Volume 11 — Kentucky Opinions

<p>Vested or Contingent Interest in Real Estate. Whether an interest of a devisee in real estate is vested or contingent, it is vendible and subject to sale to satisfy its owner’s debts.</p> <p>Estoppel of Debtor. One called upon to make discovery and to disclose the extent of his right and interest under his father’s will should state the facts and take necessary steps to enable the court to determine his rights, and where he fails to do so and judgment is taken against him he must abide the result of his own neglect to make a more complete discovery.</p>

<p>APPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>[Cited, Dugan’s Admr. v. Mitchell, 5 Ky. L. 150.]</p>

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

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

<p>Recovery on Indemnity Contract.</p> <p>One can not recover on a written obligation delivered to one person to be delivered to another as indemnity to him for signing a note where there is nothing in the obligation to show that the signer of the note received it as collateral. The court can not gather the intention of the parties from that which does not appear in the obligation.</p> <p>Rule of Construction of Contract.</p> <p>While it is the purpose in construing a written contract to arrive at the intention of the parties to it, such intention must be gathered from the writing itself.</p>

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

<p>Attorney’s Argument.</p> <p>The Court of Appeals will not reverse a cause on the ground of an improper argument made in the trial of the cause by an attorney unless the argument amounts to a flagrant abuse of the privilege the attorney had in presenting his client’s cause.</p> <p>Damages Against City.</p> <p>Where a city could have provided against the injury complained of by the exercise of proper care and skill in constructing a sewer, it is liable for the results of its negligence.</p>

<p>Jurisdiction of Criminal Court.</p> <p>Pursuant to Gen. Stat. (1879) Ch. 28, Art. 11, § S, the criminal court has exclusive jurisdiction of -a case by the state against the sheriff and his sureties for failure to pay over money collected on execution issued on a judgment on a forfeited recognizance.</p> <p>Civil Action.</p> <p>A suit against a sheriff and his sureties by the state to collect money which the sheriff has collected but failed to pay over is a civil action, and has none of the elements of a criminal or penal proceeding, although the judgment upon which the execution issued was based on and grew out of the forfeiture of a recognizance.</p>

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

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

<p>Criminal Law — Obstructing Public Highway.</p> <p>In an indictment for obstructing a public highway it is necessary to describe the highway claimed to have been obstructed, and a description is not sufficient which describes a highway only by giving its number. There should be such a description as will enable one familiar with the county to know from reading the indictment what road was intended.</p>

<p>Release of Sureties in Building Contract.</p> <p>When it is stipulated in a building contract that the last payment should be made when the building is completed according to the terms of the contract, the owner is entitled to retain that sum until the contract is complied with; and where such sum is paid over to the contractor and not retained a surety on the contractor’s bond is released to the amount of said sum.</p>

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

<p>Recovery on Tax Sale.</p> <p>Where property was properly assessed and sold for taxes, and the purchaser’s petition is not denied, it is taken for confessed and he is entitled to recover.</p>

<p>Guardian and Ward.</p> <p>Where by the terms of a will a legacy is to be paid when the legatee becomes 18 years of age, the guardian has no right to collect the amount until his ward reaches such age; and the fact that the executors in charge of the money are wasting it will give the guardian no right to attach or collect the same and he is not liable for his failure to do so.</p>

<p>Petition on Contract.</p> <p>A demurrer should be sustained to a petition for breach of a contract when it contains no. allegation of a readiness and willingness on the part of plaintiff to comply with his contract of purchase.</p> <p>Effect of a General Demurrer.</p> <p>Where a part of a paragraph of answer is bad, and a portion of the paragraph states a defense, a general demurrer to the whole paragraph should be overruled.</p> <p>Variance.</p> <p>When a party declares upon one contract and establishes by proof another contract, there is a fatal variance. There can no more be a recovery without allegation than there can be on a controverted point without proof.</p>

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

<p>APPEAL FROM' NELSON CIRCUIT COURT.</p> <p>[Cited, Louisville &c. R. Co. v. Rountree, 4 Ky. L. 447.]</p>

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

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

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

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

<p>Usury.</p> <p>A reply to an answer to a suit on a note is sufficient when it contains a denial that the sum sued for is for interest calculated on defendant’s debt at a greater rate of interest than six per cent.</p> <p>Slight Error in Sum Recovered.</p> <p>The Court of Appeals will refuse to reverse on account of an error in the judgment in being for $2.10 more than was due on the note.</p>

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

<p>Claims Against Executors — Statute of Limitations.</p> <p>An executor is not compelled to plead the statute of limitations, even if such a defense can be made; and where he pays a claim justly due, a claimant can not be required to refund the money.</p>

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

<p>Attachment for Rent.</p> <p>Neither the refusal of a tenant to sign a lease nor his denial that he was bound for the rent will furnish any ground for an attachment of his property.</p>

<p>Demand Before Suit.</p> <p>No demand before beginning a suit on an obligation for money payable on demand is necessary; the summons itself is a sufficient demand.</p> <p>Separate Execution of Instrument by Wife.</p> <p>When at the time a wife acknowledges a mortgage she is out of sight of her husband and far enough out of the way to be out of his hearing, it is a sufficient compliance of the statute requiring that she should be examined separate and apart from her husband.</p>

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

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

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

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

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

<p>APPEALS FROM BULLITT CIRCUIT'COURT.</p>

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

<p>Setting Aside Fraudulent Conveyance.</p> <p>Where a man over seventy years of age owns real estate subject to the life estate of another man in good health and only thirty-seven years of age, and the whole title is worth not over $3,000, a conveyance made in good faith to the owner of the life estate for $700 will not be deemed fraudulent or set aside, especially since at the time of the conveyance lawyers differed as to whether the grantor had any. title to convey.</p>

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

<p>Court of Appeals Will Not Weigh Evidence.</p> <p>The law does not permit the Court of Appeals to assume the functions of the jury and weigh evidence, and it will not reverse where the evidence is not flagrantly or overwhelmingly against the finding.</p> <p>New Trial on Newly Discovered Evidence.</p> <p>A motion for a new trial on account of newly discovered evidence must state the facts from which the court may determine that the party, by the exercise of reasonable diligence, could not have discovered said evidence and produced it at the trial. A new trial will never be granted upon newly discovered evidence when it is only cumulative in its nature, and not by any means conclusive of the issue.</p>

<p>Sale of Land by Sheriff.</p> <p>When one in good faith buys at sheriff’s sale a tract of land represented to contain ISO acres, and the tract contains only 90 acres, equity will give him relief and he will be permitted to withhold deferred payments equal to the value of the land he did not receive.</p>

<p>Attachment of Funds.</p> <p>Where the assignee of a bankrupt has in his hands a fund belonging to a creditor and a creditor of such creditor attaches the fund in the assignee’s hands, his action will fail where the assignee alleges and proves that he was surety of the attachment debtor and others on a note, and as such paid off the note and it was assigned to him, and there was a balance due on it exceeding the amount of the at-_ tached funds in his hands.</p>

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

<p>APPEAL FROM CAMPBELL CHANCERY COURT.</p> <p>[Cited, Lawrence v. Simmons, 10 Ky. L. 347.]</p>

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>[Cited, Newport &c. Lumber Co. v. Lichtenfeldt, 24 Ky. L. 1969.]</p>

<p>APPEAL FROM JESSAMINE CIRCUIT COURT.</p> <p>[Cited, Waters v. Cline, 27 Ky. L. 586.]</p>

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

<p>Validity of Corporation Bonds.</p> <p>When bonds of a street railroad company are issued by the consent of all of its directors and stockholders, in pursuance of a contract of sale of the stock of the road, the sellers receiving some of the bonds as a consideration for the transfer of their stock, the fact that such sellers soon after the issue of the bonds resigned as directors in the interest of those becoming the purchasers, and who constructed the road and assumed all the liabilities growing out of it, ought not to be considered as evidence of fraud on the part of either.</p>

<p>Construction of Deeds of Conveyance.</p> <p>Before the chancellor undertakes to alter or vary the terms of a deed, either on the ground of fraud or mistake, he ought to be well satisfied that the draftsman has failed to embody the real contract in the writing, and where there is conflicting testimony raising a doubt as to what was the real contract between the parties, the written evidence of the contract must control the action of the chancellor, and the contents of the conveyance must determine the question.</p>

<p>Wife’s Inheriting Real Estate.</p> <p>When a wife inherits real estate from her father, and in a partition suit it is ordered sold and is purchased by the wife and others interested as heirs, but conveyance is afterward made to the husband, the wife owns it; and it is immaterial whether there is any evidence of a promise on the part of the husband to convey or have conveyed to his wife. It is, in effect, allotted to her in the division of her father’s estate, and to the extent of her interest the title stands as if there had been no conveyance to the husband. It is not like a case where the husband has reduced his wife’s choses-in-action or her personal property to possession, and then makes use of it in paying for property the title to which he takes to himself, for in such case the wife takes no interest in the property unless there was an agreement, prior to the reduction of the personalty, that she should have an interest in the property into which it should be converted.</p>

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

<p>Bond for Deed.</p> <p>The terms of a bond for a deed, when ambiguous, are susceptible of being explained by parol testimony.</p> <p>Meaning of the Word “Farm.”</p> <p>When the vendor never showed the vendee the land proposed to be conveyed, and all he did was to sell him his farm, the vendee has no right to suppose that the word “farm” included a tract of land three or four miles away from the principal tract of land.</p>

<p>Right to Easements.</p> <p>Where a spring located on or near the dividing line between two landowners has been for a long period of time recognized as a partnership spring, and verbal assurances have been made by each immediate vendor to his vendee that the spring was a partnership spring, and that the owners of both tracts were entitled to use the water, they each have a right to its use; and if the correct boundary line disclosed that it is located on one side of the line, the owner of the tract on the other side has an easement in the use of the spring that he can not be deprived of without his consent.</p>

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

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

<p>Filing Amended Answer and Cross-Petition.</p> <p>A defendant, in a suit for settlement between partners, after the plaintiff has given his deposition on application, should be allowed to file an amended answer and cross-petition for the purpose of conforming the pleadings to the facts proved; and when he is not allowed to do so he should not be criticised for failing to prove material facts not probable under the pleadings on file. In a settlement between partners where there are a large number of items, the court should refer the case to a commissioner for examination.</p>

<p>Sufficiency of Attachment Bond.</p> <p>When a demand in an attachment suit is for $780 and the bond is in the sum of $1,400, the court, nothing else appearing, will presume it sufficient.</p> <p>Property of Subtenant Liable for Rent.</p> <p>In a contest between a landlord and a subtenant the personal property of the subtenant on the premises is liable for the rent accruing after he entered, and a contest between the tenant and subtenant can not regulate the amount of the landlord’s recovery unless he has accepted it in lieu of his contract with the tenant. The fact that the landlord received a portion of the rent money-paid by the subtenant on his contract with the tenant ’is not evidence of an acceptance of the contract between the tenant and subtenant.</p>

<p>Award and Arbitration.</p> <p>Where a will is made and probated, giving an estate to two people, and an administrator with the will annexed is appointed and enters suit for possession of the assets from a former agent of the testator, and the agent also brought a suit in equity for a settlement of his accounts as agent, it was held to be entirely proper, after such causes had been consolidated, for such parties to enter into an agreement to arbitrate the matters in controversy, and when an award is made based on such an agreement it may be pleaded in said cause as a defense.</p> <p>Sufficiency of an Award.</p> <p>Where an award is made by those selected as arbitrators in a pending cause, which states that they found stocks, notes, etc., in the agent’s hands of the value of about $140,500, including about $16,000 in bad debts, and show item by item how they arrived at the aggregate sum, such an award is not subject to the objection that it is indefinite; and where no bad faith or fraud is shown such award will be final and binding on both parties.</p>

<p>Attachment for Rent.</p> <p>It is not enough that plaintiff should believe, in an attachment suit, that he would lose his rent if the attachment should not issue, but he must go further and show that there existed reasonable grounds for that belief.</p> <p>Judgment Not Palpably Against the Evidence.</p> <p>In an action at law where a jury is waived and submission is to the court, its judgment will not be disturbed unless it is palpably against the evidence.</p>

<p>APPEAL FROM OWEN CIRCUIT COURT.</p> <p>[Cited, Hale v. Harris, 28 Ky. L. 1172, 91 S. W. 660, 5 L. R. A. (N. S.) 295.]</p>

<p>Husband and Wife — Husband’s Creditors.</p> <p>The fact that a husband many years ago received money from his wife’s father for purposes of investment in the wife’s name, but such purposes were not carried out by him, although he had promised his wife to do so, will not, as against the husband’s creditors, entitle the wife to claim the ownership of real estate purchased with such money and conveyed to the husband.</p>

<p>Purchaser at Judicial Sale.</p> <p>The title of a purchaser of real estate at judicial sale is unaffected by an appeal from a judgment directing the sale and not from the order confirming it.</p> <p>Order for Sale of Real Estate.</p> <p>It is not error to decree a sale of an entire tract of land where to divide it would impair its value.</p>

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

<p>Limitations.</p> <p>Where a claim is barred by the statute of limitations, evidence of a new promise to pay the debt is held to be a failure of proof.</p> <p>Pleadings on Claim Barred by Limitation.</p> <p>When the statute of limitations is pleaded as a defense, and a new promise in avoidance is relied upon, it must be alleged, in the original or an amended petition, if the new promise be made after the limitation shall be complete, for the reason it is a new cause of action and must be declared upon as a basis to authorize proof upon it.</p>

<p>Release of Homestead.</p> <p>A mortgage which purports to convey the whole estate in the mortgaged property destroys the homestead, whether the fee be in the wife or in the husband.</p> <p>Acknowledgment of Mortgage.</p> <p>Where an acknowledgment of a mortgage is taken before a deputy clerk, and the clerk writes out the certificate and puts the mortgage and certificate to record but fails to sign the certificate either on the record or the mortgage, after his term of office expires his successor may legally sign the name of the former clerk both to the mortgage certificate and to the certificate on the record, and such mortgage will have the same force and validity that it would have had if signed by the clerk who wrote the certificate.</p>

<p>Husband and Wife — Pledge of Wife’s Note.</p> <p>The husband is the real owner of a note given for the sale of his wife’s land, but taken in his name and reduced to his possession, and he may pledge such note as collateral; and upon the death of the wife her heirs can not maintain a claim to such note.</p>

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

<p>Conveyance of Life Estate.</p> <p>In a conveyance to the mother of a grantor during her natural life, and after the death of the mother the whole of the property to go to grantor’s wife and the children, if there should be any living at the time of the death of the mother, the wife, although she had no children on the happening of the event, takes a fee simple title to the property; but when the conveyance provides that “if she should die leaving no children of the marriage, then the property to go to the right heirs of the undersigned, after the death of the undersigned,” it means not that such title should pass to his right heirs if the wife survived him, but that it should so pass after his death in the event he survived his wife.</p>

<p>Settlement by Sheriff.</p> <p>A settlement made by the sheriff purporting to be final can not be corrected or inquired into unless there is fraud or mistake alleged by the party attacking the settlement.</p> <p>Pleading Conclusions.</p> <p>A petition against a sheriff and his sureties, which does not allege an indebtedness on the part of the sheriff by reason of his obligation to the county, nor show what the covenants of the bond were and the defendant’s failure to comply with its stipulations, is defective. An allegation that one bond was conditioned for the collection of the revenue and the other for the county levy constitute only the conclusion of the pleader. The undertaking should be specifically set forth.</p>

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

<p>Occupying Claimants.</p> <p>One in the occupancy of real estate under the belief that he owns it, relying upon a grant to his remote vendor, is entitled under the' statutes to pay for improvements he placed upon such land.</p>

<p>Satisfaction of Claim.</p> <p>When a creditor by his voluntary act accepts a sum less than the amount of his claim under an agreement of creditors, in full satisfaction of his debt, he can not make an additional collection on the claim unless it is shown that the debtor fraudulently procured the creditor to accept the lesser sum in satisfaction of his claim.</p>

<p>APPEALS FROM WOLFE CIRCUIT COURT.</p>

<p>Interest on Note.</p> <p>The contract expressed in a note dated and payable twelve months-after date, with ten per cent, interest per annum, is a contract to pay interest at the named rate for twelve niQnths from date, but not to pay such interest until paid.</p>

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

<p>Negligence.</p> <p>It is as much the duty of a tenant as it is the landlord to look to the condition of the premises, especially when the appearance of a building indicates decay; and unless knowledge of the dangerous condition of a building is brought home to the landlord no recovery can be had by the tenant for an injury caused by the unsafe building.</p>

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

<p>Jurisdiction Over Party to Suit.</p> <p>Where a brother appears for his sister, who is a nonresident party to a suit to establish a claim against real estate, in which such sister has an undivided interest, and the .brother has no authority to appear, the court has no jurisdiction or power to enter a personal judgment against her.</p> <p>Judicial Sale of Real Estate a Nullity When Procured by Fraud.</p> <p>When a nonresident, who is the owner of an undivided interest in real estate, is sued with the other owners to subject the real estate to sale to pay a debt, judgment is taken against all the owners, and a brother of the nonresident, who is also the owner of an interest in the real estate, appears for the nonresident without authority to do so, and judgment is entered against all the defendants, but the brother causes the interest of the nonresident alone to be sold to pay the judgment, and buys such interest at the sale, he will secure no title thereto, and the nonresident is entitled to recover such land, together with the rents thereof. Her interest is liable only for a pro rata part of such debt.</p>

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

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

<p>Husband’s Claim Against Wife’s Real Estate.</p> <p>When there is no fraud alleged or shown on the part of a husband and wife, and the evidence shows that the husband paid nothing to make the improvements on his wife’s land, and all he contributed was in his own labor, and the improvements made were necessary to prepare the land for a home for himself and wife, the land of the wife is not subject to the husband’s debts.</p>

