Volume 12 — Kentucky Opinions

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 825.]</p> <p>Rights of a Surety Under Mortgage.</p> <p>Where a mortgage is taken to secure a debt which is also secured by a surety, and the surety is compelled to and does pay his principal’s debt, the mortgage enures to the benefit of the surety, and in a court of equity he should be substituted to the rights of the creditor.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 825.]</p> <p>Right to a Homestead.</p> <p>A vendor’s lien is superior to the vendee’s right to a homestead, but such vendor may waive his lien by taking other security with the intention of making the waiver, and still if the vendee’s note is for purchase-money his homestead right yields to it.</p> <p>Vendor’s Lien Released as Against Creditors.</p> <p>Where the vendor releases his lien to enable the vendee .to raise money by mortgage to pay on the property sold, while the lien can be enforced as against the vendee, it is effectually waived as against creditors or purchasers.</p>

<p>Right of Accused to Complain Because He is Convicted of Manslaughter Instead of Murder.</p> <p>One charged with murder can not complain at being convicted of manslaughter. He is not prejudiced by his conviction of the lesser offense if he could have been convicted of one or the other of said offenses and he is in fact guilty.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 826.]</p> <p>Executions Against a Bankrupt.</p> <p>Where an execution had been levied upon the land to satisfy a debt existing prior to the passage of the homestead law, a proceeding in bankruptcy after such levy will not stay the proceedings under the execution. In such a case the sheriff should make the sale under the levy.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 825.]</p> <p>Mortgage Lien Enuring to Sureties.</p> <p>Where a creditor takes personal security and also a mortgage from his debtor, and the surety is compelled to pay the debt, the mortgage lien enures to the benefit of the surety.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 825.]</p> <p>Recovery by Trespasser for Personal Injuries.</p> <p>One being at a point where he has no right to be, being a trespasser looking for a freight train that did not carry passengers with a view of stealing a ride, who is injured by being struck by such train in the night-time, not being seen by those operating the train, can not recover from the railroad company, damages caused by his being injured. No negligence of the railroad company is shown.</p>

<p>[Abstract Kentucky Law Reporter, Vol. A — 826.]</p> <p>Void Judicial Sale.</p> <p>A sale of real estate on execution on a decree entered in a case to which the owners of the land were not parties is void as against such owners.</p>

<p>[Abstract Kentucky Law, Reporter, Vol. 4 — 826.]</p> <p>Possession From One Not a Party to a Suit.</p> <p>One who is in possession of real estate can not be legally dispossessed by an officer under a writ issued in a cause to which the one in possession was not a party, where he was in possession before the cause in which the writ was issued was begun.</p> <p>Officer Guilty of Trespass.</p> <p>Where one in possession of a house was not a party to a suit in which the writ of possession was issued, but had purchased the property and taken possession before the suit was begun, and the officer holding the writ breaks down the door of such house and forcibly takes the possession, he is guilty of trespass.</p>

<p>[Abstract Kentucky Law, Reporter, Vol. 4 — 826.]</p> <p>Time in Promise of Marriage.</p> <p>When there is an agreement to marry and no time is agreed upon for the ceremony to take place, there is a breach of such contract when such marriage is not consummated within a reasonable time thereafter.</p> <p>Evidence of Birth of a Child in a Suit for Breach of Marriage Contract.</p> <p>Where in a defense to a suit brought by a woman for breach of contract to marry the defendant pleaded that she was an unchaste woman, the fact that she gave birth to an illegitimate child would have been sufficient to authorize the jury to find for him; but evidence is admissible to showr that the defendant is the father of the child and that she had been chaste as to all other persons.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 827.]</p> <p>Power of Executrix to Make Advancements Under a Will.</p> <p>Where a widow serving as executrix under her husband’s will is given power to make advancements to the children, a codicil to such will providing only that in the event of any of the children dying without children or heirs of their body the estate devised to them should be equally divided between the surviving children and the heirs of those that may die, the power of the executrix to make advances to the children was not destroyed by such codicil, and if it seemed advisable to the chancellor to make them she could sell and convey the real estate, and the title of the grantee is valid.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 827.]</p> <p>Construction of Will.</p> <p>Where a testator devised land to his wife for life “and at her death to belong to her daughter, Elizabeth, and her heirs forever, and in case Elizabeth should die without any heir, the land is to belong to Jane Alvey and her heirs,” and the life tenant dies and Elizabeth marries, has children and dies, leaving such children surviving her, it is held that the devise to Elizabeth was an absolute fee, but to be divested if she died without children.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 888.]</p> <p>Criminal Law — Indictment.</p> <p>The court judicially knows that United States treasury notes were issued by authority of law and current in Kentucky, and it is not necessary to allege such facts in an indictment charging one with issuing a counterfeit note.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 88?.]</p> <p>Unequal Taxation to Aid Railroad.</p> <p>While the principle of equality as far as practicable must be the rule in taxation, yet the law is not unconstitutional for violating this rule which provides that when a municipality should take stock in the railroad to extend from Harrodsburg to connect with the Cincinnati Southern Railroad, any citizen of such municipality who subscribed for such stock should have the amount of such subscription credited! on the taxes raised by such municipality to meet its subscription.</p>

<p>Title by Adverse Possession.</p> <p>Where one secures possession of land under a conveyance and holds the possession under an undisputed claim of ownership, acquiesced in by everyone for more than fifty years, it is too late for one to assert a title to it under conflicting proof as to the manner in which the person so long in possession obtained his title between the years 1831 and 1840.</p>

<p>[Abstract Kentucky Law Reporter, Vol. A — 888.]</p> <p>Wife’s Homestead.</p> <p>The wages of a married woman for services and labor performed by her are free from the debts and control of the husband since the act of April 4, 1873 [I Acts 1873, ch. 768], and such married woman may purchase therewith a homestead which is also free from his debts and control.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 889, as Nickols v. Sennett.]</p> <p>Homestead Exémpt From Execution.</p> <p>The Gen. Stat. 1881, ch. 38, § 9, which exempts “so much land, including the dwelling-house and appurtenances owned by the debt- or, as shall not exceed in value $1,000,” does not require that the land shall all be in the same parcel or body, nor that the dwelling-house shall be located on the land to be exempted; and two separate tracts of land may be held as exempt if together they do not exceed in value $1,000.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 888.]</p> <p>Lien Not Lost by Renewal of Mortgage Debt.</p> <p>The mere renewal of a note is not the payment of the debt so as to affect the mortgage lien as security for its payment.</p> <p>Pleading Must Authorize Judgment.</p> <p>Even though the evidence is sufficient to sustain a judgment such judgment will be reversed where there was no pleading filed upon which the judgment could stand.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 891.]</p> <p>Conveyance to Defraud Creditors.</p> <p>A conveyance by a husband through another to his wife in satisfaction of a verbal antenuptial agreement made many years before, and of property vastly in excess of any claims of the wife and at a time shortly before suit was brought against him for damages resulting in a judgment against him after the date of such conveyance, and where no demand or claim had ever been made by the wife, will be held to have been made to defraud the creditor and will be set aside.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 889.]</p> <p>Administrator Taking Possession of Real Estate.</p> <p>An administrator has no right to take possession of realty where it does not become necessary to use it to pay debts, but where he does so he is estopped to say that he must be proceeded against in his individual capacity for the rents and not as administrator.</p>

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 892.]</p> <p>Res Adjudicata.</p> <p>Where, in an action between parties on one of a series of votes secured by a mortgage, defendant’s right to a homestead is put in issue and determined, he can not in a suit against him on a second note again have determined his claim of a^ homestead in the same land. The former decision amounts fo res adjudicata.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 889.]</p> <p>Mortgage Invalid Against a Purchaser.</p> <p>No mortgage or deed of trust conveying a legal or equitable title to real estate or personalty is valid against a purchaser for a valid consideration without notice thereof, until it shall be acknowledged or proved according to law and lodged for record, although such a deed or mortgage is valid as between the parties to it.</p>

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 892.]</p> <p>For Evidence</p> <p>Held insufficient to establish the identity of a person as claimant of an estate after many years of absence, see the opinion.</p> <p>Construction of Evidence.</p> <p>Where a person claiming an estate as a son is unable when a witness for himself to name the schools he attended when a boy, the names of any of his teachers or playmates, or names of places or events except those occurring or of which he gained knowledge after he was twenty-seven years old, such failure will cast suspicion as to. his indentity, for it is the rule among adults that they have knowledge and recollection of facts occurring during childhood.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 894.]</p> <p>Claim for Alimony as Against Creditors.</p> <p>In a claim for alimony the rights of the wife as against the husband may be enforced and the property sold, or the property itself applied to her support and maintenance; but as to the husband’s creditors whose claims existed prior to the claim asserted by the wife, the chancellor will not undertake to make a settlement upon her to the detriment of such creditors unless from the estate of the wife, and not even then if the creditors had obtained prior liens upon it by attachment or other writ.</p>

