.</p>

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

<p>Forfeiture of Bail Bond.</p> <p>Where a person accused of crime fails to comply with his bond the court is required to direct the fact to be entered on the record, and thereupon the bail bond is forfeited, and the clerk has no authority, before an order of forfeiture, to dispose of it as required by law in case of forfeiture. There is no right of recovery on such a bond until after forfeiture is ordered.</p>

<p>Pledge of Property.</p> <p>Where by the terms of an agreement one has the right to redeem real estate conveyed to secure money loaned to him, the holder of the title, when it is not redeemed, may by a proper pleading have ■ the property sold to pay the money for which it was pledged.</p>

<p>APPEAL PROM WARREN COURT OP COMMON PLEAS.</p>

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

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

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

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

<p>Petition for Slander.</p> <p>Tbe plaintiff in an action of slander cannot by averment enlarge the meaning or change the sense of the language actually used by the defendant.</p> <p>Malice in Slander.</p> <p>To constitute slander the words, if spoken, must have been spoken with a malicious purpose, and while the mere utterance may be prima facie evidence of malice, still the presumption of malice may be rebutted, and hence is not to be conclusively presumed from the speaking of the words.</p> <p>Instruction as to Malice.</p> <p>The question of malice is with the jury and not the court, and an instruction that malice is implied from certain' proven facts is erroneous.</p>

<p>Criminal Law — Instructions.</p> <p>Where instructions given by the court in a criminal case were not objected or excepted to, they cannot be considered by this court.</p> <p>Res Gestae.</p> <p>Declarations made to a witness by the accused about five minutes after the shooting are not admissible as a part of the res gestee; the declaration was a mere narrative of a then past event, and was incompetent.</p>

<p>Life Insurance .Conveyed by Will.</p> <p>Where the charter of the Kentucky Masonic Mutual Life Insurance Company provides what disposition is to be made 'of the fund due from the corporation on account of membership, such provision governs in preference to the will of the member, and the widow cannot recover from the company for more than the share provided for widows, notwithstanding that the terms of her husband’s will gave her a larger share.</p>

<p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p> T. B. Ford, for appellant. </p> <p>Ira Jitlian, for appellees.</p>

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

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

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

<p>Criminal Law — Homicide.</p> <p>Malice is not an implication of law, but a matter of fact to be determined in a homicide case by the jury, as any other element in the crime of murder, and it is not required that the court should single it out from the other facts, and in an instruction give undue prominence to it.</p>

<p>Continuance in Criminal Case.</p> <p>The court, on a proper application of a defendant in a criminal case, should continue the cause where an important witness for the defense is absent without the fault of the defendant, and whose presence may be secured at a later date, especially where the defendant has been diligent in his efforts to have such witness present at the trial.</p>

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

<p>Criminal Law — Homicide.</p> <p>Where two persons are jointly indicted for murder, after one in a separate trial has been found guilty of manslaughter he is a competent witness for the commonwealth in the trial of the other, and this is true whether the witness has been sentenced or not.</p> <p>Accessories in Crime.</p> <p>There are but two classes of accessories in crime, before the fact and after the fact, but there is no such thing known to the law as an-accessory at the fact.</p>

<p>Extinguishment of Dower by Partition.</p> <p>A voluntary petition between tenants in common, if free from fraud and fairly made, will have the effect to transfer the dower of the wives of the partitioners to the lands allotted in such partition, and the wife of one party to the partition thereby relinquishes her claim of dower in the land given to the othey.</p>

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

<p>Reply Must Be Sworn to When Filed Out of Term Time.</p> <p>It is error for the court to permit a reply to be filed out of term time when it is not sworn to, and when the defendant has done nothing to waive his right to have such reply verified.</p>

<p>Adjudication in Bankruptcy1.</p> <p>An adjudication in bankruptcy will not deprive the state court of its jurisdiction already acquired to inquire whether the bankrupt had committed an act within the statute of 1856 which would amount to an assignment of all of his property for the benefit of all of his creditors. The only effect the adjudication could have in such a case would be to protect the bankrupt against a personal judgment.</p>

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

<p>Criminal Law — Accomplices.</p> <p>There can be no accomplices in the offense of gambling. Each de- . fendant is liable as principal.</p> <p>Charges of Gambling.</p> <p>The act of gaming by one person will not make others present liable, although those present may have advised it or played in the game. There is in a legal sense no such thing as an accessory or an accomplice in the offense of gambling.</p>

<p>Criminal Law — Gaming House.</p> <p>An indictment for permitting gambling, which describes the gaming house as that of John Shepherd, is sufficient to describe the place, and there is no variance in proof when it shows that the title of the property was in the name of Shepherd’s wife.</p>

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

<p>Allotments Under Partition.</p> <p>Where -one of several tenants in common improves a portion of the common estate lie is entitled, upon a partition being had to have that part allotted to him, if it can be done without injustice to his co-tenants, and in making partition the property should be valued exclusive of- such improvements.</p>

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

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

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

<p>APPEAL PROM METCALPE CRIMINAL COURT.</p>

<p>Criminal Law — Indictment.</p> <p>A demurrer to an indictment should not be sustained because of the fact that the title of the case is not stated in the usual form at the head of the indictment.</p>

<p>APPEAL PROM BOONE CRIMINAL COURT.</p>

<p>Criminal Law — Evidence.</p> <p>In a prosecution for perjury charging that the accused falsely wilfully and knowingly testified in a judicial proceeding that he saw a named person set fire to a certain house, which was burned by the firing, it was error for the court to refuse to permit the defense to prove that the named person did burn the house, that he had before that time threatened to burn it, and that the general character of said named person was bad and was that of a house-burner.</p>

<p>Process on Infants.</p> <p>Where infants less than fourteen years of age are parties defendant service of a summons on their father is sufficient.</p> <p>Guardian Ad Litem.</p> <p>The court does not secure jurisdiction over infants by the service of a summons on a guardian ad litem appointed for them. Such a guardian can only be appointed after the service of process is had on them.</p>

<p>Answer of Garnishee.</p> <p>An answer of one served as a garnishee is conclusive "as to the amount of his indebtedness to the defendant.</p> <p>Examination of Garnishee.</p> <p>A garnishee may be examined on oath by the plaintiff with reference to his indebtedness to the defendant, and if not satisfied with the facts thus obtained, the plaintiff may sue the garnishee in the name of the debtor, alleging a cause of action that the defendant himself might allege if he were the party making the complaint.</p>

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

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

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

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

<p>Attorney’s Lien for Fees.</p> <p>Under the laws of Indiana an attorney may secure a lien on a judgment procured for his client by endorsing a notice thereof on the judgment when entered, and a resident of Kentucky, becoming a suitor in Indiana, must stand upon the same ground with a citizen of that state, so far as that litigation and its consequences are concerned.</p> <p>Payment of Judgment.</p> <p>Where a judgment is taken against a litigant, upon which judgment the attorney securing it has endorsed a lien as provided by the laws of Indiana, the judgment debtor who pays the judgment to his adversary, if the attorney be not paid, may have to pay the amount of such lien.</p>

<p>Dedication of Streets by Plat.</p> <p>When the proprietor of land within the boundary of a city lays it out into lots and sells them, leaving intervening strips of land corresponding to established and improved streets, projecting toward them, it will amount to a dedication of such strips for public use as streets.</p> <p>Acceptance of Dedicated Streets.</p> <p>Where a proprietor has dedicated streets to the public by filing a. plat and selling lots, it is not required that the public shall be in the actual occupation of such streets in order to show its acceptance-of the dedication, but it is enough that the public has done that from which its acceptance may be inferred.</p>

<p>APPEAL PROM CLARK COURT OP COMMON PLEAS.</p>

<p>Conveyance by Wife.</p> <p>The attestation clause of a deed adds nothing to its force, and the recital in a deed that a married woman is a party to a conveyance where the deed purports to be a conveyance by the husband alone, is contradicted by the face of the deed, and it must be treated as if she merely had signed it without any mention of her name in its body.</p> <p>Estoppel of Married Woman.</p> <p>During the life of her husband a woman is under disability to assert her rights by suit, and the law which disables her to sue cannot require her to give-notice of her claim on pain of losing her right through the operation of an estoppel.</p>

<p>.Advancements.</p> <p>An ancestor can neither charge that as an advancement which in law is not an advancement, nor exempt a descendant from being charged with that which in law is an advancement, except by disposing of his entire estate leaving nothing upon which the court can operate to secure equality among his representatives.</p>

<p>Criminal Law — Forgery.</p> <p>An allegation in an indictment that the accused falsely and fraudulently forged the name of a given person by signing his name to a certain paper, is not good. The charge should show that the name was signed by the accused without the Knowledge, consent or authority of the person whose name was used.</p>

<p>Criminal Law — Self-Defense.</p> <p>What a man in peril of his life or great personal injury may lawfully do in his own self-defense, another person may lawfully do for him.</p> <p>Instruction.</p> <p>It is error in a murder trial for the court to charge the "jury that if one did the killing without malice aforethought and in his own defense, and yet if the jury believe from the evidence that the accused, who was present but did not do the killing, but who with malice aforethought feloniously and wilfully and not in his own self-defense, knowing the intention of the one doing the killing, aided, counseled or advised the killing, it should find him guilty of wilful murder and fix his punishment at death or life imprisonment.</p>

<p>APPEAL FROM LIVINGSTON COURT OF COMMON PLEAS.</p>

<p>Homestead Right.</p> <p>Where several children are entitled to a homestead a creditor cannot complain hecause those arriving at twenty-one years of age remain in the homestead with a younger child.</p> <p>Judgment and Sale, Affect on Homestead.</p> <p>The judgment of sale, the confirmation, deed and distribution of the money do not estop or preclude the infant children of a husband from claiming a homestead in his real estate.</p> <p>Waiver of Homestead Claim.</p> <p>There can be no waiver of a homestead by a husband and wife except in the mode provided by the statute, and there being no statute by which infants can waive the homestead they have no such right.</p>

<p>Evidence of Delivery of Deed.</p> <p>The acknowledgment and recording of a deed by the grantor constitutes strong evidence of a delivery of the deed.</p> <p>Presumption — Burden of Proof.</p> <p>The presumption of delivery of a deed arising from its acknowledgement and recording, casts the burden of disproving its delivery upon the party claiming its non-delivery.</p> <p>Relationship as Evidence of Fraud.</p> <p>The relationship between the parties when proven is of little value as evidence of fraud in a transaction.</p>

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

<p>No Estoppel by Purchase of Adverse Title.</p> <p>When a party in possession claiming land as his own buys or recognizes an outstanding title, he will not be estopped to set up the title under which he entered against the other unless he has abandoned his possession under the title under which he entered.</p> <p>Disability of Married Woman.</p> <p>One holding real estate under an executed contract holds adversely to his vendor, and this is as true, where the grantor is a married woman as where she is not.</p> <p>Statute of Limitations.</p> <p>When the statute'of limitations has begun to run against a woman her subsequent marriage will not arrest its running, the rule being that if limitation begins to run its running will not be suspended by a subsequent disability which is self-imposed.</p>

<p>Bankruptcy Proceedings.</p> <p>Where one causes himself to be forced into bankruptcy and conceals the transfers and payments he had made, and the jurisdiction of the bankruptcy court having been made impotent by he who invokes its powers, under the pretense of an equal distribution of his estate, such jurisdiction cannot be interposed to an action in the state courts to compel such distribution under a statute whose provisions are unknown to and not in conflict with federal jurisdiction.</p> <p>Remedy for Fraud.</p> <p>Where a party commits a fraud and has concealed it to prevent the enforcement of a remedy, the remedy stands unaffected by the fraud, as if it had not been committed and no one deceived by it.</p>

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

<p>Construction of Will.</p> <p>Where a testator, after devising all of his estate to his widow and nephew, provided that, if there should be any profit from a purchase he had made from certain relatives of their interest in his brother’s-estate, it should go to those from whom he purchased such interests, but provided that the devisee, his nephew, was to be the sole judge of whether there were such profits, it was held that the decision of the nephew as to such profits was final, and where he decided there were no profits to divide, the court, in an action by relatives, could not review his decision.</p>