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

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

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

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

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

<p>Bankruptcy of Fiduciary.</p> <p>A release in bankruptcy will not discharge the bankrupt from an obligation created while acting in a fiduciary capacity.</p>

<p>Advancements.</p> <p>When an advancement is pleaded as a defense to a suit on a written instrument, the fact of its being an advancement is inconsistent with and contradicts the writing sued on, both in its import and legal effect, and fraud or mistake should be alleged and established before such defense could be available.</p>

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

<p>Motion to Transfer to Equity.Docket.</p> <p>It is not error for the court to overrule a motion to transfer a cause to the equity docket when the motion is not made until after answer is made setting up mistake.</p> <p>Oral Evidence.</p> <p>Oral evidence is competent where the pleadings present the issue as to whether there was a mistake in reducing a contract of insuranee to writing, and to do so is not a violation of the rule that a written contract can not be altered, erased nor added to without an allegation of fraud or mistake.</p> <p>Evidence.</p> <p>Where notice or knowledge of the character of instructions received by an agent from his principal is not communicated to a person dealing with such agent, it is proper to refuse to allow him to answer as to the character of such instructions.</p> <p>Waiver of Proof of Loss Under Insurance Policy.</p> <p>The failure of an insurance company to require exact proof of loss, and the reliance upon the failure to pay the premium promptly, was a waiver of the requirement in the policy as to the manner of the proof of loss.</p> <p>Jury to Determine Weight of the Evidence.</p> <p>It is proper for the court to refuse to instruct the jury as to the degree or character of the evidence necessary to establish a mistake in a contract. It is the province of the jury to pass upon the weight of the evidence and to determine from all the evidence admitted whether there was a mistake.</p>

<p>Action for Settlement of Estate by Remaindermen.</p> <p>.Generally, an action for a settlement of an estate can not be maintained by remaindermen, but under some conditions such an action may be maintained in order that the remaindermen .may ascertain the extent of their interest in the estate.</p> <p>Lien on Heirs’ Interest in Real Estate.</p> <p>While heirs, by reason of assets received, may be liable for the debts of, the ancestor to the extent of property received, the creditor has no lien on such property, but the remedy must be by execution on judgment procured.</p> <p>Remedy at Law First Exhausted.</p> <p>The remedy at law must be exhausted before the chancellor will take jurisdiction to cancel even fraudulent conveyances, and equity will not give a remedy to reach property received by an heir from an ancestor, to satisfy claims against the ancestor’s estate. The law gives an adequate remedy in such a case.</p>

<p>Capacity to Make Will.</p> <p>In a contest of a will on the ground of mental incapacity, the sole question to be determined is as to the testator’s mental capacity at the time the will was executed. The moral 'character of the testator, or the fact that the property is devised to persons other than relatives, are not involved in such a case except as such facts bear upon the testator’s mental capacity.</p>

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

<p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>[Cited, Cornett v. Commonwealth, 25 Ky. L. 1769, 78 S. W. 858.]</p>

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

<p>Criminal Law — Indictment.</p> <p>An indictment is good which charges that the accused wilfully and maliciously shot and wounded a named person. It will be implied that the accused shot at him, and in the absence of a bill of exceptions exhibiting the evidence, it will be presumed the evidence sustained the charge.</p>

<p>Easement in. Passway.</p> <p>The fact of a passway having been located over the lands of those in interest was a sufficient consideration for its use in common; and its use for a long time and its repair by those interested created a right that can not be disturbed without their consent.</p>

<p>Criminal Law — Hog Stealing.</p> <p>In a charge for hog stealing, notwithstanding the fact that none of the witnesses placed the value of the hogs at less than four dollars, the court should have instructed the jury as to what constitutes petit larceny and as to the circumstances under which they were authorized to find the accused guilty of that offense.</p>

<p>Criminal Law — Charging Former Conviction.</p> <p>When it is sought to increase the punishment of one accused of felony on the ground of his former conviction of felony, the former conviction must be alleged as well as proven; and where no such allegation is made in the indictment, it is error for the court to charge the jury that it might find that there had been a former conviction.</p>

<p>Sale of Real Estate by Trustee.</p> <p>Under the statute in this state a purchaser at a trustee’s sale is not required to look to the application of the purchase-money unless the deed or devise expressly requires it.</p> <p>Construction of Conveyance.</p> <p>Where a conveyance is made in trust for a named person and his wife for their joint lives, and then to the survivor as follows: If the wife shall survive, then to her own proper use and behoof forever; if the husband shall survive then to his use during life, “with power of disposition for his benefit and all remainder after his death as follows,” naming remaindermen, it is held that something more than a life estate was intended for the husband, and that the husband had a right to have his trustee convey the land, if in the judgment of the trustee it is deemed necessary or proper to the support or maintenance of said husband after the death of his wife.</p>

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

<p>Liens on Real Estate.</p> <p>Where a husband and wife convey real estate, reserving in the deed a lien for.the sum of $75 per year so long as either or both of the grantors shall live, the creditors of the vendee have no liens upon the land, and the lien of the grantors must be first paid out of the rents and profits.</p> <p>Homestead.</p> <p>The widow of a grantee of 44 acres of land, upon which she lives, is entitled for herself and infant son, as against her husband’s creditors, to a homestead of the value of $1,000 to be laid off to her so as to include the dwelling-house, but her homestead lien is subject to a lien of her husband’s father and mother who conveyed the land to him, reserving in the deed a lien of $75 per year for their benefit.</p>

<p>Recovery of Money Paid Under Void Ordinance.</p> <p>In this state when money is exacted under the provisions of a void city ordinance, paid and collected under the mistaken belief that the ordinance is valid, the person paying it may recover it from the city.</p>

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

<p>Special Damages by Maintenance of a Nuisance by City.</p> <p>In a suit for damages by reason of the conduct of a city the plaintiff must aver special damages, and before there can be a recovery he must show that he has suffered damages; but where he has done this it devolves on the city to show that the thing complained of is a common nuisance, affecting all the citizens alike and therefore a public nuisance to be reached by indictment.</p> <p>Waiver of Ruling on Demurrer.</p> <p>Where there is no order of the court overruling a demurrer, it must be considered that appellant waived it and the case be treated as if no demurrer had been filed.</p>

<p>Construction of Will.</p> <p>Where by will a testator devises to his wife a life estate in one-third of his home farm, gives the remainder to his five children equally, but declares that he has advanced to one daughter $738.69 and asks that each of the other four heirs shall receive an equal sum before the daughter shares with them, and on administration the personal property is not sufficient to make the four heirs equal to the daughter, the real estate may be subjected to sale to pay to each of the four the amount necessary to make them equal to what the daughter has received as an advancement.</p>

<p>Partition of Land.</p> <p>The fact that the sale of the entire tract of land sought to be partitioned would conduce to the interest of the parties is not sufficient to authorize a sale, especially where the commissioner’s report shows that the land is susceptible of division without greatly impairing its value.</p>

<p>Jurisdiction of Police Court.</p> <p>Real estate can not be reached by execution from the police court. Its judgments and executions create no lien on real estate, and when such a levy is made and a bond of indemnity is taken, such bond is, without consideration and is void.</p>

<p>Easement in Passway.</p> <p>Where in plaintiff’s petition it is only shown that a party and the public at large for more than fifteen years from a certain date continuously and uninterruptedly used a certain passway, claiming and holding the same as a passway, the petition is not good as an averment of adverse holding under a claim of right. However, where no demurrer is filed, but an answer denying the averments is filed, its filing cures the defects in the petition.</p>

<p>Wife’s Joining Husband in Deed.</p> <p>Where a wife signs and acknowledges a conveyance, and it is lodged in the proper office for record, the failure of the clerk when it was recorded to insert the name of the wife will not affect the rights of the grantee.</p>

<p>Sale of Property by Trustee.</p> <p>When real estate is held in trust for the support of another, with discretionary power to sell, but where the trustee does not see fit to exercise such power, it is error for the court to order it sold at the instance of a creditor whose claim is not so large that it might not be paid out of the rents.</p>

<p>Constitutionality of a Statute.</p> <p>An act of the legislature may be constitutional in part and unconstitutional-in another part.</p> <p>Claims Against Commissioner.</p> <p>Claims may be proved before a commissioner without an action to establish their validiti^, for in such case the claims may be as effectively questioned by exceptions to the commissioner’s report as they could be by suit.</p> <p>Liens of Materialmen.</p> <p>Where money is loaned for and applied to the business of manufacturing in which the debtor was engaged, it comes within the lien statute and is superior to the claim of an attaching creditor.</p> <p>Waiver of Materialman’s Lien.</p> <p>One having a lien as a materialman waives it by accepting a mortgage for the same claim and electing to pursue his remedy thereon.</p>

<p>Abandonment of Cemetery.</p> <p>When a cemetery is abandoned by the corporation owning it, and for a period of more than twenty years no bodies are buried in it, and all its officers and trustees are dead, a court of chancery will not at the instance of one lot holder, whose relatives are buried there, appoint new trustees and decree that such cemetery should be maintained as such, where it is shown that all the bodies except the lot holder’s relatives have been removed. The owner of such lot, however, has a right of property in the lot bought by her of which she can not be deprived.</p>

<p>Errors in an Instruction Must Be Stated as Ground for New Trial.</p> <p>The object of making the giving of an erroneous instruction a ground for a new trial is to give the trial court an opportunity to correct such error; and even when such an instruction is excepted to, if not included in the motion for a new trial, this court will not reverse on account of such error.</p>

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

<p>APPEAL FROM ESTILL CIRCUIT COURT.</p> <p>[Cited, Baker v. Hines, 102 Ky. 329, 19 Ky. L. 1354, 43 S. W. 452; Holloway’s Assignee v. Rudy, 22 Ky. L. 1406, 6 S. W. 650, 53 L. R. A. 353; Rupple v. Kissel, 24 Ky. L. 2371, 48 S. W. 40.]</p>

<p>Estoppel.</p> <p>One who stands by and permits another to purchase land of which he is the owner, without asserting his claim, will be estopped to assert it afterward against the purchaser.</p> <p>License to Construct a Building.</p> <p>Where one consents that another may so erect his house that the cornice hangs over the other’s land, it amounts to a license, and when the owner of the building expends his money in its erection on the faith of the permission given the other is estopped by his own act and will not be allowed to revoke such permission.</p>

<p>Deed Incompetent as Evidence. ■</p> <p>A deed, dated July 7, 1807, acknowledged November 11, 1808, and recorded August 22, 1809, more than eight months after the acknowledgment, and more than eighteen months after the sealing and delivery of the deed, according to the Acts of 1785 and 1797, was not recorded in time to render a certified copy of it competent evidence.</p> <p>Statute of Limitations.</p> <p>Where defendants have been in the adverse possession of land for more than fifteen years next before they were sued, and the plaintiffs were not laboring under disability when the cause of action accrued, the statute of limitations begins to run from the time the action accrues.</p>

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

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

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

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

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

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

<p>Criminal Law — Instruction.</p> <p>If there is no evidence from which the jury in a murder case might have found that the accused did the killing complained of in his own self-defense, even an erroneous instruction on the law of self-defense is not prejudicial to a defendant’s substantial rights.</p> <p>Evidence of Dying Declaration.</p> <p>There is no error in allowing a witness to testify orally to the dying statements of deceased after the written statement had been read where the oral statements were simply an elaboration of what is contained in the writing, and are not contradictory to the writing.</p>

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

<p>Right of Plaintiff to Dismiss His Action.</p> <p>As long as no final judgment is pronounced and the chancellor retains control over a pending action, the plaintiff may dismiss his entire action at his costs.</p> <p>Life Estate Liable for Taxes.</p> <p>The life tenant has the right to the enjoyment of the estate and is liable for the taxes on the estate, and the interest of the remainderman can not be sold for taxes until the estate of the life tenant is exhausted; and before the fee simple is liable for sale it must appear that the life estate is insufficient and that the life tenant has no other property out of which the taxes could be made.</p>

<p>Res Adjudicata.</p> <p>Where an item was involved in former litigation, constituting one of the errors assigned, even if a clerical misprision, this court having passed upon it at the instance of appellant, it constitutes a complete bar to any other appeal for the same cause.</p>

<p>Criminal Law — Robbery.</p> <p>An indictment is sufficient which charges that the accused “feloniously took a pocketbook and forty-six dollars from D. P. Sheldon by force and violence, against his will, and by putting him in fear of some immediate injury to his person.”</p>

<p>Construction of Will.</p> <p>Where by a clause in a will a testator demised real estate, but there is no clause disposing of cash on hand, the executor could not even by investing the cash in hand make it subject to the clause of the will disposing of the land to the benefit of the legatees there named. As to such cash, the testator died intestate, and it will descend to his heirs.</p>

<p>APPEAL FROM PENDLETON CRIMINAL COURT.</p> <p>[Cited, Tabor v. Lander, 94 Ky. 237, 15 Ky..L. 8, 21 S. W. 1056; Commonwealth v. Lemon, 25 Ky. L. 522, 76 S. W. 40.]</p>

<p>Priority of Lien.</p> <p>Where the owner of a one-half interest in a saw-mill sold it, the purchaser assigning two notes to him and executing his own note to him for the purchase-money, and also executing a paper to him as follows: “And on this last note the said James W. Morford is to hold a lien on the mill until paid for, and the aforesaid James O. Browning (purchaser) can not bargain and sell and give a clear title until all claims are settled,” it is held that such a lien is superior to the claim of judgment creditors who purchased said interest after they had read the above named lien and had knowledge of said lien.</p>

<p>APPEAL FROM LOUISVILLE CHANCERY COURT,</p> <p>[Cited, Cummings v. Cummings, 133 Ky. 1, 117 S. W. 289; Muir v. Muir, 133 Ky. 125, 28 Ky. L. 1355, 92 S. W. 314, 4 L. R. A. (N. S.) 909; Miller v. Miller, 141 Ky. 681, 133 S. W. 588.]</p>

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

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

<p>Sale of Land on Levy Made.</p> <p>Where a levy is made on 500 acres of land and a sale is made on it of 800 acres, the purchaser can get no title except to 500 acres. It will not be presumed, and proof will not be admitted to show, that the levy was on the entire tract of 800 acres. The levy of the execution contradicts any such conclusion.</p>

<p>Suit to Set Aside Conveyance.</p> <p>Where an old person, weak and infirm in body and mind, owning but one piece of property, is induced to convey it to his half-brother, who soon thereafter drives him away by cruel treatment, and the evidence of the grantor shows that he did not know he was conveying his real estate and that he received no consideration for such conveyance, and the grantee fails to offer his evidence, such a conveyance will not be upheld.</p>

<p>Damage for Killing Animals.</p> <p>If, in a suit against a railroad company for damages caused by its cars killing plaintiff’s animal, the evidence is conflicting, and two juries on the same facts have returned verdicts for the plaintiff, the Court of Appeals will not disturb the verdict.</p> <p>Jury Viewing Premises.</p> <p>Where, in a damage suit against a railroad company for killing an' animal, the ground and crossing and the approaches to the crossing are fully described and made plain by the evidence, it is proper for the court to refuse to order the jury to view the premises where the animal was killed.</p>

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

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

<p>Judgment Without Process, a Nullity.</p> <p>Where the legal owner of real estate is not a party to a proceeding to sell real estate a judgment of sale is a nullity, and is no bar to a subsequent proceeding where the owner is made a party.</p>

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

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

<p>APPEAL FROM WHITLEY CIRCUIT COURT.</p> <p>[Cited, O’Brien v. Commonwealth, 115 Ky. 608, 24 Ky. L. 2511, 74 S. W. 666; Bennett v. Commonwealth, 133 Ky. 452, 118 S. W. 332.]</p>

<p>APPEAL FROM LOUISVILLE CPIANCERY COURT.</p> <p>[Cited, Hulsewede v. Churchman’s Exrx., Ill Ky. 51, 23 Ky. L. 487, 63 S. W. 1.]</p>

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

<p>Criminal Law — Dying Declaration.</p> <p>A declaration made by a wounded person within a half of an hour after being wounded and more than forty days before he died, preceded by his statement that “he had fears that he would not recover from his wound and that he desired to make a statement, so as no false impression should go out in regard to the matter,” is admissible as a dying declaration. The statement shows that the deceased was under the belief that his wound would prove fatal.</p> <p>Facts Taken as True to Avoid Continuance.</p> <p>A continuance of the trial is authorized on account of the absence of a witness where the materiality of such testimony is shown and due diligence has been used to procure the witness, unless the attorney for the commonwealth admits upon the trial that the facts which the affiant states will be proven by the witness are true, and having admitted this he can not impeach such witness’ general character or contradict such fact.</p>

<p>Criminal Law — Larceny.</p> <p>Where a minor exchanges his mare for another animal, and after the exchange goes at night and takes the mare originally belonging to him from the possession of the person to whom he traded her, and makes no effort to conceal the fact of his possession, these acts do not show a felonious intent but rather a purpose to repudiate his contract.</p>

<p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>[Cited, Williams v. Commonwealth, 82 Ky. 640, 6 Ky. L. 764.]</p>

<p>Judgment After Notice.</p> <p>Persons in court assigning no valid reason why judgment should not be entered are not prejudiced by entering the judgment. The object of notice is to enable the party to show cause why the judgment should not be entered, but if the party is present in court, and suggests no ground against judgment being entered, the reason for notice ceases.</p> <p>Exemption of Crops.</p> <p>A tenant has no exemption as against his landlord as to tobacco raised, for the exemption extends only to such crop as would be suitable for the purpose of provisions.</p>

<p>Criminal Law — Change of Venue.</p> <p>When an application is made for a change of venue in a criminal case it is the duty of the court to hear evidence produced, and from the evidence determine whether the applicant is entitled to a change of venue.</p>