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. A — 899.]</p> <p>Will of Married Woman.</p> <p>A married woman, under Gen. Stat., ch. 113, § 4, may by will dispose of her separate estate but has no power to dispose of her general estate.</p> <p>Definition of the Phrase “Separate Estate.”</p> <p>A separate estate is that to which a married woman has the sole and exclusive right independent of her husband, not subjected by his control or affected by any interest or use in him.</p> <p>Rules to Determine Whether Estate is a Separate One.</p> <p>It is not the right to the present use and enjoyment of property that determines a separate estate but it may be created and exist without reference to the quantity of interest in the property or the time of its enjoyment. It is sufficient if the feme covert has the sole and exclusive right to the estate devised or conveyed independent of any control or isterest of her husband, whether for life, in remainder or absolute fee.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 898.]</p> <p>Continuance on Account of Pleadings Filed.</p> <p>Where the court sets aside the order submitting a course for final hearing and allows a party to file an affirmative pleading, the court should allow the cause to be continued that other parties should have an opportunity to prepare to meet the allegations contained in such new pleading; and it is error for the court to have such cause immediately resubmitted and to decide the cause the same day,</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 898, as Vasdagrift’s Admr. v. Davezac.]</p> <p>No Reversal on Evidence when Conflicting.</p> <p>Where the testimony is conflicting the verdict of a jury will not be disturbed if favorable to either party, and the same rule applies where the issues of fact have been determined by the chancellor (being purely legal), and his judgment will be treated as the verdict of a jury properly instructed.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 897, as McConnell v. McConnell.]</p> <p>Husband and Wife — Wife’s Property.</p> <p>So long as the husband neglected to reduce the money and property of his wife to possession she might have applied to the chancellor and compelled him to make an equitable settlement out of the property; and since she might have done so by proper legal proceedings, there is no good reason why he might not voluntarily settle it upon her out of court.</p> <p>Wife’s Separate Property.</p> <p>Where a husband, during his life did not reduce his wife’s property to possession, but in pursuance to an agreement between them he disclaimed ownership and treated the property she received from her father’s estate as her separate estate and never used or controlled it for his own benefit, after his death such property will be regarded as he regarded and treated it and it will remain as the separate property of the wife; and this is clearly so when there is sufficient property left by the husband to pay all creditors.</p>

<p>[Kentucky Law Reporter, Vol. 4 — 856.]</p> <p>Sale of Real Estate Under Provisions of Will.</p> <p>Where a will provides for the sale of real estate under certain conditions which arose thereafter, the petition states a good cause for selling-, all the parties in interest are made defendants and process was issued but not served in time and the property sold for its full value, the proceeding will not be held void either because the warning order to non-residents was defective or because the clerk of the court who entered up the court’s judgment was the guardian ad litem and became the purchaser.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 981.]</p> <p>Adverse Possession Settles Title.</p> <p>One who receives a deed to real estate in November, 1859, enters into possession at that time and has held it uninterruptedly and adversely to the whole world from that time to January, 1875, a period of more than 15 years, has a good title.</p> <p>Disabilities of Parties — Limitations.</p> <p>If at the death of an ancestor all of his heirs are under legal disabilities they may have the time allowed after the removal of such disabilities from all to bring their action or make their entry; but if one of the heirs is not under disability at the death of the ancestor, or when the right of action accrued, the disabilities of the other heirs will not prevent the statute of limitations from running nor bring any of them within its saving.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 982, as Miller v. Ingells.]</p> <p>Rent only Chargeable When Relation of Landlord and Tenant Exists.</p> <p>One who is the owner of land by parol contract, and is in possession, can not be charged with rent of the premises. Rent is only chargeable where the relation of landlord and tenant exists.</p>

<p>[Abstract Kentucky Law Reporter, -Vol. 4 — 981.]</p> <p>Estoppel by Life Tenant.</p> <p>Where a tenant for life stands by and permits an owner of an undivided interest in remainder to construct a valuable building on the land, and makes no objection thereto or claim of rent thereon until after the remainderman becomes insolvent, she is estopped to claim such improvement as against his creditors, but she is not estopped to assert her claim for the ground rent.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 982, as Eldridge v. Wilson.]</p> <p>Mental Capacity of Mortgagor.</p> <p>Where a woman attended school when a child, learning to read and write, married when she grew up, bore children, attended, to her household duties, purchased articles for her-family with” some care and judgment, exchanged her lands, signed and acknowledged deeds, had law suits and gave testimony, and generally attended with fair judgment to the ordinary affairs of life, such facts shown by the record will support the conclusion that she had capacity to make a mortgage as decided by the trial court, and the opinions of witnesses to the contrary, based upon no particular facts or circumstances giving them weight, can not be permitted to outweigh the many acts of ordinary intelligence done by her before she executed the mortgage.</p>

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 983.]</p> <p>Priority of Claims.</p> <p>When upon appeal to this court it was decided that certain conveyances were made to defraud creditors and in contemplation of insolvency, and hence were to be treated as assignments for the benefit of creditors, but did not determine whether the claim of an innocent purchaser who had paid for land had a preference over other claims, such a purchaser is entitled to be heard before the assets of such insolvent person are distributed to creditors.</p> <p>Petition by Creditor for Preference.</p> <p>Where a conveyance is made in contemplation of insolvency and to prefer a creditor, and the conveyance held to be an assignment for the benefit of all the creditors, a petition for preference is good filed by a purchaser at such sale, showing that he had purchased the real estate for many thousands of dollars, in good faith without any notice or knowledge of insolvency, or that an act of insolvency had been committed, and paid the full purchase-price before the assignment was made or suit instituted; and if the proof sustains such plea he is entitled to a preference as a creditor, not having been permitted to hold the land.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 983, as Morton v. Dougherty.]</p> <p>Estoppel.</p> <p>One can not both claim under and against a will.</p> <p>Construction of Will.</p> <p>Where a testator is indebted to one in the sum of $300, and by his will demises $100 to such creditor as a legatee, the legacy can not be deemed a satisfaction of the debt, and the legatee may collect his legacy and also his debt.</p>

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 984.]</p> <p>Subscription to Turnpike by County Judge.</p> <p>Where those interested in the construction of a turnpike have subscribed a sum sufficient to build the road, and the magistrates have determined from proof that the subscription is sufficient and a record is made showing such facts, the county judge .can be compelled by mandamus to make the county subscription. Under such a record the judge has no power to refuse to make the subscription.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 985.]</p> <p>Power of Legislature to Regulate Jurisdiction of Justices of Peace.</p> <p>The legislature has an unlimited right to regulate the jurisdiction of justices of the peace, but can not abolish such' office. It may legally provide that their compensation for such services as may be performed shall be a salary instead of fees.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 984.]</p> <p>Liability of Bondsmen in a Bastardy Case.</p> <p>Where a bond is taken in a bastardy case conditioned for the appearance of the defendant and to perform such judgment as the court might render, an appearance of such defendant satisfies the covenants of the bond.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 986.]</p> <p>Vendor’s Lien in Sale of Land.</p> <p>A vendee of real estate who is aware of the source of title and has an opportunity to know of the defect in title, after the confirmation of the sale and the release of a lien on such real estate and the taking of a new lien by the original lienholder, in the absence of allegations of fraud on the part of the lienholder, can not successfully defend against such lien by interposing the defense of title.</p> <p>Purchasers at Judicial Sale.</p> <p>Purchasers at judicial sales take only such title as is obtained by confirmation of sale. There is no warranty, and the rule of caveat emptor applies to the fullest extent, and there can be no relief without fraud or secret defect of title.</p>

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. A — 987.]</p> <p>Consolidation of Cases.</p> <p>Where cases are brought and afterwards consolidated by order of the court, they should be heard together as one case, whether the liens sought to be enforced in the various suits were prior or subsequent. There can not be judgment on one claim and property ordered sold to pay it and no judgment entered on the other claims consolidated with it.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 988.]</p> <p>Power of the Chancellor to Protect Rights Under His Decree.</p> <p>The chancellor has the power and should protect the parties in their rights under his decree. He may compel the surrender of the possession of mortgaged property pending litigation, to prevent it being carried out of his jurisdiction or converted, and may by proper orders, compel a party to the suit to bring into court the proceeds or value of mortgaged property converted pending the suit.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 987.]</p> <p>Posting of Notices Before Commissioner’s Sale.</p> <p>The burden is on a purchaser at a commissioner’s sale of real estate, where the validity of the sale is at issue, to show that the notices required to be posted prior to such sale were duly posted, and where he fails to show such posting his bid is properly rejected and the commissioner’s sale set aside.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 987.]</p> <p>Widow’s Use of Lands of Her Husband’s Estate.</p> <p>The accumulations upon the farm of her late husband by the widow, by her labor and that of her children or those employed by her, do not become a part of the estate.</p> <p>Dower of Widow.</p> <p>If dower is given to a widow in an action to sell the real estate of her late husband, it is binding upon all parties to such proceeding, whether she is entitled to dower or not, and it can not be questioned by them after sixteen years from the date of such judgment.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. A — 991.]</p> <p>Correction of Deed of Conveyance.</p> <p>A conveyance of real estate may be corrected and made to describe the land actually sold when the description in the deed is incorrect, whether the misdescription was the result of fraud or mistake or both combined.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 989. ]</p> <p>Criminal Law — Usurpation of Office,</p> <p>An indictment is not good which charges that the accused usurped an office by exercising the duties thereof without executing an official bond which was required by law to be executed, the indictment not charging that the accused was ineligible or not elected to the office or that he had not taken the oath of office.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 991.]</p> <p>Subjecting Wife’s Land to Husband’s Debts.</p> <p>Where land is paid for with money belonging to the wife originally, and which the husband had not reduced to possession, such land can not be subjected to pay the husband’s creditors.</p> <p>Homestead.</p> <p>Where it is not shown in a proceeding to subject property to pay a creditor that the property is of greater value than the homestead interest of the wife and children, although it be conceded that the land was paid for with money belonging to the husband, where the liability was incurred subsequent to the purchase of the land by the husband the homestead right exists notwithstanding the conveyance • to the wife may have been fraudulent and void.</p>