<p>APPEAL PROM PIART CRIMINAL COURT.</p>

<p>Life-Estate Holders Entitled to Homestead.</p> <p>One vested with a life-estate in real estate is as much entitled to a homestead as if he held the fee simple title.</p> <p>Creditors’ Rights.</p> <p>Where a life tenant is entitled to a homestead right, if the life estate is worth more than $1,000 the creditors can subject the property to pay their claims by first paying to her $1,000; but in case the property is divisible, as much of it as is of the value of $1,000 may be set apart to the life tenant, and the balance subjected to creditors’ claims.</p>

<p>Dower, Not Lessened by Prior Homestead.</p> <p>Where a wife does not .join in a mortgage on real estate, upon the death of her husband she is entitled to have her dower therein set off to her, and where she is not asserting any homestead right as against the mortgagee, there is no reason for lessening the value of her dower by reason of the homestead exemption made during the life of her husband.</p>

<p>'Criminal Law — Instruction.</p> <p>Where an erroneous instruction is given, which was not prejudicial to the substantial rights of the accused, the cause will not be reversed on account of it.</p> <p>Evidence.</p> <p>In the trial of one charged with murder evidence is admissible showing threats, menaces, assaults, lying in wait, carrying arms, the character of the deceased for lawlessness or violence, the circumstances of the meeting and other facts showing that the slayer was in peril at the time of the hilling, or that he had reasonable grounds for believing he was in peril, for the purpose of showing that there was grounds for believing he was then in danger.</p>

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

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

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

<p>Criminal Law — Dying Declaration.</p> <p>A declaration, made by one suffering from an injury after be is informed by tbe surgeon that he can only live a short time, he believing what is told him, is admissible as a dying declaration against one accused of his murder.</p> <p>Facts Stated in Dying Declaration.</p> <p>It is incumbent on the prosecution in a murder trial not only to show that a declaration offered in evidence was made in the view of approaching death, but the facts stated in such declaration must have such relation to the act of killing as renders them admissible in evidence, and where other evidence introduced by* the prosecution shows- that there was a considerable interval between the facts first stated and the fatal meeting, the part of the declaration pertaining to the facts first stated should be rejected.</p> <p>Dying Declarations Not Required to Be in Writing.</p> <p>The law does not require dying declarations to. be reduced to writing, and where they are written they are not required to be attested. Oral declarations may be admissible in evidence.</p>

<p>Criminal Law — Intoxicating Liquors.</p> <p>Where upon a charge for selling intoxicating liquors it is shown that the accused sold “Bitters,” which the buyer drank as a beverage and which contained a large per cent, of alcoholic liquor, the jury is warranted in finding the accused guilty; and an instruction by the court to find him not guilty is erroneous. The cause should have been left to the jury to determine.</p> <p>Instructions.</p> <p>When in the trial of one charged with selling intoxicating liquors it is shown by the evidence that “Grave’s Bitters” were sold and drunk by the purchaser as a beverage, and that such bitters contained a large per cent, of alcohol, the court should charge the jury that if the bitter’s contained alcoholic liquor and was so compounded as to render it fit for use as a beverage, they should find the defendant guilty, although they might believe it also contained drugs which made it also a medicine.</p>

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

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

<p>APPEAL PROM MARION COURT OP COMMON PLEAS.</p>

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p>

<p>Insolvency Within the Meaning of Act of 1856.</p> <p>Insolvency within the meaning of the Act of 1856 means inability to pay one’s debts. It is not enough to show that the debtor did not have property subject to execution in the county of his residence sufficient to pay all of his liabilities.</p>

<p>Dogs Not Property.</p> <p>Dogs are not property in any sense that tbe public may not for its own convenience or safety prohibit one from keeping or permitting a dog to be kept upon his premises, and the power to prohibit includes power to prescribe the terms on which they may be kept.</p>

<p>APPEAL PROM HENDERSON COURT OP COMMON PLEAS.</p>

<p>Causes of Action Not Joint.</p> <p>A cause of action against one defendant upon an express contract entered into by Mm alone cannot be joined in tbe same petition with, a cause of action arising upon an implied contract with which the other defendant had no connection. Two distinct causes of action cannot be united and declared upon in the same petition.</p>

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

<p>Jurisdiction Over Committee for Lunatic.</p> <p>When the estate of a lunatic is committed by a court of competent jurisdiction to a committee, the committee is answerable to the court appointing him for the discharge of his duties, and can only be relieved of those duties by that court, which alone has authority to settle his accounts.</p>

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

<p>Listing Property for Taxation.</p> <p>One who has listed his property for taxation, but for incorrect valuations, cannot be proceeded against by the county attorney and be subjected to the payment of the penalties provided by those who fail to list their property for taxation at all or give in a false list.</p>

<p>Sale of Real Estate in Gross.</p> <p>A contract for the sale of real estate is to be construed as other contracts, and when ohe sells his farm and in the contract sets forth the abuttals, and specifies the consideration to be paid, but no statement as to the number of ácres to be conveyed, the sale will carry the farm whether it contains a lesser or greater number of acres it was understood to contain by the parties.</p>

<p>APPEAL FROM HENDERSON COURT OF COMMON PLEAS.</p>

<p>Motion for New Trial.</p> <p>Before one can bring before tbe court of appeals for revision tbe rulings of tbe trial court upon questions of law arising during tbe trial, be must bring sucb rulings to tbe attention of tbe trial court by bis written grounds for a new trial, and thus give tbe trial court an opportunity to correct, and where sucb alleged errors are not made grounds in tbe motion for a new trial, they cannot be considered by this court.</p> <p>Assignment of Errors.</p> <p>Although an alleged error was made a ground for a new trial, it will not be considered in tbe court of appeals unless it be also assigned as error. . .</p> <p>Statement of Grounds for New Trial.</p> <p>When a ground for a new trial is stated in tbe motion as “irregularity in the proceedings of tbe court, and in tbe prevailing party, by which tbe plaintiff was prevented from having a fair trial,” it is too general to be a compliance with tbe rule, and should be denied.</p>

<p>Guardian’s Liability.</p> <p>■Where, when a guardian takes charge of his ward’s estate, a former guardian has loaned a part of the ward’s money and taken a note with personal security, and the new guardian believing it to be safer, and in the exercise of his judgment, took a mortgage from the debtor on 320 acres of land to secure such debt, and released the old surety, it is held that the guardian is not liable for loss of such money when he acted in entire good faith, and did what a prudent man would have done in taking such mortgage.</p> <p>Guardian Not Insurer of Ward’s Funds.</p> <p>The law does not require that a guardian shall be an insurer of the funds of his ward. He is only held to use his best skill, prudence and care in the management of his ward’s property.</p>

<p>Description of Notes in Mortgage.</p> <p>Where a mortgage expressly states the sum secured by it, and that it was to secure the mortgagee, the failure to describe the notes in the mortgage or to designate the parties to whom payable, does not invalidate the mortgage.</p>

<p>Sale by Sample.</p> <p>A sale by sample is a warranty that the balance of the articles so bought are of the same quality as the sample, and the buyer is not. required to accept articles not of the same quality.</p> <p>Instructions.</p> <p>In a sale of wheat by sample an instruction was correct which told the jury “that if the sample had no weevil in it, but the wheat delivered did, and the defendant within a reasonable time examined it and found the wheat badly injured by weevils and notified the plaintiff to remove it, the law is for the defendant,” etc.</p>

<p>Husband and Wife.</p> <p>The husband has a right to sell his real estate regardless of his wife’s wishes and can pass to the purchaser a complete title except the potential right of dower.</p> <p>Relinquishment of Homestead.</p> <p>Where in a conveyance of a husband’s real estate he agrees to relinquish his homestead right and the value of the homestead is credited on the purchase-money, he cannot thereafter assert a homestead claim as to such real estate.</p>

<p>Dower Estate Subject to Sale.</p> <p>When dower Is assigned -it becomes liable to sale on execution like any other legal estate.</p> <p>Abandonment of Homestead.</p> <p>Where the owner of real estate removes from the land without any intention to return to reside on it, she thereby abandons her right to claim a homestead exemption therein.</p>

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

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

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

<p>Guardian’s Expenditures.</p> <p>A guardian may not legally expend for his wards more than the income from their estate without first procuring from the court authority to do so.</p> <p>Compensation of Guardian.</p> <p>A guardian, or one assuming to be one, who has charge of his ward’s estate, where he is guilty of gross mismanagement and conversion, is not entitled to any compensation for his services as such trustee.</p>

<p>Will — Construction of.</p> <p>All tlie terms used in a will should be construed together, and when a testator uses similar language in two clauses of his will he will be presumed to have intended the same in each instance; and when he intends to make a similar disposition of one part of his estate with that already made of another part he will be expected to use the same or similar language.</p>

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

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

<p>Criminal Law — Indictment.</p> <p>An indictment should not' he dismissed on motion because of the failure of the clerk to sign his name to the endorsement on its back to the effect that it was filed in open court, where the record shows that the indictment was returned into court, was ordered filed, and prior to the dismissal the prosecution was once continued.</p>

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

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

<p>APPEAL, PROM HARRISON CIRCUIT COURT.</p>

<p>Husband and Wife — Husband’s Debts.</p> <p>A husband may use the money derived by him from his wife in paying his own debts or in purchasing property for his own use, and where the wife consents to such acts she will be denied relief therefrom.</p> <p>Rights of a Wife.</p> <p>Where a husband has used his wife’s money to buy real estate, equity may be resorted to by the wife to require the land to be conveyed to her, but as against the vendor to whom such money has been paid she is not entitled to relief.</p>

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

<p>APPEAL FROM CUMBERLAND CRIMINAL COURT.</p>

<p>Criminal Law — Intoxicating Liquor.</p> <p>One not an employe or agent for the holder of license to operate a tavern cannot, as a defense to a charge of keeping a tippling house without a license, rely upon the license of another to protect him. The statute forbids the assignment of a license to retail liquors.</p>

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

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

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

<p>Husband and Wife.</p> <p>Where it is not shown that a husband received money arising from the sale of his wife’s property, under an agreement to invest it for her benefit, or that he received it under such an agreement with any .one, it is held, since he received it without such agreement, that it became his absolutely.</p>

<p>Real Estate — Innocent Purchaser.</p> <p>The question whether a vendee of real estate is an innocent purchaser within the equitable rule cannot arise between a vendor and vendee.</p> <p>Covenants of Warranty.</p> <p>A vendee of real estate has a right to rely on the covenants of warranty contained in his deed, and he is entitled to set them up and have, his title assured before being required to pay the balance of purchase money.</p>

<p>Sheriff’s Liability on Bond.</p> <p>Where a sheriff executes a bond for the collection of public revenues and he assumes their collection, and his sureties undertake that he will comply with his obligation, even if the bond is defective and is not an official bond a common-law liability exists, and the sureties will be held liable.</p>

<p>Violation of City Ordinance.</p> <p>Wliere the acts of persons holding a franchise and operating a railroad on a city street consist only in an omission to keep the street between its tracks in repair, they cannot be punished criminally, such acts not being in violation of a statute and not being a nuisance under the common law.</p>

<p>APPEAL FROM UNION COURT OF COMMON PLEAS.</p>

<p>Partnership Debts — Dissolution of Firm.</p> <p>When after dissolution of a partnership a note is executed by one of the partners in the firm name to evidence a partnership debt, if the collection of the note is defeated because of a plea of non est factum being interposed, the creditor may sue on his account and recover such debt.</p>

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

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

<p>Rights by Dedication.</p> <p>Where property is dedicated for a certain purpose and is accepted by those to whom made, and they have held adverse possession thereof for many years and are then dispossessed under a writ issued in a cause to which they were not parties, such parties, or some of them for themselves and others entitled thereto, have a right to maintain an action to secure such rights and preserve the dedicated property for the benefit of themselves and all others entitled under the terms of the dedication to participate in its use.</p>