<p>City Improvement Contracts.</p> <p>'The city council can only enter into an improvement contract by following the course prescribed by the law, and parties contracting with a city are bound to know the law regulating the mode of contracting and under what state of case such contracts for improvements can legally be made.</p>

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

<p>Statute of Limitations.</p> <p>Where a husband was a tenant by the curtesy no action could be maintained for the recovery of the land until his death, and where his death occurred in 1877 the statute of limitations against such an action then begins to run.</p> <p>Proof Necessary to Establish a Trust in Land.</p> <p>Where it is probable a grantor desired to intrust his son-in-law with the title to land and the use of it, and a deed is thus made with knowledge and consent of the grantor; and the son-in-law is in possession under the deed for nearly a half a century, the proof of mere declarations made by the grantor at the time, in the absence of an allegation of fraud or mistake, is not sufficient to establish a trust. '</p> <p>Value of Written Evidence.</p> <p>In a suit by children to show that their father held lands as trustee only for their mother, who was the real owner of the land, and where the conveyance shows the father to have been a purchaser of the land, and that he paid its full value and has held the legal title for more than forty years, the mere recollection of parties as to what took place forty years before should not be permitted to destroy the written evidence of title.</p>

<p>APPEAL FROM CUMBERLAND CIRCUIT COURT.</p> <p>[Cited, First Nat. Bank v. Root, 20 Ky. L. 1863, 50 S. W. 16.]</p>

<p>Criminal Law — Gaming Machine.</p> <p>The president and directors of a county fair violate the law by-permitting a machine and contrivance used in betting and other games of chance to be set up, kept and exhibited on premises in their occupation and under their control.</p> <p>Meaning of Term “Tables” in Law Against Gaming.</p> <p>The term “tables” is an apt designation of gaming itself, and when used with reference to gaming does not necessarily mean a round or square table on which cards are generally played. Any kind of a machine or contrivance at which a game of chance or betting can be engaged in is a “table” in the parlance of those who use them most often.</p>

<p>Criminal Law — Unlawful Gaming.</p> <p>Pool selling is neither a wager nor a game, and the president and directors of a county fair can not be convicted of permitting a game of chance on the premises controlled by them by permitting pools to be sold on such grounds.</p>

<p>Filing an Amended Petition.</p> <p>Where in an original petition it is not alleged that the sale of land was in writing, and the proof shows such sale to have been made by a bond for a deed, the filing of an amended petition may properly be permitted.</p>

<p>Judgment Decreeing Sale of Town Lot.</p> <p>The court will presume that a town lot is indivisible, but this presumption may be rebutted by answer or proof showing that it would be to the interests of all parties to have such lot divided. Where there is no such answer or proof the judgment should decree the sale of the entire lot.</p>

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

<p>Criminal Law — Liquor Law Indictment.</p> <p>An indictment for a violation of the intoxicating liquor law is good when the facts constituting the offense are stated substantially in the language of the statute.</p> <p>Instruction.</p> <p>An instruction telling the jury that it should convict if it believed from the evidence that the defendant within one year before the return of the indictment sold to a named person any whisky, brandy, wine, gin or alcohol, or mixture thereof, without a written prescription given by a regular practicing physician, is not erroneous. It is more favorable to the defendant than the statute authorized and he can have no objection to it.</p>

<p>Sale of Ward’s Land by Guardian.</p> <p>Where minor children hold the fee simple to real estate, subject to the life estate of their mother, under provisions of the will of the father of the mother, the guardian of the children by the acquiescence of their mother, who is willing to join in a conveyance of the real estate, may legally sell the same and reinvest the proceeds if the court, after hearing the petition, believes it is to the best interest of the wards to do so; and the court’s decree should provide that property in which the proceeds are reinvested should be held in the same way under the will as was the real estate sold.</p>

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

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

<p>Claims Against Insolvent Estate.</p> <p>The effect of a court order preventing creditors from instituting suits at law to collect their claims against an insolvent estate does not deny to them the right of collecting their claims in the manner provided by the statute for the settlement of decedent’s estates, and where they fail to present their claims properly verified within the statute of limitations their claims are barred by such statute.</p>

<p>Construction of Will.</p> <p>Where a testator made the support of an invalid daughter and the maintenance of his family a charge upon his whole estate, and gave his trustees the right to mortgage any of it or “to sell any real estate which may be necessary to pay debts and maintain the family,” and directs that his children shall take as under the statute of descent and distribution except his said daughter, it is held that the division of the estate was not contemplated by the testator during the life of the daughter, and that the trustees had power to sell the real estate to support said daughter where it is necessary to do so.</p>

<p>Personal Judgment Against Garnishee.</p> <p>A plaintiff is not entitled to a personal judgment against a garnishee, but there should have been a rule awarded against him to bring the money into court or to produce the property that it might be sold.</p>

<p>Innocent Purchaser Protected.</p> <p>Where it is contended that an instrument sued upon was given for corn planters that were worthless, and that the appellant obtained the assignment to himself from the seller with intent to defraud the purchaser, which is denied, the burden is on such purchaser seeking to avoid payment to show that the appellant knew of the fraud at the time he obtained the paper by indorsement, and was therefore a party to it, and where he fails to do so and the evidence shows such appellant to be an innocent purchaser, the purchaser is liable to him on such instrument.</p>

<p>Mistake as Ground for Relief.</p> <p>Mistake can not furnish ground for relief to- the party by whose fault it occurs. Such a mistake can not be relied on for affirmative relief against a written contract by a party who knew of the facts at the time he made the contract, which mistake he relied upon to reform it.</p> <p>Mistake Known to One Party Only.</p> <p>If a mistake be known to one party and it operates as a surprise or fraud upon the other party, who is ignorant of it, the latter, but not the former, can obtain relief in equity upon the ground of mistake.</p>

<p>APPEAL FROM MARSHALL CIRCUIT COURT.</p> <p>[Cited, Commonwealth v. Barney, 115 Ky. 475, 24 Ky. L. 2352, 74 S. W. 181.]</p>

<p>Dower.</p> <p>Where a testator devised all of his land, except ten acres, to his widow for life, and all his personal estate to his widow and children, and the widow does not renounce the provisions of the will, whether her husband’s estate is solvent or insolvent the property devised to her must be held to have been accepted in lieu of dower, and she is not entitled to have dower set off to her.</p>

<p>Recovery for Work Done.</p> <p>In a suit to recover for work done, where it is admitted the work was done, the jury may determine the value of the services rendered without proof, and are not compelled to render a verdict for as much compensation as the weight of the evidence may indicate.</p>

<p>Recovery of License Money.</p> <p>Where a city undertakes to grant a license, takes the money of the applicant for such license and agrees to issue one to him, but fails to do so, he may recover such money from the city.</p>

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

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

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

<p>Liability of Turnpike Company.</p> <p>As long as a turnpike company controls a road and takes toll it is bound to keep its road free from obstructions and safe for the passage of persons and property, and for its failure to do so it is liable for injury caused thereby.</p> <p>Petition for Damages.</p> <p>A petition against a turnpike company, for damages caused by the road being obstructed by a wagon, must allege and prove either that the wagon was placed in the road with the knowledge or by the permission of the company, or that it was there under the authority or permission of the company.</p>

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

<p>Fraudulent Conveyance.</p> <p>Where a conveyance of real estate is made by one to her half-sister after an attorney has caused the deed to be read and he has explained to the grantor just what interest she is conveying, and no undue influence is shown to procure the conveyance, the deed will not be cancelled, in the absence of proof showing that fraudulent and false representations were made to the grantor by the grantee.</p> <p>Rejection of Deposition of Party.</p> <p>Under the provisions of Buckner & Bullitt’s Civ. Code (1876), § 606, subsec. 4, no person may testify for himself in chief after taking other testimony in chief, and where the appellee, before she gave her deposition, had taken that of another in chief, the withdrawal of said first deposition will not render her own deposition admissible.</p>

<p>Judgment Against Infant.</p> <p>A judgment against an infant will not be set aside for the only reason that the defendant was an infant when the summons was served on him, for before such a judgment will be set aside it must be made to appear that the defendant had a valid defense to the action. Such defendant may have obtained the money or property of the plaintiff, and under such circumstances the chancellor should refuse to vacate the judgment.</p>

<p>Res Adjudicata.</p> <p>An order of a county court admitting a will to probate in proper form is conclusive on all parties until reversed or the order vacated, and such an order can not be attacked in a collateral proceeding-.</p> <p>Probate of a Will.</p> <p>Where the county court had jurisdiction to hear an application to probate a will and order it probated, .a legatee under such will or an heir of the testator, after thirty years have elapsed, can not under a petition, for the alleged purpose of having the will construed, raise a question of the validity of the probate of the will and have the probating order vacated for the reason that one of the legatees was a witness to the will and helped to probate it in the county court.</p> <p>Legatee in Will Competent Witness.</p> <p>While a legatee is a competent witness to testify on an application for probate as to the will in so far as it disposes of the property to others besides himself, and not competent to testify as to the part of the will bequeathing property to him, but he is permitted to do so without objection, the probate of such will can not be vacated many years thereafter in a petition to construe the will.</p>

<p>Criminal Law — Cutting and Carrying Away Trees.</p> <p>It is not necessary to a charge of felony in an indictment for cutting and carrying away trees, when the word feloniously is used in stating the motive of the offender, to allege that the offense was committed without the consent of the person injured by its perpetration; his consent, if it was given, is a matter of defense.</p>

<p>Ratification of Contract by Infant.</p> <p>Where an infant gave a note and executed a mortgage on her real estate during her minority, and after she became twenty-one years of age the mortgage was foreclosed against her and she made no defense, her conduct amounts to a ratification of her contract, and she can not thereafter question the validity of her contract on the ground of her infancy at the time of its execution.</p>

<p>Appeal from Claim Against the County.</p> <p>Under the provisions of 1 Acts 1879, p. 651, Ch. 632, the county attorney may appeal to the circuit court in his own name for the use of the county, from the allowance of a claim in Lincoln county, and if judgment be rendered against him in that court he may appeal to the Court of Appeals.</p>

<p>Purchase-Price for Sale of Real Estate.</p> <p>A purchaser of real estate is not required to accept any but a good title, and before judgment can be taken against him for the purchase-price such a title must be tendered to him; and where the title offered is such that a nonresident owner is given five years in which to vacate such a conveyance, it is not such as would require him to accept it.</p>

<p>APPEAL FROM BOURBON CIRCUIT COURT.</p> <p>[Cited, Burt & Brabb Lumber Co. v. Bailey, 22 Ky. L. 1264, 60 S. W. 485; Louisville Home Tel. Co. v. Beeler’s Admx., 125 Ky. 366, 101 S. W. 397.]</p>

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

<p>Acknowledgment of Deed by a Married Woman.</p> <p>The law does not allow the acknowledgment of a deed by a married woman to be simultaneous with the acknowledgment by the husband.</p> <p>Description in a Deed.</p> <p>A description in a deed is sufficient when it is definite enough to enable the officer to indentify the lot without reference to any other paper. It is not necessary that it be so minute as to enable a person without any previous knowledge or inquiry whatever to find and recognize it.</p>

<p>Trustee’s Duty to Protect Property.</p> <p>Where trustees purchase real estate for $1,494, pay $1,200 of said price and have in their hands a sum sufficient to discharge the remainder, but fail to pay it, and suffer themselves to be sued and the whole of the land sold to pay it, and thereby negligently sacrifice the $1,200 which they had invested, they are liable for such loss.</p> <p>Sureties of Executors.</p> <p>Where executors are named by a will and by the same will the same persons so named are also named as trustees of one of the legatees, and give bond as executors but give no bond as trustees, the sureties on such executors’ bond are not liable for their defalcation or negligence as trustees.</p>

<p>Filing Amended Complaint.</p> <p>Where a defendant makes no objections to the filing of an amended complaint in the court below, it is too late for him to raise the question for the first time in this court.</p> <p>Weighing Evidence.</p> <p>The trial jury who have an opportunity to note the eye, tone and facial expression, countenance and whole bearing of the witnesses can form a more correct idea of the value'to be placed upon their credibility than can the Court of Appeals, and this court will not reverse on the mere weight of the evidence.</p>

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

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

<p>APPEAL FROM BAT PI CIRCUIT COURT.</p>

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

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

<p>Criminal Law — Plea of Former Conviction.</p> <p>The plea by a defendant of former acquittal is a good defense, where the conviction for an injury to a person by assaulting and beating him denominated an intimidation and disturbance, and the second charge is for assault and battery based on the same facts and circumstances, the former offense of which he was convicted belonging to the same class of offenses, the latter being a degree of the former offense.</p>

<p>APPEAL FROM MARSPIALL CIRCUIT COURT.</p> <p>[Cited, McClure v. Bigstaff, 18 Ky. L. 601, 37 S. W. 294, 38 S. W. 431; Shoptaw v. Ridgzvay’s Admr., 22 Ky. L. 1495, 60 S. W. 723.]</p>

<p>Errors-Not in the Record on Appeal.</p> <p>When an amended petition is claimed to have been offered for filing, but is not copied in the record on appeal, and where an affidavit for continuance is not in the record, the Court of Appeals can not know whether any error was committed or not.</p> <p>Competency of Witness.</p> <p>In the absence of a plea or claim of insanity or mental incapacity of a party to testify, it is irrelevant to prove his sickness and belief that death was approaching.</p>

<p>APPEAL FROM LEWIS CIRCUIT COURT.</p> <p>[Cited, Dance v. Pendleton County Court, 5 Ky. L. 234.]</p>

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

<p>Judgment by Confession.</p> <p>Where an insolvent person suffers judgment to be rendered against him by his confession, in contemplation of insolvency and with the purpose to prefer some creditors to the exclusion of others, such act operates as an assignment of all his property for the benefit of all of his creditors.</p> <p>New Trial for Errors.</p> <p>When an error is committed by the trial court, a party against whom it is committed can not have the error passed upon by the Court of Appeals, without first bringing the matter before the trial court by motion for a new trial and giving that court an opportunity to correct the error.</p>

<p>Preference of Creditor by Insolvent Person.</p> <p>Whether an insolvent debtor be ignorant of the fact that he has no right to prefer one creditor to others, or knowing such fact designs to prefer, if, the debtor knows that he is insolvent he must be presumed to know that to secure one creditor in preference to another is fraudulent, and he will be taken to have designed that which necessarily follows from his own action.</p> <p>Knowledge of Insolvency.</p> <p>To render fraudulent against other creditors the act of preferring one creditor to another by an insolvent debtor, the fact of insolvency need not have been known to the creditor. If the debtor knows of his insolvency and does an act resulting in preferring one of his creditors over others, such act is fraudulent and will be taken as a general assignment of all of his property for the benefit of all of his creditors.</p>

<p>Purchase-Money Lien.</p> <p>When in a conveyance of real estate a lien for purchase-money is reserved, and under an agreement with the debtor, a friend advances him the money to pay the purchase-money note or a part of it, and the note is delivered to the friend, the debtor agreeing that he should have the lien that goes with it as collateral for advancing the money to the debtor, such friend holds the purchase-money lien for the amount of the note.</p> <p>Usury.</p> <p>Where one borrows money and pays usury to another with it he can not recover the usury paid from any one except the person to whom he pays it. He has no claim on the person loaning him such money.</p>

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

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

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

<p>Consolidation of Suits.</p> <p>Where a party to one suit has no interest in another suit in the same court to which his adversary is a party, the trial court should refuse to order such suits consolidated.</p>

<p>Enjoining the Collection of Taxes.</p> <p>Where real estate is located with reference to public streets, and its owners are enjoying the benefits of city government, an injunction against the city’s collection of taxes thereon should be dissolved.</p> <p>Recovery of Assessments Paid.</p> <p>If property not properly taxable is necessarily benefited by the improvement made around it by a city, although the taxes are improperly levied, the taxes can not be recovered back; nor can a recovery be had if the plaintiffs, knowing their rights, voluntarily paid the assessment.</p>

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

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

<p>No Reversal on Evidence After Several Trials.</p> <p>Where an issue of fact is submitted to a jury at three different trials, each resulting in a verdict for the appellee, before the Court of Appeals will reverse such a case there must be some palpable error committed to the prejudice of the appellant.</p>

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

<p>Sufficiency of Petition for Damages.</p> <p>1 Acts (1878), p. 30, Ch. 319, neither imposes a penalty nor authorizes a recovery of damages in selling liquors except where the seller has a license to sell such liquors. It follows that a petition for damages under said act must allege that the sale was made and that the seller at the time had a license to sell.</p>

<p>Sale of Property to Defraud Creditors.</p> <p>One largely in debt can not legally convey and sell his property for the purpose of defrauding his creditors, especially where the proof shows that 'no consideration was paid by his son who received the conveyance.</p>

<p>Petition on Note.</p> <p>A petition to collect a note must contain an allegation showing that the defendant promised to pay. A promise must be alleged in the petition to make it good, and the execution of the note sued on will not obviate the necessity of setting out the undertaking, promise or agreement.</p>

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

<p>Partition of Real Estate.</p> <p>The court in a partition of real estate has no power to change the title of the interested parties or to qualify or subtract from their tenures.</p>

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

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

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

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

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

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

<p>Amendment of Pleadings.</p> <p>The civil code authorizes proceedings as well as pleadings to be amended in furtherance of justice.</p> <p>Abandonment of Cause.</p> <p>Although a trial did not occur for several years after a motion was made to recover upon a claimant’s bond, still, as long as the case was kept upon the docket, it could not be considered abandoned until an order of court was made to that effect.</p> <p>Measure of Recovery.</p> <p>• In a proceeding by a plaintiff in execution to recover upon a claimant’s bond, he was only entitled to recover the amount at which the property was appraised and ten per cent, thereon, and it was error in the court to render judgment for a greater sum.</p>