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 4 — 992. Later reported in full, S Kentucky Law Reporter, 193.]</p> <p>Assessment of Real Estate for Taxation.</p> <p>The fact that property is entered upon the assessor’s books as the property of the wife when it in fact belongs to the husband is a mere irregularity, and will not affect the assessment and the liability of the property therefor, if it appears that the property described in the assessor’s return is the property against which the tax was intended to be assessed.</p>

<p>[Kentucky Law Reporter, Vol. 4 — -947.]</p> <p>Construction of Will.</p> <p>Where a testator in his will states “Being in full possession of all my mental faculties, but in feeble health, and about to start upon a long journey, and subject to the common casualties of others, I deem it prudent to provide for the disposition of my property in case I should not return,” and then disposes of all his property, it is held that the use of the words “In case I should not return” did not render the will contingent, so that when he returned and lived some years thereafter it would be inoperative as a will, but that the use of such words were intended only to set forth reasons which induced him to make the will.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 56.]</p> <p>Confession by Failing to Plead.</p> <p>Where a plaintiff fails to file a reply denying affirmative allegations in an answer, such allegations must be taken as true.</p> <p>Imposition of Taxes to Construct Railroads.</p> <p>The legislature has power to impose taxes upon the people of counties and precincts for the construction of railroáds and turnpikes, upon their ratification at the polls.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 56.]</p> <p>Descent of Real Estate.</p> <p>Words of inheritance are not required to be used in a deed or will in order to pass a fee, whether absolute or conditional.</p> <p>Construction of Will.</p> <p>After a testator had devised certain specific legacies he provided that “My six children not provided for (naming them) are to have the balance of my estate not disposed of.” It is held that this gave to them an absolute estate; and when he provided further that “In case of the death of any of my children without bodily heirs their landed estate to revert back to their brothers and sisters,” it was a defeasible fee devised, the children taking from the father if any survived him, and if not the estate to go to his brothers and sisters.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 57.]</p> <p>Purchaser of Real Estate at Judicial Sale.</p> <p>Where real estate is sold at judicial sale and the sale is confirmed, the purchaser can not complain on the grounds that the credit given him is for a longer period than authorized by law. Even if true his rights are not affected.</p> <p>Jurisdiction of the Chancellor.</p> <p>After litigation lasting for some years and after more than one appeal to the Court of Appeals, it can not be contended for the first time that the chancellor had no' jurisdiction because the circuit judge alone had transferred the case without the concurrence of the chancellor; besides where it is shown that such a transfer was made and the chancellor took jurisdiction without any objection and has been rendering judgments therein for years, the transfer was legal and the judgment valid.</p> <p>Purchaser’s Title at Judicial Sale.</p> <p>A purchaser acquires good title at a judicial sale, by the offer, the bid, its acceptance and confirmation, whether the steps up to the sale were regular or irregular.</p>

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 174.]</p> <p>Conveyance Fraudulent as to Creditors.</p> <p>A conveyance of land to the wife purchased by the husband with his own means is fraudulent as to pre-existing debts of the husband.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 175.]</p> <p>Homestead Right.</p> <p>Where a debt is incurred after the debtor receives conveyance of real estate and after the homestead law was passed, if otherwise qualified the owner is entitled to claim the homestead as against such debt.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 174.]</p> <p>Criminal Law — Indictment.</p> <p>An indictment charging one taking and detaining a woman against her will with intent to have carnal knowledge with her is not subject to demurrer because of stating two offenses in one charge, that of taking or detaining. The words are merely descriptive of the offense denounced, and either of them constitutes a single offense, the purpose of the taking and detention being the gravamen of the offense.</p> <p>Intent to Rape No Defense.</p> <p>It is no defense against a charge of taking and detaining a female against her will, with intent to have carnal knowledge with her, that a rape was either intended or accomplished, as a conviction of the offense charged is a bar to a future prosecution for the same acts on which the conviction may be had.</p>

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

<p>Rule for Enforcing Liens.</p> <p>Taxes are not debts, and the rule is not applicable that where one has a lien upon two funds and another has a lien upon only one of them the chancellor will require the first lienholder to exhaust his claim against the fund on which he has an exclusive lien before resorting to the other.</p>

<p>[Abstract Kentucky Law .Reporter, Vol. 5 — 177.]</p> <p>Contract Procured by Fraud.</p> <p>Where a widow the day after the funeral of her husband and while in deep distress, being unable to read and write and without any information that she was the owner of one-third of her late husband’s estate, is prevailed upon by his children, who are her stepchildren, who knew that she was the owner of such one-third interest, to sign an agreement relinquishing her interest worth about $25,000 in consideration of about $7,000, and where she was induced to enter into it by the wrongful and false representations of the children, such agreement will be set aside.</p> <p>Duty of Court to Protect the Weak.</p> <p>While a court of equity will favor the prevention of litigation by sustaining settlements made for that purpose, it will also aid the ignorant and weak against the efforts of superior minds, where improper advantage has been taken of those unable to protect themselves as to property rights.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 178. Reported in full, Vol. 5 — 203.]</p> <p>Homicide — Instructions.</p> <p>In a homicide case where there is some evidence that the offense was committed in self-defense, and the court instructs the jury on the law of self-defense, it should instruct that the right of self-defense depended upon the real or apparent danger as it reasonably appeared to the accused as he was then situated.</p> <p>Dying Declarations as Evidence.</p> <p>In order that dying declarations may be introduced by the state against the accused, they should be confined to facts and can not be allowed to extend to mere matters of opinion; but where the declaration is offered by the accused it should be permitted from necessity and for the reason that the deceased is so likely to be telling the truth when he in the presence of approaching death declares himself to have been alone burnable and his slayer excusable.</p> <p>Opinion Expressed in Dying Declaration.</p> <p>A dying declaration, which is an expression of the deceased’s opinion that the accused was blameless, is admissible in behalf of an accused to explain the intent and motive with which he was actuated in the part he played, and will always aid the jury in understanding the true nature and object of his acts as proved by other witnesses.</p> <p>Opinion Evidence.</p> <p>While it is the general rule that matters of opinion or belief are excluded as evidence, an exception is made allowing the declarations of the deceased, in a homicide case, in behalf of the accused, where they will explain the acts and conduct of the deceased or show his feelings, motive, intent or belief, when they are essential to qualify or aggravate his conduct.</p>

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

<p>[Kentucky Law Reporter, Vol. 5 — 103.]</p> <p>Homicide — Continuance for Witness.</p> <p>The accused in a murder charge having failed to cause a witness to be recognized or summoned to appear-at the trial is not entitled to a continuance on account of his absence when the case is called for trial.</p> <p>Instruction on Self-Defense.</p> <p>Instructions in a homicide case are erroneous and prejudicial to the accused' when under all of them taken together the jury were required to convict him of manslaughter, notwithstanding he may have killed his assailant in his necessary self-defense; and where there is evidence tending to show that the ground of self-defense existed the accused should have had the full benefit of the law of self-defense.</p>

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 242.]</p> <p>Waiver of Question as to Misjoinder.</p> <p>Where no demurrer raising the question of misjoinder is filed, such objection is waived.</p> <p>Offer of Proof by a Witness.</p> <p>When a party offers a witness to prove a fact and objection is made to a question asked him, an offer to prove by the witness a certain fact should be made, as the court in the absence of such a statement as to what the witness will swear to in answer to the question can not know how to rule, and unless such a statement is made no point is raised against the legality of such ruling.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 238.]</p> <p>Criminal Law — Mayhem.</p> <p>Where an accused person is charged with mayhem he is guilty where the evidence shows that he bit off the lip of his antagonist.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 239.]</p> <p>Construction of Will.</p> <p>Where a testator provided that money he owed to his daughter, as her guardian, should be paid in full, and gave the remainder of his estate to a trustee to be held in trust for the sole and separate use of said daughter, it was held that the trustee was not required to pay over to the guardian of the legatee the whole of said estate, but that he was required to pay only so much thereof as might be necessary for her support, maintenance and education.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 239.]</p> <p>Lien Reserved in Conveyance of Land.</p> <p>Where a lien exists for purchase-money, and a third person loans the debtor the money with which to pay such purchase-money under an agreement expressed in the note he took from the debtor that he was to retain and have the lien theretofor held by the grantor, his lien is good as against such land.</p>

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

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

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

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

<p>Adverse Possession to Patent Boundaries.</p> <p>After a possession and claim for nearly sixty years, the court will not disturb the claimant on account of the fact that the corners and boundaries of certain patents may omit or fail to include the land of the party in possession, and especially when practical surveyors had been making surveys and no discovery of vacant land had been made.</p>

<p>Tax-title — How Procured.</p> <p>In order to acquire a title by tax sale the steps required by the statute must be taken or no title will pass.</p> <p>Rent Charged When Possession is Wrongful.</p> <p>Where one is a defendant to a suit to foreclose a purchase-money lien, buys the property at tax sale and takes possession and uses the land before he receives a tax deed therefor, while he is entitled to receive back the money and interest thereon paid by him for the taxes, he is required to account to the owner for the rent of the land during his occupancy of it.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 241.]</p> <p>Judgment in Insolvent Estate.</p> <p>A judgment in the settlement of an insolvent estate should specify the names of the creditors and the amount which each is entitled to on distribution, or at least state the whole amount due and1 the per cent, to be paid thereon to each creditor.</p>

