Volume 13 — Kentucky Opinions

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

<p>Title by Adverse Possession.</p> <p>Title can only be secured by adverse possession where the claimant under color of title has entered and held the exclusive possession adverse to all the world and uninterruptedly for a period of twenty years.</p>

<p>APPEAL FROM LOUISVILLE CI-IANCERY COURT.</p>

<p>Qualification of Juror in Criminal Case.</p> <p>Where after a conviction in a criminal case affidavits are filed showing that a juror, who stated upon being put in the jury box that he had neither formed nor expressed any opinion as to the merits of the cause, had in fact expressed an opinion that the accused was guilty raises an issue for the decision of the trial court and his decision is final thereon.</p> <p>No Reversal on Weight of Evidence.</p> <p>In. a criminal case the jury and the trial judge determine the facts from the evidence and this court can not reverse because it may think the evidence fails to establish guilt beyond a reasonable doubt.</p> <p>Exceptions and Bill of Exceptions.</p> <p>Exceptions must be taken upon the ruling of the trial court where a party complaining wants a reversal and the exceptions must be shown by a bill of exceptions.</p> <p>Court Not to Weigh Testimony.</p> <p>It is not the province of the court to weigh the testimony in a criminal case or to take from the jury the consideration of any fact proven in the case essential to the defense.</p>

<p>Hearsay Evidence.</p> <p>Where in a homicide case the evidence tends to show that the defendant did the killing in self-defense, a statement of defendant’s wife to a witness to the effect that the witness should go away, that the appellant had gone after his pistol, made a moment before the killing, which took place in the highway just outside of the house, and the wife s statement was not made in the presence or hearing of either the deceased or defendant, such a statement is hearsay and not admissible.</p> <p>Instruction as to Cause of Death.</p> <p>a homicide case where the evidence shows that the death took place nearly three months after the shooting and that the shot struck only the deceased’s arm it is reversible error for the court to refuse to instruct the jury that before the jury can convict the defendant of the killing they must believe from the evidence beyond a reasonable doubt that defendant not only shot the deceased unlawfully but that said shot was the proximate cause of the death.</p>

<p>Judgment for Failure to Discharge Rule.</p> <p>Before there can be any judgment against a party for failing to comply with an-order it must appear that a rule had been entered and the order made and where the party appeals from a judgment taken against him on account of such failure because no rule was served on him or order made against him the trial court can not after appeal supply the omission by amending its records so as to show such order to have been made. There can be no amendment when there is nothing in existence to amend.</p>

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

<p>Burden of Proof in Ejectment.</p> <p>Where a patent relied on for title to real estate contains an indefinite exclusion of acreage and the defendant .has put in issue plaintiff’s title the burden rests on the plaintiff to show that the land he claims is not within the acreage excluded, but when he has shown this and the defendant seeks shelter under an older patent which also contains an exclusion the burden is thrown upon him to show that his claim is not within the exclusion in his own patent.</p>

<p>Pension Money Not Exempt from Liability for Pensioner’s Debts.</p> <p>The exemption of pension money from liability for the debts of the pensioner does not extend beyond the time of its receipt by him.</p> <p>Construction of Exemption Laws.</p> <p>While exemption laws are entitled to a liberal construction, exemptions exist by virtue of the statute only and one to be entitled to their benefit must show that he comes within the meaning of the statute.</p>

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

<p>Settlement of Partnership Accounts:</p> <p>Where partners have kept no accounts or books and can therefore arrive at no just settlement of their accounts and one of them applies to a court of equity asking a settlement of the accounts and alleging a large loss in the business, in the absence of any books or accounts, nearly all the court is able to -do is to leave the parties where they are and dismiss the petition.</p>

<p>Contest of Will After Probate.</p> <p>After a will has been admitted to probate upon the testimony 'of those who attested it as witnesses and of others the burden of proof is on the contestant to prove the facts alleged in his petition and the propounder may then introduce additional proof by way of rebuttal.</p> <p>Instructions.</p> <p>Where witnesses to a will appear in the county court and swear that the testator executed a will in their presence and that he was of sound mind at the time and thereafter in a contest of the will the same witnesses testify that the testator was of unsound mind it is not error for the trial court to refuse to instruct the jury as to their credibility. The importance to be attached to their statements is left to the jury and not to be determined by the court.</p> <p>Evidence.</p> <p>Where statements and admissions made by the propounder at the date of the execution of the will have been shown in evidence he may be allowed to explain his conduct or to deny that he made such statements as detailed by the witnesses and it is reversible error for the court not to permit him to testify, he being a competent witness.</p>

<p>Mortgage of Married Woman.</p> <p>A married woman may mortgage her general estate in land to secure her husband’s debts. For evidence held sufficient to show that parties signed and acknowledged a mortgage, see opinion.</p>

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

<p>Vendor’s Lien.</p> <p>Where A owns land upon which B holds a mortgage and A sells and conveys to 'C and expressly reserved in his deed a lien for purchase money and B releases her mortgage to A and1 gives him the note secured by it and takes a note from C and a mortgage from him securing it the lien of A or of his assignee thus reserved is superior to the lien of B.</p>

<p>Res Adjudicata.</p> <p>If a petition contains two counts for distinct causes of action and evidence is offered only in support of one count, the plaintiff may. maintain a new action for the cause to support which no evidence was introduced notwithstanding the verdict and judgment against him.</p> <p>Action for Fraud.</p> <p>An action alleging merely a warranty of personal property as to its quality or soundness is no bar to an action for fraud in the sale, and a bill to revise a contract upon equitable grounds where not based upon fraud is no bar to an action at law for the fraud.</p>

<p>Party by Intervening Petition.</p> <p>There is no rule of practice that will permit a party whose claim is hostile to that of both the litigants in a suit and who is neither a tenant in common with either nor a joint owner to come in as a plaintiff with a new and independent cause of action with reference to the same property and require both parties to appear and answer as if he had been the original plaintiff.</p>

<p>Reply to answer.</p> <p>Where a demurrer to a petition is overruled and the petitioner has no opportunity to amend his petition but is required to make an issue with the defendant on the answer by reply, the cause should be heard on its merits, or in case the court becomes convinced that the petition was bad the order overruling' the demurrer to it should be set aside and the demurrer sustained with leave to the plaintiff to amend.</p>

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

<p>Proof of Terms of Written Contract.</p> <p>Where the parties to a written contract admit that the writing is defective and does not contain all that was agreed on by the parties it opens the door for proof to add to and vary the stipulations in the manner authorized by the evidence.</p>

<p>Parol Gift of Land.</p> <p>If a daughter enters into possession of real estate under an inconditional parol gift and claims the land under such gift for many years, the fact that she may have anticipated that her father who made such gift would make her a deed will not invalidate her title. The gift, the entry under it and the continued possession claiming it as her own for fifteen years or more will convert her claim into a perfect title.</p>

<p>Homestead Right.</p> <p>A homestead right can not be asserted as against a note for money advanced to pay the purchase price of land.</p>

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

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

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

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

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

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

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

<p>Purchase by Commissioner from Himself.</p> <p>It is contrary to the policy of the law to sanction the purchase by a commissioner from himself either openly or through others of property that he as commissioner is required to sell to the highest bidder.</p>

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

<p>APPEALS FRQM LYON CIRCUIT COURT.</p> <p>[Cited, in Feland v. Morton, 10 Ky. L. 219, 8 S. W. 852.]</p>

<p>Jurisdiction of Kenton Circuit Court.</p> <p>Under the provisions of the Act of March 9, 1878, the Kenton Circuit Court at Independence has exclusive jurisdiction of all criminal offenses committed in Kenton County outside the corporate limits of the city of Covington and of the first Magisterial district.</p> <p>Self-defense in Murder Case.</p> <p>To excuse a person who takes the life of another upon the ground of self-defense, the accused must have believed and had reasonable grounds to believe that he was at the time in imminent danger of great bodily harm or loss of life at the hands of the person slain and that he had no other apparently safe means.</p> <p>Instruction of the Court.</p> <p>Whether an instruction given in a murder case upon the hypothesis of murder is authorized by the evidence or not is not an error that a defendant can complain of where he is found guilty of a lower degree of homicide only.</p>

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

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

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

<p>Taxation for Building a Turnpike.</p> <p>When a turnpike is built under the statute authorizing the county to issue bonds and to assess taxpayers living within one and one-half miles of the road, if any additional funds are required to complete the road they must be raised by a tax against all the taxpayers of the county and not against those living within one and one-half miles of the road.</p>

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

<p>Exceptions to Testimony.</p> <p>The overruling of exceptions to a party’s testimony is at most but a harmless error when his cause is made out by other evidence in the case.</p> <p>Presumption in Delay in Collection of Claim.</p> <p>Where the owner of execution debts makes no effort to collect them for more than fourteen years and repeatedly states that such debts are paid, these facts and circumstances afford strong presumptive and corroborative evidence of payment.</p>

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

<p>Absolute Deed as a Mortgage.</p> <p>Where land is conveyed absolutely and the grantee agrees to re-convey on the grantors paying a certain sum of money the transaction amounts to a mortgage only and where such grantor fails to pay such sum but retains possession will not give the grantee the right to possession but gives him only the right to foreclose his mortgage and subject the land.</p>

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

<p>Wife Bound by Judgment.</p> <p>Where a wife is a party to a suit in which it is alleged that she is barred of dower and it is so adjudged she is concluded by the judgment.</p>

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

<p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>[Cited, Blake v. Ray, 110 Ky. 719, 62 S. W. 531.]</p>

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

<p>Relinquishment of Dower.</p> <p>Where a married woman relinquishes her dower in the body of the deed and signs and acknowledges the instrument, her right to dower passes.</p>

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

<p>Voluntary Intoxication No Defense for Crime.</p> <p>It is no defense for an accused in a murder case to show that he ' was badly intoxicated at the time of the killing, as voluntary intoxication will not excuse one in committing crime.</p> <p>Instruction as to Defense of Insanity.</p> <p>Where there is no evidence in a murder trial as to defendant’s sanity at the time of the killing the court is not called on to instruct the jury as to the law governing the defense of insanity.</p>

<p>Widow’s Election to Renounce a Will.</p> <p>The fact that the widow has qualified as administratrix with the will annexed and undertook the execution of the will, will not estop her from renouncing the will and taking under the law of descent within the twelve months after the probation of the will.</p>

<p>Right of Defendant to Have Cause Dismissed.</p> <p>Where on an appeal of a cause this court decides that if the plaintiff in the action had any valid claim it is one he has derived from an assignee, and distinctly said such plaintiff had no right to set up by amended petition, and that because no process had been served on defendant he was not required to take any notice of it, it is error for the trial court on the return, of the case to pronounce judgment, “That in obedience to the opinion and mandate and because the allegations of the plaintiff are admitted he recover of the defendant the land mentioned in the deed from the assignee in bankruptcy.”</p>