<p>APPEAL FROM LINCOLN CIRCUIT COURT.</p> <p>[Cited, Kentucky Land &c. Co. v. Crabtree, 113 Ky. 922, 24 Ky. L. 743, 70 S. W. 31.]</p>

<p>Partnership Creditors.</p> <p>The creditors of a partnership have no lien on partnership assets except through a partner, and the denial of the right of one partner to appropriate partnership assets to his own use is for the protection of the copartners and not of the creditors; therefore, where each member of the firm consents to the appropriation, it is as binding as if applied to a partnership debt.</p>

<p>Consideration for a Note.</p> <p>Where a note originally given for the purchase of moonshine whisky is afterwards partly paid and then assigned, and when the assignee, who is an innocent purchaser, agrees in compromise to take a new note properly secured for a less sum than the face value and the old note is surrendered and the new secured note is made payable to assignee’s wife, the compromise and new agreement constitute a new consideration sufficient to support the promise and said note is valid.</p>

<p>Statute of Limitations.</p> <p>Where a devisee has refused to qualify, though appointed executor, and without administration takes the estate into his hands, he can not rely on the statute of limitations to defeat a claim of another legatee against him for his portion of said estate.</p>

<p>Duty of a Bank Director.</p> <p>The director of a bank is only in a limited sense a trustee for the bank, its stockholders and those dealing with it, and where he has a claim of his own against the bank he is under no obligation to postpone his claim to that of the bank and is as much entitled to the reward of diligence as any other creditor.</p> <p>Attachment.</p> <p>The code expressly requires that the affidavit for an attachment shall state that the claim is just, and the omission to state is fatal to the efficacy of the attachment.</p>

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

<p>Burden of Proof of Payment.</p> <p>One who purchases land by a contract in which he agrees to pay to the vendor the purchase-price must assume the burden of proving payment.</p> <p>Evidence of Payment.</p> <p>Where the language in a contract of purchase of land is, “I am to pay,” it clearly negatives the idea that the payment had been previously made; and without allegation or proof of fraud or mistake in its execution, the promise must be treated as relating to a future payment of such purchase-money and is inconsistent with an alleged settlement and payment before the execution of the contract.</p>

<p>Instruction to the Jury.</p> <p>Where the only issue submitted by the pleadings is as to whether the defendant in the action, subsequent to his discharge in bankruptcy, promised to pay the debt sued on, an instruction is erroneous which instructs the jury to find for the plaintiff upon the hypothesis that the promise made was to pay the debt when he was able, for under the averments of the petition it was incumbent on the plaintiff to have proved an express and unconditional promise to pay the debt. The promise pleaded being unconditional, the plaintiff was not entitled to a verdict upon the proof of a conditional promise.</p>

<p>Vendor’s Lien on Real Estate.</p> <p>In the conveyance of real estate when the vendor retains a lien for the purchase-money the fact that the note for such purchase- , money has a surety upon it can make no difference; such fact does not discharge the lien.</p>

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

<p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>[Cited, German Bank v. Louisville, 108 Ky. 377, 2 Ky. L. 9, 56 S. W. 504; Norris v. Williams, 23 Ky. L. 1497, 65 S. W. 439; Vance v. Vance’s Admr., 116 Ky. 520, 25 Ky. L. 741, 76 S. W. 370.]</p>

<p>Sale of Equity of Redemption.</p> <p>One who has a lien on land for his execution debt and the land is sold on his execution can not legally have a lien on the equity of redemption. The first sale exhausts his lien. To sell the equity of redemption it is necessary to make another levy, and where before he does so another creditor levies on the exemption he becomes prior in right to the execution plaintiff who caused the land to be first sold.</p>

<p>APPEAL FROM MONROE CIRCUIT COURT.</p> <p>[Cited, Geo. H. Goodman Co. v Commonzvealth, 30 Ky. L. 519, 99 S. W. 252; Bitser v. Commonzvealth, 141 Ky. 58, 132 S. W. 179.]</p>

<p>Answer Before Demurrer.</p> <p>When a defendant answers a petition and the answer is not withdrawn, it is not err.or for the court to overrule the demurrer filed after the answer, for the answer cured the alleged defect in the petition.</p> <p>Proof of Negligence.</p> <p>When plaintiff’s proof established the defendant’s negligence and the defendant offered no proof, it is proper for the court to instruct the jury that negligence had been proven and to so find.</p>

<p>Time Within Which Appeal May Be Taken.</p> <p>One desiring to appeal from a judgment of the city court to the circuit court may do so by filing a transcript and executing an appeal bond, at any time within sixty days after the judgment is taken, the day of judgment being counted as one.</p>

<p>Possession Under Judicial Sales.</p> <p>A purchaser of real estate at a judicial sale buys with the knowledge 1 iiat such sale is subject to the confirmation of the chancellor, and he is not entitled to collect the rents on said real estate until the sale is confirmed and possession delivered to him.</p>

<p>APPEAL FROM HENRY CIRCUIT COURT.</p> <p>[Cited, Moayon v. Moayon, 114 Ky. 855, 24 Ky. L. 1641, 72 S. W. 33, 60 L. R. A. 415, 102 Am. St. 303.]</p>

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

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

<p>Enforcement of Lien on Wife’s Real Estate.</p> <p>Where "A” conveys his land to “B,” and in consideration thereof “B” agrees to convey his land to “A’s” wife, and does so, reserving a lien for the difference in the purchase-money, “B” is entitled to enforce his lien against said land, even in the face of a plea of coverture by “B’s” wife, but he is not entitled to a personal judgment against said wife.</p>

<p>Fraudulent Conveyance — Setting Aside — When Suit Will Lie.</p> <p>A court of equity has jurisdiction to set aside a fraudulent conveyance and subject the property to payment of the grantor’s debts either where the creditor proceeds by attachment under Civ. Code (1876), § 194, Subsec. 7, or where he has first reduced his claim to judgment and there has been a return of no property found.</p> <p>Fraudulent Conveyances — Repeal of Statute — Equitable Relief.</p> <p>Act 1838, 3 Slat. Laws, 116, authorizing suit in equity to set aside a fraudulent conveyance and subject the property to a creditor’s claim, although the claim has not been reduced to judgment, and permitting attachment, is repealed by Civ. Code and Gen. Stat. relating to the same subject.</p>

<p>Payment of Reward.</p> <p>The fact that the accused is induced to surrender by persuasion and not taken by physical force will not prevent the collection of the reward offered, there being no evidence of fraud or collusion between the accused and the person causing his surrender.</p>

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

<p>APPEAL FROM WOODFORD COURT OF COMMON PLEAS.</p> <p>[Cited, Richardson’s Admr. v. Banta, 15 Ky. L. 348, 23 S. W. 350; Hamilton’s Exr. v. Wright, 27 Ky. L. 1144, 87 S. W. 1093.]</p>

<p>Criminal Law — Indictment.</p> <p>To be good, an indictment against a jailer for wilfully and negligently suffering a prisoner charged with murder to escape and go at large, must allege the nature of the commitment and the manner in which the prisoner was confined. The averment that such prisoner was lawfully committed to the jail is not an allegation of fact but the conclusion of the pleader, and is not sufficient.</p> <p>Power of the Court.</p> <p>The circuit court has inherent power to require the jailer of the county, who is a county officer and also an officer of the court, to produce a prisoner for trial and to keep him imprisoned and not allow him to go at large in violation of the law, and where the jailer refuses to comply with such requirement the court may legally direct the sheriff to take control of said jail and keep the prisoners in custody. The circuit court in such a case has no authority to declare the office of jailer vacant.</p>

<p>Gift to Relative.</p> <p>Where a bachelor, tenderly cared for by his niece for many years, turns over to her notes not in excess of a settlement of the obligation he owes to her, and the evidence shows by disinterested witnesses that he intended to give her the notes and expressed his purpose for years prior to his death to give her all of his estate, and said to witnesses that he had given her the notes subject to his right to draw the interest during his lifetime, such evidence is sufficient to uphold the gift even in the face of a will, duly probated, undertaking to dispose of all his estate.</p>

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

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

<p>Verdict on Amended Petition.</p> <p>An amendment of a petition after a new trial is granted to cure a supposed defect in the petition, although erroneous, will not affect .the right'to claim under the first finding; but where a greater sum is sought to be recovered it amounts to an abandonment of the right to insist on the first recovery.</p>

<p>Disposition of Real Estate by Will.</p> <p>Where a testator owned a five-sixths interest in real estate and his wife owned the other interest, his attempt by will to convey the whole of the land will fail; and where his devisees take possession under the will and mortgage it, the mortgagee will only have a lien on the interest which the testator owned. The fact that the wife had accepted the will under which she was a legatee and said nothing about her claim of ownership to the one-sixth interest until it is sought to foreclose the mortgage does not estop her from asserting her interest as against the mortgagee and the mortgagors.</p>

<p>APPEAL FROM GRAVES CIRCUIT COURT.</p> <p>[Cited, Lindsey v. Commonwealth, 89 Ky. 64, 18 Ky. L. 49, 35 S. W. 269; Commomvealth v. McGorty, 5 Ky. L. 674.]</p>

<p>Collection of a Reward.</p> <p>No appeal lies from an order of the circuit judge refusing .to certify to a claim for a reward in accordance with t'he statute.</p> <p>Bill of Exceptions.</p> <p>Where a bill of exceptions is signed by bystanders in November, 1880, in a case decided in December, 1879, certifying that the bill is substantially correct as well as they remember, it is too uncertain and indefinite upon which to base a judgment of reversal.</p>

<p>Criminal Law — Robbery.</p> <p>Larceny is not a degree of the offense of robbery, and where the charge against an accused is robbery, the jury could only convict upon proof showing that the prosecuting witness was compelled by force to surrender his money or that it was taken from him by the accused by force.</p>

<p>Guardian’s Sale of Real Estate of Ward.'</p> <p>Where a guardian sold the real estate of his ward in 1850 at private sale, when such sale might be made at private sale if directed by the chancellor, the purchaser whose sale has been confirmed will not be disturbed in his ownership, either by the infant or those representing him, unless there has been some fraud practiced.</p>

<p>Homestead.</p> <p>A widow who derives the whole estate of her husband by and through his will has no claim of a homestead in the land.</p> <p>Claim of Sureties on Notes.</p> <p>Where a husband is in debt at the date of his death, but by his will devised all his estate to his widow, who took possession of the estate and controlled it and borrowed money with which to pay the debts of her husband, giving her notes thereon upon which sureties were placed, such sureties upon the failure of the widow to pay have no lien on the estate, and no claim which is superior to that of other creditors of the widow, especially where they become sureties bn the strength of their belief that the estate belonged to her and that she would be able to pay her debts.</p>

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

<p>Criminal Law — Murder.</p> <p>In a case where the deceased had, previous to the shooting, "threatened the life of the accused, and on the day of the shooting sought the altercation and was approaching the defendant in a threatening manner when he was shot by the defendant firing four shots at him, the first two taking effect, either one of which would have proven fatal, the other two not taking effect, being fired after the deceased turned to run and while he was being pursued by the defendant, the following instruction offered by the defendant should have been given: “A person free from fault, when attacked by another who manifestly intends by violence to take his life or to do him some great bodily harm, is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kill in so doing, it is justifiable self-defense; and if Sutterfield (defendant), under the circumstances above stated, believed and had reasonable grounds to believe that his only safety was to pursue Butler (the deceased) and kill him, then the jury should acquit the defendant.”</p>

<p>Criminal Law — Shooting with Intent to Kill.</p> <p>If the accused did the shooting under circumstances from which he had reasonable grounds to believe and did believe that he was in danger of losing his life or of suffering great bodily harm at the hands of the person shot, the accused is justified and acted in self-defense.</p> <p>Inadmissible Evidence.</p> <p>Evidence in a case where the defendant is accused of shooting with intent to kill, and is seeking to defend on the ground of self-defense, is inadmissible on behalf of the state, when such evidence tends only to show what might appear to the jury to be reasonable belief of great bodily danger instead of what should appear reasonable belief of danger on the part of the accused. In such a case it is not an inquiry as to what the danger actually was, but what, under the circumstances, it appeared to be to the accused.</p>

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

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

<p>Possession Under Judicial Sale.</p> <p>The purchaser of land at a judicial sale is entitled to possession after the confirmation of the sale, and an occupant and part owner of the land sold to pay debts and costs can not legally be permitted to occupy and enjoy the land free of rent after the sale and its confirmation.</p>

<p>Vendor’s Lien.</p> <p>Where land was sold and conveyed in 1856 and notes were taken for a part of the purchase-money, under a written agreement that they were to be paid in labor, and the agreement is lost, after a period of twenty-five years, the vendor will not be allowed, by doubtful evidence, to show that the labor furnished was to satisfy some other claims and not as payment of said notes, so as to destroy the lights of the present holder of the title. .</p>

<p>Redemption, of Land from Sale.</p> <p>Where a debt, including interest and costs, is paid by the conveyance of real estate, an agreement of the purchaser thereafter to permit the grantor to redeem is a voluntary agreement based on no other consideration than his desire that the grantor should keep the land and pay the money, which the grantor agreed to do; and when he makes payments under such agreement, and fails to pay the whole of the debt, the creditor may take possession or enforce his judgment by again selling the land.</p>

<p>Infant Appearing by Next Friend.</p> <p>An infant plaintiff may prosecute his cause by next friend, and where he becomes of age before the judgment is entered, the defendant having filed his answer and gone to trial without excepting, it is then too late to object that the action was prosecuted by next friend after he arrived at age.</p> <p>Instruction.</p> <p>A cause will not be reversed on account of an instruction not entirely correct where such an instruction did not prejudice the substantial rights of the appellant.</p>

<p>Usury.</p> <p>If any rate of interest exceeding the rate authorized by law shall be intentionally charged, the whole of the interest must be forfeited.</p> <p>Forfeiture on Account of Usury May Be Waived.</p> <p>The forfeiture of all interest on account of a charge of usury may be waived; but where a defendant defaults and fails to set up by a pleading the grounds for a forfeiture, he waives his right and the court is not authorized to adjudge the whole interest forfeited.</p>

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

<p>Judgment by Consent — Advancement.</p> <p>Where in a suit between heirs a judgment by agreement is entered, decreeing that each of the children shall participate equally in an estate, money advanced to one of the heirs by the deceased father can not be charged against him so as to make his share under the decree less than that received by each of the heirs.</p>

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

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

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

<p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>[Cited, Wright v. Williams, 25 Ky. L. 1377, 77 S. W. 1128.]</p>

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

<p>Warranty in Sale of Horse.</p> <p>In a suit for an alleged breach of warranty that a horse sold was gentle, safe and a good harness horse it is not necessary for the plaintiff to show that the defendant knew the horse was not such as he warranted him to be.</p> <p>Joining Causes of Action.</p> <p>When the plaintiff has a cause of action upon a contract, and also a cause of action for fraud or negligence directly connected with the contract, he may unite them in the same petition.</p>

<p>Res Adjudicata.</p> <p>When a petition is taken for confessed and a jury is sworn and assesses the damages, it is in effect a verdict for the plaintiff on the whole case, and' the right to the land is res adjudicata; and when no appeal is taken the rights of the parties must be held to be finally settled.</p>

<p>Act of the Legislature as a Contract.</p> <p>An act of the legislature approved January 31, 1870 (Acts 1869-70 p. 205, Ch. 220), for the benefit of the Bryant Station and Lexington Tpk. Co., was a mere gratuity, possessing none of the elements of a contract binding upon the state, but conferring on the company an exclusive privilege not possessed by other companies. The legislature had the right thereafter to repeal -such act and leave the company to operate under the general laws.</p>

<p>Liability of Clerk of the Court for Failing to Issue Execution,</p> <p>Where a judgment is entered and plaintiff’s attorney made, in the memorandum book kept by the clerk for such purposes, a direction to the clerk to issue an execution, and he fails to do so, and as a result the plaintiff is unable to collect his judgment, the clerk becomes liable for such loss and he and his sureties are liable therefor.</p>

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

<p>Consideration for a Note.</p> <p>The conveyance of land by a tenant by the curtesy is a good consideration for a note, and in the absence of fraud or mistake the conveyance can not be disturbed nor cancelled.</p>

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

<p>Record on Appeal.</p> <p>The Court of Appeals has no power to reverse a judgment except for errors appearing in the record, and where the record on appeal fails to show affirmatively the infancy of a party the court can not indulge the presumption that she was an infant.</p> <p>Motion to Dismiss Appeal.</p> <p>The statutory guardian of an infant appellant may move to dismiss his appeal. He has the power to control the ward in taking and prosecuting an appeal, especially where the interest of the ward does not conflict with the action of the guardian.</p>

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

<p>Effect of Discharge in Bankruptcy.</p> <p>Where a defendant pleads and shows his discharge in bankruptcy, there can be no personal judgment against him. The remedy of the plaintiff was to subject the land upon which the debt sued on was a lien.</p> <p>Homestead.</p> <p>One is not entitled to a homestead in land which he and his wife ■ have mortgaged, where by the terms of the mortgage the homestead was conveyed, and the mortgage has been foreclosed, and the property sold and in the possession of the purchaser.</p> <p>Amendment of Officer’s Return.</p> <p>The court has the power, when the parties in interest are before it, to cause the return of an officer to be amended or corrected so as to speak the truth without regard to whether the term of office of the person making the return has expired.</p>

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

<p>Contempt of Court.</p> <p>Where a litigant persistently failed and refused to execute a bond required until the final determination of the action, or to deposit the amount of a sale bond, the court may order him to pay into court forthwith the amount of the sale bond, interest and costs, and may order him to be committed in default of payment.</p>