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 242.]</p> <p>Invasion of Usury Laws.</p> <p>Where one gives his notes for $3,500 and actually receives from the loan company only $2,956.59, it amounts to an invasion of the usury laws.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 243.]</p> <p>Improvements Made By Purchaser.</p> <p>Where a commissioner’s report is confirmed,- and an appeal is taken from the order of confirmation but no supersedeas is granted, the purchaser at such a sale should be compensated for improvements made on the land, and where the appeal is sustained the value of such improvements should be set off as against the rent of the land while in the possession of such purchaser.</p> <p>Vacating Sale of Real Estate.</p> <p>A judgment and order confirming a sale of real estate will be vacated, where the appellant was misled by the appellee, by reason of the latter’s promise to make the land sold pay_ his debt, where it is evident but for such promise the land would have brought at least the purchase-money due the original vendor.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 243.]</p> <p>County Court Directing Subscription to Turnpike.</p> <p>The act is constitutional which provides that the justices of the peace should be associated ■jyith the county judge in making any order submitting to the voters the question whether the county court should be directed to subscribe to the building of turnpikes in the county.</p>

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

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

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

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 24-5.]</p> <p>Lis Pendens Purchaser.</p> <p>One who is a lis pendens purchaser or one who buys an interest in real estate with notice of the claims of others therein, and of the pendency of a suit to determine such interests, is bound by the judgment entered in such cause.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 248.]</p> <p>Deed as Evidence.</p> <p>In the absence of any allegation or proof that one is mistaken as to what land was intended to be conveyed by a deed which that one drew himself, the deed in itself is sufficient proof of the contract between the vendor and vendee.</p>

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

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

<p>[Abstact Kentucky Law Reporter, Vol. S — 247.]</p> <p>Homestead Exemption.</p> <p>No land is exempt as a homestead from the payment of the purchase-money due therefor.</p> <p>Waiver of Purchase-Money Lien.</p> <p>Where one is in debt for the purchase-money for land and a friend' advances the money to pay the debt and takes a mortgage on the land, in which, the wife of the owner does not join, the holder of such mortgage has a purchase-money lien on such land superior to the homestead claim of the wife, where it is shown that it was not the intention of the owner or the mortgagee by taking the mortgage to waive the lien growing out of the payment of the purchase-money.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 246.]</p> <p>Dower in Lands.</p> <p>There can not be dower in lands of which the husband during coverture was not actually seized or had not the right to an actual seizure.</p> <p>Breach of Warranty.</p> <p>If a warranty be broken and the vendor insolvent, the vendee may set-off the damages resulting from such breach against the unpaid purchase-money.</p> <p>Assignment of Note by Married Woman.</p> <p>A woman who marries after a note is executed to her has no power or right to assign it unless her husband gives her authority to do so or assents to her doing so, but he may thereafter ratify such assignment and in that case the title of the assignee is good.</p>

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

<p>Parol Trusts, When Enforcible.</p> <p>A court of equity should be well satisfied as to the existence of parol trusts before one holding the absolute title is deprived of his right or possession, and when subsequent written agreements between the parties with reference to the same matter show that no such trust existed, or if it ever had existed it had been canceled, the statement of the party trying to enforce the trust is entitled to but little weight.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 321.]</p> <p>Husband’s Right to Homestead.</p> <p>Under the statute, the fee being vested in the wife and the latter entitled to a homestead in the land as against1 any liability she or her husband might incur, the right to the homestead passed to the husband on the death of the wife for the benefit of himself and children.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 322.]</p> <p>Antenuptial Contract Consideration for Conveyance.</p> <p>Where by an antenuptial contract the husband agreed to secure the wife in the amount received by him from her, such an agreement is a good consideration for a conveyance to her of real estate after the husband became embarrassed financially, and such a conveyance will be enforced and will not be disturbed where made before liens attach and no allegation or proof is made that the land exceeded in value the sum received by the husband from his wife.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 371.]</p> <p>Costs in Divorce Case.</p> <p>In judgments for alimony and divorce the husband is required to pay the costs unless it shall be made to appear in the action the wife is in fault and has ample estate to pay the same, but where both parties are at fault and' the means of the husband are very limited and the wife resides with parents who are amply able to provide for her, and besides she is given $2,000 as alimony, the costs may be assessed against the wife.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 319, 321.]</p> <p>Homestead.</p> <p>Where a debt was created before the passage of the homestead act, or the purchase of the land was made or improvements were erected after the creation of the debt, no homestead claim can be asserted as against such debt.</p> <p>Quashing a Sale.</p> <p>Motions to quash sales under execution will be sustained and the sales be quashed where the officer sells for a greater sum than he is required by the fi, fa.</p>

<p>Agreeing to Change of Venue.</p> <p>While an action is pending in a county to which a change of venue has been taken, it is competent for the parties thereto to agree to an order remanding the cause to the court from which it came, and when such order is made it can not be afterwards questioned by either of the agreeing parties.</p> <p>Right to Complain on Appeal.</p> <p>Where a judgment is against one defendant only the other defendants can not complain thereof on appeal.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 318.]</p> <p>Children of the Half Blood.</p> <p>Where an intestate dies without children, leaving no father or mother surviving, her estate passes to her brothers and sisters, and the fact that they were only of the half blood' can make no difference.</p>

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

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

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 328.]</p> <p>Ratification of Official Acts.</p> <p>Where the treasurer of a lodge borrows money for the lodge and his act is approved by resolution of the grand lodge, which authorizes him to borrow money for the lodge tnereafter at his discretion, the lodge is liable for the money so loaned which was intended for and was used for its benefit.</p>

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 325.]</p> <p>Contributory Negligence.</p> <p>Where one turns his stock on the railroad right of way on Sunday under the belief that no trains will run on that day, and a special train does run, and hearing it coming he goes on the right of way to drive off his stock and loses his life, the point where he was injured being one where there was no crossing, and where he could see the approaching train, he ought to have known his danger; and the employes of the company had a right to assume that he would leave the track and avoid danger, and where he fails to do so he so far contributes to his own death that there can be no recovery.</p> <p>Care of Train Operators to Avoid Injury to Others.</p> <p>In a suit for damages against a railroad company for killing a person on its right of way, where it is shown the deceased was where he had no right to be and the eriiployes of the company are exercising ordinary care and judgment, they have a right to assume that the trespasser will leave the track and where they were not guilty of wilful neglect, it is shown that the death of the trespasser was the result of his own neglect and there can be no recovery against the company.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 326.]</p> <p>Executor’s Sale Set Aside When Conducted Unfairly.</p> <p>An executor in making a public sale of real estate represents the owners of the estate in a confidential relation, and where he agrees privately with a'bidder present to bid for him and buy the property at a price not exceeding so much his'conduct in so doing is unfair to those owning the property. He can not as their trustee be put in a position to represent those whose aim is to buy the property at a low price; and where a sale is so made on a bid by the executor for such buyer it will be set aside as unfair. A trustee can not be allowed to represent both sides of a sale and purchase.</p>

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

<p>Continuance on Account of Absent Witnesses.</p> <p>Where an indictment in a criminal case was returned August 17, and the defendant arrested on the same day, and the case is set for trial on August 23, and the defendant had subpoenas for his witnesses issued returnable August 23, but none of them appeared on his application for a continuance the court should have continued the cause, especially where the charge was that the defendant detained his own daughter against her will for the purpose of having carnal knowledge with her, and it is shown that one of defendant’s witnesses was sick and the other not in the county.</p>

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

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

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

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

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

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

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 420, 427.]</p> <p>Definition of Involuntary Manslaughter.</p> <p>Involuntary manslaughter is the killing of another in doing some unlawful act, but without an intention to kill, and it may be either when the act is directed against the person killed or against another person or thing and kills one not intended to be hurt.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 421.]</p> <p>Sale of Land by Parol.</p> <p>The sale of land by parol is not void as between the parties, and where the vendee takes possession under his purchase and is claiming the land such possession is notice to others of his claim of ownership, and he should not be disturbed in his possession or ownership.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 5- — 422.]</p> <p>Homestead Right.</p> <p>The sale of real estate on execution in 1868, after the passage oi the Homestead Act of 1866, did not divest either the husband or his wife of their homestead right; but where the debts were created prior to the passage of the homestead act, the homestead right can not be asserted against them.</p>

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

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

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

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

<p>Statute of Limitations in Suit to Set Aside a Deed.</p> <p>An action to set aside a conveyance must be brought within five years from the date the cause of action accrued, and where a deed is procured by fraud and the petition alleges it, in the absence of allegation and proof to the contrary, it will be regarded that the fraud was discovered and the cause of action consequently to have accrued at the date of the deed.</p> <p>Statute of Frauds.</p> <p>Where the real consideration of a deed is the agreement to support a person and her children, the agreement does not fall within the statute of frauds, being uncertain as to the time of performance and not such a one as was necessarily “not to be performed within one year from the making thereof.”</p> <p>Statute of Limitations.</p> <p>Under a contract to support a woman and her children, a cause of action to recover the value of the support does not accrue until the party refuses to longer support her. The statute of limitations in such a case begins to run from the time of refusal to furnish such support.</p>