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p>

<p>APPEAL PROM MARION COURT OP COMMON PLEAS.</p>

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

<p>Bill of Lading for Stock Shipped.</p> <p>Where a railroad company gives a through hill of lading to Louisville to a shipper of live stock and does not operate a line of railrpad to such destination, and ky reason of delay in sending the stock forward on a line connecting its terminus with the point of destination the stock is damaged, the shipper may recover from the road issuing such hill.</p>

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

<p>Homestead Exemption.</p> <p>Where one sells his house and lot on time payments and purchases another house and lot and pays for it by transferring a stock of dry goods, but bought it after becoming indebted, the transaction is not an exchange of one exempt piece of property for another so as to cause the exemption in the first to attach to the last. The sale of the first property operated to destroy the homestead, and- exemption did not attach to the dwelling afterward purchased.</p>

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

<p>Damages for Property Taken.</p> <p>The statute which declares that a writ of ad quod damnum shall be awarded “if desired by the proprietor, or if the court see cause for awarding the writ,” means that where any legal cause exists for ordering the writ it is the duty of the court to award it.</p> <p>Assessment of Damages.</p> <p>Where a person’s property is being taken from him without his consent, to be used as a highway, he is not bound to refuse to accept a sum for his property, upon pain of his silence being taken for his willingness that the court should act on a subject about which it could not act except by his consent. Under such circumstances he is entitled to have his damages fixed by jury.</p>

<p>Annexation of Lands by Towns.</p> <p>Whether lands are agricultural and should not be subject to taxation for city purposes depends upon the circumstances of each case, and the discretion of a town in extending its boundary and the levy of taxes within such limits for municipal purposes will not be interfered with by the courts unless it is clear that the burden of taxation is imposed without any view to the interest of the owner, but merely to increase the town’s revenues.</p>

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

<p>Administrator’s Sale of Real Estate.</p> <p>Where an administrator petitions to settle the estate and for an order to sell lands to pay debts, and a commissioner makes a sale for much less price than such land might bring at another time if the sale is fairly made, is not a sufficient 'ground for setting aside the sale. In order to authorize a sale to be set aside for inadequacy of price it must be so great as to import fraud.</p>

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

<p>Partnerships — Lien on Property Sold.</p> <p>Where a partnership sold all its property, both real and personal, and retained no lien for the purchase-money, but the partnership purchasing such property fully paid for it and held possession for five years or more, the creditors of the vendors cannot reach said property, but it is subject to the claims of creditors of the vendees whose debts were created long after their debtors took possession of said property.</p>

<p>Continuances in Criminal Causes.</p> <p>Upon the filing of an affidavit for the continuance of the trial of a criminal case, which is sufficient to show a good cause therefor on account of the absence of witnesses, it is within the sound discretion of the court to say for what length of time the cause should be postponed.</p> <p>Dismissal of Indictment.</p> <p>The dismissal of the first indictment before the formation of a jury and before assignment was not a bar to a second indictment.</p>

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

<p>Interest Acquired Pendente Lite.</p> <p>One acquiring property then, in litigation is bound by the result of such litigation.</p> <p>Receiver Bound to' Obey Court’s Orders.</p> <p>Because a receiver is named as a garnishee defendant, constitutes no good reason which entitles him to assume the position of a litigant in the suit in which he was receiver and to set up and rely upon the claim of attaching creditors as a reason why he shall not obey the order of the court by which he was appointed.</p>

<p>Principal and Surety.</p> <p>When the,, relation of principal and surety exists, the creditor, by entering into a contract with the principal debtor, without the consept of the surety, to extend the time of payment, injures the surety by depriving him of his right to have the .debt made out of the principal’s property before his insolvency or of paying the debt himself and taking steps to protect himself; but where the surety has in his own hands ample surety to protect him he is not injured by such extension of time of payment, and will not be discharged by reason of it.</p>

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

<p>Administrator De Bonis Non.</p> <p>An administrator de bonis non cannot maintain an action against his predecessor for a settlement. Such action can only he maintained by a creditor or distributee.</p>

<p>Criminal Law — Change of Venue.</p> <p>An application for a change of venue in a criminal case must be in writing, sworn to by the defendant, and the applicant must produce and file the affidavits of at least two other credible persons not relatives nor of counsel for the defendant, and the court may hear evidence orally or by affidavit in order to determine the facts as to the credibility of the witnesses making the affidavits for the change of venue.</p>

<p>Supersedeas Bond and Writ.</p> <p>A supersedeas bond will not supersede a judgment until a writ of ' supersedeas has been issued, and hence in a petition upon such a bond the plaintiff is required to aver that a supersedeas issued.</p>

<p>Admissibility of Evidence.</p> <p>Where one member of a partnership contracted with the defendant and other employes of the firm for board', the board to be paid out of merchandise purchased from the partnership’s store, it is error for the court to exclude such evidence from the jury. While one member of a firm cannot contract to pay his individual debts out of part- ■ nership property, the jury might imply the authority and particularly in reference to the board of the employes of the firm.</p> <p>Bill of Exceptions.</p> <p>Where a bill of exceptions is presented to the court in time and offered for filing, but not filed because the judge took time to consider it, such bill is a part of the record.</p>

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

<p>Judgment for Costs by Mistake.</p> <p>Where the trial court directed that no judgment should he entered against the appellant for costs, and the attorney drawing the entry by mistake drew up a judgment for costs against him, and no minutes or memorandum is referred to, and where there is no means of establishing the mistake except to prove it by oral testimony, it cannot he allowed, as such evidence is not admissible to correct such judgment.</p>

<p>Liability of Sureties on Supersedeas Bond.</p> <p>Where the clerk was authorized to take a bond and execute a supersedeas, if the parties voluntarily interposed and gave such bond and procured the issuing of such writ, and thereby stayed execution, there is no reason whythey should not be held liable.</p>

<p>City’s Power to Fix Fees of Witnesses.</p> <p>The law prescribes what fees witnesses are entitled to, and a city has no power by ordinance to increase or diminish such fees; and the case is not altered by the fact that the witnesses were subpoenaed in cases arising under city ordinances.</p>

<p>Criminal Law — Instruction.</p> <p>Even an erroneous instruction as to involuntary manslaughter is harmless, where a correct instruction as to voluntary manslaughter is given and the jury finds the defendant guilty of murder.</p>

<p>APPEAL PROM BOYLE COURT OP COMMON PLEAS.</p>

<p>APPEAL FROM MARION COURT OF COMMON PLEAS.</p>

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

<p>APPEAL FROM MARION COURT OF COMMON PLEAS.</p>

<p>Service of Process on Infants.</p> <p>When a summons is delivered to infants and a copy left with their mother, with whom they resided, such process is properly served.</p> <p>Answer by Guardian Ad Litem.</p> <p>Where the record fails to show that a guardian ad litem was appointed, one filing an answer purporting to be such guardian is a mere volunteer and such answer is ineffectual.</p>

<p>Judicial Sale of Real Estate.</p> <p>The fact that a judgment under which land has been sold is afterward reversed will not affect the title of a purchaser at such sale.</p> <p>Irregularity in Judicial Sale.</p> <p>When there is such an irregularity in a judicial sale of real estate that it ought to have been set aside, even though the judgment of sale was valid, and the irregularity appears on the record, the order confirming the sale may be reversed without the judgment being reversed.</p>

<p>APPEAL FROM GARRARD COURT OF COMMON PLEAS.</p>

<p>Surrender of Mortgage and Note Induced by Fraud.</p> <p>One holding a prior mortgage does not defeat his lien by surrendering it and the note secured by it, where he is lead to do so by being given a check for the amount, and upon representations that the check would be paid and that the money was in the bank, but such check is protested and never paid.</p> <p>Second Mortgage Lien.</p> <p>One holding a second mortgage does not become a first lienholder when the first mortgage is satisfied of record by reason of false representations of the debtor, who gives a worthless check in payment, and the second mortgagee has parted with nothing on the strength of such release.</p>

<p>Levy on Exempted Property.</p> <p>It is the duty of one causing a levy to be made on exempted property to see that the proceeds are paid to the person entitled to such exemption.</p>

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

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

<p>Judicial Sale of Real Estate.</p> <p>■Where a judgment for the sale of real estate is not void but merely erroneous the purchaser at such a sale will acquire title.</p>

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

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

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

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

<p>Appeals Only Taken From Final Judgments.</p> <p>An appeal can only be taken from a final judgment.</p> <p>Pleadings.</p> <p>Where allegations are affirmative and set up new and material matter, and no demurrer, answer or reply is filed thereto, such allegations must be taken as confessed.</p>

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

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

<p>Suit to Set Aside Conveyance of Real Estate.</p> <p>Where real estate is conveyed by the wife for no other consideration than as a token of her purpose to reform, and after the marital relation and the cause of the husband’s shame and mortification are entirely removed, such conveyance will be set aside.</p>

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

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

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

<p>Novation.</p> <p>When one person is indebted to another on account and after his death his widow executed to the creditor a due bill for the amount of the debt, antedating it to the time of its creation, it amounts to a complete novation and releases the estate of the debtor.</p> <p>Conveyance by Married Woman, the Husband not Joining.</p> <p>A married woman conveys no title by a deed in which her husband does not join.</p>

<p>Conveyance of Real Estate by Boundary.</p> <p>■Where the contract of sale of real estate is a purchase by the boundary, and the quantity of land is by the vendor and vendee estimated to contain a designated number of acres, not with a view to make the number of acres a matter of importance, the sale is based on the boundary and not upon its estimated area.</p>

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

<p>Mental Capacity of Testator.</p> <p>When mental capacity is the issue tried by a jury, and there is much evidence on both sides and a verdict reached, and on a second trial before the judge the same conclusion is reached, the Court of Appeals will not reverse on the weight of the evidence.</p> <p>Objection to Deposition.</p> <p>It is too late to object to the reading of a deposition when not made until after the trial commenced.</p>

<p>City Taxes on Agricultural Lands.</p> <p>Courts cannot declare unconstitutional an act of the legislature extending the boundary of a city upon the mere supposition as to the impolicy of such extension. Before courts will do so there must he shown to be a plain violation of the constitution providing that private property shall* not he taken for public purposes without just compensation.</p> <p>Sufficiency of Petition.</p> <p>Where a plaintiff seeks to enjoin the collection or levy of taxes hy a city on real estate annexed to and within city boundaries, his petition must state facts sufficient to show that the lands are used exclusively for agricultural purposes, and manifest that, from the character of the surrounding population, the property could not receive any benefits from the extension of the city government over it.</p>

<p>Surety on an Appeal Bond.</p> <p>When a surety on an appeal bond covenanted to satisfy and perform the judgment in case it should he affirmed on the appeal, and the particular appeal was dismissed and the judgment appealed from was affirmed on a subsequent appeal, it was held that such security was liable, as the dismissal of the appeal constituted a virtual affirmance of the judgment.</p>

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

<p>Ground for Attachment.</p> <p>It is a good ground for the issuing of an attachment against proi» erty of a defendant not exempt from execution, where plaintiff alleges “that from the delay arising from obtaining judgment and return of no property found the collection of his debt will be endangered, and the defendant has not property enough in this state, subject to execution, to satisfy the plaintiff’s demand.”</p>

<p>Power and Duty of a Receiver.</p> <p>A receiver has no right to apply the rent to repairing the premises in his possession without first obtaining the direction of the court to do so, and he cannot make a valid agreement with the tenant to allow the costs of repairs to he set off against the rent without authority from the court whose receiver he is.</p>

<p>Judicial Sale of Real Estate.</p> <p>Where an appeal is pending from the Common Pleas Court directing a tract of land to he sold to pay a debt, and the judgment was not superseded, and within a month the land is sold and report of sale made some months thereafter, no exceptions having been filed thereto or objections of any kind made; where it was confirmed and a deed ordered made, presented to the court and certified for record, and possession awarded to the purchaser, without any objections being made by any one, and without any information being given to the court of a pending appeal, the party appealing by reason of his negligence cannot successfully attack such sale and have it set aside.</p>

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

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

<p>Liability of Assignor.</p> <p>Where a creditor has instituted his action and recovered a judgment as soon as a judgment could have been obtained, and the administrator of the debtor having been removed before an execution could issue, it became the duty of the assignor to take steps to save himself from liability, and it was not incumbent upon the plaintiff to administer or cause some one else to do so; and where after a public administrator was appointed plaintiff was enjoined from proceeding to collect, he used necessary diligence and the assignor is liable.</p>