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

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

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

<p>Construction of Terms of a Will.</p> <p>Where by a will it is provided “that at the death of my said daughter (who was by the will given a life estate in stock and bonds) I will and bequeath all of said stocks and bonds, and all profits and benefits thereof, to such children or child of my daughter as may then be living, and to be equally divided between them,” it is held that the right to the use, possession and enjoyment of the property vests in the children at the death of the mother; and where it is further provided in the will that in case of the death of such children or child before arriving at the age of twenty-one years without leaving issue such property shall go to another, the right vesting in a child at its mother’s death is subject to be divested on the death of such child without issue before it becomes twenty-one years of age.</p> <p>Devise of Real Estate.</p> <p>A devise of real estate to one with a limitation over, that if he dies before he arrives at twenty-one years of age, without issue, the interest in such a case vests instante, subject to be divested by his death, without issue, before he becomes twenty-one years of age, and the interest devised and bequeathed becomes indefeasible when the child arrives at the age of twenty-one years.</p> <p>Contingent Devise.</p> <p>A devise to one when or if he shall attain the age of twenty-one years is contingent, unless followed by a limitation over; then the devise over is explanatory of the sense in which the testator intended the devisee’s interest in the property should defease, namely, that at the age of twenty-one it should become indefeasible and absolute, and the interest therefore construed to vest at once.</p> <p>Costs of Proceeding to Construe Will.</p> <p>In a proceeding to construe a will the costs should be paid out of the estate and should not be adjudged against the executor who instituted such proceeding.</p>

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

<p>Creditors of Husband Subjecting Wife’s Property.</p> <p>Where land is purchased by the husband for the wife and conveyed to the wife before the creation of a debt of the husband, such creditor can have no claim on such debt against such land.</p>

<p>Wrongful Levy on Personal Property.</p> <p>Where one wrongfully causes an officer to levy an attachment on property not owned by the execution defendant, and in which he has no interest, such person is liable to the owner of such property for its value or for the damage sustained by its unlawfully being taken on such levy. ,</p>

<p>Waiver of Defense Under Statute of Frauds.</p> <p>One may waive, by a pleading, his rights to plead and rely upon the statute of frauds as a defense; and where one by a pleading consents that real estate sold by and under a verbal contract may be conveyed upon satisfactory proof that the property was purchased and paid for, he waives the right to plead the statute of frauds as a defense.</p>

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>[Cited, Guthrie v. Bright, 26 Ky. L. 1021, 82 S. W. 985.]</p>

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

<p>Jurisdiction of City Court.</p> <p>While the jurisdiction of a city court was limited to cases where the penalty does not exceed $100, if a fine imposed amounts to $1,200, there is a right of appeal, and the judgment might be corrected thereby; and hence the power in the nature of a writ of prohibition could not be exercised over the city court’s action in exceeding its jurisdiction.</p>

<p>Wife’s Separate Property.</p> <p>The husband has no power, by~his express agreement to that effect, to convert into a separate estate his wife’s profits in business or her earnings, to be enjoyed ,by her to his exclusion. Only a court of chancery and the husband’s consent thereto can effect such purpose.</p> <p>Parties to an Action.</p> <p>The wife can not sue for an injury to her husband’s property simply because it is in her manual possession, and she is not a proper party in such an action.</p>

<p>Attachment for Fraud in the Sale of a Grocery.</p> <p>When a sale of a grocery is made by its owner, who does not pay his creditors, and the fact is shown that such sale was made without any change of possession from the seller to the buyer, it is fraudulent and void as to the seller’s creditors, and they may attach the property and subject it to the payment of their claims.</p>

<p>Rights of Occupying Claimant Under Verbal Purchase of Real Estate.</p> <p>Where one purchases land by oral contract, enters upon possession and afterward pays for the land, and the vendor dies without executing a deed, and his heir, through its guardian, brings suit in ejectment, the purchaser is entitled to have his lien declared on the real estate for the amount of improvements made by him on the land and the amount of the purchase-money paid by him for the land.</p>

<p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>[Cited, Shaw v. Milly's Exr., 23 Ky. L. 645, 63 S. W. 577; Hill v. Clark, 32 Ky. L. 595, 106 S. W. 80S.]</p>

<p>Physician’s Compensation for Holding Post-Mortem.</p> <p>The city of Louisville is required to pay a competent surgeon or physician employed to make a post-mortem examination, and the city, under the statute, may regulate how and by whom such examinations shall be held in the city. The coroner is authorized to employ such physician to make such a post-mortem examination in the county outside of the city.</p>

<p>APPEAL FROM CALDWELL CIRCUIT COURT.</p> <p>[Cited, Garth v. Davis, 120 Ky. 106, -27 Ky. L. 505, 85 S. W. 692, 117 Am. St. 571.]</p>

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

<p>Judgment Must Follow the Verdict.</p> <p>Where a matter at issue is submitted to a jury no judgment of the court can be entered until the jury has made a finding. •</p>

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

<p>Negligence in Damage Suit.'</p> <p>It is the duty.of a railroad company to give due and proper warning of the approach of its trains to or near that part of its road running parallel with a turnpike road, and a failure to give such warning is negligence, which will subject the company to damages when an injury results from such failure.</p> <p>Damages from Frightening Horses.</p> <p>If a railroad company, through the operators of its engine, blows a whistle at or near those traveling on a nearby highway when there was no necessity for it and when the engine was so near as to frighten the horse of plaintiff by reason of the peculiar noise of the whistle and cause it to run away, injuring plaintiff, such company is guilty of negligence, and is liable for the damage caused thereby.</p>

<p>Transfer of Property to Defraud Creditors.</p> <p>Before a transfer of property may be held void according to the bankrupt law of the United States, and authorize the assignee to recover the value of property transferred before the bankruptcy proceedings were begun, from the person receiving it, it must be shown that the debtor making the transfer was insolvent, that the transfer was made to give preference to the creditor, and that the person receiving the property had, at the time, reasonable cause to believe the person making the transfer to be insolvent, and must also know that such transfer was in fraud of the bankrupt act; and the transfer must be made within four months before the filing of the petition by the bankrupt.</p>

<p>Mere Claim of Bondsmen Not Provable in Bankruptcy.</p> <p>A mere liability on a bond of a cashier does not make his claim provable in bankruptcy.</p>

<p>APPEAL FROM ADAIR CIRCUIT COURT.</p> <p>[Cited, Woodruff v. American Road Mach. Co., 23 Ky. L. 1551, 65 S. W. 600.]</p>

<p>Usury.</p> <p>Where a petition on a note does not demand a judgment for more than legal interest, but by clerical misprison a judgment including usurious interest is entered by the clerk, it can be corrected in the court below by motion.</p>

<p>Power of Chancellor to Cause Resale of Land.</p> <p>Where land is sold under a decree of the court and the purchase-money is not paid, the chancellor has the power to order its resale for cash or on credit; and where the purchaser at the first sale is given notice and an opportunity to object to the order of resale and makes no objection, he can not thereafter make any objection thereto.</p>

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

<p>Competency of Witness.</p> <p>When a witness is incompetent to testify upder Civ. Codé (1876), § 606, subsec. 6, under a claim against the estate, but an heir of the estate is called as a witness by the administrator for the purpose of defeating a recovery, the evidence of such incompetent witness becomes admissible.</p> <p>Binding a Surety by the Act of His Agent.</p> <p>A surety is not bound by the act of an agent who signs the note for him, unless the authority of the agent is in writing signed by the principal, made in the presence of at least one creditable witness; but where the principal is present and holds or touches the pen when his name or mark is made executing a note, he signs as principal, and it is not material whether the person also holding the pen is his agent or not. He is bound on such instrument.</p>

<p>Equities of Wife in Real Estate.</p> <p>Where in a petition it is shown that land was purchased with the wife’s money and by mistake the conveyance was made to the husband, and the exhibits filed with the petition show that such deed had been made. more than twenty years and that the husband had deeded portions of it as if no mistake had been made and without any objections by the wife, the rights of the husband’s creditors, which became certain by the levy on the land, are superior to the stale equity of the wife unsupported by the allegations of any specific facts showing that the money paid for the land was her’s.</p> <p>Homestead.</p> <p>Land including- the dwelling-house and appurtenances owned by the debtor not exceeding in value one thousand dollars, is exempt as a homestead; and neither the presumption that the officer in making a levy on such land did his duty nor the mistake in valuation or fraudulent valuation by appraisers can bar them of their right to a homestead of' one thousand dollars in value.</p>

<p>Guardian’s Sale of Real Estate.</p> <p>Before an infant’s real estate can be sold there must be filed in court a proper petition for its sale by the statutory guardian appointed in this state and not in some other state, and in the petition the guardian should allege his belief that the sale would be to the benefit of his said ward. A sale on petition of a guardian in a foreign state is void.</p>

<p>Exceptions to Report of Sale.</p> <p>When an interested party is misled by a notice of sale as to when the sale is to take place, and thus" prevented from attending and bidding on the property to be sold, and the property is sold much below its value and she excepts to the report of the sale and offers to pay four times the sum received at the sale for such property, a resale should be ordered; and after notice of the exception to be filed to such sale the first purchaser, if he makes improvements on the property, does so at his own risk.</p>

<p>Waste by Life Tenant.</p> <p>Where a widow, a life tenant of 240 acres of land, only 70 of which is cleared land, leaving 170 acres of woodland, sells about $170 worth of timber, and with the proceeds improves the fences and buildings on the land which had become decayed, she is not guilty of waste.</p>

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

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

<p>Binding Force of a Judgment.</p> <p>A judgment, not having been vacated or reversed, binds the parties to it, and is conclusive of their rights which were put in issue in the action which resulted in such judgment.</p>

<p>Purchaser of Real Estate at Executor’s Sale.</p> <p>Where by the terms of a testator’s will the trustee and beneficiaries are empowered to sell the land, for the purposes of reinvestment, the purchaser at such sale is not compelled to look to the application of the purchase-money and see that it" is reinvested.</p>

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

<p>Validity of Sheriff’s Sale.</p> <p>Where there are irregularities on the part of the sheriff in making a sale of real estate, caused by his omissions to pursue the directory provisions of the statute, and the purchaser does not participate in such irregularities or illegalities, they will not invalidate the sale.</p>

<p>Usury.</p> <p>Where under the law at the time of the execution of a note the parties had the right to agree to pay eight per cent, interest on the note, such agreement was not illegal; but when it was agreed that in addition to the eight per cent, shown on the face of'the note they also paid two per cent, in advance, the entire transaction is tainted with usury, and the payee of such note is only entitled to recover the lawful rate of interest, that is such interest as if no rate had been agreed upon, namely, six per cent.</p>

<p>Guardian’s Sale of Real Estate.</p> <p>Where land sold by a guardian broug'ht its full appraised and actual value, even though the proceedings were not in strict conformity to the law, but were fairly conducted and the price received used for the maintenance and education of the infant, and the balance paid over to him when he arrived at the age of twenty-one years, he should not be permitted, by reason of the irregularities in the sale to deprive innocent purchasers of the land, without at least repaying the amount paid out by them for the land and received by him.</p>

<p>Alleging Negligence in Damage Suit.</p> <p>In a suit against a railroad company for damages caused by injury to a passenger, it is sufficient to charge that plaintiff was on board the train as a passenger; that the company had undertaken for compensation to transport him to his destination on its road; and that its train ran off the track and injured the plaintiff by reason of the negligence of those in charge of the train. This constituted a cause of action, and it is not necessary to allege what was done by the conductor causing the accident; that would be to require the plaintiff to plead the evidence.</p> <p>Continuance on Account of Absence of a Witness.</p> <p>It is not error to refuse a continuance on account of the absence of a witness, when the affidavit shows that the facts that he would swear to if present are the same as sworn to by Either witnesses, and when such affidavit is read to the jury.</p> <p>Negligence of Trainmen.</p> <p>In a suit for personal injury caused by a wreck of a railroad train, the company is liable where it is shown that the company’s employes in charge of the train failed to exercise that degree of care and skill in operating such train which experience has shown to be reasonably necessary to the safe transportation of passengers, under the usual and ordinary circumstances which experience has shown will arise, which failure resulted in a wreck and the plaintiff’s injury.</p> <p>Measure of Damages.</p> <p>In an action against a railroad company for damages on account of injury to a passenger, the plaintiff has a right to compensation for the injury sustained, and all such further injury, temporary or permanent, that directly resulted from the injury complained of</p>

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

<p>Criminal Law — Indictment.</p> <p>Where an offense is charged against one in an indictment, and in the caption two persons are named, and it is stated in the body of the indictment that the other person named in the caption joined in committing the acts set forth, no sufficient charge is made against the last named person.</p>

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

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

<p>Negligence in Damage Suit Against a Railroad Company.</p> <p>In running its trains a railroad company is bound to a high degree of care in order to prevent the taking of human life, and this care must be exercised when the danger is apparent or when those in charge of the train, as reasonable and prudent men, should be apprised of the danger; and when such persons see a full grown man on the tracks, walking leisurely, two or three hundred yards in advance of the train, and there is room on the side of the track for the person to step aside and avoid injury, those in charge have the right to believe that he will leave the track; and where the person is entirely deaf, but those in charge of the train have no knowledge of the fact, they are not required to exercise any more care than if he was not deaf.</p> <p>Failure of Injured Person to Exercise Care.</p> <p>If it is shown, in a suit for damages against a railroad company on account of its train running over and killing a person, that the killing was intentional or the result of willful neglect, the failure by the deceased to exercise proper care will not excuse the company, but the facts upon which this knowledge of danger is brought home to the employes must be shown. The mere fact that they saw the deceased on the track in the absence of knowledge on their part that he was deaf, did not require that they should have stopped their train, for they had the right to assume that the deceased had all the faculties of hearing and would leave the track in time to avoid injury.</p>

<p>Criminal Law — Jurisdiction.</p> <p>Where one is arrested for the offense of keeping a disorderly house and tried before the city court, and fined $60, and on appeal the cause is dismissed, it is proper, when it is shown that the city court had no jurisdiction of the offense named in the warrant, because the offense named was not a violation of any city ordinance of the city.</p>

<p>Criminal Law — Malicious Wounding.</p> <p>It is a misjoinder of offenses to charge a defendant with wounding two distinct persons, although the cutting of both may have been contemporaneous acts; and he can not be legally tried and convicted at one and the same time unless he waives his right to object thereto.</p>

<p>Advancements.</p> <p>The question of the ancestor’s intentions will not control in determining what shall or shall not be deemed advancements, and in the settlement of a considerable estate the chancellor will not adjudge that small sums of monies, and beds, bedding, etc., given to children at the time of their marriage, are to be regarded as advancements made by the father.</p>

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

<p>APPEAL FROM LINCOLN CIRCUIT COURT.</p> <p>[Cited, Green v. Commonwealth, 26 Ky. L. 1221, 83 S. W. 638.]</p>

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

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

<p>Quashing Bail Bonds.</p> <p>Where one is indicted and arrested for keeping a disorderly house, and after arrest executed bail bonds and was discharged, it is error for the court to quash the bonds and release the defendant. The accidental omission of the word “Fulton” before the words “circuit court” does not invalidate such bonds.</p>

<p>Statements Made to Secure Insurance.</p> <p>An insurance policy is not collectible, when to induce the company to issue the policy the insured makes false statements, and when one not the owner of a building, knowing that fact, represents that he is the owner in order to secure a fire insurance policy; and the fact that the company’s agent knew such fact will not of itself prevent the company from defending on account of such representations.</p>

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

<p>Attorney’s Lien.</p> <p>When a conveyance has been made and the contract of sale fully executed, an action by the grantor to rescind, if defeated, can not amount to a recovery of the land by the grantee; nor would a recovery by the grantee, on a note that the grantor had given as an additional consideration for the purchase by the grantee, give to the attorneys a lien on the land.</p> <p>No Lien for Defendant’s Attorney.</p> <p>When an attorney’s client is merely a defendant to the action, not asserting affirmative relief, but resisting a recovery of property to which he has title, and the claim of the plaintiff is denied, no lien exists on the property in controversy for the attorney defending.</p>

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

<p>Dismissal of Appeal.</p> <p>When an appeal is taken more than two years after the date of a judgment appealed from, it should be dismissed. The statute of limitations is a bar to such appeal.</p>

<p>APPEAL FROM ADAIR CIRCUIT COURT.</p> <p>[Cited, Crenshaw v. Crenshaw, 24 Ky. L. 600, 69 S. W. 711.]</p>

<p>Failure of Consideration.</p> <p>Where one executes a note for the purchase-money of real estate, receives a deed and is put into possession and defends against a suit on the note, claiming that the vendor had no title to convey and that the title was in her children as heirs of her husband, and the plaintiff replies that the vendor acquired her title from a sheriff’s deed, that the defendant was informed of the character of her title, and accepted from her a deed under which he still holds undisturbed possession, and the reply is not controverted, there is no error in allowing judgment against the defendant on the note and the sale of the land to satisfy it.</p>

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

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

<p>■ Application for Revivor.</p> <p>In no case can an application for a revivor be made after the expiration of one year and a half; and where such an application is made after that time it should be struck from the docket.</p> <p>Title by Adverse Possession.</p> <p>Where one purchases land at an execution sale and receives a deed from the officer regularly executed and recorded, and thereafter occupies and claims the land as his own for more than fifteen years, it is clear that his holding is adverse, and the statute of limitations applies and is conclusive, and his title is good.</p>