<p>Enforcement of Gift of Real Estate.</p> <p>A gift of town lots to an infant by her father by parol will not be enforced against a purchaser from the father after nearly forty years have elapsed since the gift was alleged to have been made, and where the evidence shows that the father had improved the lots by building houses upon them and where he had sold the same several times and repurchased them before making the final sale.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 426.]</p> <p>Administrator’s Settlement as Evidence.</p> <p>Where an administrator made a settlement of an estate showing that the estate owes him $400, and then died, it was held that such settlement is prima facie evidence of its correctness, and the objections in the attempt to surcharge it must be specifically set forth, and the burden is on those attacking such settlement to make out the case, and where many years have elapsed since such settlement, and the administrator is dead, every presumption should be indulged in favor of the representatives of the administrator that is reasonable and consistent with the facts proved.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — -422.]</p> <p>Waiver of Homestead Exemption.</p> <p>A homestead exemption can not be waived except by a writing subscribed by both the husband and wife and duly acknowledged and recorded, but without being waived the right terminates whenever the debtor ceases to be a housekeeper, or voluntarily removes permanently from the premises.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 419.]</p> <p>Power of Administrator Under a Will to Lease Coal Lands.</p> <p>Where a testator directed his executors to retain the control of certain land for the period of five years, or for a longer period if they thought it to the interest of his estate, and after that they were directed to sell it and give one-third of the proceeds to his widow, one-third to a daughter and the remainder to trustees for benevolent purposes, the income of the estate to be given to his widow, it sufficiently appears that the executor or administrator has the power to lease the land during the time before its sale when it appears to be to the best interest of the estate to do so.</p> <p>Validity of a Devise for Charity.</p> <p>Where a testator gives a portion of his estate to two named persons to be devoted, by them to such benevolent objects and purposes as they may elect, and requesting them in making distribution to give preference to charities connected with or under the control of the Christian Brotherhood, the devise is valid and is not prohibited by statute. Such a devise is a conveyance to the benevolent institutions of the Christian Brotherhood.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 429.]</p> <p>Mortgagee a Purchaser for Value.</p> <p>A mortgagee is a purchaser for value; and when he accepts a mortgage without notice of any fraud or mistake, he' is protected even if the mortgagor acted fraudulently.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 426.]</p> <p>Possession the Gist of the Action.</p> <p>Under our system of pleading a defendant can not be compelled to plead the evidence of his title, and where the action is trespass the possession of the property complained of is the gist of the action, and a plea that the defendant was in the actual possession of the close and was in fact the owner and the entry was by the plaintiff on his possession, and no trespass or entry made by the defendant, is sufficient. ,</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 513.]</p> <p>Dower of Wife.</p> <p>Where the husband holds land by executory contract and disposes of it the wife is not entitled to dower; but where her husband receives conveyance of real estate by commissioner’s deed and the sale is confirmed, the land being in two counties and the deed only recorded in one, she is entitled to dower in all of such land; and the transfer of such land by operation of law, or by reason of the husband’s bankruptcy will not deprive the wife of dower.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 513.]</p> <p>Creating Wife’s Interest on Husband’s Debt.</p> <p>Where a man buys real estate receiving a bond for a deed from his father-in-law, the consideration being $30,000, and after he has paid thereby $13,000, the father-in-law dies and the estate dscends to his children, one of whom’is the purchaser’s wife, such purchaser has no power to divest .his wife of her interest in the estate by crediting his purchase-money notes with the value of her interest.</p>

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

<p>Contributory Negligence.</p> <p>The neglect amounting to contributory fault in law, may be either wilful, gross, ordinary or slight, but whatever may be its degree, to prevent recovery it must contribute to the production of the injury to such extent that it would not otherwise have happened.</p>

<p>Indictment for Forgery.</p> <p>A receipt is a writing of a character which is subject to forgery.</p> <p>Former Jeopardy.</p> <p>A plea of former jeopardy is insufficient when it does not show that the indictment dismissed in pursuance to the court’s mandate was a legally' sufficient indictment. One could not have been in legal jeopardy unless his former trial was upon a good indictment for the same offense.</p>

<p>Renewal of Notes of Testator by His Executors.</p> <p>Where a testator empowers his executors to sell real estate to pay all his debts, but his executors attempt to pay them without such sales, and they renew the notes of the testator, such renewals will not deprive the holders of such notes of their liens upon the estate devised for the payment of his debts in the first instance; and this is not charged by the fact that the renewal notes are signed by the executors in their individual capacity.</p> <p>Debts of Widow of Testator.</p> <p>No part of the testator’s estate is subject to pay the individual debts of the widow and executor, who is the devisee of all the estate after the debts thereof are paid. The testator’s debts must first be paid.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 520.]</p> <p>Burden o£ Proof in a Will Case.</p> <p>In a will case the burden in the first instance, on the question of capacity, is upon the propounders. They should be allowed some latitude in determining- what amount of evidence will make out a prima facie case and shift the burden from them, and they may if they will introduce all of their evidence in the beginning on that issue; but they should be required to finish if the evidence introduced shows an effort to prove more than a prima facie case, and place the contestants between the divided witnesses of the propounders to give them the first and last impression upon the jury.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 512.]</p> <p>Jurisdiction in Equity.</p> <p>Where the remedy at law is plain, adequate and complete, and no exceptional facts are exhibited by the petition which would justify equitable relief, the chancellor will not interfere with the general statutory mode of condemnation.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 612.]</p> <p>Slander.</p> <p>An action for slander will lie for the wilful publication of a false accusation if the charge imports that the accused person is guilty of a felony.</p> <p>Slander.</p> <p>. To charge that a person is a thief or a thieving person is equivalent to a specific charge, that he is guilty of larceny, and such a charge is slanderous.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 610.]</p> <p>Criminal Law — Indictment.</p> <p>It is required that an indictment for conterfeiting shall contain such a description of the coin said to be counterfeited as will bar another prosecution and enable the accused to know with reasonable certainty what he is charged with passing. It is not sufficient in an indictment for passing a counterfeit coin to charge that the accused paid and tendered “in pa3unent of chestnuts a counterfeit coin of the half-dollar denomination” resembling the coin (commonly called) half-dollar of the United States of America.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 60S.]</p> <p>Embezzlement.</p> <p>An employer’s agent entrusted with the collection of his employer’s accounts is not guilty of embezzlement under Gen. Stat. 1883, ch. 29, art. 12, § 2, who collects the accounts and fails upon demand to pay the proceeds to such employer. But where property or things which are the subjects of larceny are entrusted to a person to be delivered at a place or to a person to whom the property was to be delivered, and there is failure to do so, it will amount to embezzlement.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 606, 609.]</p> <p>Right to an Easement.</p> <p>Where a landowner agrees to the discontinuance of a public highway in consideration that he and his successors in the ownership of the land shall have a right of way out to a highway, the right can not be denied to him.</p> <p>Statute of Frauds.</p> <p>A letter written by the party to be charged is sufficient to take a contract out of the statute of frauds.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 599, 605.]</p> <p>Title by Adverse Possession.</p> <p>Where one enters as the tenant of another and the land is assessed as the property of the heirs of such landlord for a number of years after his death, such a tenant can not be allowed to secure title under such possession, for his possession is not adverse.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 60S.]</p> <p>Equity.</p> <p>Where the real estate of partners is held in the name of one of the partners and is sold by the sheriff on a creditor’s execution against the record holder of title, and the partner who lives near and knows of such sale and also knows of the fact that the record holder has borrowed money on such title for his individual use, the partner who does not hold the title has no equity in such property which is superior to that of those holding- liens on such property.</p> <p>Sheriff’s Bid at Judicial Sale.</p> <p>While a sheriff can not legally bid in property sold by him as sheriff, it is not a violation of the law for him to bid for a litigant who has written to him a bid for the amount of such litigant’s claim. Under such facts the bid is made by the party and not by the sheriff.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 613.]</p> <p>Testamentary Capacity.</p> <p>A change of purpose is not of itself conclusive of an unsound mind, but a change which is just and reasonable is evidence that a testator is in possession of all his mental faculties.</p> <p>Evidence.</p> <p>For evidence held insufficient to establish unsoundness of mind of a testator, see opinion.</p> <p>Instruction.</p> <p>It is the duty and -province of the court to instruct the jury what condition or quality is sufficient to constitute a sound mind.</p> <p>Instruction — Continued.</p> <p>An instruction is not erroneous which charges that the degree of soundness of mind required by law to enable a person to make a will is capacity sufficient to know his relations and the extent and character of his estate, and to dispose of the same in a rational manner according to a fixed purpose of his own.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 608, as Woodward v. Enders’ Exr.]</p> <p>Pleading Statute of Limitations.</p> <p>An answer stating that the defendant relies upon the statute of limitations is not sufficient. To get the advantage of such statute the facts must be pleaded’ showing that the cause is barred by the statute.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 601.]</p> <p>Summons on a Garnishee.</p> <p>A summons against a party as garnishee, even if he is in possession of the land belonging to the defendant, is not a levy on the land; and one can not be made liable as. garnishee because he is in possession of defendant’s land. A mere summons served on a garnishee creates no lien on defendant’s land in the possession of such garnishee defendant.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 606.]</p> <p>Evidence of Existence of Trust.</p> <p>Land paid for by one who enters and holds possession for many years, the title being held in the name of another, is not subject to fhe demands of creditors of the holder of the record title, in case where the evidence establishes that the debtor holding such record title really has no interest in the property.</p>