<p>Counts in a Petition.</p> <p>Each count in plaintiff’s petition to be good must contain every allegation of fact necessary to constitute a cause of action, but where the answer filed places in issue every material allegation of the petition it supplies any defect that might be made the ground of either a general or special demurrer.</p> <p>Estimates of Engineer.</p> <p>Where a contract for the construction of a railroad provides that, “In consideration of the full and complete performance of the said work to the entire satisfaction of said Thomas Lovett or other principal engineer for the time being, to be evidenced by his certificate, (the company) agree to pay out of their trust funds to the said (contractor) the prices set forth in the schedule, etc., upon the execution of' a portion of the work to the satisfaction of the principal engineer for the time being eighty per cent, of his monthly estimates of the relative value of the work performed to the first day of each month shall be paid on or before the fifteenth day of the same month.” It was held that this provision was intended as a means of knowing when the entire work was completed and that these partial estimates were neither final nor conclusive but constituted a mere statement of its relative value.</p> <p>Chief Engineer as an Arbiter.</p> <p>A contract for the construction of a railroad by which a chief engineer is to act as an arbiter between the contractor and the company will be enforced and his final award will be acquiesced in.</p>

<p>Breach of Warranty.</p> <p>One who accepts a deed of general warranty and takes possession under it can not resist the payment of the purchase money, except in case of an allegation in his answer that his grantor is insolvent.</p> <p>Possession of a Tenant in Common.</p> <p>The continued possession of one tenant in common can not be relied upon as adverse to the other tenants, for in such a case the possession of one tenant in common is the possession of all of them.</p>

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

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

<p>Continuance on Account of Absent Witness.</p> <p>The affidavit for a continuance in a criminal trial on account of the absence of a witness will be denied where the affidavit fails to state the facts that such witness will testify to but states only conclusions. Such evidence would be incompetent if the witness was present.</p> <p>Instruction in Murder Case.</p> <p>The failure of the trial court to instruct as to involuntary manslaughter is not prejudicial to the defendant although there is some evidence tending to show that the killing was accidental where the court does instruct as to murder and voluntary manslaughter and then tells the jury if it believes the killing was accidental it should find him not guilty of manslaughter.</p>

<p>Instruction As to Self Defense.</p> <p>An instruction in a trial of one charged with malicious cutting and stabbing is misleading which states in substance that the defendant should be found guilty where the cutting was not necessary and when he had no reasonable grounds to believe the same to be necessary. Such an instruction falls far short of a proper one as to self defense.</p> <p>Instruction as to Reduction of Degree of Crime.</p> <p>Section 1, art. 17, of the General Statutes provides that to reduce the offense of malicious cutting and slabbing to a misdemeanor it is only required that the offense should have been committed “in a sudden affray or in sudden heat and passion and without previous malice,” therefore an instruction attempting to add to such requirement by charging that to reduce such crime it must appear that the cutting was done “in suden heat and passion caused by considerable provocation such as a blow or actual trespass,” is misleading and erroneous.</p>

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

<p>Instructions to Conform to the Proof.</p> <p>The instructions given in a murder case must conform to the proof and if there is no evidence from which the jury could legitimately infer the existence of malice, an instruction should not have been given as to the effect of malice.</p> <p>Proof of Malice.</p> <p>Malice in a murder case must be proven like any other ingredient of the offense of murder and it is for the jury to say whether from the facts or a fair inference therefrom it existed in the bosom of the party taking the life of his fellowman, whether life is taken with malice or in the absence of malice and in sudden heat and passion is with the jury and not the court.</p>

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

<p>Burden to Establish a Contract.</p> <p>The burden is on a plaintiff, alleging that decedent with whom he lived had for a consideration agreed to convey by will to such plaintiff his estate, to establish such a contract.</p> <p>Evidence of Oral Contract.</p> <p>Where a plaintiff seeks to take the whole of an estate and deprive the natural heirs therefrom, on an agreement made with the owner thereof whereby the owner agreed to give him such estate in consideration that he would live with him and manage his estate, to recover such a plaintiff must clearly establish such a contract.</p>

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

<p>Lien for Purchase-Money.</p> <p>One who has bought land and made a payment only thereon, can not recover the land on the idea that the parol sale was denied. All that such a purchaser is entitled to is to enforce his lien and he can, only by paying the balance of the purchase money, obtain a deed.</p>

<p>Breach of Warranty.</p> <p>Where one buys land, the quantity of which is not mentioned in the deed and no representation is made to him of the number of acres contained in the tract, but it is understood by grantor and grantee that the land is known to be a certain named farm and in the conveyance to the grantor seventeen acres was excepted from the general description of the land some years before, the grantee can not recover from the grantor for breach of warranty on account of not receiving the seventeen acres. In such a case the purchaser received all he bargained for and lost nothing by reason that the seventeen acres were by mistake not excepted in the deed which he received.</p>

<p>Right to Sue in Lunatic’s Name.</p> <p>A person has no right to use the name of a lunatic and maintain an action affecting him without the consent of the lunatic’s trustee or at the instance of the court when the commissioner fails to protect the interests of his ward.</p> <p>Rights of Lunatic’s Creditor.</p> <p>Where a trustee of a lunatic seeks to set aside a sale, if a creditor has any lien on the property or fund arising from the sale, he may by petition be made a party to the suit and thus have his rights adjudicated.</p>

<p>Abandonment of Homestead.</p> <p>One who has a homestead in Kentucky but leases the place for two years and goes to another state and with his family keeps house there and goes into business abandons his right to claim a homestead in Kentucky, and his statement that he intends to return to Kentucky will not be sufficient to defeat a creditor seeking to subject the Kentucky homestead to his claims.</p>

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

<p>Fraudulent Conveyance.</p> <p>Where one is in failing circumstances, he may sell his land and convey it to his creditor for a consideration not grossly inadequate and thus pay such debt or allow a part of the consideration to be applied on such debt and such a conveyance is not fraudulent.</p>

<p>Proof of Existence of Partnership.</p> <p>For evidence, held sufficient to establish the existence of a partnership between father and sons, see Opinion.</p> <p>Partnership as to Third Parties.</p> <p>As to third parties proof sufficient to make those associated together as partners liable, would not in every case be sufficient as between themselves to prove that they were partners.</p>

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

<p>Instruction as to Insanity in Criminal Case.</p> <p>An instruction in a criminal case where insanity is relied upon is correct which informs the jury that the test of responsibility is whether the accused had sufficient reason to know right from wrong and whether he had sufficient will power to govern his actions and that, “If the jury shall believe from all the evidence that the accused was laboring under such a defect of reason as not to know the nature and quality of the act of shooting with intent to kill or if he did know it, that he did not know to commit such act was wrong, then they should acquit,” etc.</p> <p>Insanity a Generic Term.</p> <p>In law insanity is a generic term and embraces every case of defect of reason or weakness of mind which leaves the person without mental capacity to distinguish right from wrong or without the will power, knowing right from wrong, tc control a tendency to wrong doing.</p> <p>Propriety of Instruction.</p> <p>It is never proper for the trial court to instruct as to a condition of things shown by the evidence not to exist.</p>

<p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>[Cited, Wilcoxson v. Morse, 19 Ky. L. 1832, 44 S. W. 142.]</p>

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

<p>Wife’s Dower.</p> <p>The husband’s real estate is liable for his debts and where in compromise of a creditor’s claim the wife refuses to join in a conveyance of her husband’s property unless she receives in cash a sum much larg-er than her dower interest and such sum is paid to her and invested in other real estate and the deed taken in her name, it is still liable for debts owing by her husband and may be sold to pay such creditor, and the wife has only a first lien on the funds derived to the extent of the value of her dower in the husband’s property first sold.</p>

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

<p>Conveyance of Husband to Defraud Creditors.</p> <p>A man’s property is liable for his debts and a conveyance by him to secure! the debt of his wife incurred in the purchase of other real estate will not be effective to prevent the' husband’s prior creditors from subjecting such real estate to their claims. While the conveyance made by him amounts to a mortgage it is second to the claims of prior creditors.</p>

<p>Kind of Deed Required to Bar Wife’s Dower.</p> <p>Where the husband before his -death conveys real estate, the deed not purporting to.convey the wife’s interest, her name not appearing in its body, she, however, signing and acknowledging such deed, her dower is not canceled and she may, after her husband’s death, assert her claim of dower.</p>

<p>Statute of Limitations.</p> <p>Ignorance of one’s right will not prevent the statute of limitations from running, and the plea of the slatute will not be defeated for any other reason than that the party supposed if he sued he could not recover.</p> <p>Abandonment of Contract.</p> <p>Where one bids off the state’s interest in a turnpike and executes a bond to carry out the purchase but never pays anything on the contract, and the bond is surrendered after a term of eight years, persons unknown to such contract will not be allowed to recover on it by averring that they were secret partners of the purchaser of said turnpike.</p>

<p>Negligence, a Question for the Jury.</p> <p>Where the negligent acts of the employes of a railroad company result in the death of a person and such negligence is denied and an answer of contributory negligence is filed, a question is raised to be determined by the jury, and it is error for the court to withdraw such a case from the jury.</p>

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

<p>Jurisdiction of Court of Equity.</p> <p>A court of equity will not entertain jurisdiction to set aside a conveyance alleged to be fraudulent and subject the land to the satisfaction of a legal demand unless there is an allegation of judgment at law, an execution and a return of nulla bona or by attachment under some of the grounds stated in the code, but where the question of want of jurisdiction is not raised until the cause reaches this court, it is too late to do so.</p> <p>Evidence.</p> <p>Where a witness does not state a fact prejudicial to the party calling him, but simply fails to prove facts supposed to be beneficial, he cannot be contradicted by bringing other witnesses to swear ■ that he had made statements out of court denied by him in court.</p> <p>Existence of Fraud Not Inferred.</p> <p>The existence of fraud charged in making a conveyance of real estate is not to be lightly inferred, but must be proven.</p>

<p>The Jury Must Weigh the Evidence.</p> <p>In the trial of a criminal case the jury must weigh and determine the evidence. The Court of Appeals will never reverse because of insufficient evidence, but may do so where there was no competent evidence tending to establish guilt.</p> <p>Misconduct of Jury.</p> <p>It is not a matter for review in this court that the jury were permitted to be temporarily separated. This court has no jurisdiction to consider any error not first made to appear in a motion for a new trial.</p>

<p>Creditor’s Claim as Against Wife’s Alimony.</p> <p>Where a husband has paid for property by borrowing money, and he and his wife separate, the wife should not be allowed all the property for the support of her family and herself, to the exclusion of a bona fide claim of the creditor who loaned the money to the husband to improve such property.</p>

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

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

<p>Commissioners’ Sale of Real Estate.</p> <p>A sale of real estate by a commissioner for its full value will not be set aside because of the claim by the commissioner that he was interested in the purchase where the proof fairly shows that if he ever acquired an interest in the land he acquired it after the sale b5 releasing a lien held by him thereon.</p>

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

<p>Construction of Will.</p> <p>After a testator had provided by his will for his wife, he provided that the remainder of his estate should be divided among his children and their heirs, “deducting from the shares of the following named children the amounts made to them, namely * * * Kate Caldwell, four hundred dollars for a negro girl and horse and saddle, and besides which I give her daughter, Ruby Caldwell, one thousand dollars, as her legacy in full in my estate.” 'Held that where his daughter,. Kate Caldwell, died before he did, that Ruby took only the one thousand dollars and no more.</p>