<p>Punitive Damages for Assault and Battery.</p> <p>Where an attack is premeditated and is an aggravated case of an assault and battery, even when no serious bodily harm results, punitive damages 'are recoverable.</p> <p>Defendant Failing to Produce Witness.</p> <p>When the evidence against a defendant in a suit for damages for an assault and battery is circumstantial, and he has it in his power to produce a witness who might explain the facts, the inference arising from his failure to do so may be properly deduced by the jury.</p>

<p>Agency1 of Husband for His Wife.</p> <p>Where a wife entitled to dower in real estate sought to be sold authorizes her husband to employ an attorney, and he does so and an answer is filed for her, claiming an interest in the real estate hut consenting to its sale, and offering to take her interest out of the purchase-money, and whete no fraud or bad faith is practiced by her husband or attorney, she is bound by such answer whether she knew what was in it or not, and a sale of such real estate is valid and binding on her:</p>

<p>Plea of Former Acquittal.</p> <p>Evidence of a former acquittal in a criminal case is inadmissible where tbe plea of former acquittal had not been properly entered, the only record of such a plea being “This day came the defendant and entered a plea of not guilty and former acquittal.”</p>

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

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

<p>Averments Required in Petition for Slander.</p> <p>A petition for damages on account of slander, to be sufficient, must aver that the false words spoken were maliciously spoken of and concerning the plaintiff.</p> <p>Slanderous Words.</p> <p>To say of another that “I will have Parks indicted for forgery by the grand jury” is a cause of action for slander, as the words carry with them a charge of a criminal nature.</p>

<p>Devisee’s Liability for Testator’s Debts.</p> <p>' Devisees,' receiving by way of advancements, can only be required by a creditor of tbe devisor to pay wbat was received under tbe will . after tbe death of tbe testator. What is given as. advancements prior to tbe testator’s death cannot be included in tbe estimate in order to fix tbe extent of tbe devisee’s liability.</p>

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

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

<p>Judicial Sale.</p> <p>A judicial sale will be set aside when, the land sold for more than the amount of the judgment. The commissioner should have offered to sell only so much of the land as would satisfy the judgment.</p> <p>Description of Land in Judicial Sale Order.</p> <p>A judgment for the sale of real estate must contain a description of the tracts ordered sold.</p>

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

<p>APPEAL, FROM KENTON. CHANCERY COURT.</p>

<p>Title to Personal Property of an Intestate.</p> <p>Upon the appointment and qualification of an administrator of an intestate the title to all the goods, chattels, and credits of the intestate vests in such administrator. Certain articles of such property are exempt from sale, and may he set apart hy the appraisers to the widow or infant children; hut until this is done the exempted property is not identified, and the title to all of it remains in such administrator.</p>

<p>Contract.</p> <p>The failure to complete the formal evidence of a contract by reducing it into the form of notes does not effect its validity or render it incomplete.</p> <p>Facts Constituting Contract.</p> <p>Where a person in answer to a request to subscribe said, “I have concluded to subscribe $1,000,” and refers to the circular for the terms upon which he made the subscription, and the circular specified the instalments and the time for the payment of each, and also stated that notes would be taken for the several instalments, and when he said, “you can call upon me at any time for my signature,” it was held that the contract was complete.</p>

<p>Jurisdiction in Suit to Enforce a Contractor’s Lien.</p> <p>A suit to enforce a contractor’s lien against a railroad company, in which it is sought to sell not only the rights and franchises of the company, but its tangible property, its roadway and right of way, can only be prosecuted in a county in which the road runs.</p>

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

<p>Husband and Wife.</p> <p>It is only when the legal right of the husband has not been perfected that the court can intervene to protect the wife against the claim of his creditors; but a husband, by reason of his marriage, has a right to the use of his wife’s land, and when they reside on the land and cultivate it he has a legal right to the produce of the farm, and such property is subject to the claims of his creditors.</p>

<p>Partnership Book Admissible as Evidence in Action Between Partners.</p> <p>Books of a partnership are admissible in evidence for the purpose of showing entries made therein referring to the items- in dispute between them exhibiting certain charges and credits made.</p>

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

<p>Statutory Liens.</p> <p>Liens created by statutes cannot, as against creditors or innocent purchasers, be/enforced unless the statute has been complied with; and where no lien is reserved in a deed to secure the payment of interest on the balance of purchase money the vendor has no lien for such purposes.</p> <p>Personal Judgment.</p> <p>Where a claim is sued upon and it is sought to enforce a lien, and the debt was not the debt of the defendant originally, nor one that he subsequently assumed, there can be no personal judgment.</p>

<p>Taxation of Banks and Bank Stock.</p> <p>It is only the property of a hank that must he listed by it for taxation, and the stock of the hank held by stockholders is not to he listed by the hank.</p>

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

<p>Fraud in Conveyance of Real Estate.</p> <p>When a conveyance of real estate is attacked as fraudulent, or for want of consideration, as between the grantee and creditor of grantor, the burden of proof is on the grantee to show a good and valid consideration.</p> <p>Recitals in Deed.</p> <p>Recitals in a deed are not evidence for or against those who are not parties to it.</p>

<p>Subscription Contract.</p> <p>Where one subscribes to a fund with certain conditions attached to his subscription, and afterward signs a substitute subscription to take its place, which has no conditions attached to it, the conditions upon which the first subscription is made do not become a part of the second subscription.</p>

<p>Instructions.</p> <p>The Court of Appeals cannot consider instructions given below where the bill of exceptions does not show that any objections to them were made by the appellant. The code of practice requires both an objection and an exception.</p>

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

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

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

<p>Conveyance of Real Estate as Trust.</p> <p>Where, by a written instrument, real estate is transferred to a husband and wife, and at the death of said husband and wife the lands are to be equally divided among all the children, and it is provided in the instrument that the conveyance is made “for their mutual and joint support and to the survivor of them,” the word “their” is held to refer to the husband and his wife, and not to them and their children.</p>

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

<p>appeal prom McCracken circuit court.</p>

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

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

<p>Exemption of Housekeeper.</p> <p>In the absence of a contract by which a debtor is deprived of the right to claim an exemption against a debt, the only inquiry to be determined is whether the debtor is a bona fide housekeeper with a family resident in this state, and whether the thing claimed as exempt is embraced by the statute.</p>

<p>APPEAL PROM WASHINGTON COURT OP COMMON PLEAS.</p>

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

<p>Liability of Sheriff and His Sureties.</p> <p>In ease it is sought to hold a sheriff and his sureties liable for loss sustained because of the acceptance’ of an insolvent surety on a replevin bond the plaintiff must allege and prove two things, namely: Insolvency of the surety and damage to the execution plaintiff by reason of the acceptance of such insufficient security.</p> <p>Pleading.</p> <p>When it is sought to hold a sheriff and his sureties liable for damages sustained because of the acceptance of an insolvent surety on a replevin bond, facts must be pleaded showing such insolvency and showing that damages resulted to plaintiff. It must he alleged and proved that the execution defendant was solvent when the replevin bond was executed, and that during the time for which the power to enforce the judgment was in abeyance by reason of the execution of the replevin bond, the execution defendant became insolvent.</p>

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

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

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

<p>Construction of Will.</p> <p>A provision in a will directing that at the death or marriage of the widow the whole estate should be sold and the money received equally divided among his children, or such of them “as may be then living, taking care to give to the representatives of such as are dead, if such should be the case, a child’s part,” means that all his children living at his death were made legatees and took a vested interest, subject to be defeated by their death before the death or marriage of their mother, in which case the representatives of such as died took as alternative legatees, and not as heirs or distributees of the deceased parent.</p> <p>Election of Legatees.</p> <p>Those entitled to the proceeds of land devised to executors to be sold may, before a sale, elect to take the land and- thus defeat the power of sale.</p>

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

<p>Deed Made by Deputy Sheriff.</p> <p>A deed made by a deputy sheriff should be made in the name of his principal, but when made in the name of the deputy it is not invalid for that reason. Such a deed is admissible in evidence to show that the grantee entered and held under claim of title, and is-competent evidence of title.</p>

<p>Makers of Promissory Note.</p> <p>Where directors of a corporation or trustees execute a note by signing their individual names to it, not as trustees, they become individually liable thereon to the owner of such note; and whether they may discharge such liability out of the trust estate is not a matter of interest to the owner, but is one to settle in the settlement of the trust.</p>

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

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

<p>APPEAL PROM PAYETTE COURT OP COMMON PLEAS.</p>

<p>Criminal Law — Rape.</p> <p>Even an error of the court in instructing the jury that the offense of rape is punished hy imprisonment from one to five years, instead of not less than five nor more than twenty years, is not prejudicial to a defendant where the jury disregards the instruction by fixing the punishment at seven years.</p>

<p>Motion to Paragraph a Petition.</p> <p>When a petition attempts to set forth 'two causes of action, one on a bond and one on the covenants in a deed, a motion to separate it into two paragraphs of complaint should be granted.</p> <p>Sufficiency of Paragraph of Petition.</p> <p>When there has been an attempt to set forth two causes of action in one paragraph, or when only a part of the facts in one are necessary to a cause of action set up in another, the pleader should not be permitted by “making such facts in the first paragraph as are necessary to the cause of action in the second paragraph” part of the latter by that character of general reference to the first.</p>

<p>Construction of Will.</p> <p>The object of construction of the terms of a will is to arrive at the Intention of the testator.</p> <p>Meaning of Words Used in a Will.</p> <p>Where in a will the testator provided that “the children of my daughter Margaret have one-half a share with the rest of my heirs,” it was held to he the obvious intention to give to each of his children twice as much as was given to each of his grandchildren who represented their mother.</p>

<p>Fraudulent Conveyance of Real Estate.</p> <p>A deed in consideration of love and affection from the father to the son is fraudulent as to pre-existing debts.</p> <p>Petition to Set Aside Conveyance.</p> <p>It is not enough to allege in a petition to set aside a conveyance that the consideration for such conveyance was love and affection, and that the grantor was indebted at the time, but the amount and manner of indebtedness and to whom, and that it was unpaid when the petition was filed, must be alleged.</p>

<p>Suit Maintained by Town.</p> <p>Where an act authorizes a town to sue in the name of its trustees, and a suit is brought, it is the town suing and not the trustees, and their resignation will not stop such litigation or divest the corporation of any right it has.</p>