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

<p>[Kentucky Law Reporter, Vol. 5 — 579.]</p> <p>Jurisdiction of an Appeal.</p> <p>Where an appellant was granted an appeal to the appellate court, but the appeal by mistake was made out to the superior court, which had jurisdiction of such appeals, and the superior court struck the appeal from the docket, the. appeal may be transferred by order of the Court of Appeals to the superior court, and thereafter the Court of Appeals has no jurisdiction of a motion to dismiss such appeal on the ground that the transcript was not filed twenty days before the second term after the appeal was granted, since the superior court has exclusive jurisdiction over such a motion.</p>

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

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

<p>Claim Against an Estate.</p> <p>Where a niece and her husband open their home to a sick relative who has a cancer, and care for her and look after her welfare and board, and entertain her friends under an agreement that they are to be paid for their services, such services are not to be regarded as rendered for the same compensation as would be received by a hired nurse, and where the rights of creditors are not involved the court will allow such niece and her husband a liberal compensation for such care and services.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 609, as Berkley v. Slavart.]</p> <p>Descent of Property.</p> <p>Where a person dies intestate, not leaving surviving him a father, mother, brothers or sisters or their descendants, and the property came to him by inheritance from his mother, his property will descend to his maternal grandfather and grandmother equally if both are living and to the survivor if either is dead, and if both are dead to their descendants.</p> <p>Pleading Conclusions.</p> <p>An allegation that plantiffs are the heirs-at-law of a person named is not sufficient, being a mere legal conclusion.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 690.]</p> <p>Defrauding Creditors.</p> <p>Where a husband who is heavily in debt by the expenditure of his own money and credit improves his wife’s real estate by the erection of a building thereon, his creditors may subject the value added to the property by the husband to make assets to pay' their claims. Such an investment of the husband’s means is a fraud against creditors, especially when the wife knows all the facts and permits it.</p>

<p>Assignment of Error.</p> <p>Where the ruling of the trial court in refusing a continuance is excepted to at the time made, but such ruling is not assigned as error in this court, such error will not be considered here.</p> <p>Evidence.</p> <p>A party who brings out a fact, on cross-examination of a witness, which is irrelevant, can not be permitted upon the pretext of rebutting it or contradicting the witness to introduce himself or other witnesses to testify in detail in respect to such irrelevant matter.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 690.]</p> <p>Homestead Rights.</p> <p>The owner of a homestead may sell it and with the proceeds purchase another homestead in good faith, and land including the dwelling-house not exceeding $1,000 in value is exempt from coercive sale.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 695.]</p> <p>Fraudulent Conveyance.</p> <p>Where one disposes of all’his estate to his father for the purpose of defrauding his wife out of her support, the father knowing of such purpose and taking over the property for such purpose, and the son abandons his wife, leaving her nothing, she is entitled to recover against both her husband and his father for the fraud thus worked on her.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 686.]</p> <p>Liability of County as a Stockholder.</p> <p>When a county becomes a stockholder in a private corporation it becomes liable like other stockholders, and it may be sued on its subscription the same as any other stockholder, and no demand for payment is necessary.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 696.]</p> <p>Claim Against Estate.</p> <p>An action to enforce a claim against an estate may' be brought anywhere in the state where process can be served.</p> <p>Misjoinder of Causes of Action.</p> <p>Where no objection is made to a misjoinder but one appears and defends on the merits, he waives his rights to object thereafter.</p> <p>Execution of Receipt.</p> <p>A receipt signed by a married woman by mark and not witnessed is not legally signed and is not binding.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 688.]</p> <p>Husband and Wife.</p> <p>When a husband acting as agent of his wife invests her money in real estate, but without her knowledge or permission takes the title in the name of their daughter, reserving life estate for himself and wife therein, and no rights of creditors are involved, it is not too late for the wife to sue to. set aside such deed and have the title conveyed to her, even when the action is brought nearly twelve years after she discovers the fact that the title was not conveyed to her.</p>

<p>Compromise Settlement.</p> <p>One holding a note of $800 and a lien on the land of a married woman as security, where the claim is questioned, who makes a compromise with the husband for the .benefit of the married woman by which the claim is reduced $300 and he accepts in compromise the note of another for the balance, can not thereafter disregard the compromise and recover on his $800 claim. A lien thus abandoned can not be enforced.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 692, as Reiley v. Young.]</p> <p>Jurisdiction in Judicial Sale.</p> <p>A judgment of sale of land is within the jurisdiction of the court where the land lies in the county where the court sits, and is sold at the county seat, and the fact that the land sold for less than two-thirds of its value will not prevent the issuing of the writ of possession, where the notes upon which the judgment of sale was entered were executed before the law was enacted requiring such property to be appraised before being sold.</p>

<p>Assignment of Error.</p> <p>No assigned error will authorize a reversal which was not named and relied upon as a ground for a new trial.</p> <p>Instructions.</p> <p>It is not reversible error for the trial court to refuse to give an instruction offered, where the court by another instruction gives the substance of that contained in the refused instruction.</p>

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

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 694.]</p> <p>Damages Against a County.</p> <p>One can not maintain an action against the members of the county as a county court nor against them individually, for personal liability.</p>

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

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

<p>APPEALS FROM CAMPBELL CHANCERY AND CIRCUIT COURTS.</p>

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

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

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

<p>Trespass by Cutting Timber.</p> <p>Where one is in possession of only a part of a tract of'land he has no right to take timber from the part of which he is not in possession, and if he sells the timber off of such adjoining land those taking it off are liable for trespass for they can get no more right than had the seller himself.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5-^689.]</p> <p>Fraudulent Conveyance.</p> <p>An absolute conveyance of land by the father to his children without any consideration will be deemed fraudulent as to the father’s creditors.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 689.]</p> <p>Consideration for Conveyance of Land.</p> <p>A conveyance of four hundred forty acres of land and all the personal property belonging to a widow in poor health over sixty years of age to her nephew, in consideration that he would care for her, will be set aside by the chancellor where it is shown to have been procured by unfair means and where it is- also shown that the nephew is furnishing the grantor with very poor and inadequate support.</p>

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

<p>[Kentucky Law Reporter, Vol. S — 812.]</p> <p>Trespass by Cutting Timber.</p> <p>An answer by one sued for trespass in cutting timber states a complete defense when it admits that the timber was cut within the acreage of plaintiff’s patent of 1846, but alleges that defendant entered under a patent for two hundred acres issued in 1861 on a warrant from the county court, defining his patent and alleging- an adverse entry and holding for more than' twenty years before the institution of the action, and that the plaintiff was not in possession whwen defendant entered, and if no reply is filed to the allegations made they should be taken as true and the jury instructed to find for the defendant.</p> <p>Holding Under Color of Title.</p> <p>In order that one claiming title may be entitled to a presumptive occupancy to the extent of the claimed’ boundary, he must enter and occupy under the belief that his title is good. Under the law requiring the order of the county court for the location, the survey, the entry and patent, it must be presumed that the defendant knew that the patent obtained by him -was within the patent boundary of a former patent, and thus he can not claim to hold under color of title.</p>

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

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

<p>Statute of Limitations.</p> <p>Where more than fifteen years have elapsed from the time a cause of action accrued on a judgment, and no execution has been issued, the statute of limitations is a bar to the action. A judgment operates as a lien upon the estate of a defendant, and upon the failure to issue an execution for a period of five years the lien terminates until there is a revivor, so that it may operate as a lien on the estate of the debtor. The new order of revivor constitutes no cause of action.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Yol. 5 — 769.]</p> <p>Evidence.</p> <p>In a suit to determine the ownership and boundaries of land, the record of a judgment ordering the sale of the land and the purchase thereof by the appellant at commissioner’s sale is competent evidence to show title and to connect the appellant with those who were divested of title by the sale made in pursuance of the judgment.</p>

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

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

<p>[Kentucky Law Reporter, Vol. 5 — 706.]</p> <p>Estoppel of a Married Woman.</p> <p>A married woman who has executed a note, not for necessaries, who makes no defense but allows judgment to be taken against her as well as against her husband and a surety, is not estopped from showing, when the surety has paid the judgment and taken an assignment of it, that she was at the date of the judgment and ever since has been a married woman and since that her property can not be levied upon to pay such judgment.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5- — 768.]</p> <p>Criminal Law Instructions.</p> <p>Where under an indictment for murder the evidence shows that the defendant was injured by a blow at a dance, without assaulting any one and having no weapon, and when put out of the hall may have been laboring under sudden heat and passion, that might have lessened his offense, it was error for the court not to have instructed the jury as to the law of manslaughter.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — -769.]</p> <p>Widow’s Dower.</p> <p>A widow who did not join with her husband in a mortgage on his real estate, not having in any way relinquished her right to dower in the lifetime of her husband, is entitled to dower in said property.</p> <p>Proof of Marriage,</p> <p>For evidence held sufficient to prove a marriage, see opinion.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 769, 779.]</p> <p>Title by Adverse Possession.</p> <p>Where the holder of the record title to real estate and those under whom he claims have had the adverse possession of the land, claiming it under deeds duly recorded for more than thirty years, his title is good.</p> <p>Widow’s Dower.</p> <p>The widow is not entitled to dower in real estate sold to satisfy the lien for the purchase-money of the land.</p>