<p>Quieting Title to Real Estate.</p> <p>Where one who is a sole defendant in a suit to subject real estate to pay his debt dies after a commissioner is appointed to sell the property, an order made to confirm a sale is void and no rights could be acquired under it. To make a valid record the court must have jurisdiction.</p> <p>Commissioner’s Conveyance.</p> <p>Where the plaintiff, a creditor, buys in his debtor’s real estate, but receives no deed and thereafter directs the commissioner to convey to the widow of such debtor such real estate, she having paid off the debt, and such deed is made, such widow’s title becomes absolute, and the fact that the clerk has before that time erroneously entered an order that such conveyance should be made to such widow for life, and remainder to her children, who were not parties to the proceeding and who have paid no part of such debt, will not be effectual to give such children any interest in such title.</p>

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

<p>APPEAL FROM BULLITT CIRCUIT COURT.</p> <p>[Cited Louisville & N. R. Co. v. Ballard, 85 Ky. 311, 9 Ky. L. 7, 3 S. W. 530, 7 Am.. St. 600; Memphis & C. Packet Co. v. Nagel, 97 Ky. 15, 16 Ky. L. 748, 29 S. W. 743; Illinois Cent. R. Co. v. Win-slow, 119 Ky. 877, 27 Ky. L. 331, 84 S. W. 1175.]</p>

<p>APPEAL FROM MEADE CIRCUIT COURT.</p> <p>[Cited, Crouch v. Wainscoit, 122 Ky. 107, 28 Ky L. 1030, 91 S. W. 289.]</p>

<p>Powers of State Board of Equalization.</p> <p>The state board of equalization has power to equalize the value of property listed and valued by the assessor, but it has no power in equalizing the assessments of notes and money to raise the assessment so as in effect to say that five thousand dollars in cash is worth six thousand dollars. If the board had power to do that it would also have power to require a land owner to pay tax on one-hundred acres of land when in fact he owned only eighty acres.</p>

<p>Parties to Suit to Subject Land.</p> <p>One who has purchased land and is in the actual possession of it is not bound by a judgment against others to subject such land to sale to pay a debt claimed to be due them. The owner of the land in such a case to be bound by such a judgment must have been made a party to the suit.</p>

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

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

<p>Release of Guarantor by Extension of Time.</p> <p>If a creditor does any act inconsistent with the rights of the guarantor the latter is thereby released. A new contract can not be made between the debtor and creditor without his consent without releasing him, but it is only new contracts not contemplated by the guaranty that will release the guarantor.</p> <p>Construction of Contract of Guaranty.</p> <p>A contract of guaranty is to be construed liberally but this does not mean that the words of the guaranty are to be given an unnatural meaning.</p> <p>Continuing Contract of Guaranty.</p> <p>If the contract of guaranty is a continuing one notice of the various transactions need not be given the guarantor, and when he undertakes that a third party shall pay, or that in case of a default he will pay, he is not entitled to notice of default nor is any demand of payment of the principal necessary.</p>

<p>Setting Aside a Judgment by Non-Resident.</p> <p>A defendant constructively summoned has a right to come in within five years and, by presenting a defense, to open any judgment entered against him.</p> <p>Paying Dividends Out of Principal.</p> <p>An association of men has no right to declare and pay dividends when there has been no net profits to authorize the dividends. Dividends paid or credited out of the principal of a fund are illegal as against general creditors.</p>

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

<p>Fraud in Settlement Sheet.</p> <p>The relation of trust and confiden.ce between a brother and sister, where the brother has had charge of her property and been collecting her rents, is such that if the sister signs a settlement sheet purporting to be a full and complete settlement between them, she will still not be precluded from the right to compel her brother to account for all money coming to his hands belonging to her. Such a final settlement is not binding upon her when she shows that it was not understood by her'.</p>

<p>Meaning of Words “Her Bodily Heirs” When Used in a Will.</p> <p>Where in a will the testator gives property to his daughter “and her bodily heirs” the words “her bodily heirs” are appropriate to create an estate tail and this is an estate in fee simple under out statutes, but such words may operate not as words of limitation but of . purchase, if so intended by the testator and in such a case may be equivalent to the words “her children.” If such words are used to denote a particular person or class they are words of purchase, but when used to denote the entire line of heirs in succession of the kind named they are words of limitation and will create an estate tail. If used thus to create an estate tail and the daughter dies after the probate of the will, leaving a daughter, the daughter takes a fee and the husband of the mother is not entitled to hold it by curtesy.</p>

<p>Contract to Redeem Land Sold.</p> <p>Where the judgment creditor who has become the purchaser of real estate sold on his judgment and received a conveyance thereof and the judgment debtor enters into a contract by which they agree that the debtor may redeem such land and a part of the price agreed upon is paid and a promise accepted for the balance, the creditor is not entitled to a judgment giving him the possession and the land on account of the failure in payment, but is entitled to have the land sold to pay such balance.</p>

<p>Lien on Land for Sum Due on Rescission of Contract to Purchase.</p> <p>Where there is a rescission of a contract for the sale of land, when there is a mutual and unrestrained acquaintance, the difference ascertained to exist between the parties remains as between them, a lien on the land bought.</p>

<p>APPEAL FROM HARRISON CIRCUIT COURT.</p> <p>[Cited, Louisville & N. R. Co. v. Beard, 28 Ky. L. 922, 90 S. W. 944.]</p>

<p>APPEAL FROM PENDLETON CIRCUIT COURT.</p> <p>[Cited, David v. Commonwealth, 139 Ky. 337, 107 S. W. 306, 32 Ky. L. 812.]</p>

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

<p>Probation of a Will.</p> <p>An alleged will is not evidence of any right when it has not been probated.</p> <p>Statute of Limitations as to Action for Tort.</p> <p>Any action of fraud is barred by the statute of limitations after five years from the date a plaintiff becomes twenty-one years of age and where a plaintiff who became of age in 1870 does not institute an action for fraud alleged to have been perpetrated in 1851 until 1881 her proceeding is barred by the statute.</p>

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

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

<p>Estoppel of Lien Holder.</p> <p>The holder of a lien against real estate which lien is of record can not be held to be estopped from asserting his lien because of his silence in not informing a purchaser of such land that he holds the lien, where it is not shown that the lien holder was present when the purchaser bought the land or wheh he paid for it or that he advised or encouraged such sale. No estoppel can arise against a lien holder on account of his mere delay in enforcing his lien.</p>

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

<p>Jurisdiction to Set Aside Fraudulent Conveyance.</p> <p>A suit to set aside a conveyance as fraudulent will fail where the plaintiff creditor has failed to obtain a judgment at law and execution thereon with return of “No property,” unless there is a failure to object in the court below, by demurrer or othewise to the court’s jurisdiction.</p>

<p>Petition for False Imprisonment Held Insufficient.</p> <p>A petition for false imprisonment against a justice of the peace is insufficient which alleges only that plaintiff “was wantonly, maliciously and unlawfully arrested and deprived of his liberty, by the defendants (naming them) on the false and pretended charge of a contempt offered to the court of the defendant (naming him). That by reason of said wanton and malicious acts of defendants plaintiff was damaged in the sum of one thousand dollars.” Such a petition fails to allege that the justice had no jurisdiction in the matter and is not made good by the allegations of the answer.</p> <p>Justification of Acts of an Officer.</p> <p>A defendant to a suit for false imprisonment who is a constable acting under an order of a judicial tribunal, who served a writ valid on its face, issued to him by a judge, as to whom it is not averred that he did not have jurisdiction to issue, is not liable.</p>

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

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

<p>Care of Trustee in Managing an Estate.</p> <p>An administrator, not guilty of bad faith, to be relieved from liability or loss in managing the estate entrusted to him is only-required to exercise such care as a competent person would ordinarily exercise under the same circumstances in reference to his own affairs.</p> <p>Parties to Administrator’s Suit to Sell Real Estate to Pay Debts.</p> <p>The heirs are necessary parties in a proceeding of an administrator to sell real estate to pay debts, and a judgment against infants- in such a proceeding is void when they were not served with process.</p>

<p>Title by Adverse Possession.</p> <p>One who claims title to real estate by adverse possession can only claim the tracts of land in his actual control and possession; that which he and his grantors have enclosed and held adversely to all the world.</p> <p>Means of Establishing Boundary Line.</p> <p>For a means of arriving at a proper boundary line between adjoining land-owners, see opinion.</p>

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

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

<p>Rescission of contract.</p> <p>Where a contract is rescinded the parties in interest should be protected in their rights and one holding lien notes taken on the sale of real estate where the sale is rescinded can not lose both the lien notes and the land.</p>

<p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p> <p>[Cited, Bridges v. McAlister, 106 Ky. 797, 21 Ky. L. 428, 51 S. W. 603, 45 L. R. A. 800, 90 Am. St. 267.</p>

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

<p>Dower Right of Widow.</p> <p>Partnership real estate is regarded as partnership assets for the payment of partnership liabilities and before the widow or heir can claim, the firm debts must be paid and the rights of the partners in the partnership estate determined, and partnership real estate is deemed personalty when by agreement, express or implied, the partners intend it to be treated as a part of their capital stock.</p> <p>When Widow May Claim Dower.</p> <p>When partnership real estate is intended only as partnership stock the claim of the widow or heir of one of the partners to dower can not be asserted, so as to affect the rights of a surviving partner, but where the claims of the partnership are satisfied unless the articles of partnership show a different intention, the widow and heir may claim dower.</p> <p>Evidence to Show Partnership Lands to Be Partnership Stock.</p> <p>The fact that in the partnership accounts the land is treated the same as other firm property as to purchase money, income and expenses are controlling circumstances in determining the intent of the partners as to how partnership real estate is held and from it an agreement may be inferred.</p>

<p>Continuance of Criminal Cause.</p> <p>The affidavit by a defendant in a criminal cause for a continuance on account of absent witnesses will be refused where an application fails to show what the witness would swear to or that his testimony is as to a material matter, or facts showing diligence on the part of the applicant to procure the witnesses’ attendance or that the attendance can be had if the cause is continued.</p> <p>Admission by Commonwealth to Prevent Continuance of Criminal Trial.</p> <p>No continuance of a criminal cause shall be granted on the application of the defendant on account of the absence of a witness if the attorney for the commonwealth admits as true wiiat the defendant has stated in his affidavit the absent witness will prove.</p> <p>Hypothetical Questions.</p> <p>Generally speaking a hypothetical question must be based upon proven facts only, but the object is to elucidate the truth and it is not so technical as to require that the exact language of witnesses who have testified to the facts upon which the question is based shall be used. Such questions may be based upon any state of facts which any of the evidence sustains.</p> <p>Conspiracy Proven by Circumstances.</p> <p>Conspiracy to commit crime can rarely be proven by direct or positive evidence. It can usually only be shown by slight circumstances which, woven together, make a complete whole.</p>

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

<p>Nuisance in Maintaining a Dam.</p> <p>A defendant charg-ed by the commonwealth with unlawfully maintaining a nuisance by erecting a dam, upon showing that the right was given him by the county court and that he has not built the dam even as high as he was authorized to do, cannot be convicted of such offense.</p>

<p>APPEAL FROM TAYLOR CIRCUIT COURT.</p> <p>[Cited, Kimbrough v. Harbett, 110 Ky. 97, 22 Ky. L: 1578, 60 S. W. 836; Bitser v. Merche, 111 Ky. 307, 23 Ky. L. 670; 63 S. W. 771.]</p>