<p>Criminal Law — Instruction.</p> <p>A defendant charged with, murder, but convicted only of manslaughter is not prejudiced hy an instruction in regard to murder.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 68.]</p> <p>Partnership.</p> <p>Merely being joint owners of real estate and each agreeing to make certain improvements thereon does not constitute such owners partners.</p> <p>Money Borrowed by One Joint Owner of Real Estate.</p> <p>Where real estate is jointly owned by two persons neither is personally bound by the acts of the other when not partners, and where one loans money to one of them, the money not even being shown to have been used to improve the property solely on the statement of one of the joint owners that they are partners, the other is not liable for such debt.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol 1 — 56, as Helen v. Spencer.]</p> <p>Distress Warrant.</p> <p>Where the rent distrained for was for the use of the wife’s property, such rent could not be subjected to her husband’s debt. J</p> <p>Evidence.,</p> <p>When it does not appear that a married woman’s title to real estate is evidenced by any writing it is not error to permit her husband to testify that the property belonged to his wife. Where the title to real estate is not in issue it is competent to prove it by parol.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 56, as Huser v. Smith.]</p> <p>Conveyance of Homestead Right.</p> <p>Where a homestead is not waived by a first mortgage on real estate the mortgagor may by a second mortgage waive such right, and the second mortgagee will thereby become the owner thereof.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 62. Reported in full, 8 Ky. L. 131.] ,</p> <p>Creation of a Trust.</p> <p>Where a purchaser buys his brother’s interest in property sold in bankruptcy such a purchase, in the absence of any agreement between the brothers, will not create a trust in favor of the bankrupt; nor will a letter written some years thereafter by the purchaser to his brother, stating that “I wrote you long ago that I bought your interest in everything in Kentucky and Louisiana at the sale in bankruptcy for $100, and, if there was anything made out of it you should have the benefit of it” impress such property with a trust at the time of the purchase or when/the conveyance was made.</p> <p>Gratuitous Promise not a Trust.</p> <p>A mere declaration of an intention to give will not create an en-forcible trust, even though the declaration be made by a brother.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 1. — 66.]</p> <p>Negligence by Railroad Company in Failing to Give Warning of Approach of Train.</p> <p>Where a railroad runs near to and parallel with a public road it may be negligence to fail to give warning of the approach of a train, even when on time; but whether it is negligence in either case depends upon the question whether, in view of the location of the roads, such a precaution would be regarded as reasonably necessary to prevent injury to persons traveling on the nearby road.</p> <p>Degree of Care Required of Railroad Company to Prevent Injury to Others.</p> <p>The care required by a railroad company to prevent injury to persons must be proportionate to the danger, and it must follow that greater care is demanded when a train is off than when it is on time.</p> <p>Evidence of Surgeon’s Fees.</p> <p>In a suit for personal injuries against a railroad company it is error to admit proof of the payment of surgeon’s fees by the injured party where no claim is made in the petition for such fees.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 64.]</p> <p>Husband and Wife.</p> <p>Tbe wife has a right to give property to her husband, to permit him to use her property or to pledge it as security for his debt.</p> <p>Liability of Executor and His Sureties.</p> <p>Where the executor has advanced money to a husband or because personally liable for a debt of the husband, and as executor of the estate of the wife’s father has money belonging to the wife, which she agrees may be given to him on account of the husband’s debt, neither the executor or his sureties are liable to account to her for the money thus received.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 60.]</p> <p>Dedication of Highway.</p> <p>If a street is laid off and lots sold bordering upon it the purchaser takes the lot with the right to the use of the street, and this will amount to a dedication of the street to the use of the public; but an alley, known as a blind alley, which does not run from street to street, but is a passageway only for the use of the property bordering upon it, and not for the use of the entire public, when laid out is not dedicated to the public, but may be closed by its owners at their pleasure; and such an alley may not be improved by the city, and the adjoining property.assessed for such improvement. '</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 65.]</p> <p>Res Adjudicata.</p> <p>A demurrer sustained to a petition because it presents no cause of action does not bar another action, but when the defendant pleads and puts in issue the right of recovery, and the cause is submitted on the petition and answer and a judgment is rendered dismissing the petition, such a judgment will bar any further action on the same cause, whether proof is introduced or not.</p>

<p>[Abstract Kentucky Law Reporter, Yol. I — 125.]</p> <p>Sale of Franchises.</p> <p>A franchise to build and operate a turnpike road cannot be made the subject of sale in the absence.of some special legislation authorizing it.</p> <p>Bonds of Turnpike Company.</p> <p>Where, pursuant to the provisions of the act of February, 1872, empowering a turnpike company to issue its bonds, a company issues its bonds and executes a mortgage to secure the bondholders, and the officers and directors are the creditors, and the transaction is in good faith, such bonds will be held valid even though issued by such directors to themselves, when they have advanced the money to build the road.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 55.1</p> <p>Exceptions to Evidence Offered.</p> <p>Neither the admissibility of evidence nor the competency of evidence offered by depositions can be considered by the Court of Appeals where it is not shown that the trial court ruled upon the exceptions tendered by appellants. Such exceptions will be treated as waived by appellants.</p> <p>Rescission for Want of Title.</p> <p>After a plaintiff in an action for a rescission for want of title has mortgaged the land for near its value, and when they do not tender a release upon instituting the action, they are not entitled to the relief asked for. , t</p>

<p>APPEAL PROM WOODFORD COURT OP COMMON PLEAS.</p>

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

<p>[Abstract Kentucky Law Reporter,. Yol. 1 — 64.]</p> <p>Construction of Will — Residuary Clauses.</p> <p>When in a will after naming specific legacies it is provided that “Whatever is left of my estate after deducting the $6,000, given for tbe use of William and the devise to sue Talbott, C. P. Talbott and Fanny Lymington, and the payment of my debts, shall go to my son, Chas. H. Talbott,” it is held to mean that it was intended to embrace in such residuary clause such estate as had not already been mentioned in the will, and that where one of said legatees dies before the testator, as to the property set apart for him in the will the testator died intestate.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 67.]</p> <p>Homestead Exemption.</p> <p>A petition of a married woman, not showing that she and her husband were occupants and owners of the house and lot and housekeepers with a family prior to the creation of the debt for which the property was subjected, fails to state a cause of action on a claim of a homestead exemption.</p>

<p>APPEAL FROM OHIO CIRCUIT COURT. ■</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 61.]</p> <p>Suit to Set Aside Conveyance.</p> <p>Where a conveyance is not shown to have been made for a preexisting debt, but the consideration seems to have been for cash,' it will not be set aside at the instance of creditors.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 62.]</p> <p>Instructions.</p> <p>There must be both an objection and an exception to an instruction given by the trial court before the Court of Appeals can consider it to determine whether it is erroneous. •</p> <p>Incompetent Witnesses.</p> <p>Where at a trial under the provisions of the statute the witnesses were excluded from the courtroom, each party giving a list of his witnesses, a witness not excluded from the courtroom is not competent to testify.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 68. Reported in full, 8 Ky. L. 138.]</p> <p>Validity of City Ordinance.</p> <p>The power to pass an ordinance to license and exact an annual tax from venders of milk using a milk wagon or other vehicle for delivering their milk to customers in a city must be derived from a direct legislative grant; and the city of Lexington, not having received such a grant, has no power to pass such an ordinance.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 64.]</p> <p>Release of Sureties.</p> <p>Sureties on a note are released where by tbe agreement of the parties payment is postponed for any length of time without their consent. 1 ■■</p>

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 123.]</p> <p>Record on Appeal.</p> <p>Tire Court of Appeals will determine causes on what the record discloses, and cannot decide a case upon a record made up after the appeal is taken, on the mere suggestion of counsel that it was a defective record.</p>

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

<p>[Abstract Kentucky Law Reporter,* Vol. 1 — 125.]</p> <p>Payment of Guards.</p> <p>Under tbe statute providing that “Persons summoned as guards for the safe keeping of prisoners confined in jail shall be allowed $1.50 per day to be paid out of the treasury of the state, unless ordered to be paid by the county,” where the guard is not ordered by the county judge or the circuit court, he cannot recover from the county.</p>

<p>[Kentucky Law Reporter, Vol. 1 — 164.]</p> <p>Purchase of Store by Married Woman.</p> <p>The creditors of a husband are not injured by the wife’s purchasing' a store with money that cannot be subjected to the payment of the husband’s debts. A married woman may invest the proceeds of the homestead for her separate use with the consent of the husband, and with an action then pending enabling her to trade as a feme sole.</p>

<p>APPEAL FROM WARREN COURT OF COMMON PLEAS.</p>

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

<p>[Kentucky Law Reporter, Yol. 1 — 168.] •</p> <p>Legislative Power — Municipal Charter.</p> <p>The general assembly has the power to apply the charter of one municipality to' another by so declaring, but where it only provides that such parts of the charter of one municipality shall-apply to another one in so far as applicable it is its duty to also declare what parts are applicable, and where it fails to do so relative to the improvement of streets the municipality has no right to improve such streets at the cost of the lot owners.</p>

<p>APPEAL PROM BALLARD COURT OP COMMON PLEAS.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 124.]</p> <p>Criminal Law — Indictment.</p> <p>An indictment is sufficient which alleges that the accused did unlawfully shoot and wound a named person with an intention to kill him.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 120, as Sidney v. Com-, monwealth.]</p> <p>Criminal Law — Murder.</p> <p>Since tke jury alone in a murder case is autkorized to determine the effect of evidence introduced, and to pass upon its sufficiency, the Court of Appeals will not disturb its verdict because the evidence may seem weak.</p> <p>Instructions.</p> <p>Where the exclusion of testimony, though it be properly excluded, may have impressed the jury improperly, the circumstance requires some explanation to the jury on the subject so that it may not be wrongly impressed, and they may understand its bearing.</p> <p>Instructions on Manslaughter.</p> <p>When the trial court undertakes to instruct -the jury on manslaughter it should tell the jury of what manslaughter consists.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 119.]</p> <p>Criminal Law — Forgery.</p> <p>Where an accused is charged with forging an assignment of a note, evidence of attempts to sell the note is not admissible, and an instruction to the jury to the effect that if the accused uttered it by offering to sell it he was guilty, is erroneous.</p> <p>Possession of Note.</p> <p>Where, in a prosecution against an accused for forging an assignment of a note, it is shown that the note came into his possession lawfully, the law presumes that it belongs to him, and if so he has a right to sell it, and hence the offer to sell is not evidence of fraud.</p>

<p>APPEAL PROM HENRY CIRCUIT COÜRT.</p>

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

<p>Decedent’s Estate.</p> <p>Where a testator does not dispose of all of his property in distribution of the undevised portion thereof, the heirs and devisees may he made to account for advancements made to them.</p> <p>Advancements.</p> <p>The valuations fixed hy devisees on property given them by the testator will not control the chancellor as to such values; nor is the claim of the testator that he has made them all equal, or given one more than the other, conclusive of that fact.</p> <p>Attorneys’ Fees of Executor’s Attorneys.</p> <p>Where one of the devisees institutes a proceeding to have the will construed, which is in fact a claim hy said devisee against the others, the fees of plaintiff’s attorneys are not payable hy the executor out of the estate, and a claim for such fees should he rejected.</p>

<p>Criminal Law — Forgery.</p> <p>An indictment is sufficient which sets out a writing of a certain import in haec verba, and charges that it “was forged and uttered with the design to defraud the Clark County National Bank.”</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 121. Later reported in abstract, 1 Ky. L. 402.]</p> <p>Criminal Law — Murder.</p> <p>An application for a continuance of a trial in a murder case, showing the names of absent witnesses and that their testimony was material, and facts showing that their presence may be procured in a reasonable time at the'trial, and which shows reasonable diligence in procuring their attendance under the circumstances, if sworn to should be granted.</p> <p>Instruction.</p> <p>Where, in an instruction in a murder trial, the jury were told, in effect, that if the accused wilfully shot and killed the deceased in self-defense they must acquit, but adding that if the jury believed beyond a reasonable doubt the killing took place in a mutual fight, begun and continued to the fatal shot by the accused, he is “not excusable” by reason of any counter violence endangering his safety by the deceased, unless the accused in good faith attempted to retire from the conflict or the force used by the deceased was greatly beyond what was necessary to his protection, and where the jury is left to determine the legal meaning of the term “Not excusable,” and is not informed of the degree of the offense from which the accused is not excusable under the acts supposed in it, such an instruction is erroneous.</p>

<p>Sheriff’s Indemnifying Bond.</p> <p>The taking and return by the sheriff of an indemnifying bond furnishes no defense to him against an action by the claimant for an illegal seizure or conversion of his property under an attachment against the property of another person. Such a bond is for the protection of the sheriff, and can be sued on only by him.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 280. Reported later In abstract, 4 Ky. L. 726, and in full p. 811.J</p> <p>Alimony Pending Divorce.</p> <p>Until such time as a husband in a divorce proceeding establishes by evidence the dereliction of the wife without his fault, he is legally bound to support her. Pending the suit, the wife being without adequate means, is entitled to alimony.</p> <p>Allowance of Alimony.</p> <p>The allowance of $125 for the temporary support of the wife, pending a divorce, is a reasonable allowance where the husband’s estate is worth $4,000 or $5,000.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 281.]</p> <p>Ownership of Promissory Note.</p> <p>Where the owner of a note discounts it at a bank, and renewals were executed to the bank, it sufficiently shows that the original owners have parted with their ownership, and that such note or its renewals belong to the bank, and the bank could not be divested of ownership until it was paid the amount of said note.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 279.]</p> <p>Criminal Law — Indictment for Forgery.</p> <p>An indictment attempting .to charge forgery is insufficient which only charges that the accused “did unlawfully forge an instrument,” etc., and the further allegation that “this writing was so forged and falsely made.” Such allegations but state conclusions of law, and not statements of facts required by the code.</p>