<p>Construction of Will.</p> <p>Under the provisions of a will providing “That * * * the tract of land on which I now live * * * is to be retained as a home for my own family * * * and that the farm on which I live shall not be disposed of under any circumstances, if it can be, until my youngest child shall become of age, and then it may be sold or divided as my children may agree,” and “That my wife and children shall have the use and benefit of my house and home tract of land for their mutual support and the education of my children * * * during the life of my wife,” it was held, where the children have all arrived of age, that the creditors of the widow and some of the children may subject the undivided interests possessed by each to the payment of their claims.</p> <p>Homestead.</p> <p>Where a widow, by the will of her husband, is given a life estate in certain lands and liens on the land, keeping house with her children, she is entitled to claim dower in the land as against creditors.</p>

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

<p>Oral Evidence of Land Boundaries.</p> <p>Visible or actual boundaries of land, whether natural or artificial, are to be taken as the abuttals of a survey so long as they can be found or proven. It is only in case the description in a conveyance is ambiguous or doubtful that parol evidence of practical construction given by the parties, by acts of occupancy, recognition of monuments or boundaries, or otherwise, is admissible in aid of the interpretation.</p> <p>Estoppel.</p> <p>When one has united with others in a conveyance he is bound by and estopped to deny the recitals of the deed, and the estoppel runs with the land.</p>

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

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

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

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

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

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

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

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

<p>Criminal Law — Indictment.</p> <p>In a prosecution for obstructing a public highway, it is not necessary to describe the particular part of the highway obstructed, but it is sufficient for the indictment to designate it by name and to specify the character of obstruction, etc.</p>

<p>APPEAL FROM OLDHAM CIRCUIT COURT.</p> <p>[Cited, Raubold v. Commonwealth, 21 Ky. L. 1125, 54 S. W. 17.]</p>

<p>Criminal Law — Reversible Error.</p> <p>While incompetent evidence can not always be entirely removed from the minds of a jury by an instruction attempting to withdraw it, still this court can not reverse a cause for any error unless it affirmatively appears that the error prejudiced the substantial rights of the accused.</p> <p>'Evidence from Post-mortem Examination.</p> <p>Medical practitioners, having made a post-mortem examination, are competent to give their opinions as to the probable effect of an injury which they describe to the jury as having been inflicted upon the deceased charged in a murder case to have been killed by the defendant.</p>

<p>Deed of Trust for Benefit of Wife Valid.</p> <p>If a sale or gift by deed be by the husband directly to the wife, while the legal title will remain in him, the beneficial use will vest in her as her separate estate and the husband will be treated as her trustee, and upon her death her only child will inherit the same estate in the property.</p> <p>Statute of Limitations.</p> <p>While a conveyance by a debtor, without consideration, is declared void as to existing creditors, the statute of limitations applies, and an action to set aside such a conveyance can not be maintained unless begun within five years after the right of action accrues.</p>

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

<p>Dower.</p> <p>The wife is entitled to claim dower in her husband’s real estate sold at the judgment of creditors, and bought by a purchaser subject to the wife’s claim; and she is not precluded from asserting her claim because of the fact that her husband or creditors have given her $1,000, when she has done nothing to release her dower claim.</p>

<p>Failure to Answer Petition.</p> <p>The failure of a defendant to answer after he is served with process entitles the plaintiff to a judgment, upon proof of his cause of action.</p>

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

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

<p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>[See following case in which rehearing is granted and case reversed. Cited, Ingram v. Cincinnati &c. R. Co., 32 Ky. L. 849, 107 S. W. 239.]</p>

<p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>[Followed, Cooper v. Nelson, 12 Ky. L. 890; cited, Garth v. Davis, 120 Ky. 106, 27 Ky. L. 505, 85 S. W. 692, 117 Am. St. 571.]</p>

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

<p>APPEAL FROM BOYD CIRCUIT COURT.</p> <p>[Cited, Bean v. Me guiar, 20 Ky. L. 885, 47 S. W. 771; Hardwicke v. Young, 110 Ky. 507, 22 Ky. L. 1906, 62 S. W. 10.]</p>

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

<p>APPEAL FROM LEWIS CIRCUIT COURT.</p> <p>[Cited, Barnett v. Commonwealth, 84 Ky. 449, 8 Ky. L. 448, 1 S. W. 722; Anderson v. Baird, 19 Ky. L. 444, 40 S. W. 923; Cincinnati, N. O. & T. P. R. Co. v. Halcomb, 25 Ky. L. 1444, 78 S. W. 205.]</p>

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

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

<p>Enforcement of Landlord’s Lien.</p> <p>When one without notice of a landlord’s lien buys property at an execution sale conducted by the sheriff, the title passes to him and it becomes the sheriff’s duty to pay to the landlord the rent or so much of it as the proceeds of the sale will pay, and where the sheriff fails to do so the landlord may by cross-petition against the sheriff and the tenant secure the proceeds of such sale to apply on his rent charges.</p>

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

<p>APPEAL FROM PENDLETON CHANCERY COURT.</p> <p>[Cited, Bitser v. Merche, 111 Ky. 299, 23 Ky. L. 670, 63 S. W. 771.]</p>

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

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

<p>Vested Remainder Created by Will.</p> <p>Where by a second clause a will provides that “It is my will and desire, and I do hereby will and bequeath to my beloved wife, Nancy, all my worldly possessions, goods and effects, real, personal and mixed,” and by a third clause it is provided that “In the event that my said wife shall marry or die, then it is my will and desire that my estate shall be equally divided between my children, and I hereby appoint my brother, William G. Simpson, and James F. Blanton my executors under this clause of my will,” it is held that the interest of the children under the will was a vested remainder.</p>

<p>Necessity of Summons on Amended Petition.</p> <p>There is no necessity of a summons on an amended petition when such petition merely corrects averments as to the date of a bond secured by mortgage and describes the bond more minutely than the original petition, and where the parties have been brought before the court on the original petition.</p> <p>Subdivision of Real Estate for Judicial Sale.</p> <p>In the foreclosure of a mortgage on real estate the court may consider the question as to whether a division of the lots described was practicable and to the interest of the parties; and where a tract is divided into a number of parcels and offered first in parcels and then as a whole, the rights of the parties are not lessened or prejudiced by the court’s action in such subdivision of the property. Such a sale is not void and the purchaser and the parties are not injured.</p> <p>Irregularities in Judicial Sale.</p> <p>Even where there are some irregularities in a judicial sale of real estate, they will not effect the rights of the purchaser at such sale.</p>

<p>Sale of Real Estate by Verbal Contract.</p> <p>Where the seller of real estate by a verbal contract repudiates the sale and ousts the purchasers, he can not be heard to complain against a judgment requiring him to pay back the purchase-money and to pay for valuable improvements made by the purchaser.</p>

<p>Estoppel.</p> <p>One not a party to a contract, by accepting its benefits and acquiescing in the arrangement for one year with at least constructive notice thereof, is estopped to set up any claim to the homestead rights .of the husband.</p> <p>Release of Dower Consideration for Contract.</p> <p>The release by a wife of her dower interest constitutes a valuable consideration to support a contract between the husband and wife and the husband’s creditors, made through their representative, the assignee.</p>

<p>Liability of Sureties on Bond of Clerk of Court.</p> <p>Where money comes to the hands of the clerk of the court by consent of parties, but not under the order of the court and not as an officer, his sureties are not liable on account thereof, but the clerk is individuálly liable. *</p>

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

<p>Judicial Sale of Real Estate.</p> <p>The debtor may pay off his debt to his creditor, and notwithstanding this fact a stranger who buys the real estate of the debtor at judicial sale (which is confirmed) to satisfy the creditor’s judgment, holds the property, and the fact of payment of the judgment by the debtor after sale will not affect the purchaser’s title; but when the creditor, who is the plaintiff and the purchaser, accepts from the debtor payment in full of his debt, interest and costs, he thereby elects to restore to his debtor what he has purchased at the sale.</p> <p>Subrogation of Surety.</p> <p>A surety who has paid his principal’s debt is entitled to be substituted to all the rights of the creditor, but a surety h'as. no cause of action until he has paid the debt; but when he has done this he has the equitable right to avail himself of any security in the hands of the creditor to indemnify himself against loss.</p>

<p>APPEAL FROM PIKE CIRCUIT COURT.</p> <p>[Cited, McLeod v. anther’s Admr., 80 Ky. 399, 4 Ky. L. 276; Chesapeake & O. R. Co. v. Reeves’ Admr., 11 Ky. L. 14, 11 S. W. 464; Louisville & N. R. Co. v. Molloy’s Admr., 122 Ky. 219, 28 Ky. L. 1113, 91 S. W. 685.]</p>

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

<p>Motion to Make Pleading More Specific.</p> <p>Where a defect in a pleading is not a failure to state a cause of action or a defense, but in stating a good cause of action and a good defense in an improper manner, such defects must be reached by motion to make more specific and not by a demurrer.</p> <p>Mechanics’ Liens.</p> <p>Laborers, mechanics and material-men, under the provisions of the Act of 1876, are entitled to liens on a building erected or repaired by them or for which they furnished the labor or materials; and where a mortgage is executed after the date of said act the parties to it must be held to have contracted with reference thereto; and such mortgage is second to such liens.</p> <p>Foreclosure of Mortgage.</p> <p>A stipulation in a mortgage that the debt should become due, on the failure of the mortgagor to keep up the insurance or to pay rent, is legitimate, and a violation of such stipulation will entitle the mortgagee to proceed to enforce his demand.</p> <p>Proof in Action on Attachment Bond.</p> <p>In an action on an attachment bond, the inquiry is as to whether the attachment was wrongfully obtained, and in proving such fact an order dismissing an attachment is prima facie evidence of its wrongful obtention; and if the suit is terminated by a finding in favor of the defendant, on an issue as - to the truth of the facts alleged as ground for attachment, the judgment will conclusively establish that the attachment was wrongfully obtained.</p>

<p>Title of Personal Property by Purchase and Delivery.</p> <p>While in some instances the title to personal property may pass as between the parties without delivery of possession when so intended by such parties, such a transfer of title will not affect an innocent purchaser for value. The first purchaser by leaving the possessipn with the vendor enables him to perpetuate fraud by making a second sale and where the second purchaser obtains possession without any notice of the prior claim he will be protected.</p>

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

<p>APPEAL FROM GRAVES CIRCUIT COURT.</p> <p>(Cited, Davis v. Wilson, 115 Ky. 639, 25 Ky. L. 21, 74 S. W. 696.]</p>

<p>Parties to Actions.</p> <p>Civil Code (1876), § 24, provides that “parties who are united in interest must be joined as plaintiffs or defendants,” and § 25 provides that “if the question involve a common or general interest of many persons and because they are so numerous, one or more of them may sue or defend for the benefit of all.”</p> <p>Jurisdiction of the Chancery Court.</p> <p>In a suit by parties to recover the amount paid by them for lottery tickets issued and sold to them and a large number of other persons whose names are alleged by plaintiffs to be unknown to them, the total sum due to all of such purchasers can not be alleged so as to raise the amount to give the court jurisdiction. The purchase is a separate and distinct transaction and when the sum for which plaintiffs ask for judgment is only $3, the Louisville Chancery Court has no jurisdiction.</p>

<p>Indorsement of Bill for Collection.</p> <p>Where a bill is indorsed “Pay A B or order on account of G C & D” it operates as notice that A B holds or held it in trust for G C & D and that neither he nor his indorsers had any property in it.</p> <p>Notice to Bind Drawer and Indorser for Nonpayment.</p> <p>Notice of protest for nonpayment should be mailed to a drawer and indorser at his last known postoffice address and where at the time a bill or note is drawn or indorsed the party resides at a certain place the holder may presume that he resides there at its maturity and send his notice of protest accordingly unless he has received information of his change of residence. And where there is more than one postoffice where the indorser is in the habit of receiving his letters, notices may be sent to either of such addresses.</p>

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

<p>Criminal Law — Grand Larceny.</p> <p>The Gen. Stats. (1881), Ch. 29, Art. 1, § 12, which authorize an increased punishment for grand larceny where former convictions are alleged and proved, is not in violation of the state constitution which provides that no one shall for the same offense be twice put in jeopardy.</p>

<p>Partnership Losses After Death of a Partner.</p> <p>The estate of a partner should not be held liable for any partnership losses occurring after his death except such as may have originated from the insolvency of parties who were indebted to the firm at the time of such death.</p> <p>Heir of a Partner May Sue for Partnership Settlement.</p> <p>Although not a partner, an heir of a partner may sue and maintain an action for a settlement of the partnership and for an accounting.</p>

<p>Criminal Law — Indictment for Selling Liquor.</p> <p>An indictment for selling liquors is sufficient which charges the act of selling and specifies the time and place of sale, the quantity sold and the person to whom sold, and that the district wherein the act was committed was governed by the local option law; it is not necessary to allege negatively that the law had not been repealed. •</p> <p>Taking Effect of Local Option Law.</p> <p>The law takes effect as soon as the certificate of the examining board is entered in the order book of the equity court.</p> <p>Local Option Law Applies to Manufacturers.</p> <p>The provisions of the local option law apply to all persons, including distillers or manufacturers of such liquors, the sale of which is prohibited by the law, whether licensed by the United States government or not.</p>

<p>Criminal Law — Right of Appeal,</p> <p>Under the provisions of Crim. Code (1876), § 369, no appeal can’ be taken from a judgment of a county judge or of a city, police or justice’s court after 60 days from the rendition thereof.</p>

<p>Criminal Law — Sale of Liquor in Greenup County.</p> <p>2 Session Acts (1878), Ch. 1062, § 2, provides that it shall be a criminal offense to sell or dispose of any spirituous, vinous or malt liquors in Greenup county in less quantities than one-half gallon, and any such offenders will be deemed to have violated the general laws of the state against keeping a tippling-house and subject to the penalties provided for such offenses.</p> <p>Evidence of Selling Liquors.</p> <p>In a charge against one for selling spirituous, vinous or malt liquors in Greenup county, under the provisions of 2 Sess. Acts (1878), Ch. 1062, § 2, it is not necessary for the state to show that the defendant has been guilty of twice selling sucli liquor in order to convict, but it is competent to show any number of sales which he may have made to the person named in .the indictment within one year prior to the finding of the indictment.</p>

<p>Validity of Town Election.</p> <p>Where an election is provided for in a town to determine whether a proposed new charter shall be adopted and it is provided that on the first Monday in August, 1880, a vote is to be taken upon the question, and that “The clerk of the election shall * * * open a separate poll for the taking of such votes,” and the election was held under this act by the town clerk and not by the clerk of the regular county and district election, there being a fair expression of the popular will, such election was not void.</p>

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

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

<p>Election of Defense.</p> <p>A defendant having two defenses not inconsistent with each other can not be required by the court to elect upon which of them he will go to trial. He should have the benefit of both.</p>

<p>Jurisdiction of the Regular and Special Judge.</p> <p>The constitution and the law provide for the election of a special judge and empower him to serve when from any cause the judge shall fail to attend, or being in attendance can not properly preside; and where the special judge is elected when there is a regular judge and has assumed jurisdiction over a cause, and the parties have gone into trial, before the resignation of the regular judge is tendered or accepted, the special judge has jurisdiction to complete such trial and enter a judgment, even though the regular judge has at that time resigned.</p>

<p>Negligence of City in Suffering a Street to be Left in Dangerous Condition.</p> <p>A passenger on the streets of a city has the right to assume that the streets are in a reasonably safe condition; and where the city has -caused an excavation to be made in a street and leaves it unguarded for a period of several weeks, notwithstanding there is ample room to pass around it, the city is guilty of negligence and is liable to pay damages sustained by a foot passenger who is injured by falling into such excavation.</p>

<p>Petition for a New Trial.</p> <p>. Where a litigant defending .a damage suit entered, against him has been vigilant through several courts, and when the cause is set for trial in the circuit court at a specified time and he has on file an answer stating a legal defense to the action and has informed his attorney that he will attend at the trial, and he shows in his suit to, set aside a judgment taken against him in his absence at the time set for trial that on the night before the trial his daughter took violently sick and for that reason he was unable to and did not attend the trial, his application for a new trial should have been allowed and a new trial given on the grounds of accident and misfortune, which could not have been guarded against by ordinary prudence, and which prevented him from appearing and defending, the case.</p>

<p>Injunction at Suit of One Not Interested.</p> <p>One in possession of real estate which has been sold at the instance of his creditor and bought by the creditor, the sale approved and deed confirmed by the court, and who is a defendant on a writ of possession, has no interest in such land and is not entitled to an injunction against the purchaser and his grantee on the alleged ground that -the sale and conveyance of the land by such purchaser was void because the grantee, being a national bank, was not authorized to buy real estate, etc. One not having an interest can not raise a question of the validity of such transfer.</p>

<p>Criminal Law — Fundamental Rights.</p> <p>When fundamental rights are involved in a criminal case, such as the right of trial by jury, the right to be heard by counsel and the right to be present during the trial, the Court of Appeals will reverse unless it affirmatively appears from the record that the defendant has not been injured; but in cases where such rights are not involved the court will not reverse unless it affirmatively appears from the record that the error complained of is detrimental to the substantial rights of the accused.</p> <p>Argument of Counsel.</p> <p>It is not error for the court to stop counsel from argument regarding the analysis of blood found on the clothing of the accused where, in fact, no analysis of such blood was shown by the evidence.</p> <p>- Jury’s Viewing Premises.</p> <p>The court may direct the jury to view the premises where an offense was committed when in his opinion it is necessary, no matter at whose suggestion it is done.</p>

<p>APPEALS FROM LOUISVILLE CHANCERY COURT.</p> <p>[Cited, Slaughter v. City of Louisville, 89 Ky. 112, 12 Ky. L. 61, 8 S. W. 917; Harris v. Zable, 5 Ky. 114; City of Louisville v. Louisville Gas Co., 15 Ky. L. 177, 22 S. W. 550; Fenley v. City of Louisville, 27 Ky. L. 204.</p>