<p>Act of Insolvency Authorizing Creditors to Distribution.</p> <p>The recording' of a deed made by an insolvent is not the act of insolvency, but the execution of a deed is such an act of insolvency, and being fraudulent will pass all right and title to the creditors of the insolvent.</p>

<p>Personal Judgment Against Married Woman.</p> <p>A personal judgment against a married woman is improper where not asked for in the petition, and where it is shown that she was a married woman when she joined in the execution of the note upon which judgment was rendered, and the fact that she became dis-covert by divorce before the date of the judgment did not authorize it.</p> <p>Subjecting a Married Woman’s Property.</p> <p>A petition on a note executed by a married woman and her husband seeking to subject her separate estate, is insufficient when it does not contain an allegation that she created the debt or that it was made for her use, or that she received the benefit of it. Such omissions, however, are cured by an amendment alleging that the land was conveyed to “the defendants;” that the money for the loan, for which the note sued on was given, was advanced and loaned to the defendant to protect her against the loss of her property and to enable her to live, and upon such allegations the petitioner is entitled to a judgment only in rem.</p>

<p>Contract Between Trustee and His Principal.</p> <p>A bargain made between a trustee and the person he represents will, by the chancellor, be closely scanned, and the trustee will not be allowed to deal unfairly in such a matter, especially where the trustee is a trusted brother of such principal.</p>

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

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

<p>Mistake in Deed.</p> <p>Where conveyance of real estate is made to a person about twelve years before he incurs a debt and about seventeen years before his death and twenty-four years before his widow sets up a claim to the land in order to defeat her husband’s creditor claiming that by mistake the conveyance was made to her husband instead of to her, she must by reason of the great lapse of time in asserting her claim, be able to clearly prove her claim to defeat the creditor.</p>

<p>APPEAL FROM OHIO CIRCUIT COURT.</p> <p>[Cited, Sims v. Walsham, 9 Ky. L. 912, 7 S. W. 557; Sanders v. Herndon, 122 Ky. 760, 29 Ky. L. 325, 93 S. W. 14, 51 L. R. A. (N. S.) 1072, 121 Am. St. 493.]</p>

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

<p>APPEAL FROM PENDLETON CIRCUIT COURT.</p> <p>[Cited, Grider v. Davenport, 22 Ky. L. 1456, 60 S. W. 866.]</p>

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

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

<p>Jurisdiction in a Court of Equity.</p> <p>In order to give jurisdiction to a court of equity to quiet title the plaintiff must allege both that he has legal title and possession.</p> <p>Fraudulent Conveyance.</p> <p>A court of equity will not have jurisdiction to set aside a conveyance alleged to be fraudulent and subject the land to the satisfaction of a legal demand unless it is alleged that, the petitioner has procured a judgment at law, an execution thereon and a return of nulla bona, or by attachment.</p> <p>Waiver of Jurisdiction.</p> <p>Where it is sought in a court of equity to set aside a conveyance alleged to be fraudulent and subject the land to a claim, not alleged to have been reduced to judgment, and execution issued and return of nulla bona made, and the defendant does not raise the question of the jurisdiction of the trial court therein, it is too late to raise the question of jurisdiction for the first time in this court.</p>

<p>Waiver of Exceptions.</p> <p>Where the trial court fails to act upon exceptions to depositions and upon the report of a commissioner, and afterwards the case is submitted, by agreement and no complaint made that the exceptions had not been acted upon, such exceptions are waived and the case will be considered as if no .exceptions to the evidence had been taken, and since the trial court .took no action as to the commissioner’s report, there is nothing to review here.</p>

<p>Negligence in Personal Injury Case.</p> <p>One approaching a railroad crossing in the city of Louisville, who fails to look and listen to ascertain whether there is danger, and who exercises no care for his own safety and is killed by the cars, has no cause of action against the railroad company where it is shown to and found by the jury that the company’s employes were not guilty of wilfully running the cars against him.</p> <p>Instruction to Jury.</p> <p>It is not error for the judge in his instruction to the jury to close by saying to them in an impressive way, “Gentlemen of the Jury: You will bear in mind that you are to try this case according to the law and evidence; remember you have been sworn to try this case according to law and evidence, that is all; now you can retire to your room and answer the questions propounded.”</p>

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

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

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

<p>New Trial for Inadequacy of Damages.</p> <p>A new trial may be granted for error in the assessment of damages whether too large or too small, but can not be granted on account of the smallness of damages in a case where they cover the actual pecuniary loss sustained. No new trial on account of the smallness of damages will be granted in a case where the weight of the evidence shows that the damages are not too small.</p>

<p>Widow Estopped from Claiming Dower.</p> <p>Where, during the lifetime of a husband, the wife claims a homestead in her husband’s real estate as against the foreclosure of a mortgage in which she did not join, claiming it in her own right, and it has been allowed to her and paid to her out of the proceeds of the sale, in a suit for dower after her husband’s death, where she alleges that she has received such cash in lieu of her homestead and then has it, a court of equity will charge it to her and her own recitals estop her from saying that it should not be done.</p>

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

<p>Discretion of Officers Not Controlled by Mandamus.</p> <p>Where, under the law and charter of a town the trustees are given the discretion to issue or refuse to issue a license to sell intoxicating liquors, and they do in the exercise of such discretion refuse a license, their action can not be controlled by mandamus.</p> <p>Effect of Procuring a County License.</p> <p>Procuring a county license to sell intoxicating liquors gives no right to the holder to sell such liquors in a town when the trustees of the town in their discretion refuse to issue a license therefor.</p> <p>Proper Function of a Writ of Mandamus.</p> <p>The writ of mandamus can not be used to control the honest discretion of public officers when they are by the law given a discretion, but may be employed to force a public officer to perform a plain ministerial duty. An officer refusing to act at all may be mandated.</p>

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

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

<p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>[Cited Stone v. Burge, 26 Ky. L. 1061, 83 S. W. 139.]</p>

<p>Attorney’s Contract for Fees.</p> <p>Where attorneys under a written contract agree for a per cent, to collect a large claim against a railroad company, they to receive nothing if nothing is collected, the per cent, to be based on the “amount that shall * * * be realized from, or secured to me, of said claim, whether by suit, compromise or otherwise,” and they procure judgments and executions, but before they have finally abandoned their efforts, the client forms a syndicate and buys in the railroad and by such speculation finally makes more than the amount of his claim, the attorneys are entitled to their per cent, if in fact it is shown that their services aided in the securing of the money, if not they are entitled to nothing.</p>

<p>Notice of Commissioners’ Meeting.</p> <p>Where the judgment, appointing commissioners to allot dower, fixes the time and place of their meeting, and they meet in accordance with such order and adjourn to another day, no additional notice is required to bind the parties to such action.</p> <p>Abandonment of Efforts to Secure the Court’s Ruling.</p> <p>Where a litigant enters a motion to compel an adversary to elect from among parties the one against which he will proceed and then proceeds to trial without first requiring the court to rule, he abandons such motion.</p>

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

<p>Judgment in Vacation.</p> <p>Where judgment is pronounced in a cause during a regular term of the court and the record shows “By agreement this action is resubmitted and the chancellor may file his judgment and the parties their bills of exceptions in vacation, all to have the same effect as if filed in regular term,” such judgment is valid.</p>

<p>Notice of Election Contest.</p> <p>When in an election contest the defendant answers and goes to trial on the merits, it is thereafter too late for him to raise any question as to the want or sufficiency of a notice to contest.</p> <p>Insufficient Record on Appeal.</p> <p>In an election contest on the grounds that votes were illegally ■cast or not properly counted, if the appellant desires this court to pass upon such questions he must bring before this court all of the evidence by a properly identified bill of exceptions.</p>

<p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p> <p>[Cited, Harlow v. Scobee, 22 Ky. L. 1499, 60 S. W. 861.]</p>

<p>Election of Widow to Take Under Husband’s Will.</p> <p>Where the wife has a life estate in real estate and is also the beneficiary under a life insurance policy on his life and the husband makes a will by which he makes provision for his wife and also disposes of her real estate and insurance policy, and the wife after his death makes no objection to the will but undertakes to carry it out, conveying her real estate, devised by her late husband to the executors, and signs over her rights in the life policy and accepts the property given her by the will, and the real estate is partitioned and deeded to the children and the estate settled, and several years afterwards she undertakes to renounce the will and recover her property, she will be estopped by her conduct.</p>

<p>Subrogation.</p> <p>Where A holds purchase-money notes and a lien on land and when the notes fall due B borrows money from C to pay them, giving his note to C therefor with D as surety and D finally has to pay the note, he can not be subrogated to any one’s rights, and where B is discharged in bankruptcy D has no remedy.</p>

<p>Errors Where No Motion for New Trial Is Made.</p> <p>While any errors committed during the progress of a trial are not subject to revision by the Court of Appeals unless such errors are presented to the trial court in a motion for a new trial, still there may, in the absence of a motion for a new trial, be an inquiry as to whether the pleadings state any cause of action or defense and whether there is any evidence heard and properly presented by bill to support the judgment.</p> <p>Motion for a New Trial.</p> <p>It is never necessary in a motion for a new trial to specify errors not occurring during the progress’ of the trial. Errors occurring prior to the trial will be considered by this court when properly brought before it and a motion for a new trial as to them is not proper.</p>

<p>Wilful Negligence.</p> <p>Where an employe of a railroad company is run over by the company’s cars no recovery can be had therefor except on the ground that his death resulted from the wilful negligence of those in charge of the train.</p>

<p>Judicial Sales of Land.</p> <p>It is the policy and requirement of the law that judicial sales of real estate shall not be made unless the legal title will thereby pass, and where the legal title to land is in heirs it can not be conveyed at a judicial sale resulting and ordered in a proceeding to which they are not parties.</p>

<p>Appeal by Piecemeal.</p> <p>Where one petitions for a new trial and secures it and obtains a judgment, if he is not satisfied with such judgment he has a right to appeal from it, but he can not have the original judgment modified by piecemeal and thus speculate on his chances for success in the one case or the other. An appeal may only be taken from a final judgment and different appeals can not be maintained on parts of a judgment.</p>

<p>Right to Question Validity of a Patent.</p> <p>One who is unable to show any interest in the land patented to another is in no position to question the validity of the other’s patent on the ground that it is void for uncertainty.</p>

<p>APPEAL FROM MERCER CIRCUIT COURT.</p> <p>[Cited Moody v. Commonwealth, 19 Ky. L. 1199, 43 S. W. 209.]</p>

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

<p>Partition of Real Estate.</p> <p>One joint owner of real estate, who is a married woman, can not prevent a sale of indivisible real estate by withholding her consent to such sale.</p>

<p>Parol Trust in Face of Written Instrument.</p> <p>While the law often and properly makes the husband a trustee for the wife for her protection, unless the testimony is clear and satisfactory a parol trust will not be enforced in the face of a written instrument.</p> <p>Description of Land in a Judgment for Partition.</p> <p>A judgment for the sale of land should so describe it as to enable the commissioner to describe and locate it without referring to any other paper in the record, but where land is to be divided a general description of it in the judgment is sufficient and the same strictnéss of rule is not required.</p>