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

<p>APPEAL PROM FAYETTE COURT OF COMMON PLEAS.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 274.]</p> <p>Inadequacy of Selling Price of Real Estate.</p> <p>Where the price of the sale of real estate is grossly inadequate, very slight circumstances will be seized upon by the chancellor for the purpose of granting relief against such a sale.</p> <p>Description in Conveyance of Real Estate at Judicial Sale.</p> <p>The fact that the conveyance describes the property cannot cure a levy that is void for want of description.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 269.]</p> <p>Election of Trustees.</p> <p>Where a law requires the election of additional trustees no election can be held until the law goes into effect. The creation of additional trustees by reason of subsequent legislation cannot affect the rights of those then in office.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 274.]</p> <p>Right of Court to Suspend Tavern Keeper’s License.</p> <p>The county court is authorized by a lawful proceeding to suspend the license of a tavern keeper and deprive him of his business under it, but since March 13, 1876, when the general assembly created a criminal court for the counties of Fleming, Morgan, Nicholas, Lewis, Rowan and Greenup, and took away from the circuit courts of said counties jurisdiction in criminal cases or penal causes, an appeal from the judgment of the county court for suspending such license, being of a penal nature, should have been taken to the criminal court. The circuit court has no jurisdiction in such appeal.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 271.]</p> <p>Bankruptcy — Assignment.</p> <p>When property is owned by a person at the time of the filing of a petition in bankruptcy, his assignment thereafter to another will convey nothing.</p>

<p>[Kentucky Law Reporter, Vol. 3 — 178.]</p> <p>Conveyance by Insolvent Debtor.</p> <p>•One must be just before he is generous, and a conveyance of the greater part of one’s estate to his son and son-in-law at a time when the grantor is indebted cannot be upheld as against the claims of creditors.</p> <p>Action by Assignee of Insolvent Debtor.</p> <p>The assignee of an insolvent debtor may maintain an action to set aside a conveyance of real estate by his assignor made to defraud creditors.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 276.]</p> <p>Taxation Under Town Charter.</p> <p>Where the charter of a town expressly restricts the power to tax to an assessment or levy of forty cents per each one hundred dollars valuation, such restriction will prevent a higher levy; and where there is nothing: in the record to show that it has the power to. assess additional taxes, as prescribed by an adjoining ^city this court will not look to the charter of the other city for such powers.</p> <p>Penalty for Failure to Pay Taxes.</p> <p>Where no remedy is given by a town charter in the event of a failure to pay taxes to a collector, town trustees have no authority to place any burden on the owners of property beyond the amount authorized by the charter.</p>

<p>Admission by Pleading.</p> <p>Where a debtor owes a note and an account to the same person, 'and in a suit on the note the answer sets up that in addition to the credits entered on the note the defendant had sent money by another with a ■ direction to have it applied on the note, and plaintiff replies, denying that it was to be paid on the note and charging that it was directed to he credited on another debt, no rejoinder 'being filed, such reply does not amount to an admission by defendant that- the money was to he so applied 'in the payment of the account.</p>

<p>[Abstract Kentucky Law ■ Reporter, Yol. 1 — 261.J</p> <p>Guardian and Ward.</p> <p>All moneys or property coming to the hands of a guardian and belonging to his'ward must be accounted for by the guardian, and his sureties are liable in the event he makes default.</p> <p>Appointment of Guardians.</p> <p>The county court has exclusive jurisdiction in the matter of appointing guardians, and a record showing that the court was in session and a guardian appointed and qualified as such is sufficient even though there may have been no previous order directing or calling the special term at which such appointment is made.</p> <p>Approval of Guardian’s Bond.</p> <p>Where a guardian’s bond is taken and acknowledged in open court, it amounts to such an approval as the law requires; and the fact that the1 order shows an appointment of and qualification by the guardian as guardian for three infants will not effect his obligation to each of said wards.</p> <p>Limits of Guardian’s Expenditures.</p> <p>A guardian has no right to maintain and educate his ward at an expense beyond, the income of his estate, unless in case of the ward’s sickness or extreme infancy so that it cannot he bound out as an apprentice, or no suitable person will take it, or in case it is best for the ward that the principal of his personal estate shall be applied for his hoard and tuition, and the court, upon settlement, shall deem such application to have been judicious; but neither the ward nor his real estate is liable for such expenditures.</p> <p>Investment of Ward’s Money.</p> <p>The investment of a ward’s money in a foreign corporation, if made, is at the peril of the guardian, and he is properly chargeable with 'the amount.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 270.]</p> <p>Surety on Bail Bond.</p> <p>A discharge in bankruptcy is not a defense to a suit on a bail bond, for the bankruptcy law ’ does not apply to a debt due the state or to the federal government and congress has not the power, by tax or exemption, to burden the instruments of the state government.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 275.]</p> <p>Defense to Suit on Bail Bond.</p> <p>Discharge in bankruptcy cannot be pleaded as a defense by a surety on a bail bond.</p> <p>Remission of Forfeiture.</p> <p>The court in its discretion may remit a forfeiture under a paragraph of answer showing that as soon as the forfeiture on a bail bond was declared the surety proceeded to have the accused arrested and surrendered to the jailer, and praying the court to remit the forfeiture.</p>

<p>[Abstract Kentucky Law Reporter, Yol. \ — 277. Later reported in abstract, 4 Ky. L. 614.]</p> <p>Suits Between Partners.</p> <p>One partner cannot sue another in a court at law for a partnership liability until there has been a- settlement of the partnership and the indebtedness has been ascertained;, and since such an account must be taken in a court of equity, that tribunal has power to give ample relief as between such partners.</p>

<p>APPEAL PROM WARREN COURT OF COMMON PLEAS.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 267, as Marion County v. Averitt.]</p> <p>Rule for Construing a Statute.</p> <p>To ascertain the meaning of a statute, the court will look to the cause of its enactment, and if the facts bring the case within the object and spirit of the law, it should be made to apply.</p> <p>Recovery Against County for Services.</p> <p>Under a statute providing for the removal and isolation of smallpox patients on the order of a justice of the peace, and, if such patient is unable to bear the expense of such removal, providing that it shall be borne by the county, where a patient is already in an isolated place, and a justice ordered the services of a physician, who attended such patient and furnished maintenance and medicine, and the patient is unable to pay, the county is liable for such services.</p>

<p>Purchaser at Judicial Sale.</p> <p>A purchaser at a judicial sale of real estate not colluding with the plaintiff, and not a party to any fraud, and not having notice of any, is not affected by the fraud of others in bringing about the sale.</p> <p>Notice of Fraud in Judicial Sale.</p> <p>Where land sold at a judicial sale is in the adverse possession of others; and although worth about eight dollars per acre is sold for less than one dollar per acre and the purchaser aided in procuring the judgment upon which the sale took place, such a sale will be set aside as against the purchaser and the plaintiff; but the chancellor should adjudge a lien on the land in favor of the purchaser for the purchase money and amount of costs and expenses incurred in defending his title.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 275.]</p> <p>Vendor’s Lien.</p> <p>Where, a vendor in his conveyance reserves a lien for purchase money, and the deed is' recorded, others acquiring such property are bound to take notice of such lien.</p> <p>Effect of a Judgment.</p> <p>While the judgment of a court of competent jurisdiction is conclusive between the parties as to matters that were or might have been litigated in the suit, still, where no issue was tendered nor could have been tendered a party is not bound by the judgment.</p> <p>Sufficiency of Petition.</p> <p>Where a plaintiff, having knowledge and notice of the character of another’s lien, does not even aver that he is ignorant of the extent and nature of a defendant’s lien, or that he has no lien or claim, such petition imposes no duty on the defendant to set up his lien, and a judgment on such a petition will not prevent such defendant lien-holder from asserting his lien in another action.</p>

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

<p>APPEAL PROM WOODFORD COURT OP COMMON PLEAS.</p>

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

<p>APPEAL FROM DAVIESS CIRCUIT' COURT.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 273.]</p> <p>Suit to Set Aside Conveyance.</p> <p>For evidence held to be insufficient to set aside a conveyance claimed to have been made fraudulently, see opinion below.</p> <p>Rights of Creditor to Set Aside a Conveyance.</p> <p>A creditor who holds the only claim against the vendor of real estate, and where it is shown that the debtor has other property sufficient to discharge such debt, cannot successfully attack a conveyance made by his debtor.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 273.]</p> <p>Executor Cannot Attack Validity of Mortgage Procured to Secure Him as Individual.</p> <p>Where a partnership is a creditor of another firm, and a member of-such creditor firm is also executor of an estate which is also a creditor of said other firm, and said member induces said debtor firm to execute a mortgage to secure the debt due his firm, he cannot afterward, as executor, be allowed to attack the validity of such mortgage.</p>

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

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 349.]</p> <p>Right of Witnesses to Claim Fees.</p> <p>Witnesses who attend examining trials where felonies are charged are entitled to witness fees, as well as when attending trials on indictments for felonies.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 320.]</p> <p>Partnerships.</p> <p>A partnership has the right to borrow money to carry on its business and to bind each and every member of the firm, and it is not incumbent on the person loaning the firm money to see that the money is applied to the .business of the firm.</p> <p>Trustee’s Right to Employ Attorney.</p> <p>A-trustee has a legal right to employ attorneys to represent him, and the fact is not changed because creditors also employ attorneys to collect their claims. Attorneys employed by a trustee may legally be paid a reasonable compensation out of the trust estate.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 340.] ,</p> <p>Evidence of Signature.</p> <p>Where a non-expert witness states that a signature purporting to be his is not his, and that he knew his own signature from that written by others, it is improper and inadmissible in testing his knowledge on cross-examination to produce papers with a large number of signatures pasted on them purporting to be his signature, and ask him to tell the jury which of these signatures were genuine and which were not.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 351.]</p> <p>Renewal of Bills Secured by Collateral.</p> <p>The renewal of an obligation will not release bonds held by the creditor as collateral security for,the debt, but where such renewals are by new firms and with new parties to the bills, without the knowledge and consent of the owners, it.will amount to a surrender of all claims to hold the bonds as collateral.</p>

<p>APPEAL PROM WASHINGTON COURT OP COMMON PLEAS.</p>

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

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

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

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

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 335.]</p> <p>Waiver of Exemption.</p> <p>A debtor may. protect his surety in a replevin bond by surrendering to the sheriff property exempt from execution, and after the sheriff has accepted such property to be sold in satisfaction of the debt, it is then too late for such debtor to object to such property being sold.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 352.]</p> <p>Maturity of Note.</p> <p>When a petition on a note shows that it was dated October 4, 1875, and due six months after date, and the suit on it was begun on March 31, 1876, it sufficiently appears that the action is begun before the maturity of the note, and such action must fail where no facts are alleged to bring the case within the statute permitting such an action before the maturity of the note.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 340.]</p> <p>Appeals from County Court to Circuit Court.</p> <p>In appeals from the county court to the circuit court, in cases for the partition of real estate, under Sec. 837 of the code, in .force in 1880, and sections 20 and 22 of Myers’ Code, the jurisdiction of the circuit court is purely appellate, and that court can only pass on such facts as are certified to it from the county court. It has no power to hear such cause de novo.</p>