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 864.]</p> <p>Assessment of Real Estate for Public Improvements.</p> <p>In order to subject real estate to taxation for municipal purposes where it has been included by an extension of the municipal boundary, there must be both benefits actual or presumed to the property from the city government, and a city population so near it as to render it not unreasonable to extend the local power over it. When it has not been laid out into lots and can not be profitably used- in that manner so as to make it more profitable than if left undivided, it ought not to be subjected to taxation for city purposes.</p>

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

<p>[Abstract Kentucky Law Reporter, Yol. 5 — 856.]</p> <p>Fraudulent Conveyance.</p> <p>One who conveys his real estate in consideration of love and affection, pending a suit against him by a creditor which results in a judgment, commits a fraud against such creditor and such a conveyance will be set aside at the suit of the creditor.</p> <p>Homestead.</p> <p>Where a part of real estate conveyed to defraud creditors consists of a dwelling appraised at $1,050, the creditor is entitled to have it sold if it can be sold for more than $1,000 and after the payment of the $1,000 homestead he is entitled to the excess.</p>

<p>Conveyance of Real Estate.</p> <p>Where one sells and conveys real estate, being one hundred ten acres, even if the parties talked about the adjoining seven and one-half acres as part of the boundary, if in fact said tract is not a part of the written description, and the grantee received in excess of the one hundred ten acres, the conveyance can not be construed to have included the seven and one-half acres unless some fraud or mistake be legally shown and the contract reformed accordingly.</p>

<p>Trespass for Cutting Timber.</p> <p>Where the title to land is involved in an action to enjoin one claimant from cutting timber thereon and title is traced by the plaintiff through' a grant to his ancestor, and the defendant, claiming under a title bond from one not shown to have ever had title or possession, fails to show that he has for fifteen years before the commencement of the action had the actual adverse possession of .the land claiming to a defined boundary, including the land where the trespass was alleged to have been committed, must fail and such injunction will be granted against him.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 854.]</p> <p>Liquidated Damages.</p> <p>While parties to a contract may agree to liquidated damages and courts will enforce the payments upon breach shown, still when the sum agreed to amounts to penalty or forfeiture, or exceeds in a material degree the injury sustained, it will not be enforced. Courts will not countenance liquidated damages which are used as a mere guise to a forfeiture as penalty.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 858.]</p> <p>Vendor’s Lien.</p> <p>Under the Civil Code of 1854 the vendor had no lien for unpaid purchase-money where it was expressly stated in the deed what part of the consideration remained unpaid; still if a deed is made by a commission of the court on credit a lien is retained on the property for its price.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 855.]</p> <p>Fraudulent Conveyance.</p> <p>Those who, as grantees of real estate fraudulently conveyed to them by a grantor to defeat his creditors, participate in and knowingly aid the fraud have no standing after many years to oust the fraudulent grantor or his descendants from the possession of the real estate, which was never given over by said grantor after such deed was made.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 860.]</p> <p>Personal Liability of an Executor.</p> <p>When an executor wrongfully sells land which by the terms of the will is otherwise disposed of, and his grantee is forced to give it up, such executor is not bound to charge himself with the sale price of such land, but in a suit by the wronged purchaser he is liable personally for such purchase-money.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5. — 858.]</p> <p>Statute of Limitations.</p> <p>Where a proceeding is begun to foreclose a mortgage before barred by the statute of limitations, the cause of action is not barred by the statute merely because the petition was not sufficient and had to be amended and the amendment was not filed until more than fifteen years after the cause arose. The filing of an amended petition is not the beginning of a new action.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 859, 866.</p> <p>Time Allowed for Payment of Costs.</p> <p>When costs are not paid within the time allowed and the time is extended by the court they may be paid within the extended time, since Gen. Stat. 1883, ch. 26, § 27, is directory and not mandatory.</p> <p>Revoking Codicil to Will.</p> <p>Where a codicil to a will appears to have had a black mark drawn over it and it is sought to be shown that the mark was put there by the testator to revoke the codicil, a question of fact is raised for the jury, subject to the supervision of the trial court, and the decision will not be reversed by this court.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 854.]</p> <p>Indictment for Embezzlement.</p> <p>Under Gen. Stat. 1883, art. 12, ch. 29, § 2, an indictment is not good in charging embezzlement when it fails to. allege that the money was delivered or entrusted to the accused to be delivered to a particular person at any place or to any person, and that he fraudulently converted or secreted it for that purpose.</p> <p>Embezzlement from Corporation.</p> <p>General Stat. 1883, art. .12, ch. 29, § 1, applies to embezzlement from a corporation, and under such section the indictment to be good must allege by fact or inference that the company is an incorporated company.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 852.]</p> <p>Jeopardy in Criminal Case.</p> <p>Where there is no connection in a criminal case, but it is shown that during the trial by reason of the sickness of a witness the court at the instance of commonwealth discharged the jury against the objection of the defendant and continued the cause, the court of appeals can not entertain an appeal, for an appeal can only be taken from a final judgment.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 858.]</p> <p>Effect of Judgment.</p> <p>Where in a suit to foreclose a mortgage against a husband and wife who are both before the court and raise no question as to the wife’s acknowledgment, it is too late, after judgment to question the validity of the acknowledgment by the wif.e. Such a defense should have been made before judgment was rendered.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 861.]</p> <p>Perjury in Swearing Before the Grand Jury.</p> <p>Where one is sworn to testify before a grand jury and is asked if he had seen, any one gaming wherein money or property of value was bet, won or lost, and answers, “I have not. I don’t recollect. I can’t recollect. I have played a hundred or more games, but can’t recollect when, where or with whom I have played for money or property,” an instruction stating that “A confession of the defendant relative to the offense with which he is charged unless made in open court will not warrant a conviction unless accompanied by other proof that such an offense was committed,” is misleading, for- such confession related to a different matter from that for which he was indicted and tried. He was only put on trial for swearing falsely as to others being guilty of gaming. It does not follow that he was guilty of false swearing because he confessed to guilt in gaming.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 851, 860.]</p> <p>Estoppel.</p> <p>In an application to set aside a sale of real estate because a necessary party was not before the court when it is shown that such party or his heirs have accepted the greater part of the money coming to them under such sale, and the application is made many years after the payment of such money, such applicant will be held to be estopped to maintain such action.</p> <p>Jurisdiction of Appeal.</p> <p>The Court of Appeals has no jurisdiction of an appeal where there is only $37 involved.</p>

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

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

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 935.]</p> <p>Improvements of Occupying Claimant.</p> <p>When the occupant of land improves it believing that he owns it, and it is thereafter adjudicated that he does not, he is entitled to receive the value of such improvements less the rents, and this will not be determined by the enhanced value of the land upon which they were placed.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 928, 931.]</p> <p>Mental Capacity to Make Deed.</p> <p>One has capacity to convey land by deed when at the time the deed is executed she is mentally capable of understanding and comprehending the character, object and nature 'of the contract, even though at the time she is sick and labors under the delusion that she is bewitched and her mind to some extent is affected.</p> <p>Next Friend for Minor Plaintiffs.</p> <p>Where no one will consent to act as next friend to infants in a suit the court may appoint some one to appear in that capacity, and the law does not require that an action shall be dismissed because no next friend assumes to act for minor plaintiffs.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 928.]</p> <p>Sufficiency of Title to Real Estate.</p> <p>Where a conveyance of real estate states that the grantor “doth grant, bargain, sell and convey to (a named person) and to such child or children she may have by the said grantor at the time of death, or to the descendants of any such, if descendants there should be,” in a suit by the grantor (husband) against the grantee (wife), for reinvestment of the proceeds, a child of the wife has no present or vested interest and is not a necessary party to such proceeding; and a title secured at such a sale for reinvestment under the Act of 1862, Myers' Sup., § 426, is good.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. S — 935.]</p> <p>Waiver of Right to Face Witnesses in Criminal Case.</p> <p>While one accused of crime has the constitutional right to face his accusers, if one of his own witnesses is absent but makes an affidavit in favor of the defense and the defendant asks to have it read in evidence and the prosecutor agrees to permit it to save the necessity of a continuance, the defendant can not after conviction claim a reversal because of his right to face the witnesses.</p> <p>New Trial on Account of Conduct of Party.</p> <p>Where the commonwealth’s attorney makes improper statements in his argument to the jury, they should be objected to at the time; and where no objection is made, the defendant can not urge the error in order to secure a new trial.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 931, as Hurst v. Cassidy, et al.]</p> <p>Public Nuisance.</p> <p>The erection of a fence across the public highway is a public nuisance which one has a right to abate for the purpose of his use without notice to the party who has erected the fence, but without unnecessary injury and without any breach of the peace.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 5 — 932.]</p> <p>Notice to Lunatic.</p> <p>The sale of a lunatic’s estate pursuant to the provisions of the Revised Statutes, in a proceeding in court to which he is not a party and no committee is before the court representing the lunatic, is void. The court in such a case has no jurisdiction of the lunatic’s person.</p>