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

<p>Dying Declarations.</p> <p>Where one purchased a ticket of a railroad company to be trans'ported on its passenger train from Shelbyville to Louisville and the company failed to take the passenger to the place of destination as speedily as the usual course of transportation demands there is a breach of contract for which the company is liable, but where it is alleged in a petition that the failure to place such passenger on the first train and the delay in wating two hours for the second train, gave her a severe cold resulting in penunronia from which she died, such allegations only show a breach of contract and such a breach cannot be converted into a tort so as to admit the dying declarations of the intestate as to the cause of the injury and the wilful neadect of the defendant.</p> <p>Notice to Take Deposition.</p> <p>Where both parties reside in the same city and a notice to take a deposition at a designated place in the city on the 11th day of March between 2 o’clock p. m. and 5 o’clock p. m., “and if not then taken could be taken on the next day between 9 o’clock a. m. and 5 o’clock p. m.” and the notice is dated March 11th and not served until 10 o’clock a. m. on March 12th, the notice is unreasonable as to time and the party upon which it was served had the right to presume that the deposition had been taken when the notice was served.</p>

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

<p>Title by Adverse Possession.</p> <p>Where one claiming land under a patent to his grantors, or those under whom he claims, has had the actual continuous possession of the tracts for fifteen years, claiming to the boundary as described by the patent or original survey his title is good.</p> <p>Instructions.</p> <p>An instruction otherwise correct should not be given when there is no issue of fact or law to base it upon. Instructions should fit the state of case shown by the evidence.</p>

<p>Mental Capacity to Make Valid Will — Monomania.</p> <p>An insane delusion on one subject may exist in the mind of a person, without affecting his ability to properly attend to all his social and business duties. He may be insane on one subject or set of subjects and entirely rational as to all other matters.</p> <p>Conflicting Evidence as to Mental Capacity.</p> <p>Where an issue is formed as to mental capacity to make a will and the evidence is conflicting and no error of law was made at the trial this court will not reverse the lower court.</p> <p>Burden of Proof in Contest of Will.</p> <p>The burden of proof is on the propounders of a will, but when due execution of the will, consistent upon its face and apparently rational in its provisions, has been proven and the will is assailed upon the ground of mental incapacity in the maker, the burden shifts to the contestants.</p>

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

<p>LOUISVILLE CHANCERY COURT.</p>

<p>Recovery on Account of Excess Acreage of Land.</p> <p>Where A. and B. trade real estate, A. conveying his farm of two hundred acres to B. and B. conveys a house and lot to A. and agrees to pay A. in addition a large sum of money, part cash and the remainder later and finishes payment three years thereafter, and more than ten years thereafter A. sues B., claiming the trade was based on the fact that there was 200 acres and he finds an excess acreage, before he can recover, he must show that B. promised to pay for such excess. The fact that in his deed to A. he inserted a clause as follows: “But the amount in the two tracts to be ascertained by survey and paid for at the rate of thirty dollars per acre for the amount said survey actually contained” is not conclusive ot such agreement where it is shown that B. refused to accept the deed because of such clause and demanded a new deed and A. waits more than twelve years before attempting to recover.</p>

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

<p>Construction of Will.</p> <p>A testator by will provided “I bequeath to my wife, * * * all my lands, money and stock, in fact everything I possess; she acting as administrator and guardian for my children, she having full and entire control of all my lands, stock and money without any security whatever being exacted of her. If said wife should at any time marry, then I wish the said Harriet B. Cureton (wife) to retain one-third of my estate, the remainder to be equally divided among my four children (naming them).” His widow remarried within a year and upon her death left surviving her in addition to said four chhdren, a husband and two children by him. Held: That the will means that in the event of the widow’s remarriage she was to retain one-third of the estate as her own and not that she should have the same kind of an estate in one-third of it that she had in the entire estate during widowhood.</p>

<p>Injunctive Relief.</p> <p>Where in an effort to enjoin a railroad company from building its line of road in front of plaintiff’s business house on the ground of irreparable injury to the business in which he is engaged by reason of the proximity of the track, and no question is raised as to ownership of the street and the council has granted a right to the company to lay its tracks in the street, the injunction will be dissolved where the allegations in the petition for injunction are denied and no proof is made to sustain them.</p>

<p>Adverse Possession Gives Title.</p> <p>Where A. enters and takes possession of a well defined boundary and continues to reside within the boundary, claiming to the extent of same for more than fifteen years it bars the recovery of B., who asserts title thereto, but if B. first entered his possession extending to his patent boundary and A. thereafter enters he will be confined to his actual inclosure.</p>

<p>Sale of Real Estate on Execution.</p> <p>If the sheriff has an' execution and thereunder levies on land of the defendant he may after the return day, while the execution is in his hands, sell the property taken by virtue thereof, provided the levy was made before the return day.</p>

<p>APPEAL FROM MARION CIRCUIT COURT.</p> <p>[Cited, Brown’s Admr. v. L. & N. R. Co., 97 Ky. 237, 30 S. W. 639.]</p>

<p>Offer to Redeeem Land from Sale.</p> <p>Where by agreement the owner of land has the right to redeem it from sale within a given time and he thereafter has the money and offers to redeem by paying the amount due and is not allowed to do so because more is demanded, such owner may force his right to redeem.</p>

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

<p>Wilful Neglect.</p> <p>Where an employe of a railroad company is killed by the cars of the company, being- an employe, his representatives can only recover on the ground of wilful negligence of the company. The company can not be held liable for ordinary negligence.</p> <p>Power of Court to Force Remittance of Judgment.</p> <p>Where a damage suit is tried and the jury return a verdict for the recovery of money and a motion for a new trial is filed, the judge has no right to assess the damages and to .deny to either party their right to have the damages assessed by the jury. The measure or amount of damages, where the proof authorizes a recovery, is within the discretion of the jury not to exceed the amount claimed in the petition. The judge has no right to invade the ¡province of the jury and decide what in his opinion the plaintiff should recover, and it is error for him to announce that unless the plaintiff will remit a part of the recovery he will grant a new trial regardless of whether errors were made at the trial or not.</p>

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

<p>Title by Adverse Possession.</p> <p>Where a plaintiff in his petition charges a defendant with trespass, and the land on which the alleged trespass was committed is included in a large survey theretofore patented, and neither of the parties have any other claim to it except what is derived fro.m actual possession, not held long enough to ripen into a title, the right to recover depends on whether plaintiff had possession of the land on which the defendant built his cabin and cut timbers.</p> <p>If there was another claimant in possession of the land lying between that occupied by plaintiff and defendant it would show that the land in possession of defendant was not subject to plaintiff’s claim.</p>

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

<p>Writ of Mandate Can Not Be Used to Control the Discretion Lodged in the City Council.</p> <p>Where the Legislature have authorized the Board of Councilmen of Newport to levy a tax to build and repair school houses, if, at an election, a majority of the voters of the city are in favor of doing so, and a majority do vote therefor, and the act gives the board discretion to make the levy or not, such board can not by mandate of the court be compelled to make the levy, for the mere discretion of public officers can not be controlled by the court’s mandate.</p>

<p>Pleading Conclusions.</p> <p>In a petition by a city to subject property to sale to pay taxes, the mere conclusion of the pleader that the tax was duly and regu.larly imposed, is not a statement of any fact or facts authorizing the court to say that the tax had been properly imposed, and where nothing appears in the answer admitting such facts the petition will be held insufficient, even when attacked for the first time in this court.</p>

<p>Measure of Damages in Trespass.</p> <p>Where by reason of a disputed boundary line one. of the defendants sells and has cut growing timber, which the purchaser makes into staves and hauls to the railroad for shipment, if it turns out that the seller was a trespasser, not owning the land, and the real owner seeks to hold him for the trespass, the value of the staves at the station is not the measure of his damages, but rather the value of the trees as they were before being cut.</p>

<p>Gift of an Estate.</p> <p>The declaration of a person that he intends to give to another personal property (a note), is not a gift, and a gift can not be implied where the alleged donor holds the possession of the note up to the time of his death, and the proof shows the note was against his brother and it was never his intention to require .its payment.</p>

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

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

<p>Admissibility of Evidence.</p> <p>This court can only determine whether evidence offered and rejected in a criminal case was prejudicial to the accused when it is stated what it will prove, but where in the trial of one charged with grand larceny the defense offers in evidence the property charged to have been stolen, for the purpose of the jury’s inspection, this court can not determine whether its rejection was prejudicial to the substantial rights of the accused or not.</p>

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

<p>Order of Introduction of Evidence.</p> <p>The trial court has a wide discretion in the matter of the order in which evidence is introduced in the trial of a criminal case, and this court will not reverse unless manifest abuse of such discretion is shown.</p> <p>Proof of Malice.</p> <p>Malice, like any other fact, must be proven in the trial of a case where malicious wounding is, charged, but this may be done by circumstantial evidence from which the jury may infer malice.</p> <p>Form of Verdict.</p> <p>While, in the trial of a criminal cause, the verdict is required to be declared by the foreman of the jury, a verdict saying “We the jury find the defendant guilty as charged in the within indictment and fix his punishment at one year in the state penitentiary,” and it is signed J. H. Yazer, one of the jury, and the judge adds a word or two to it and then has it returned over again, the accused is not prejudiced by the alteration and by the fact that the signer of the verdict signs himself as one of the jury instead of foreman.</p>

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

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

<p>Sale of Land Under Decree.</p> <p>Where a decree directs the sale of land to be made upon a credit of three months when the statute requires that it must not be less than six months, and the land is sold and bought in by the holder of the judgment, and he entered no objection or exception to the decree or sale and the land sold for more than two-thirds of its appraised value and the debtor is making no objections, the decree will not be held void by reason of the direction to sell upon a credit of three months.</p>

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

<p>Widow’s Funeral Expenses.</p> <p>When a testator appoints an executor and directs him to manage the business of the late partnership between himself and such executor and pay off the firm debts, and directs his executor while managing the partnership to liberally support the widow, and the widow soon thereafter dies the executor should pay all her funeral expenses and those holding obligations on which the decedent is bound as surety can not successfully resist such claims.</p> <p>Power of Executor to Buy Tombstone for Decedent.</p> <p>Where an estate is insolvent, the executor is not permitted to make an expenditure of $575.00 in buying a tombstone to mark the grave of the testator. Such claim should not be allowed the executor as a credit.</p> <p>Pay of Executor for His Services.</p> <p>An executor who serves as such and who has done no wrong should be paid for his services. He can not be deprived of reasonable compensation for such services and it is error for the chancellor to deprive him of them.</p> <p>Enforcing Vendor’s Lien.</p> <p>One who has sold land and retained in the deed a lien for the balance of purchase-money is not deprived of his lien by the death of the purchaser and has a right at any time to proceed to enforce such lien when the debt is due.</p> <p>Executor Can Not Purchase Property of Testator.</p> <p>An executor having charge of the real estate of the testator for the purpose of paying debts has no power to become himself a purchaser of the estate in any proceeding so as to affect the rights of creditors.</p>

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

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

<p>Right of Heirs Under Agreement.</p> <p>Where by agreement heirs are to own real estate in common, each in proportion to his lien, and the agreement is made a part of the record, it is enforcible, and a conveyance being made to them in satisfaction of the debt and the property sold by a commissioner, the purchase-money will enure to the benefit of all the parties.</p>