<p>Individual Liability of Administrator.</p> <p>An administrator who, under a mistaken belief of his right to do so, collects money for the hire of a slave and appropriates it to the payment of the debts of the estate and does so without collusion with the heirs, is individually liable a'nd the heirs are not liable therefor.</p>

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

<p>APPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>[Cited, Elliott v. Fowler, 112 Ky. 376, 23 Ky. L. 1676, 65 S. Wi 849.]</p>

<p>Criminal Law — House-breaking.</p> <p>In an indictment for house-breaking it is only necessary to allege the manner in and the intent with which the house was broken, and the allegation that the accused did actually steal was unnecessary to complete the offense.</p> <p>Evidence of Intent.</p> <p>In the trial of one charged with house-breaking with intent to steal it is competent to admit evidence tending to prove that the defendant did steal things from the storehouse, since this evidence shows the motive and intent of the breaking.</p> <p>Possession of Stolen Goods — Instruction.</p> <p>In the trial of a cause for house-breaking with intent to steal, it is error for the court to instruct the jury that the possession or failure to account for the possession of any of the stolen goods, which they might believe, from the evidence, were found with the accused, would authorize them to convict him.</p>

<p>Instruction in Homicide Case.</p> <p>An instruction in a homicide case that in order to constitute legal provocation so as to reduce a homicide from murder to manslaughter it is necessary that the accused should be in danger of great bodily harm and that it must be shown that a blow or actual trespass to the person has been inflicted is erroneous.</p> <p>Legal Provocation.</p> <p>Legal provocation, such as will reduce murder to manslaughter may consist of an assault or battery of such force, or inflicted under such circumstances as was calculated to produce sudden heat and passion, or a sudden anger.</p> <p>Credibility of Witnesses.</p> <p>The jury are the judges of the credibility of the witnesses and it is error for the court in his instruction to indicate any particular test of credibility to the jury or to instruct or indicate that if a witness has wilfully and corruptly sworn falsely as to any material fact they may disregard the whole of his evidence. A particular conclusion, based upon a single supposed fact, should not be pointed out to the jury as one that they may come to.</p>

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

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

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

<p>Receiving Stolen Goods — Instructions.</p> <p>When one is charged with receiving stolen goods, it is error at the trial for the court to refuse to give an instruction asked by the defendant that “Before the jury can find the defendant guilty they should believe beyond a reasonable doubt that the defendant received the watch knowing it had been stolen.”</p> <p>Instruction.</p> <p>Upon the trial of one charged with knowingly receiving stolen property it is error to instruct the jury that they were authorized to find the defendant guilty if he knew, or believed at the time he received the property, either from information received at or before that time, or from facts within his own knowledge that it had been stolen. The words “knowledge” and “belief” are not synonymous as used in the statute.</p>

<p>Fraudulent Conveyance of Land.</p> <p>Where a father in the year 1862 put his daughter into possession of a farm and executed to her a memprandum that “This is to show that the farme I own in Harrison county, of two hundred and forty-seven and a half acres, known as the William H. Wilson farme, I give to my daughter, Louisa Sims, to have and to hold until her death, and then to go to her children. * * * This 17th of April, 1862,” and in 1875 conveyed the land to his said daughter and her husband for life, with fee to their children, it is held that creditors of the father, becoming such after 1862, can not subject such land to their claims.</p> <p>Possession as Notice to Creditors.</p> <p>Where the donee of real estate is given a memorandum showing the gift, and enters into possession, even if the memorandum is not .recorded, the creditors of the donor, becoming such after such possession and claim of ownership under the gift, must take notice and be on their guard.</p>

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

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

<p>Custody of Children.</p> <p>Where after the death of his wife, leaving a daughter two weeks old, the father gives her to his late wife’s mother to raise and care for and after the child has become five years of age and greatly attached to its grandparents, who are attached to it and amply able and competent financially and otherwise to give it all advantages, a court of equity does not abuse its discretion by refusing the application of the child’s father for its custody after his remarriage, especially when the father does not allege his love for the child but contends that his first wife’s people have said unkind things of his second wife.</p> <p>Best Interest of Child Governs As to Who Should Have Its Custody.</p> <p>A father has only a naked legal right to the custody of his child, and a court of equity is not bound to enforce such right when to do so is not for the best interest of the child and against an equity growing out of contract or springing from acquiescence and strengthened by ties of affection which the conduct of the father has permitted to grow between the child and its grandparents.</p>

<p>Corporations — Increase of Stock.</p> <p>The sole owners of the chartered rights and franchises of the corporation as well as its property have the right to increase the capital stock and prescribe the terms on which it may be sold.</p> <p>Corporations — Acquiescence in Action Increasing Stock.</p> <p>Subscribers to an increased issue of stock may not raise the question of the right to increase the stock where they have accepted the stock and acquiesced in the arrangement for upward of eleven years.</p>

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

<p>Sale of Real Estate by Bond.</p> <p>Where A purchases real estate from B and receives a bond for a deed and pays B the purchase-price, and B by fraud or mistake conveys or causes said real estate to be conveyed to his own wife and children, B becomes liable to A for such purchase-price; and where A agrees to surrender his claim for $15 more than such original price B is liable for such excess as well as such original purchase-price.</p>

<p>Measure of Damages in Conversion.</p> <p>Where a landlord is charged with taking possession of his tenant’s crops by force and converting them to his own use, if the proof sustains the charges the measure of damages should be the value of the property converted less the value of the rental of the land for the time it was rented.</p> <p>Competency of Evidence.</p> <p>In a suit by a tenant against his landlord for conversion, where it is alleged that plaintiff’s father as well as plaintiff was thrown out of possession, but the father is not a party to the suit, and the court refused defendant’s motion to strike out that part of the petition relating to the father, if such ruling was proper, then it was proper to prove the statements of the father as to the manner of his holding the possession.</p> <p>Motion to Strike Out.</p> <p>Where a tenant alone sues his landlord for dispossessing him and for conversion of his crops, and alleges that his father as well as himself was turned out of possession, on motion of the defendant, the court should have struck out that part of the petition relating to the father.</p>

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

<p>Receiver for Farm on Account of Waste.</p> <p>Where the plaintiff in his petition for the appointment of a receiver of a farm, on account of waste, charges only that the land will not pay the debt due him and that the defendant is permitting the farm to go to waste, but not alleging how or in what manner the waste is being committed, and this is shown for the first time by affidavits at the hearing, the defendant on his application should be allowed time to produce proof of the falsity of such affidavits, and no receiver should be appointed until he has been given a chance to meet such charges, especially where he hiles his own affidavit of such falsity and offers to furnish other proof thereof if given time to procure affidavits.</p>

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

<p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>[Cited, Erwin v. Commonwealth, 96 Ky. 422, 16 Ky. L. 602, 29 S. W. 340.]</p>

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

<p>Inadequate Consideration.</p> <p>While inadequate consideration will not invalidate a sheriff’s sale, when it is grossly inadequate, it will be considered by the chancellor in determining the question of fraud raised.</p> <p>Validity of Sheriff’s Sale.</p> <p>Where a sheriff’s sale of real estate is alleged to have taken place in 1872 and no conveyance was made thereunder until 1877, long after the sheriff had gone out of office, and there is no record or evidence of it showing the sale except the recital in the sheriff’s deed and no record showing that the sheriff ever made any return on the execution if one was issued, the recitals in such a deed are not evidence, as against the owner, that any sale was made. And where less than fifteen years have elapsed since such alleged sale no presumption will arise that the officer did his duty and the burden is on the defendant to show that the plaintiff’s title has been divested.</p>

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

<p>Power of City to Confiscate Property.</p> <p>The legislature can not constitutionally confer the power on a city to pass an ordinance to seize and sell hogs found running at large in the streets of such city. The property of a citizen can not be appropriated by the city without judicial proceeding in which he is brought before the court.</p>

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

<p>Attachment of Land Conveyed Fraudulently.</p> <p>An attachment by creditors against land charged to have been conveyed by a debtor to defraud his creditors and that the grantee participated in and had knowledge of the fraud is sustained by proof that the grantor, after suits were filed against him by creditors, stated that he was not going to pay such debts but would convey hi-s estate to others and that he did convey the greater portion of a good sized estate to relatives residing with him and who knew of his financial troubles and who do not furnish proof of or explain the transactions between them.</p> <p>Liens on Land Reserved for Purchase-Money.</p> <p>- The liens of purchase-money notes secured by liens reserved in the conveyance are not lost by accepting renewals, without any intention to release them thereby.</p>

<p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>[Cited, in Greer v. City of Covington, 83 Ky. 410, 7 Ky. L. 419, 7 Ky. L. (Abst.) 453, 2 S, W. 323.]</p>

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

<p>Establishing a Resulting Trust.</p> <p>Where an attempt is 'made to establish a resulting trust and the conveyance attacked is fair on its face, there being no charge of fraud, there is no presumption, since the statute of resulting and constructive trusts against the legal title holder, but upon the contrary the statute shifts the burden upon the one attacking the title.</p>

<p>Consideration for Promise to Pay Increased Rate of Interest.</p> <p>A memorandum attached to a note after the date of its execution promising to pay an additional rate of interest for the time that had elapsed since said execution, is no part of the contract embraced in the note and is without consideration and unenforcible.</p> <p>Incompetent Witness.</p> <p>Where the maker of a note is dead, the payee is incompetent to testify concerning any part of the transaction or as to statements made by the obligor at the time of the execution of such note.</p>

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

<p>Rights of Children Under Decedent’s Title Bond.</p> <p>Where the husband during his lifetime purchased a tract of land by title bond and was in possession of it when he died, the widow is not entitled, by paying the balance or all of the purchase-money out of her own means, to procure from the court an order directing conveyance to be made to her. The children, against their consent, can not be deprived of their rights in that way. However, the widow in a proper proceeding might have a lien decreed in her favor for the purchase-money paid by her.</p>

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

<p>APPEAL FROM. FLEMING CIRCUIT COURT.</p> <p>[Cited, Reno v. Blackburn, 24 Ky. L. 1976, 72 S. W. 775.]</p>

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

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

<p>Joint Execution on Two Bonds.</p> <p>Where there are two bonds executed for the purchase-money upon sale of land at sheriff’s sale and both bonds are due and executed by the same parties and payable to the same person, one execution may be executed on both for the entire amount due.</p> <p>Validity of Deed Made to a Person Individually Instead of Being Made to Her as Administratrix.</p> <p>A deed of the sheriff to a person in her individual capacity on an execution issued in a proceeding in which as administratrix she is plaintiff is not invalid for that reason and the question as to whether she thereby held as trustee is one that can not arise between her and persons not interested in the estate.</p>

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

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

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

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

<p>Effect of Judgment by Agreement.</p> <p>Where a judgment is entered by agreement it binds the parties to it and as to claims existing between them which the defendant did not plead when he could have done so, the claims being expressly included in the agreed judgment, such a judgment is an adjudication of all matters which were or might have been pleaded as a defense to such action. ></p> <p>Sufficiency of Petition for Vacation of Judgment.</p> <p>A petition by a defendant to vacate a judgment is insufficient when it fails to allege any facts showing diligence in discovering the defenses lie bad before judgment. A defendant can not have a judgment against him vacated because he forgot or by mistake failed to consider them in the agreement to enter judgment.</p> <p>Injunction Against Collection of Judgment.</p> <p>Where after a judgment is entered for $1,300 against a defendant he pays $747.78 on it, but an execution is issued for the full amount of the judgment and the sheriff is about to sell the defendant’s land for the debt, the defendant is entitled to have an injunction to prevent the sale of the whole of his land and the collection of the whole amount of the judgment should be enjoined.</p>

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

<p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>[Cited, in Baskett v. Commonwealth, 19 Ky. L. 1995, 44 S. W. 970.]</p>

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

<p>Bad Answer Is Good Enough for Bad Petition.</p> <p>A bad answer is good enough for a bad petition.</p> <p>Burden of Proof.</p> <p>In an action to. recover water rental at an established rate, the burden is on the plaintiff to show that the rates had been fixed by them.</p>

<p>Petition to Set Aside Conveyance for Fraud.</p> <p>When there is no allegation of fraud on the part of a grantee or of collusion with the grantor to cheat or defraud the creditors of the grantor and the consideration is adequate and actually paid, no question is raised as to whether the grantee was a creditor of the grantor. The remedy of the creditors of the grantor, if they have any, is against the persons receiving the money from the grantor through the grantee.</p>

<p>Principal and Trustee.</p> <p>A trustee holding property in trust, finding that his title is worthless, can not purchase an adverse claim and acquire a title in his individual right. It is a breach of trust for a trustee to create any relation between himself and the trust property whereby he would be induced to look to his own interests at the expense of the beneficiary of the trust.</p> <p>Contract by Public Officer to Allow Deputy Sole Authority is Void.</p> <p>A public officer can not contract with his deputy and his own bondsmen to permit the deputy to have and collect all the revenues of his office, but where he is a defaulter and his sureties are liable thereunder and are induced to go on his bond for the next, upon his agreeing that the deputy shall handle the revenues of the office and pay up the defalcation, the bondsmen have a right to have the money collected applied to their claims.</p>

<p>Conveyance to Defraud Creditors:</p> <p>Where a father largely in debt conveys all of his estate to a son who lives with him, except such as is exempt from creditors and it is apparent that the sole object is to prevent the collection of the claims of the father’s creditors, the conveyance will be set aside. A paro.l contract between the father and son by which the father agrees to pay the son in his estate for the work of years and never executed until the creditors are about to take it, is of itself proof of the fraudulent intent.</p>

<p>Party-Wall.</p> <p>Where a wall holds up and supports a dwelling sold it will be presumed that it was intended to be conveyed as a part of the house and such a wall is a party-wall intended to support the buildings on either side of it. .</p>

<p>Title by Adverse Possession.</p> <p>Where suit is maintained to recover land between two claimants, and a third person is in possession of the land not claiming to hold under either of the parties, he is not bound by a judgment entered in such cause.</p>

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

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

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

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

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

<p>Liability of Sureties on Administrator’s Bond.</p> <p>The sureties on an administrator’s bond are not liable for the proceeds of land sold under a decree or judgment although sold at the instance of the administrator.</p> <p>Obligation of Sureties on Administrator’s Bond.</p> <p>The obligation of sureties on the bond of an administrator is to answer for the personal assets that come or ought to have come to the hands of the administrator and their liability can not be enlarged without their consent.</p>

<p>Enforcement of Purchase-Money Notes.</p> <p>In an action for the settlement of an estate as well as to enforce the purchase-money lien on land sold, where all -the parties are before the court there is no obstacle in the way of a judgment enforcing such lien.</p>

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

<p>Change of Nature of Action by Amendment.</p> <p>One who as plaintiff in an original action proceeds to recover real estate and quiet his title thereto against the heirs, their vendees and tenants claiming an interest in certain real estate, when finding before judgment that he himself is without title, can not by purchasing the claims of the heirs who are defendants and then amending his petition in his original action have his right of recovery in the name of the heirs or under their title against those who entered as tenants or purchasers under such heirs.</p> <p>Process on Amended Pleading.</p> <p>Where an amendment to an original petition is filed which seeks to quiet plaintiff’s title and to quiet defendant’s by showing the fact that since the original petition he had purchased certain interests of defendant heirs, it is held that such amended pleading is an original and independent cause of action and upon the amendment process should have issued and where none was issued the defendant was not required to take notice of the amendment.</p>

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

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

<p>Power of City Council to Abate a Nuisance.</p> <p>A city council has no power to declare the existence of a nuisance without a hearing being first given the owner of property affected by its action.</p>

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

<p>Infancy .Pleaded to Avoid Dower Relinquishment.</p> <p>Where infancy is set up to avoid the effect of a deed relinquishing dower more than twenty years after the execution of the deed and after the old family bible in which her age was recorded is lost or destroyed and only an alleged copy is in existence showing such birth, the entry of which was made by one who married into the family, and the evidence of infancy is generally unsatisfactory, and the father of such child testifies positively that she was over twenty-one years of age when the deed was executed, should create in the chancellor’s mind much doubt as to such infancy and such petition should be dismissed.</p>

<p>Decisions Under Which Property Rights Are Acquired.</p> <p>Opinions should seldom be overruled when to so so would disturb vital rights and interests acquired upon the faith of them.</p>

<p>Easements.</p> <p>One can not recover in ejectment against one having an easement even though he may own the property over which an easement exists.</p> <p>Easement, How Created.</p> <p>Where one is permitted in building his building to make the wall of another.a part of his wall by building up to it and inserting his timbers on it for support, and the wall stands for many years, he secures and has an easement in such wall.</p>

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

<p>Force of By-Laws of Building & Loan Association.</p> <p>'When a building and loan association has by by-law provided for the withdrawal of its members and fixed the portion or share to which a withdrawing member should be entitled upon his withdrawal, the repeal of such by-law in so far as it provided the basis of such settlements was inoperative and void so far as it released the association from its obligation to take back or purchase the stock of withdrawing members, becoming members after the adoption of said by-law.</p> <p>Rights of Withdrawing Members of a Building and Loan Association.</p> <p>Where the right to withdraw at any time upon terms that are reasonable and just is secured to members of a building and loan association by the organic law of the association, and such terms have been once prescribed and fixed, upon the faith of which, it may be, persons became members, the association can not subsequently take away the rights of such members to withdraw and take the settlement provided.</p>