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 317.]</p> <p>Anger no Excuse for Slander.</p> <p>It is no defense in a slander suit for the defendant to show that he was angry when he spoke the words charged.</p> <p>Motion for New Trial.</p> <p>An assignment of error that “The court erred in overruling the defendant’s motion for a new trial” is not sufficient to raise any question in the Court of Appeals.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 341.]</p> <p>Wills — Construction of Will.</p> <p>Where one devises his estate to his widow to enable her to raise and educate her children, and provides that she shall have and control such property so long as she remains his widow, and in case of her marriage the real estate to be divided between his widow and children according to the law, the children during the widowhood of their mother have no legal claim to the proceeds of such estate.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 351,]</p> <p>Principal and Surety.</p> <p>Where the holder of the prior lien was the surety of the purchaser at the sale of the real estate, it was as much his duty as it was the principal’s to pay the purchase money, and both being before the court and failing to comply with their covenant, tjie chancellor had the power and it was proper for him to direct a sale to pay the debt.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 349.]</p> <p>Objections and Exceptions.</p> <p>No contention can be maintained in tbe Court of Appeals as to the competency of evidence where no objection to it is shown by the record'to have been made in the trial court.</p> <p>Instructions.</p> <p>No reversal can be had on an instruction, even if erroneous, where the same language is used in other instructions given at the trial and not objected to.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 342.]</p> <p>Breach of Contract.</p> <p>Where a contract is to divide the proceeds of sales of personalty, until the defendant is shown to have received proceeds on account of sales made by the plaintiff there is nothing to divide, and no breach of the contract is shown.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 341.]</p> <p>Slander — Words Charged.</p> <p>Words spoken of another not importing criminality are not per se ■ actionable, and their meaning cannot be enlarged by alleging that the person speaking them intended to charge more than the words on their face import.</p> <p>Motives of the Trial Judge.</p> <p>The motives or influences which operate upon the mind of the trial judge in making a decision cannot be inquired into in a suit between private parties, in which the judgment is in no manner involved.</p>

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 334.]</p> <p>Liability on Surety on Constable’s Bond.</p> <p>Where a surety admits the execution of an official bond for a constable, and the mere omission of an initial or the insertion of the letter “M” as the middle name, when it should have been the letter “H”, does not invalidate the bond,</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 334.]</p> <p>Bond or Deed Held by Settler.</p> <p>Under the Act of 1835, where an actual settler upon land holds a deed or bond for title, a patent issued to another is void and does not authorize a recovery by the patentee, although the party in possession may not be able to trace his title back to the commonwealth.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 333.]</p> <p>Principal and Agent.</p> <p>Tbe authority of an agent to sell and collect does not empower him to receive as payment a discharge from his own indebtedness.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 334, as Evan v.. Great.]</p> <p>Rights of a Co-Tenant.</p> <p>A co-tenant has no right to charge his co-tenants with improvements made by him, certainly not when the barn erected by him on the land had been destroyed by fire at the time an accounting and judgment settling the rights of the parties was rendered.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 327.]</p> <p>Petition on Promissory Note.</p> <p>A plaintiff who sues on a promissory note must aver that the defendant undertook, agreed or promised to do that which he is sued for failing to perform, or facts must be alleged from which the law will imply a promise, which cannot be done when the averment is that the defendant executed his note to the plaintiff of a given date for a given amount, payable at a certain time.</p> <p>Exhibit With Petition.</p> <p>The petition on a promissory note must contain within its own body, and not merely by reference to another paper or exhibit, a statement of the facts constituting the cause of action. To aver in such a petition that defendant executed his note to plaintiff, without averring a promise to pay, is but pleading a conclusion and not a fact.</p>

<p>APPEALS FROM JEFFERSON COURT OF COMMON PLEAS.</p>

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

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

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

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

<p>APPEAL PROM BATH COURT OP COMMON PLEAS.</p> <p> R. & W. S. Gudgell, for appellant. J. S. Hurt, for appellee. </p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 333.]</p> <p>Sale of Store by a Committee.</p> <p>While some of the acts of a committee in the sale of a stock of goods were not authorized by law, but such a sale was honest and greatly to the advantage of the estate, and no injury was sustained by such sale, no objections made by the committee’s successor, and no suit brought for conversion or for the recovery of the goods, such sale is ratified.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 330.]</p> <p>Peremptory Instruction.</p> <p>Where there is some evidence conducing to prove the contention of a party, it is error for the court to instruct the jury to find for the other party. The evidence in such a case should be submitted to the jury for its determination.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 328.]</p> <p>Partition of Land by Contract.</p> <p>When it is agreed by two parties that land is to be divided between them, in the absence of proof to the contrary, the conclusion must be that it was the intention to divide the land into two equal parts.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 328.]</p> <p>Estoppel to Defeat Dower.</p> <p>Neither the husband guilty of alleged fraud or those claiming under him as volunteers, or who accept conveyances from him with knowledge that they were made for a fraudulent purpose, can be heard to say that the husband was not seized of the land during coverture, in order to defeat the wife’s claim to dower.</p>

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 348, as Kelley v. Stairibacli.</p> <p>Sale to Defraud Creditors.</p> <p>Tbe insolvency of a pretended purchaser up to the time of a sale to him, together with the act of the seller in disposing of all of his property and his disappearance to avoid his creditors, are sufficient to justify the court in finding that such a transfer was without consideration and with intent on the part of both the seller and purchaser to defraud the seller’s creditors.</p>

<p>APPEAL PROM MADISON COURT OP COMMON PLEAS.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 347.]</p> <p>Award of Arbitrators.</p> <p>After arbitrators bave signed tbeir award and adjourned their power ceases, and they have no right to alter the award without the consent of both parties; and any effort by such arbitrators to make a new award between the parties is a nullity.</p>

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

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 348.]</p> <p>Funeral Expenses.</p> <p>Where the father of a married woman upon her death orders a . burial outfit, and it is furnished and he is charged for the same, he cannot, by having the bill made out and presented to the husband of the deceased make such husband liable thereon to the undertaker. Such a claim was not the debt of the husband, unless he ordered the outfit or agreed to pay for it, and there can be no recovery against the husband in favor of the estate of the decedent’s father where there is not in his petition any allegation that the husband promised to pay such claim.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 350.]</p> <p>Sale for Taxes.</p> <p>In a sale by tlie sheriff for delinquent taxes all the steps necessary to give such officer authority to sell must be shown, and any failure to comply with the law will be fatal.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 351.]</p> <p>Acceptance of Note as Payment.</p> <p>In a suit on a note where the defense is payment by the acceptance of another note, an instruction is erroneous where the jury is told that: “If they believe from the evidence that Henry Jones, Jr. (a defendant), paid and took up any part of the note in controversy they must find for the defendants a credit for the amount so paid.” It was improper to leave the jury to decide what constituted payment.</p> <p>Judgment, Notwithstanding Verdict.</p> <p>A judgment cannot be lawfully demanded, notwithstanding the verdict, where the pleadings present an issue upon the merits and the testimony is conflicting.</p>

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 357. Reported in Full, 5 Ky. L. 206.]</p> <p>Diligence Required of the Holder of Collateral Security to Collect It.</p> <p>The holder of collateral security is required only to use ordinary diligence and to act in good faith in his attempt to collect the collateral. Where he obtains a judgment thereon in a court having jurisdiction of the person and the subject matter in controversy, and has execution issued from that court, which is returned no property, he is shown to have exercised ordinary diligence.</p>

<p>APPEAL PROM LOC-AN CIRCUIT COURT.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 354.]</p> <p>Will — Construction of Will.</p> <p>Where it is provided in a will that the property of the testator shall go to his two children share and share alike, with a limitation over in the event they should die under the age of twenty-one years or • without issue, it is held that if such children attain their majority their estate becomes absolute and indefeasible, although they may die thereafter without issue.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 356.]</p> <p>Compensation of Auditor’s Agent in Collecting Taxes.</p> <p>The act of February 20, 1864, took railroad companies out of tbe list of taxpayers who, under the law, were subject to be proceeded against by the auditor’s agent to collect taxes, and hence the act of 1867 giving such agents a certain per cent, of moneys recovered on account of the collection of delinquent taxes gives such agents no authority to proceed to collect delinquent taxes from a railroad company.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 359.]</p> <p>Rent Contract for Use of Piano.</p> <p>A contract to rent a piano with the right of purchasing at a fixed price is not a contract of sale, and in such a contract no title to the property passes.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 356.]</p> <p>Husband and Wife — Divorce for Abandonment.</p> <p>When a husband seeks a divorce on the ground that his wife has abandoned him, he is required to prove facts showing such abandonment, and that it was her duty to return to him. Witnesses in such a case should state the circumstances and not their mere opinions that the wife abandoned the husband.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 407.]</p> <p>Variance in Petition and Proof in Slander Suit.</p> <p>The rule in slander is that words spoken must be proven substantially as they are laid. Equivalent words of slander will not do.</p> <p>Variance.</p> <p>When it is charged in a petition for slander that: “Dr. Sproul signed my name and the name of Richard M. Coulter to a note to Dr. Flanagan for the sum of two hundred dollars. I never saw the note. He signed it without my authority and without the authority of Coulter,” there is a fatal variance when the proof shows that: “Reed said he had never seen or signed such note, and if Flanagan held such note, with his name to it his name had been forged either by the plaintiff, Sproul, or some other person, that said note was a forgery.”</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 399.]</p> <p>Appeals.</p> <p>An appeal will°lie from a judgment vacating a judgment and granting a new trial.</p> <p>Service of Process on Agent — Jurisdiction.</p> <p>When it is shown by the evidence that the person on whom the summons was served as agent of another, and upon which service the judgment is rendered, was not at the time and never had been the agent of the defendant, such judgment is not binding on such defendant, the court not having jurisdiction to render such a judgment.</p>

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

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

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 405.]</p> <p>Necessary Party to Suit to Revive a Judgment.</p> <p>One having an equity in a judgment is a necessary party, either » plaintiff or defendant, to a suit to revive the judgment.</p> <p>Petition to Revive Judgment.</p> <p>To be sufficient a petition to revive a judgment must describe the judgment desired to be revived, so as to enable the defendants to defend.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 403.]</p> <p>Adverse Possession of Land for More Than Thirty Years Gives Title.</p> <p>Where one purchases land and goes into possession up to a certain boundary, and he and his grantees hold possession for thirty or more years, it is then too late for the heirs or grantees of the vendor to assert a claim beyond such recognized boundary line.</p>

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

<p>APPEAL PROM JEFFERSON COURT OF COMMON PLEAS.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 406.]</p> <p>Dower.</p> <p>Where a married woman relinquishes her dower upon condition that a judicial sale be set aside, and the land be sold over again, and such sale is not set aside, the relinquishment will not prevent her from asserting her right of dower in such land.</p> <p>Estoppel of Married Woman.</p> <p>While a married woman may estop herself from asserting a claim of dower, the doctrine should not be carried too far or interposed unless the proof establishes that her conduct has misled bona fide purchasers, and has induced them to part with their money in a manner they would not have otherwise done. A representation by the court’s commissioner or other persons that a married woman has relinquished her dower cannot be attributed to a married woman as a fraud which will bar her .claim of dower.</p>