<p>Real Estate Description in Judicial Proceedings to Sell.</p> <p>The land ordered sold in a proceeding for its sale which does not describe the land except in a copy of the levy of the marshal upon the land filed with the petition as an exhibit and where the judgment of sale refers to this exhibit for a description does not inform a bidder what land the commissioner is selling. Such a judgment is erroneous.</p> <p>Rights of Executor and Legatee to Subrogation.</p> <p>An executor, who is also residuary legatee, and who in ignorance of a large debt against the estate he is administering, which debt would make the estate insolvent, pays other debts against such estate out of his individual means, is entitled in equity to be subrogated to the rights of the creditors so far as their debts were paid by him with his own means.</p> <p>Creditors Rights in Insolvent Estate.</p> <p>One creditor of an insolvent estate has no right to a judgment to sell enough of it to pay his debt in full.</p>

<p>Equitable Owner of Land Entitled to Damages Sustained by Establishment of Highway.</p> <p>Where one has sold land to another, executing to him a title bond, the holder of such bond is the equitable owner of the land and is entitled to damages sustained by reason of the establishment of a highway over or through such land. Even a tenant may be awarded damages to the extent he has sustained injury in such a case.</p> <p>Taxation of Costs in a Road Case.</p> <p>Where in a proceeding to change or establish a highway there is judgment on appeal to the circuit court that the highway be not changed the costs are to be paid by the county court and it is error to adjudge costs against one who has successfully resisted the establishment of such highway.</p>

<p>Rape of Infant Nine Years of Age.</p> <p>A child nine years of age can not be presumed to know or have any conception of a rape being perpetrated upon her and can not be deemed to have consented to such act and one charged with rape in such a case can not be allowed to escape punishment because there is but slight evidence that such a child did not consent to the act.</p> <p>Evidence of Declarations of One Accused of Rape, Made Just Before the Act.</p> <p>Vulgar expressions made by one in regard to sexual intercourse just before perpetrating a rape are admissible in evidence against him, to show the depraved character of the accused and the probability that he would be guilty of such an infamous offense.</p>

<p>APPEAL FROM PENDLETON CIRCUIT COURT.</p> <p>[Cited, Black v. Commonwealth, 24 Ky. L. 1975, 72 S. W. 772.1</p>

<p>Taxation of National Banks.</p> <p>There is no valid subsisting enactment in this state requiring national banks, like state banks, to pay a tax of fifty cents on each share of its stock of one hundred dollars in denomination.</p> <p>Constitutionality of Taxing Act.</p> <p>The act requiring state banks to pay each year fifty cents on each share of one hundred dollars is not unconstitutional because it does not apply also to national banks.</p> <p>Estoppel from Raising Constitutional Question.</p> <p>The state which has taxed national banks under the act of March 16, 1867, and received the tax and issued its quietus therefor can not be heard to allege that the act is unconstitutional.</p>

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

<p>Merger of Note in Judgment.</p> <p>Where a note is reduced to a judgment, the note merges in the judgment and thereafter the note being in possession of the executor of the estate of the holder of the judgment, he has no right to assign the same and the assignee thereof has no title or claim to it.</p> <p>Administrator Owing the Estate He Represents.</p> <p>Where a debtor is appointed as administrator of an estate to which he is indebted, he must charge himself with such debt and will be held to have received it. Strictly speaking, an administrator is not entitled to any commission or allowance as administrator in collecting a claim against himself, but where a small allowance is made to him therefor, this court will not reverse on account of it.</p>

<p>Amendments of Pleading During Trial.</p> <p>The trial court has a broad legal discretion in the matter of allowing amendments to pleadings and if lie permits such amendments during the trial the cause will not be reversed on account thereof in the absence of facts showing an abuse of such discretion.</p> <p>False Representations as to Quantity of Land Sold.</p> <p>Where the vendor of real estate sells a tract of ground and goes with the vendee and measures it off and then conveys according to such measurement, and it turns out thereafter that he had previously conveyed a portion thereof, it will be held in a suit to rescind the sale that his acts^and conduct amount to false representation as to the quantity of land sold and conveyed and such a sale will be set aside for such fraud.</p>

<p>Instruction as to Circumstantial Evidence in Trial of a Charge of Murder.</p> <p>In the trial of one charged with murder where the evidence is largely circumstantial, the trial court is not required to caution the jury against a verdict based upon circumstantial evidence or to prescribe a rule by which that kind of evidence is to be considered by the jury.</p>

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

<p>Sureties Entitled to Benefit of Collateral Securities.</p> <p>All sureties are entitled to the benefit of collateral securities held by the creditor, and where one of the sureties holds collateral, the other sureties are entitled to participate in it, but one complaining must be able to show that he has been deprived of such a right and prejudiced.</p>

<p>Felonious Intent in Larceny.</p> <p>There can be no evidence of a felonious intent on the part of one who took and removed logs under the belief that as part owner he had a right to take them, and where such logs are in the possession of the sheriff, who has announced that he has no intention of having them appraised, such possession will not deprive the owners of the right to remove the logs.</p>

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

<p>Discretion of Trial Court.</p> <p>The ends of justice require that the court shall have a wide discretion in respect to the order of the introduction of evidence in a criminal trial and such discretion will only be interfered with by this court when manifestly abused and the substantial rights of the accused party prejudiced.</p>

<p>Confession of Crime of Housebreaking.</p> <p>A confession of guilt of a crime charged, will not warrant a conviction unless accompanied with other proof that such an offense was committed, but where evidence shows that a house was broken into and certain property was missed therefrom, taken with the confession of the accused is sufficient to sustain such a conviction.</p>

<p>Grantee’s Title Not Better Than His Grantor’s.</p> <p>Where a grantor has neither title nor possession of land his conveyance thereof secures to his grantee no better title than he himself holds and the real owner of such land being in possession can not be dispossessed by such a grantee.</p>

<p>Sufficiency of Indictment.</p> <p>When the statute describes facts constituting an offense, an indictment under such statute should follow the statute and to be good, an indictment for detaining a woman with intent to have sexual intercourse with her against her consent, an indictment should allege that the woman was detained against her will, and with the intent to have carnal knowledge of her Without her consent.</p>

<p>APPEAL FROM CALDWELL CIRCUIT COURT.</p> <p>[Cited, Moody v. Commonwealth, 19 Ky. L. 1119, 43 S. W. 209.]</p>

<p>Sales Under Judgment Before Reversal on Appeal.</p> <p>It is held that a sale fully executed by a court of competent jurisdiction will be upheld, although the judgment under which it was made be subsequently reversed as erroneous, and this is true whether the plaintiff in the judgment or a stranger be the purchaser.</p>

<p>Right of Possession of Real Estate.</p> <p>Where the owner of real estate sues for its possession to which he is entitled, the Chancellor can not legally withhold from him the writ of possession to await a report of a commissioner of the value of rents and improvements.</p>

<p>APPEAL FROM MARION CIRCUIT COURT.</p> <p>[Cited, Murray v. Davis, 9 Ky. L. 508, 5 S. W. 569.]</p>

<p>Conveyance by Married Woman.</p> <p>A married woman must acknowledge the conveyance to pass her estate and this must appear from the certificate of acknowledgment, and where the husband conveys as the grantor and she only acknowledges it as to a certain interest or to a certain extent, it is only effective to that extent.</p>

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

<p>Description of Land in a Deed.</p> <p>Where a conveyance is made of so much of a tract of land as is bounded on one side by a highway and on the other by a branch, it means to the center of the branch and can not be construed to embrace land on the opposite side of such branch.</p> <p>Title by Use.</p> <p>One can not acquire title to a spring from the mere use of it by permission of the owner.</p>

<p>Agreement to Make Advancement.</p> <p>A father is under no obligations to make advancements to his son, and even his agreement to do so is not enforcible; and where a father of an insolvent son conveys land to his son’s wife, such land is not subject to the son’s creditors, for the son has no interest in it.</p>

<p>Agreement of Record Between Parties.</p> <p>Where'it is agreed between parties to a cause that no executions are to issue on certain bonds and by consent of parties is placed of record by the court, until certain questions are decided by the Court of Appeals in another case pending on appeal the parties are precluded from issuing any executions until the case is finally disposed of in the Court of Appeals. Such agreement when recorded by the court, becomes a judgment on order and no executions will issue until this court has finally ruled on a motion for a rehearing in the cause preceding before it.</p> <p>Release of Sureties.</p> <p>One who has signed a sale bond as surety may successfully defend where more than twelve months elapse from the maturity of the bond and no execution thereon is issued. In such a case the surety is released and it is the duty of the clerk to endorse on the execution that the surety is released.</p>

<p>Duty of Trial Court to Carry Out the Orders of the Court of Appeals.</p> <p>Where a cause is reversed by the Court of Appeals and remanded for proceedings in accordance to this court’s directions, the trial court must so proceed, and where on a retrial he does not so proceed the cause will again be reversed.</p>

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

<p>Homestead as Against Creditors.</p> <p>Where one has used and cultivated his land but has not lived upon it he can not claim a homestead right as against his creditors.</p>

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

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

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

<p>APPEAL FROM LAWRENCE CIRCUIT COURT.</p> <p>[Cited, Thompson v. Brownlie, 25. Ky. L. 623, 76 S. W. 172.]</p>

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

<p>Wife’s Separate Property.</p> <p>Where a husband buys a lot which is paid for by his wife and a building is erected on the lot, the chancellor will not, upon the application of the husband, incumber the property with a lien in behalf of the husband who has already used and expended the greater part of his wife’s estate.</p>

<p>Title of Real Estate Under Survey.</p> <p>One seeking to claim land in the possession of another who claims it under the lines of a survey, has the burden to show a superior claim either by virtue of a previous appropriation by entry or survey, or being an actual settler.</p>

<p>Title by Adverse Possession.</p> <p>One can not recover title on a possessory claim as against one who at the date of the beginning of the action was in and had been in the actual possession of the land, claiming it as his own for more than forty years. The plaintiff in such an action must show his own title before he can recover.</p>

<p>Burden of Proof in Ejectment.</p> <p>In an action of ejectment the burden is on the plaintiff to establish every fact necessary to be shown in order to recover. He recovers on the strength of his own right and not upon the weakness of his adversary.</p>

<p>Deed Executed to Secure Debt is Only a Mortgage.</p> <p>Where the owner of real estate borrows money of another and executes a deed conveying to him his farm as security and also executes to him notes for the amount and takes back from him a bond for a deed, all being executed at the same time, they are in legal contemplation but one transaction and it may be shown by parol that such deed was intended to be a mortgage.</p>

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

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

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

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

<p>APPEAL FROM SIMPSON CIRCUIT COURT.</p> <p>[Cited, King v. Cheatham, 31 Ky. L. 1176, 104 S. W. 751.]</p>

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

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

<p>Trial Court Bound by Mandate of Court of Appeals.</p> <p>Where on appeal of a cause it is reversed and the court below is directed to enter judgment for appellant, such court should obey such mandate, leaving the 'other party to their remedy provided by the code. He could then have filed his petition for a new trial based upon any defense that had arisen since the former trial. Still where the trial court does not enter judgment but permits the appellee to amend his pleadings presenting facts which would have authorized a new trial, such action will not be reversed because the appellant is not thereby deprived of any substantial right.</p>

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

<p>Burden of an Appellant.</p> <p>One who appeals his case to this court has the burden of bringing to this court a record showing that reversible error occurred in the trial court.</p> <p>Demurrer Admits Facts Well Pleaded.</p> <p>A demurrer admits the truth of statements of a pleading demurred to as well as all necessary inferences from facts where the facts are well pleaded.</p>