<p>[Abstract Kentucky Law Reporter, Vol. S — 933.]</p> <p>Proceedings Supplemental to Execution.</p> <p>Where a personal judgment has been taken against a debtor and a return made of no property found, in a proceeding thereunder to discover and subject property to the payment of the judgment, it is error for the court to pronounce a second personal judgment.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 50.]</p> <p>Misconduct of Party in Argument.</p> <p>Where no objection is made or exception is taken to statements made by the commonwealth’s attorney in argument to the jury, at the time the statements were made, the question can not be raised for the first time in the Court of Appeals.</p> <p>Instructions.</p> <p>All the instructions given in a criminal case, are to be construed together, and a defect in one majr be cured by another one given.</p>

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

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

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

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

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

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

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

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 96.]</p> <p>Trade Name or Mark.</p> <p>One who sells his business of distilling whisky sells also the trade name or mark of the business when such name or mark is not reserved in the sale.</p>

<p>Judicial Sale of Real Estate.</p> <p>When one buys real estate at a judicial sale and the title is good he can not prevent the confirmation of the sale simply because he then thinks he offered too much for the property.</p> <p>Service on Minor.</p> <p>Where in a suit to sell real estate one minor defendant was not served by process but appeared by a guardian ad litem, and the omission is discovered before sale, the irregularity may be cured -by supplementary pleadings and proceedings so as to bind such minor’s interest.</p>

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 214.]</p> <p>Time for Filing Transcript on Appeal.</p> <p>An appeal will be dismissed where the transcript was not filed in this court until April S, 1884, when the appeal was granted May, 1883.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 225.]</p> <p>Injury by Vicious Animal.</p> <p>A city is not liable for damages caused by a vicious dog owned by a citizen on account of such city having, for a license fee paid to it by the owner, permitted him to keep the dog. Such a license will no't render the city liable and protect the owner from liability.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 222.]</p> <p>Waiver of Trial by Jury.</p> <p>By consenting to the transfer of an ordinary action to a court of equity one d'oes not thereby waive his right to a jury trial as to controverted facts. He is entitled to have the legal issue tried by a jury.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 450.]</p> <p>Homicide.</p> <p>Where the whole law of homicide is clearly and correctly given by the trial court to the jury, the defendant can not successfully urge the reversal of the cause for the reason that the jury have assessed the punishment at death when under the evidence it might have been justified in returning a verdict for manslaughter.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 222.]</p> <p>Production of Writing Which Is Basis of Action.</p> <p>Where a suit is instituted on an insurance policy and the insurance company obtained a rule against the plaintiff to file the policy, it is a sufficient excuse under Civ. Code 1876, § 120, for the plaintiff to show that the policy was not and never had been in her possession or under her control, that it was in the possession and under the control of another in a foreign state, and that plaintiff had made efforts to obtain it but had been unable to do so.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 216.]</p> <p>Statute of Limitations.</p> <p>An action for relief from fraud or mistake must be brought within five years after the right of action accrues, but such a cause of action does not acrue until the discovery of the fraud or mistake; but no such action can be brought ten years after the making of the conveyance or the perpetration of the fraud.</p> <p>Mistake in Conveyance.</p> <p>Where by the mistake of one who draws a deed there is conveyed more than double the number of acres intended by the parties, a court of equity will correct the deed. Where a statement in a deed says “containing one hundred acres, more or less,” it can not reasonably be believed that it was intended by the term “more or less” to provide for an excess of more than double the quantity named.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 224.]</p> <p>Priority of Taxes Over Municipal Assessments.</p> <p>The state has a paramount lien for taxes and the right of a municipal corporation is subordinate to that lien.</p> <p>Loss of Municipal Lien.</p> <p>The lien of a city for a municipal assessment, being inferior to that of the state for taxes, is lost when the whole estate has been sold to pay the state’s lien; and in such a sale it is not necessary for the city to be made a party to the proceeding. The state follows a summary course in collecting its revenue.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 442.]</p> <p>Fraudulent Representations.</p> <p>For evidence held not sufficient to show that an absolute deed was executed as a mortgage, and to establish fraud in representations to induce the signing of notes, see opinion.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 220.]</p> <p>New Trial on Account of Newly Discovered Evidence.</p> <p>The discovery of new evidence which is merely cumulative is not ground for a new trial. The newly discovered evidence that will authorize a new trial must be of such clear and convincing character that it will doubtless change the result of the former trial, and which the party could not with reasonable diligence have discovered and produced at the trial.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 445.]</p> <p>Statute of Frauds.</p> <p>A mere oral declaration as to the existence of a trust with reference to real estate is within the statute of frauds and can not be enforced.</p>

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

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 218.]</p> <p>Supplemental Proceeding.</p> <p>When a judgment has been rendered on notes and a vendor’s lien adjudged and the land sold thereunder and the proceeds of the sale fail to satisfy the judgment and the judgment creditor seeks to collect the balance of his debt by proceedings supplemental he must serve defendant with process, and where no process issues, a judgment in such proceeding is void. The proceeding is entirety separate from the former one and hence no jurisdiction over the person of the defendant is acquired by the process in the former action.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 225.]</p> <p>Fraudulent Representations.</p> <p>When as a defense to a suit to recover purchase-money and to enforce a vendor’s lien it is set up by defendant that plaintiff made false representations as to title and quantity of land the burden is on him to prove his allegations, and where the evidence shows his entry and possession and acceptance of the deed and he fails to prove the fraudulent representations he will fail.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 217.]</p> <p>Money Derived From Sale of Land is Personalty.</p> <p>If a vendor of land dies before the payment of the purchase-money it passes to his personal representative and becomes a part of the assets of the estate.</p> <p>Homestead.</p> <p>When a married woman owns real estate and its sale on mortgage foreclosure brings a sum in excess of the mortgage and the owner directs that the whole of the land be sold instead of a part only and dies before the excess is paid over it will pass to her surviving husband and can not be claimed as a homestead for minor children.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 299.]</p> <p>Assignment of Building Contract.</p> <p>A contractor had a contract to perform certain work for the railroad company which provided that 20 per cent, of the estimates should be withheld by the company to insure the completion of the work. The contractor after becoming indebted for labor and materials assigned the contract to one of his creditors with the understanding that the 20 per cent, coming to him from the portion of the work completed should go to pay laborers. After the contract was fully completed by the assignee, and the assignee was about to collect the 20 per cent, earned by the assignor, the railroad company, the assignee and the assignor were sued by the laborers to subject said 20 per cent, to their claims, and where all of said parties were before the court it was held that the reservation of said 20 per cent, was a part of the consideration for the assignment and said sum could be collected by such laborers on proof of their allegations.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 308.]</p> <p>Mortgagor’s Right to Insurance.</p> <p>When a house on mortgaged real estate is insured against fire and burns, the mortgagor is entitled to the money collected from the insurance company, where no agreement exists between the parties that it shall be payable to the mortgagee.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 291.]</p> <p>Ecclesiastical Controversy.</p> <p>Where there is a faction of a Baptist church expelled by the action of the other faction the question of whether it was done in good faith upon the ground of immorality on the part of the excluded members and whether such expulsion was in accordance with the rules governing the church, must be controlled by the organic law of the church 1 and will not be determined by the court, but when the church undertakes to invade the property rights of its members and to exclude them from the use of church property then the church organization must be treated as any other voluntary association and the courts will protect the rights of property.</p> <p>Schisms in a Church.</p> <p>Under the act of 1814 “if any schism or division shall take place in the congregation or church for any cause” either of the parties so divided may use the house of worship, the time to be proportioned to the members of each party.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 296.]</p> <p>Homestead Claim.</p> <p>A renewal of a note given before the passage of the homestead exemption act of June, 1866, is not a satisfaction of the debt but only changes the evidence of it and the debt will be regarded as created before the date of said act.</p>

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 451.]</p> <p>Notice of Vendor’s Lien.</p> <p>Where a vendor’s lien is reserved in a deed and a note taken for the balance due so secured by the lien and the deed is recorded it is notice to a purchaser of the land that the vendor’s lien exists and the fact that a part of the balance of purchase money secured by such lien has been paid and a renewal note taken for the remainder of the debt will not destroy such lien.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 297.]</p> <p>Waiver of Homestead by Mortgage.</p> <p>The waiver of the right of homestead as to one creditor in the manner provided by the statute is not a waiver as to any other creditor.</p> <p>Discretion of Chancellor as to Homestead.</p> <p>Where the debtor’s real estate is sold on a mortgage foreclosure, and there is more money than required to pay the mortgage, the debtor, if entitled to the homestead at all and if he claims it, is entitled to the excess of proceeds, and the chancellor has no right to inquire of him whether his purpose is to invest it in another home or not, but thereafter if he deals with it in a way to show an intention not to invest it, the creditor may seize it.</p>

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

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

<p>[Abstract Kentucky Law Reporter, Vol. 7 — 165.]</p> <p>Record on Appeal.</p> <p>This court can not consider depositions copied into the record by the clerk when such depositions are not embraced in the bill of evidence. To entitle an appellant to be heard he must cause to be brought to this court a proper record showing what took place in the trial court so the court can ascertain whether errors were committed.</p>

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

<p>[Abstract Kentucky Law Reporter, Vol. 6 — 294.]</p> <p>Declarations of an Agent.</p> <p>In a case where a common carrier is sued for damages on account of its wilful neglect resulting in the death of a passenger, the admissions or declarations of the company’s employes made days thereafter are not a part of the res gestae and not admissible in evidence to bind the defendant. They are but statements of the history of past events.</p>