<p>APPEAL PROM BATH COURT OP COMMON PLEAS.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 399.]</p> <p>Taxation by Town.</p> <p>Where a town charter authorizes the taxation of all personal property and choses in action, the term “cash capital” applies to money owing and on interest as well as to money in the hands of the person assessed.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 402.]</p> <p>Criminal Law — Continuance of Trial.</p> <p>Where a continuance is applied for by a defendant in a criminal case the applicant must act candidly in his dealing with the court, and where from the statements in such an application there is a doubt of good faith, the court is justified in refusing the application.</p> <p>Instructions.</p> <p>Where one is convicted of manslaughter he could not have been prejudiced by even an erroneous instruction on what constitutes murder.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 408.]</p> <p>Criminal Law — Murder.</p> <p>Where the record on appeal in a murder case does not show a conviction by the jury, but does show that the trial court pronounced judgment of guilty, the Court of Appeals will not so far indulge the presumption that there must have been a finding by the jury, as will result in the imprisonment of the defendants during their natural lives, especially where the clerk reports that there is no record in his office showing a conviction by the jury, except a mere memorandum on the back of the indictment.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 408.]</p> <p>Consideration for an Agreement.</p> <p>Where a person accepts an estate devised to him which requires him to support and maintain another out of it, such person is entitled to a reasonable support, and an agreement with the ancestor by which she agrees to take less than what she is entitled to is without consideration and cannot be insisted upon by the devisee.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 411.]</p> <p>Agreement to Cancel Lease.</p> <p>An agreement to cancel a lease does not release the tenant and his surety from liahility for rent already accrued thereunder.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 409.]</p> <p>Statute of Limitations as to Sureties.</p> <p>Sureties on a bond executed in the course of a judicial proceeding are released by the statute of limitations after seven years from the time an action accrues thereon.</p> <p>Parties to a Suit to Recover Money Due an Intestate.</p> <p>Personal representatives alone are authorized to sue for and recover money due an intestate; and it is only where it is alleged that there is no executor or administrator that heirs or descendants may sue or receive such money.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 412.]</p> <p>Town Charter — Power to Prevent Nuisance.</p> <p>Where a town charter gives it power to cause the removal of nuisances, and under such power the town trustees enact an ordinance subjecting to a fine the owner of any unruly or dangerous animal who permits it to run at large, the town marshal may remove dangerous animals from the streets, but his failure to do so cannot be made the foundation of an action by which the town can be held lia- ; ble for damages.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 411.]</p> <p>Sheriff’s Sale and Execution.</p> <p>■When a sheriff collects money on an execution on the defendant’s property, he has no right to appropriate a part of the money to the payment of taxes due by the defendant, leaving plaintiff’s debt unsatisfied. No levy had been made by him for such taxes; besides, it appears that the defendant had other property sufficient to satisfy the taxes.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 409.]</p> <p>Delay in Filing Answer.</p> <p>Where eighteen months elapsed between the time when process was served on a cross-petition before an offer to file an answer to it is made, and no reason is given for such delay, the Court of Appeals cannot decide that there was an abuse of discretion in refusing to allow it to be filed.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 411.]</p> <p>Debts of a Dissolved Corporation.</p> <p>The dissolution of a railroad corporation does not relieve it from the payment of its debts, but a corporation succeeding to the ownership of such debtor may be made to give up enough of such assets to satisfy such debts.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — -409.]</p> <p>Record on Appeal.</p> <p>When, letters are introduced as evidence, and the record on appeal only discloses a part of such letters and portions of each, the Court of Appeals will presume that as the whole of such letters was before the trial court they authorized the judgment rendered.</p> <p>Judgment Must Follow Petition.</p> <p>Where in a suit it is prayed that the defendant he directed and required to give a list of personal property received hy him as a trustee, and who then has it, there could not legally he a judgment against the trustee either for such property or its value, as no foundation is laid for any such relief.</p>

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 413.]</p> <p>Liability of Sureties on Sheriff’s Bond.</p> <p>A mere extension of time to a sheriff for settlement with the county does not release his sureties on his official bond.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 418.]</p> <p>Ruling on Demurrer — Continuance.</p> <p>Where the court sustains a demurrer to an answer the defendant is entitled to leave to amend it, and where the court overrules a demurrer to his answer, and during the same term on motion of plaintiff the cause is submitted over the defendant’s objection and judgment rendered for the plaintiff, such a proceeding cannot be allowed, and the defendant is entitled to a continuance, for if the demurrer to his answer was properly overruled the cause did not stand for trial at that term.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 418.]</p> <p>Tenant by the Curtesy.</p> <p>A tenant by the curtesy has the right to hold the land until his death, and the manner of his holding cannot affect the rights of his children by his first wife, who take the land at his death.</p> <p>Report of Commissioners in Partition.</p> <p>Where the wife owns an interest in land, and the commissioners in partition in their report say that they , have allotted to her husband and herself a certain part of the land, no title is conferred on the husband to .any part of such land other than such as he could assert as husband.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 416.]</p> <p>Lease for Years a Mere Chattel.</p> <p>A lease .for years is only a chattel, and although in the wife’s name, not being expressly stated to be for her separate use, is as much the property of the husband as any other chattel acquired in her name.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 425.]</p> <p>Discretion of Trial Court in Setting Aside a Judgment.</p> <p>When the trial court kas a discretion in a matter of practice that discretion will not be interfered with unless it appears to have been grossly abused to the prejudice of the substantial rights of the party complaining.</p>

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

<p>APPEAL FROM SCOTT COURT OF COMMON PLEAS.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 417.]</p> <p>■Estoppel of a Married Woman.</p> <p>Where a married woman owning real estate sells it, her husband joining her in its conveyance, the wife agreeing that the vendee shall pay a debt of her husband as a part of the consideration, and he' either pays such debt or obligates himself to pay it, she is estopped to set up a claim against the vendee for such part of said purchase-money. A married woman must do equity before she is entitled to a favorable consideration in a court of equity.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 420.]</p> <p>Liability on Partnership Notes.</p> <p>Wben notes of a partnership come by payment and. assignment to the hands of two members of a partnership, they cease to have any vitality, and no suit can be maintained on them. Each member of the firm was liable for the whole debt, and when one of them pays the notes he is entitled to credit by the firm, but he cannot sue the firm upon them.</p>

<p>[Abstract Kentucky Law Reporter, Vol, 1 — 422.]</p> <p>Release of Sureties by Alteration of Bond.</p> <p>Where a bond after its execution is materially altered by the erasure of two of the names to it, all the sureties will be released who did not assent to such erasure.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 421.]</p> <p>Sheriff’s Return on Summons Conclusive.</p> <p>Where the plaintiff at law acts in good faith, the sheriff’s return on a summons showing that he served it is conclusive against the defendant in favor of the plaintiff, and if the sheriff acts contrary to his duty he is' responsible to the injured party.</p> <p>Grounds for Vacating a Judgment.</p> <p>Where a plaintiff seeks by suit to vacate a judgment because procured without process served on him, he must allege fraud upon the part of the judgment plaintiff in procuring the return or mistake on the part of the sheriff in making it, and evidence of these facts is not admissible in the absence of such allegations.</p>

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 1 — 425.]</p> <p>Will — Construction of Will.</p> <p>When by the terms of a will the testator clevises a certain portion of his estate to each of his sisters, and then devises a certain interest in the estate to the “children of my two brothers,” the term denotes that such children take as a class, each set of children taking together the same share as was devised to each sister.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Yol. 1 — 330.]</p> <p>Replevin.</p> <p>It is only when- the plaintiff asks an order for the immediate delivery of possession of personal property sued for that the affidavit mentioned in Sec. 181 of. the code is required.</p> <p>Allegations in Answer in Replevin.</p> <p>In a suit to replevy mules from a named defendant and his assignee, where the answer of the named defendant admits that he took possession of the mules, and that he or his assignee had them in possession, these allegations are sufficient to warrant a judgment against the named defendant for the mules if to be had, and if not for their value; but on such averments no judgment should be taken against the assignee because there was no averment that he had the possession of the property.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 2 — 59.]</p> <p>Criminal Law — Indictment for Nuisance.</p> <p>An indictment stated a cause of action when it charged that the defendant wilfully and unlawfully placed a dead and decaying colt on a public highway, and kept it there for three weeks, and that it created great stench and an unhealthy smell to the people passing and having the right to pass over said road.</p>

<p>APPEAL PROM HARRISON CIRCUIT ‘COURT.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 2 — 61.]</p> <p>Answer of One Defendant Good as to All.</p> <p>Where a joint suit is filed against a number of defendants, sureties on a sheriff’s bond, and answer is filed by some of them pleading payment, it inures to the benefit of all of such defendants, even in case they do not answer at all; and those defaulted for failure to answer are bound in a judgment rendered in the case the same as though they had answered, but there should be no judgment as to them until there is judgment as to those who answeredi when the same judgment should be entered as to them.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Yol. 2 — -60.]</p> <p>Bill of Exceptions — Time for Filing.</p> <p>Tke law prior to the Act of 1878, amending Subsec. 2, Sec. 337, Civil Code of 1877, required that the party excepting should at the close of the trial, unless further time be given him, prepare his bill of exceptions, and this was required to be done during the day on which the trial terminates, or the judgment becomes final. A trial held before the Act of 1878 came in force is governed by the former law, and a bill of exceptions tendered on May 4, when the motion for a new trial was overruled on May 1, 1878, is not in time and does not become a part of the record on appeal.</p>

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

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

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 2 — 59.]</p> <p>Criminal Law — Indictment for Indecent Exposure of the Person.</p> <p>To authorize a conviction for indecent exposure of the person the act must have been committed in a public place. If it is indictable for one to expose his person to two persons in a private place, still it is no offense to do so at the request or with the consent of such persons.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 2 — 62.]</p> <p>Lien of Attorneys.</p> <p>A claim" in litigation both before and after judgment is subject to an attorney’s lien in the hands of the debtor, and such a lien cannot be defeated by the defendant paying the amount of the judgment to the plaintiff.</p> <p>Amount of Attorney’s Fee.</p> <p>Where no amount is agreed upon as the fee of an attorney he is en-< titled to a reasonable fee.</p>

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

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

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

<p>Criminal Law — Murder.</p> <p>It is not error to overrule an application for a continuance of a murder trial made by tbe accused to another term of the court, when much less time would be required to prepare his defense; nor is it error to refuse an application for a continuance on account of an absent witness where it does not appear that the facts sought to be proven by him are material, and where the accused is not injured in his defense by the fact that such witness does not attend or testify.</p>

<p>APPEAL FROM CLARK COURT OF COMMON PLEAS.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 2 — 68. Reported in full, 3 Ky. L. 181.]</p> <p>Liability of Subscriber for Railroad Stock.</p> <p>A subscriber for stock in a railroad company is released from his subscription by a subsequent alteration of the organization of the company when such alteration is fundamental and not contemplated by the charter or the general law; but his liability remains if the alteration or amendment is accepted by the subscriber, and his acceptance may be either by express action or by his acquiescence. Especially is this true in a contest between a creditor of the company, after the subscription is made, and the subscriber for stock.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 2 — 65.]</p> <p>Amendment of Sheriff’s Return on Execution.</p> <p>A sheriff cannot legally' amend his return on an execution made more than three years after the original endorsement, to enable the sheriff to collect his half commission by reason of his having levied the execution before the judgment on which it was issued was suspended. ■ • .</p>

<p>[Abstract Kentucky Law Reporter, Yol. 2 — 67.]</p> <p>Criminal Law — Confessions.</p> <p>When the record on appeal in a criminal cause fails to disclose the circumstances under which the statement in the nature of a confession of the prisoner was made, the Court of Appeals will presume they were such as made the evidence competent.</p> <p>Instructions as Ground for New Trial.</p> <p>When in a murder trial some instructions are given and others are refused, and the defendant by his grounds for a new trial assigns the giving and refusing of certain named instructions, and the instructions given are correct and those refused were properly refused-, a „ new trial cannot be granted on the ground that instructions should have been given upon other points.</p>

<p>[Abstract Kentucky Law Reporter, Yol. 2 — 64.]</p> <p>Liability of Trustee — Burden of Proof.</p> <p>Where it is shown that property came into the possession of a trustee the burden of proof is on him to show that it was accounted for and paid out.</p> <p>Revival of Action.</p> <p>In an action against a defendant who dies during its pendency it may be revived against his personal representative with demand or affidavits being previously made.</p>

<p>Power of County Court to Prescribe the Duties and Fees of Officers.</p> <p>An act puz’porting to vest in the county court of a county power to prescribe the fees of the sealer of weights and measures is unconstitutional, and such fees paid to such officer may be recovered bach. The power to prescribe such fees ,'is a legislative power, and under our constitution cannot be delegated by the general assembly to the county court.</p> <p>Compensation of Public Officers.</p> <p>An officer is not entitled to compensation for official services' rendered by him unless there is a law which specifically gives him a fee or salary. No promise is implied on the part of those for whom he renders services to pay him for them.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 2 — 68.]</p> <p>Criminal Law — Larceny.</p> <p>Where the owner of personalty is induced to part with the possession of his property by the fraudulent practices and tricks of the defendant, who intends, at the time he gets the possession, feloniously to convert it to his own use, the defendant is guilty of larceny; but it is not larceny where the owner parts with the title of his property, although he may be cheated out of such title.</p>

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

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

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

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

<p>Criminal Law — Murder.</p> <p>Where one being present engaged in the strife that results in the death of a party, although he has the right to interfere to preserve the peace and to protect his relative from the assault of the deceased, he has no right to use more force than is reasonably necessary for that purpose.</p> <p>Separate Trial — Election by the State.</p> <p>Where two persons are jointly indicted, and one asks for a separate trial, the commonwealth has the right to select which of the two shall be first tried.</p>