<p>Appeals May Only Be Taken From Final Judgments and Orders.</p> <p>Appeals can only be taken from final judgments, and the refusal of the court to make certain parties defendants is not a final order.</p>

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

<p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>[Cited, Commonwealth v. Cope, 107 Ky. 177, 21 Ky. L. 845, 53 S. W. 272.]</p>

<p>Trust Agreement.</p> <p>If one purchases land at a decretal sale under an agreement with the owner that he may redeem it, a trust is created which the latter can enforce although the purchaser may have obtained the absolute title, and such an agreement is not within the statute of frauds.</p>

<p>Answer to Suit to Quiet Title.</p> <p>In a complaint to quiet title to real estate within a certain boundary, an answer tenders no issue when it merely alleges that the defendant is the owner of certain described real estate, but fails to allege that such real estate was within the boundary of the land described in plaintiffs complaint or to deny that plaintiff was in possession of the land described in it.</p> <p>Notice and Form of Deposition.</p> <p>A notice to take depositions should be served long enough before the taking as to afford to a party a reasonable opportunity to be present. He should be allowed a reasonable time to notify or find his attorney. The certificate to a deposition to be sufficient should show that testimony reduced to writing by the examiner was read to the witness before being signed by him.</p>

<p>Subjecting Pension Money to Attachment.</p> <p>Money.in the possession of the agents of the government or in transitu to the pensioner can not be attached when received and deposited with or loaned to another; but such money may be attached or garnished, and when invested in real estate it may be subjected, although conveyed to the wife, nor can the homestead be relieved from the burden if acquired after the creation of the debt.</p>

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

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

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

<p>APPEAL FROM ADAIR CIRCUIT COURT.</p> <p>[Cited, Rupple v. Kissel, 24 Ky. L. 2372, 74 S. W. 220.]</p>

<p>Execution of Deed of Conveyance.</p> <p>Where the owner of land who has aided his daughter in raising her family and assisted one of his grandsons, attempts by deed to convey his land to such daughter and grandson, and the land embraces practically all of his estate, leaving nothing for his other deserving children, and there is great doubt whether such deed was ever delivered, the court will be inclined to hold that there was no delivery. The execution of a deed consists both of its signing and delivery.</p> <p>Conveyance to Defraud Creditors.</p> <p>Where the owner of land, being surety on certain sheriff’s bonds and believing he is about being made a bankrupt, conveys his land to certain members of his family, such conveyance is binding upon him but not on such creditors, and children receiving nothing in such conveyance can not have the deed set aside because made to defeat creditors.</p>

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

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

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

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

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

<p>APPEAL FROM CLARK CIRCUIT COURT.</p> <p>¡[Cited, McClure’s Admr. v. Anchor Rolling Mill’s Assignee, 30 TCy. L. 509, 99 S. W. 221.]</p>

<p>Widow’s Dower.</p> <p>Where real estate has been purchased in the joint names of the parties forming a partnership, with firm means, and so held,-in the ■absence of any agreement between them to the contrary it must at law be regarded as held by them as tenants in common, but in equity it must be treated as held by them in trust for the firm, subject -to the rules applicable to partnership personalty and liable for • the firm debts and the claims of each partner upon the others. After ■ these claims are satisfied the residue of it will belong both at law :and in equity to the partners as tenants in common and where the -wife of one of such partners has not joined in conveying her inter- - est .and he dies she is entitled to dower in his undivided interest Iheld during coverture.</p>

<p>Trust in Holding Land.</p> <p>Where a wife owning real estate becomes indebted, has a worthless husband, and is about to lose her land, and the husband’s brother purchases the land in order to give his brother’s family a home, and pays up his grantor’s debts, while the facts might disclose that he held the land in trust for his brother’s family, he has the legal title; and an effort of the worthless husband’s creditors, who became such long after the purchase of the land by the brother, to subject such land to their debts will fail where the brother’s purchase was made in good faith, and the fact that he permitted his brother’s family to occupy the land free of rent is no evidence of fraud on his part, but rather evidence of his benevolent purpose.</p>

<p>APPEAL FROM LEWIS CIRCUIT COURT.</p> <p>[Cited, Talbott v. Campbell, 23 Ky. L. 2200, 67 S. W. 53.]</p>

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

<p>Mental Incapacity of Grantor.</p> <p>If a deed is executed by one incompetent to make it by reason of mental incapacity, the title will not pass, however strong the equities of the grantee or his ancestor may be; the only remedy would be to assert those equities and not the right to the real estate.</p>

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

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

<p>Rescission of Contract for Fraud.</p> <p>The acceptance of a deed to real estate does not deprive the grantee of the right to have the contract rescinded on the ground of fraud; and where one having no title conveys real estate to an ignorant man and to get him to accept represents falsely to him that he has good title when he has no title whatever, the contract will be rescinded at the suit of the grantee, who does not have to rely on his warranty and to sue for its breach.</p>

<p>Gift of Household Goods by Husband to Wife.</p> <p>A husband can not by secret gift transfer to his wife his personal property, the possession and use of which remains with him as the head of the family, so as to vest the title in her as separate estate free from his martial rights or the claims of his creditors.</p>

<p>Conveyance to Defraud Creditors.</p> <p>Where under a contract whereby a person furnishes money to a merchant to be used in purchasing commodities to be shipped to the person furnishing the money for sale, the merchant becomes indebted he can not thereafter convey his real estate to members of his family on account of his love for them, and if he does, such conveyance will be set aside at the suit of the creditors.</p>

<p>Confirmation of Sale of Real Estate.</p> <p>Where a suit is pending on appeal to the Court of Appeals, and one of the parties dies, the action may be revived against his heirs and then decided; and in such a case no revivor is necessary by the lower court; but after decision reversing the cause where one of the heirs has died the action may properly be revived below as to the heirs of such heir, and after such revivors the sale of real estate made thereunder should be confirmed.</p>

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

<p>Conveyance to Defraud Creditors.</p> <p>Even though suit be pending against a debtor, the debtor may sell and convey his real estate for full value; and even if such a sale does hinder the collection of the creditor’s claim sued upon, it is not to be set aside as fraudulent where the grantee acts in entire good faith and pays full value for the conveyance to him.</p>

<p>Compromise as to Boundary Lines.</p> <p>Courts of equity will favor and enforce compromise agreements as to boundary lines between landowners when such agreements are shown to have been made and are binding on both parties; but such courts will not enforce them where a mere verbal agreement establishing a division line is alleged for the first time after nine years and after one of the parties is dead, and when for the first time the offer is made to comply with such agreement, especially where it does not clearly appear that such agreement was made and acted upon by either party.</p>

<p>Conveyance to Defraud Creditors.</p> <p>While a voluntary conveyance of real estate is fraudulent as against existing creditors, still when the grantee in such a deed conveys it to another for a valuable consideration there is neither actual nor constructive fraud in the last conveyance.</p>

<p>Judicial Sale of Real Estate.</p> <p>Where the court has jurisdiction of the parties and of the subject-matter, its judgment unappealed from is final; and the title under a sale ordered and confirmed passes title to the purchaser. Irregularities in such a judgment will not defeat such title.</p>

<p>The First Patentee of Land is Entitled to It.</p> <p>A title conveyed by patent is to be considered valid only from the date of registry and not from the date of the survey; and if before the registry of such survey a patent is issued to another he • has a prior right and the title.</p>

<p>Assignment of Error in Court of Appeals.</p> <p>An assignment of error in this court that “the court erred in overruling appellant’s motion to grant him a new trial on the grounds set out in the motion” is sufficient. Such an assignment calls in question all the grounds relied on in the motion for a new trial below.</p> <p>Instruction Based on Facts not Proved.</p> <p>An instruction is erroneous when based on a statement of facts not warranted by the evidence.</p> <p>Mortuary or Life-Tables as Evidence.</p> <p>In a suit for damages for malpractice against a surgeon, wherein it is alleged that the defendant failed to skillfully reduce dislocations of plaintiff’s shoulder, and resulting in his loss of the use of his arm and hand, life or mortuary tables showing the average length of life are not admissible as evidence. The plaintiff’s expectation of life could have nothing to do with estimating the damages he was entitled to recover.</p>

<p>Right of Physician to Prescribe Liquor.</p> <p>A practicing physician may legally prescribe and sell liquors to his patients for medical use, and so long as he'acts in good faith can not be convicted for selling liquors unlawfully.</p> <p>Instruction.</p> <p>In a prosecution for the unlawful sale of liquors, where the evidence shows that the sale was made by a licensed physician upon his own prescription for medical use only, it is error for the court to charge that he must be found guilty unless the evidence shows that he was a licensed druggist.</p>

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

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

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

<p>Guardian Appears for Wards.</p> <p>In a petition to sell the wards’ real estate by a guardian for the purpose of making other investments under Rev. Stat. 1860, ch. 86, the wards are not necessary parties. Such petition is .to be brought by the guardian who appears for them, and where the statute is complied with the purchaser at such a sale can not be disturbed at the suit of the wards when they become of age because of the fact that the new investment made by their guardian proved disastrous.</p>

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

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

<p>Waiver of Homestead Right.</p> <p>Where a debtor or his wife do not make a claim to property as a homestead they waive such right; and when the right is thus waived the creditors have a right to subject the property to the payment of their claims.</p>

<p>Fraudulent Conveyance.</p> <p>A deed made without any consideration is fraudulent as against creditors; and where property thus conveyed is again conveyed and the grantee and grantor both enter into the fraud, it may still be reached by creditors of the first grantor.</p>

<p>Verdict Flagrantly Against the Evidence.</p> <p>Where a verdict is flagrantly against the evidence this court will reverse, but not otherwise.</p> <p>Adverse Possession May Give Title.</p> <p>Where adverse possession of real estate is relied upon to give title it must be shown that the claimant actually claimed the real estate in dispute as his own as against all persons, and that his claim has been continuously asserted for at least fifteen years, during all of which time he or his grantors have been in possession.</p>

<p>Right to Redeem Real Estate.</p> <p>Where several acres of P’s land were sold at commissioner’s sale to J, who executed his bonds for the purchase-money and at the time of the sale gave P a written contract agreeing that if he would pay off the bonds at or before twelve months from the day of sale he should have the land back, it is held where P failed to pay such bonds that he could not successfully assert any claim to such land.</p>

<p>Acceptance of New Note and Mortgage in Lieu of an Old One Satisfies the Older One.</p> <p>Where the holder of a note and mortgage thereafter accepts a new note and mortgage, which mortgage covers additional real estate and drops out some real estate described in the former mortgage, and by the new mortgage includes accrued interest on the old and shortens the time of the maturity of the debt, and the mortgagee thereby obtains an additional advantage of ldgal value and new rights intervene, the fact, in the absence of an agreement to the contrary, operates as a novation and extinguishes the first debt, and the mortgagee can not be permitted to maintain an action on the first mortgage in lieu of which the other one was given.</p>

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

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

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

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

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

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

<p>Instruction as to Sanity.</p> <p>In the trial of a criminal cause where the defense is insanity of the accused at the time the crime was done the following instruction was held not to be erroneous: “The court instructs the jury that if they believe from the evidence that at the time the defendant cut and stabbed W. M. Combs, if he did cut and stab him, he did not at the time have sufficient reason to know right from wrong, and did not have sufficient will power of control to govern his actions, then the jury will acquit the defendant upon the plea and grounds of insanity of mind.”</p>