<p>Construction of Will.</p> <p>Where a testator disposing of a large estate gives his widow a life estate in certain property, and bequeaths the remainder of the estate to six children, share and share alike, but provides that the share coming to a son shall be held by a trustee for him and directs that a part of the income of this share shall be paid to the son’s wife, and the testator’s wife dies before he does and he executes a codicil in which he bequeaths the share first given to his wife to his children, and notwithstanding he had already provided for the disposition by a residuary clause of the property devised to his wife, after her death, he proceeds to divide stocks and bonds among such children and directs that the trustee shall hold his son’s share for him as other property devised to him, but provides that his home residence shall be sold by his executors and directs that the proceeds of such sale and the personalty in said residence be divided among his six children “share and share alike in perfect equality,” such codicil has the effect to pass the one-sixth part of such proceeds of sale directly to such son and the same is not to be handled by his trustee.</p>

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

<p>Sufficiency of Petition on Notes.</p> <p>To be sufficient a petition on notes must allege a promise on the part of defendants to pay, and where it is attempted to enforce a lien on property facts must be alleged showing such lien. An allegation that plaintiff has a lien on property is but the conclusion of the pleader.</p> <p>Creation of Lien.</p> <p>In order to retain a lien on real estate sold there must either be an express written contract between the vendor and vendee or the amount of the unpaid purchase-money stated in the deed, and such fact must be alleged in the petition which seeks to enforce the lien.</p>

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

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

<p>Challenges of Jurors in Misdemeanor Case.</p> <p>One charged with keeping a bawdy house is entitled to challenge only three jurors peremptorily.</p> <p>Proof to Establish Charge of Keeping Bawdy House.</p> <p>In the trial of one charged with keeping a bawdy house the state may prove the general reputation of the house, since this class of evidence is the best of which such a case is susceptible.</p>

<p>Hog Stealing — Incompetent Evidence.</p> <p>Where one is charged with hog stealing, and it is shown that the hog was found on the premises of the accused, and he shows that he said to several witnesses that it was not his hog but was a stray, it is not competent evidence for the state to bring a witness living near the accused, but with whom accused had not had any conversation, to testify that he had seen the hog running about the premises of the accused and that the accused “had not told him the hog was a stray.”</p>

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

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

<p>Criminal Law — Grand Larceny.</p> <p>Where money is deposited with the agent of an express company for transportation to designated points and is feloniously abstracted by the agent, he is guilty of grand larceny, the title and possession being in the express company as a common carrier.</p>

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

<p>Homicide — Indictment.</p> <p>In an indictment for homicide, the fact that the deceased was an officer acting in the discharge of his duty when he was killed need not be alleged.</p> <p>Homicide — Indictment.</p> <p>In an indictment for homicide it is not essential that the evidence relied on to fix the malice alleged should be set forth</p> <p>H omicide — Indictment.</p> <p>A person indicted for homicide is not entitled to be informed by the indictment of the quality or quantity of the evidence relied on to prove his malice.</p> <p>Homicide — Evidence.</p> <p>A warrant addressed to the chief of police of a city and sent by the chief of police to a constable of a township, with a letter directing the constable to arrest the defendant, was admissible in evidence in the prosecution of the defendant for killing the constable while attempting to arrest defendant, where defendant knew that the deceased was a constable.</p> <p>Homicide — Degree of Offense.</p> <p>The fact that a warrant in the hands of a constable was defective does not reduce the offense from murder to manslaughter, where the constable was in good faith and using no more force than necessary in attempting to make the arrest.</p> <p>Sheriffs and Constables — Defective Warrants.</p> <p>Peace officers, in the exercise of their duties, are not required to see that warrants which come into their hands are free from defects, and because thereof permit felons to escape.</p>

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

<p>Liability of Devisees to Reimburse Executors.</p> <p>A testator directed that his farm and other real estate should not be sold until his minor son should become of age, and that such real estate should be occupied as a home by his four daughters and infant son; and all the products of the farm and the stock on it were devised in the same manner, and the executors were to sell the land and personalty when the son should become of age and the proceeds be divided equally between all of his children, except that the minor son and each of the daughters were to have $1,000 more than the other children, and the proceeds were to be loaned by the executors and the income be paid to each. But it was further provided that if a majority of the four daughters asked it to be done, the executors were to sell such estate at any time prior to the son coming of age. The executors purchased certain articles for the girls expecting to pay for the same out of the proceeds from the farm, but before any proceeds were received they decided to have the property sold. It was held that from the income derived from the funds of each of said daughters after such sale, the executors should be reimbursed for the expenditures made for each before the sale.</p>

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

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

<p>Individual Purchase by Executrix.</p> <p>Where one is executrix of a will and buys in property sold at the instance of creditors of the heirs, and takes the sheriff’s deed as an individual and not as executrix, the presumption is that she claimed the purchase for her individual benefit and not as executrix. “</p> <p>Duty of Executrix to Protect the Estate.</p> <p>An executrix will not be permitted to purchase the land belonging to the testator and reap a personal benefit from such purchase. Instead of standing by and permitting the lands to be sold to pay debts, she should pay off the debts and save the estate upon which she is administering, but in no event will she be permitted to reap a personal benefit by speculating in such lands.</p> <p>Creation of a Trust.</p> <p>Where an executrix without the consent of the heirs and devisees buys in the property of the estate, even though she takes a deed in her individual name, a trust results in favor of such estate.</p>

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

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

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

<p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p> <p>[Cited, Louisville v. Woolley, 108 Ky. 691, 22 Ky. L. 405, 57 S. W. 499.]</p>

<p>Release of Sureties.</p> <p>When there is litigation between A and B as to who is entitled to receive the proceeds of an insurance policy, the company pays the money into court, under direction of the court the money is loaned to A, C and D become his sureties, and by the judgment of the circuit court A is adjudged to be the owner of the money and the sureties are declared released, but on appeal the judgment is reversed, the sureties are not released; and when as a result of a second trial the fund is adjudged to belong to B, the sureties are liable to B if A fails to account to B for the money.</p>

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

<p>Partition by Agreement.</p> <p>Where two persons own land as tenants in common, a partition by agreement is only effective when the agreement is sanctioned by both; and a partition will not be enforced which is unfair and where it is not shown that both of the parties have fully agreed to the division.</p>

<p>Competency of the Wife to Testify.</p> <p>While a wife can not testify for or against her husband, she may testify for herself; and where creditors institute an action to set aside a conveyance from the husband to his wife, claimed to have been made to defraud them, the wife is a competent witness for herself.</p> <p>Claim of Wife Under an Executed Contract.</p> <p>Where a contract between a husband and his wife is executory merely the wife’s claim must yield to the creditors; but where it is executed in good faith by reason of the prior agreement and before the creditors have seized the property by execution, attachment or otherwise, the wife’s claim prevails.</p>

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

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

<p>Criminal Law — Instructions.</p> <p>Where instructions in a criminal trial are given verbally and are not in the record, it can not be determined whether the accused was prejudiced by them or not. Where a written instruction was not excepted to, though erroneous, the error will ordinarily not avail the accused in the Court of Appeals.</p>

<p>Criminal Law — Indictment for Manslaughter.</p> <p>Time is not a material ingredient of the offense of manslaughter, and an indictment is not bad when it charges that the offense was committed on the-day of-, 188 — , for by such charge it is shown that the offense was committed before the return of the indictment. Especially is this shown by the use of the terms “did feloniously * * * kill,” etc.</p> <p>Self-Defense.</p> <p>'In order to justify a killing on the grounds of self-defense, the person assailed must actually believe or be convinced that he is in danger, but he is not bound to have more than reasonable grounds to base his belief or conviction on.</p>

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

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

<p>Bond for Title.</p> <p>Where one has a bond for a deed for two tracts of land, and after the death of the person from whom he secured the bond sues the heirs for title to one of the tracts, but made no demand for the other tract, and the land was conveyed by such heirs and has been in possession of such grantees and their grantees for more than thirty years without any notice of any claim against their title, and the bond for title has been destroyed for many years, the failure of those claiming under such bond to notify the parties who were in possession of their title, or to take any steps for its recovery for so long a time, amounts to an abandonment of their claim and a confirmation of the act of their mother in canceling the bond. They can not recover against the good faith purchasers in possession.</p>

<p>Judgment Must Follow the Pleadings.</p> <p>An action on a note for the payment of money and nothing else will not authorize a judgment to sell the debtor’s land, or to create a lien upon it. The judge can only decide what is in issue as shown by the pleadings.</p> <p>Liens of Creditors.</p> <p>The commencement of a suit on a debt does not create, a lien on the debtor’s real.estate; and where such debtor makes a general assignment for his creditors before a judgment is entered against him on such a debt, the creditors, including the judgment creditor, have only such a lien as the assignment creates. The judgment creditor has no priority.</p>

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

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

<p>Dismissal of Appeal.</p> <p>An appeal will be dismissed on motion where the order appealed from is not a final order.</p> <p>Lien of Mortgage on Future Property.</p> <p>A mortgage of property to be acquired in the future is void, and while such a mortgage may be valid as a contract to assign and not as an assignment of a present interest, such a right can not be enforced as against the creditors of the mortgagor.</p>

<p>Marshal’s Sale Set Aside.</p> <p>Where it is shown that property sold by the marshal of the city of Louisville brought only about half its value, and the marshal failed to advertise the sale by posting an advertisement on the premises, the sale will be set aside.</p>

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

<p>Liability Under Stockholders’ Agreement.</p> <p>Where a corporation is in need of funds to carry on its enterprise and the stockholders enter into an agreement in writing between themselves, by which they agree in proportion to their holdings to share any liability that any of them may assume to raise funds for the corporation, and some members become liable for such funds, the signers of such agreement become liable for their proportionate shares.</p> <p>Interpretation of Contracts.</p> <p>All contracts will be interpreted so as to arrive at the intentions of the parties to them, and the language used should receive a construction influenced by a common-sense view of the whole subject-matter and bearing of the contract between the parties.</p> <p>Extent of Liability of Parties to a Contract.</p> <p>Where stockholders of a corporation to raise money to carry on the enterprise sign an agreement to each become liable for his share of liability assumed by any of them for money to be used by the corporation, and such liability is assumed by members, and the corporation becomes insolvent, and it turns out that some of the stockholders signing such agreement are insolvent, the insolvency of such members will not add to the liability of the others, for each became liable not for the others but only in proportion to the stock owned, and the insolvency of such signing members will add only to the loss which must be sustained by the members assuming obligations for the corporation.</p>

<p>Indorsement Becomes a Part of a Contract.</p> <p>Where one conveys land to his son, taking a note for the purchase-money to become due several years thereafter, and about one and a half years thereafter by agreement between the father and son the father wrote across the back of such note that “This note is not to be paid in my lifetime but to bear six per cent, interest in the place of ten per cent. This 30th of December, 1868,” and signed the same, the indorsement creates a new contract and is a part of the note and the original transaction.</p> <p>Attachment for Debt Not Due.-</p> <p>Where the debt for which property is attached is not due, and the clerk granted the attachment, such property was properly discharged from it.</p>

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

<p>Redemption from Judicial Sale.</p> <p>While in case the chancellor, having jurisdiction of the parties and the thing to be sold, sells, the title passes and the purchasers will hold, still when a creditor who becomes a purchaser accepts the full amount of his debt from the judgment debtor or her surety, he can not hold the money and the property' both, and the acceptance by him of payment of his debt amounts to an agreement to restore the property at least in a court of equity.</p> <p>Rights of a Surety.</p> <p>Where a surety pays the debt of his principal, and the creditor who has become the purchaser of real estate of the principal sold by the chancellor to pay the same debt accepts from such surety the full amount of his debt, the surety having paid the debt can subject the property for the purpose of reimbursing him; and if the property sells for any sum in excess of the debt, interest and costs, such excess belongs to the principal.</p>

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

<p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>[Cited, Mercantile Bank v. Ballard’s Assignee, 83 Ky. 481.]</p>

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

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

<p>Evidence in Homicide Case.</p> <p>Where the accused offered to prove that the deceased was a violent and dangerous man when drinking, it was not error to reject such proof when there was no evidence given that the deceased was drunk, and when, besides, the accused had the full benefit of such testimony from a number of witnesses who testified that the deceased was a violent and dangerous man in stronger language than that contained in the offer made.</p> <p>Instructions Construed Together.</p> <p>When in the trial of a homicide case in an instruction as to the law of manslaughter the court omitted to say anything about the doctrine of reasonable doubt, but in other instructions given he fully set forth such doctrine, the instructions given will be construed as a whole and such omission will not be held as prejudicial to the defendant’s substantial rights.</p> <p>Instruction as to Abstract Proposition.</p> <p>Where in an instruction in the trial of a homicide case a mere abstract proposition is stated with no evidence to support it, but it is more favorable to the accused than to the commonwealth, such instruction is not erroneous and does not injure the accused.</p>

<p>Estoppel of Wife to Recover Land.</p> <p>Mere acquiescence by a married woman during her coverture in a sale by her husband of her real estate, is not sufficient to enable the purchaser to resist her recovery of the land after the death of the husband.</p>

<p>Commissioner’s Sale of Real Estate.</p> <p>A commissioner in selling real estate at public sale has no right to summarily adjudge a party insolvent and presumably unable to give the bond and surety, and therefore to reject the highest bid from such a bidder and accept the next highest bid.</p>

<p>Creditors’ Right in Heir’s Estate.</p> <p>Land descending to the heir may be aliened by the heir and a bona fide purchaser for value will hold as against the personal representative of the heir or the creditor and the remedy is by the creditor against the heir for a recovery to the extent of assets received; and he may by a proceeding in equity obtain a lien on the property of the decedent in the hands of the heir.</p> <p>Suits to Settle Estates.</p> <p>After the death of the father, his son and heir died and the administrator of the father’s estate was also appointed as administrator of the son’s estate. The son was largely involved and the father was his surety for several thousand dollars. The administrator brought a suit to settle both estates and procured an order for the sale of the father’s real estate to pay such obligations and others. It was held that the other heirs, being before the court, and the action having been properly instituted, the chancellor should have proceeded to ascertain the amount of 'the personal estate and applying that to the payment of the debts, he should then have sold enough of the real estate to pay the balance of said indebtedness and have divided the balance of the estate between the children, charging the deceased son’s estate with what the father’s estate had to. pay for him. All this should have been done before the son’s creditors received anything.</p>

<p>Attorney’s Lien Under Statute.</p> <p>An attorney, under the provisions of Gen. Stat., Ch. 5, Art. 1, § 15, is entitled to a lien for his fee in an action for damages, but such lien does not attach until there is a recovery in the action and then only upon the judgment.</p>

<p>APPEAL FROM LOGAN CIRCUIT COURT.</p> <p>[Cited, Edwards v. Walesby, 30 Ky. L. 251, 98 S. W. 306.]</p>

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

<p>Opinion of the Court Not a Judgment.</p> <p>The expressed opinion of the judge is not a judgment and therefore not final, and an appeal taken from such an opinion will be dismissed.</p> <p>Debtor’s Power to Mortgage His Personal Property.</p> <p>A debtor may legally mortgage his personal property to secure the payment of his debts, and the wife can not prevent him from doing so or retain any rights of exemption by not joining in the mortgage on personal property alone.</p>

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

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

<p>Jury Taking Pleadings to the Jury Room.</p> <p>There can be no legal objection to the jury taking to their rooms the pleadings in the case, although a demurrer had been sustained to parts of them, nor is the exhibition of a lease involved in a suit prejudicial error, particularly where no objection is made by the parties thereto.</p>

<p>Indictment to Be Read in Homicide Case.</p> <p>On the trial of a felony case the indictment is required by Crim. Code (1876), §§ 1SS, 219, to be twice read, once by the clerk to the defendant; which may be dispensed with by his consent, and once to the jury by the clerk or commonwealth’s attorney.</p> <p>Time of Reading Indictment to the Jury.</p> <p>In a felony case Criminal Code (1876), § 219, requires the indictment to be read to the jury by the clerk or commonwealth’s attorney and a statement of the defendant’s plea thereto, next in order after the jury is sworn, but where such indictment is not read, and the plea stated at that time, but the reading and statement take place before the close of the evidence for the state, in the absence of a motion of the defendant to recall the witnesses and reintroduce the evidence, there will be no reversal, as the substantial rights of the accused are not prejudiced by the omission to read the indictment at the proper time.</p> <p>Waiver by Defendant of Objections.</p> <p>A defendant charged with a felony can not be heard to complain in the Court of Appeals of correctible errors made in the lower court, when he neither made objection to them nor excepted to the action of the trial court at the time.</p> <p>Competency of Witnesses.</p> <p>Where two or more persons are jointly indicted for the same offense, each is a competent witness for the other, unless the indictment charges a conspiracy between them; and even where conspiracy is charged each is a competent witness for the other unless there is evidence submitted which in the opinion of the trial judge establishes with reasonable certainty the existence of such a conspiracy, and the judge will determine such question from all of the evidence introduced by the state and the accused.</p> <p>Res Gestae.</p> <p>Declarations to be admissible as part of the res gestae must be contemporaneous with the fact; yet when they are connected with or grow out of it, they may even when made after a lapse of time be admissible.</p> <p>Res Gestae — Continued.</p> <p>On the trial of an accused person for murder a statement made by him a few minutes after the killing, near the place and in the hearing and presence of witnesses not called by the commonwealth, is admissible for the prisoner as part of the res gestae.</p>

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

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

<p>Dedication of Street by Plat.</p> <p>Where one prepares a map of an addition to a city, which is acknowledged and recorded, and on the back of such plat he also places a map and plat of an addition of the real estate adjoining that platted, and no acknowledgment is made on the back of such plat but it is recorded, it amounts to a dedication of the streets in both of said additions; and if a street thus dedicated is accepted by the public and used as a highway, it belongs to the city and can not be' claimed by one owning adjoining real estate.</p>

<p>APPEAL FROM McLEAN CIRCUIT COURT.</p> <p>[Cited, Higgins’ Admr. v. Louisville & N. R. Co., 18 Ky. L. 899, 38 S. W. 876.]</p>