<p>APPEAL FROM I-IARDIN CIRCUIT COURT.</p>

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

<p>Champertous Contract and Suit.</p> <p>Where one who becomes the owner of real estate contracts to sell it on a bond for a deed, he can not thereafter, without the sale contract be in good faith rescinded, maintain an action for the possession of the land or a part of it for the benefit of the holder of the title bond, for he is thereby seeking to recover the land which he does not own and to the possession of which he is not entitled.</p>

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

<p>Rescission of Contract for Fraud.</p> <p>Where a contract is rescinded for fraud the chancellor should place the parties in statu quo as nearly as possible.</p>

<p>Lien Created and Retained in Conveyance in Partition and Sale of Real Estate.</p> <p>When by way of partitioning real estate between heirs to carry out the terms of their ancestor’s will, three of five heirs convey their interests to two of the heirs, retaining a lien on the whole tract thus partitioned, such a lien so created before the two heirs became indebted to a creditor exists on the whole of the land partitioned, and is superior to the lien of a judgment and execution thereafter obtained against the land in the hands of said two purchasing heirs.</p>

<p>Laches by Wife as Against Husband’s Creditors.</p> <p>Where a wife’s money is invested in land by her husband, who takes the title in his own name contrary to his agreement with his wife, and the land is sold and other land purchased, the title being taken in the same way, the-husband concealing such fact from the wife, she can not be said to have been guilty of laches by which a creditor of her husband was misled, and where the land is conveyed to the wife before the creditor sued the husband the conveyance will not be set aside.</p>

<p>Arbitration Binding in Absence of Fraud or Mistake.</p> <p>An arbitration as to boundary line agreed to by the parties and by a former grantor of one of them, who would be liable on his warranty, is binding on all in the absence of fraud or mistake. Equity favors the settlement of such disputes, and the mere disappointment of a party at the action of his attorney or testimony of witnesses offers no reason for disregarding such settlement.</p>

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

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

<p>Effect of Judgment Appealed From.</p> <p>Where a judgment has been appealed from it can not be relied upon as a defense to another action, for a judgment appealed from and superseded is not final and settles nothing.</p>

<p>No Valid Judgment in the Absence of Jurisdiction of the Person.</p> <p>One can not be divested of title to real estate by an action in the nature of an ejectment without being a party to the action, and in the absence of any proof whatever, one can not by a pleading admit a fact for another not a party.</p>

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

<p>APPEAL FROM TAYLOR CIRCUIT COURT.</p> <p>[Cited, Jenkins v. Commonwealth, 9 Ky. L. 254, 4 S. W. 816; Wilson v. Commonwealth, 9 Ky. L. 274, 4 S. W. 818.]</p>

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

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

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

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

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

<p>Suit on Promissory Note.</p> <p>AVhen it is alleged in a petition that the wife never executed the note sued upon, her estate after her death can not be- subjected to pay it.</p>

<p>Appraisement Necessary Before Sale of Land by a Commissioner to Pay Debts.</p> <p>Where a commissioner is ordered to make sale of land and the sale is consented to by all the parties, and he sells all the land decribed in the petition without any appraisement first being had, the sale will be set aside at the instance of creditors even if the heirs acquiesce in it. The Act of 1878 (I Acts 1878, Ch. 964) requires an appraisement before sale and allows parties the right to redeem, if the sale does not bring two-thirds of its value as fixed by the appraisement.</p>

<p>Description of Real Estate in Order of Sale.</p> <p>While in the sale of real estate the judgment should be so certain and specific as to the real estate to be sold as to enable the commissioner to discharge his duty without reference to any other paper or pleading in the cause, where the judgment does describe the real estate to be sold, but contains no specific description of parcels of the land which had previously been sold by the defendant and directed in the judgment to be excepted, the omission will not render the sale invalid.</p>

<p>Adverse Possession of One Tenant in Common.</p> <p>Where the rights of tenants in common or coparceners are established, and the one in the actual possession attempts to establish a hostile claim to his cotenants by reason of title in himself, the proof that notice of such claim has been brought home to his co-tenants must be of a convincing character, for the possession of one tenant in common is the possession of all of them.</p>

<p>Bill of Exceptions.</p> <p>Where the error assigned is that the verdict is against the evidence, the appellant, to procure any decision in this court, must bring to this court a bill of exceptions duly signed by the trial judge and containing all of the evidence.</p>

<p>Fraud in Causing Land to be Sold.</p> <p>The widow and heirs of a debtor may maintain an action against his creditor for fraud in having a case redocketed after the debtor moved from the state, procuring a judgment much larger than the debt and causing the debtor’s land to be sold therefor.</p>

<p>Continuance on Account of Absent Witnesses.</p> <p>Before a continuance will be granted on the application of one carged with crime, the application must show diligence to get the witness, that there is a probability that he can be had, and that the facts he will testify to are material and not merely cumulative.</p> <p>Instructions in Murder Case.</p> <p>Whether an instruction as to what constitutes murder is correct or erroneous is immaterial where the accused was acquitted of murder and only held for manslaughter.</p> <p>Instruction as to Self-Defense.</p> <p>An instruction as to the law of self-defense is not erroneous where the jury are told that they must acquit the accused upon the ground of self-defense if they believed -from the testimony that the accused at the time of such shooting believed and had reasonable grounds to believe that deceased was then about to take his life or inflict on him great bodily harm, and that to him in the exercise of a reasonable judgment the only apparently safe means of repelling such danger, or to him apparent danger, was to shoot the deceased.</p>

<p>Attorneys’ Contract for Services.</p> <p>When attorneys contract to begin and carry on litigation for a per centage of the recovery, and nothing is recovered, they are entitled to no compensation unless they were prevented from recovering by the action of their client.</p>

<p>How Instructions are Made Part of the Record on Appeal.</p> <p>Instructions given at the trial should be identified by their being made a part of the record by an order of court, or they should be shown in the bill of exceptions signed by the trial judge. Instructions will not be considered on appeal when not made a part of the record as above shown.</p> <p>Misconduct of Attorney in Argument.</p> <p>When misconduct of a party is assigned as error, it being claimed that his attorney was guilty of such misconduct in his argument, it will not be considered an appeal when the record fails to disclose the fact that any exception was taken to the ruling of the court thereon.</p> <p>No Reversal of the Evidence When Verdict is Not Palpably Against the Evidence.</p> <p>The Court of Appeals will not reverse unless the verdict is clearly and palpably against the evidence.</p>

<p>Sufficiency of Title of an Act.</p> <p>> The act of 1884 (Acts 1884, Ch. 755), entitled “An act to prohibit the sale of spirituous, vinous or malt liquors in Springdale precinct of Jefferson county” is not in violation of the constitution which provides that “no act shall relate to more than one subject, and that subject shall be expressed in the title.”</p> <p>Effect of Tavern License.</p> <p>It can not be implied from the fact that one has a license to keep a tavern that the licensee has a right to sell intoxicating liquors. The right to sell liquors by a tavern keeper can only arise where the tribunal granting the license specifies the privilege to sell liquors in the license, and this can not legally be specified in a territory where the legislature has prohibited the sale of such liquors.</p>

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

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

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

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

<p>Dismissal of Appeal.</p> <p>Where one has on his application been made a party defendant and sets up a lien on the property involved, and judgment is had and he appeals to this court, his appeal will be dismissed where it is not made to appear that the amount in controversy is as much as $100.</p>

<p>APPEAL FROM WOODFORD CIRCUIT COURT.</p> <p>[Cited, Cook v. Commonwealth, 114 Ky. 591, 24 Ky. L. 1409, 71 S. W. 522.]</p>

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

<p>Continuance in a Criminal Trial.</p> <p>Even though an application for a continuance by a defendant in a criminal cause shows he has used diligence to procure an absent witness and that he may at another time be procured to attend, the continuance will not be granted where the evidence of such witness is not material to the defense, and the defendant was not prejudiced by the refusal to grant the continuance.</p>

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

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

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

<p>Continuance on Account of Absence of a Witness.</p> <p>No continuance will be granted to a defendant in a criminal cause on account of an absent witness where it appears that the evidence sought from him is merely cumulative.</p> <p>Instruction.</p> <p>In the trial of one charged with murder it is not error for the court to refuse to instruct the jury as to the law of manslaughter and self-defense, where there is no evidence even tending to prove that the killing was done in sudden heat and passion or in self-defense.</p> <p>Competency of Jurors.</p> <p>Jurors are not incompetent to try a criminal case where it is shown only that they have expressed an opinion to the effect that if the facts they have heard were true the áccused ought to be hung.</p> <p>Separation of the Jury.</p> <p>It is not a sufficient ground for a new trial to show that the jury were allowed to separate during the trial of a murder case where nothing' is shown "to have occurred prejudicial to the rights of the accused.</p>

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

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

<p>Parties to Proceedings to Sell Infant’s Land.</p> <p>At this time infants must be made defendants to a proceeding to sell their lands, but prior to the adoption of the Code of Practice the guardian, by an ex parte petition in which his wards joined him, could legally procure an order for the sale of his ward’s land.</p>

<p>Suit to Enforce Vendor’s Lien.</p> <p>One who sells and conveys land to which he has no title, and who conceals from his vendee the facts showing his want of title, can not recover purchase-money and foreclose his alleged vendor’s lien therefor.</p> <p>Rescission of Contract to Purchase Real Estate.</p> <p>One who has been induced to buy real estate and pay a part of the price and give his notes for the balance by the false representations of the vendor, and through concealment of the fact that the vendor has eno title, and induced to accept a special warranty deed, when sued by such vendor for the balance of the purchase-money, may set up the facts, showing such deceit and that a paramount title has been successfully asserted against him, and have such contract rescinded and recover from the vendor the money paid to him and expended in defending his title.</p>

<p>Deed of Conveyance as Surety for Debt.</p> <p>When land is conveyed to secure a debt the grantee holds it as trustee for the real owner; and where the grantor remains in possession, such possession is enough to place buyers from such grantee upon their guard.</p>

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

<p>APPEAL FROM LOUISVILLE LAW & EQUITY COURT.</p>

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

<p>Vacating Decree of Divorce After Term of Court Ends.</p> <p>The court granting a divorce has no power to vacate the decree at a term subsequent to the one at which it was rendered, except, perhaps, upon consent of all parties to it or upon the ground that it was procured by fraud.</p> <p>Redocketing Divorce Case Does Not Nullify Decree Already Made Therein.</p> <p>To nullify a solemn decree rendered at a former term something more is required than merely redocketing a case, which may be done for many purposes not inconsistent with or involving the vocation of the subsisting decree.</p>

<p>Construction of Contract.</p> <p>In construing a contract made by some of the legatees with others engaged in contesting the will, whereby they agree to pay such contestants several thousand dollars to cease contesting, the surrounding circumstances must be looked to to arrive at the intention of the parties as to whether the compromise money was to be paid out of the estate or by the individuals making the promise.</p>

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

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

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

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

<p>APPEAL FROM ICENTON CIRCUIT COURT.</p> <p>[See Original Case, 83 Ky. 420, 7 Ky. L. 412; cited Ludlow &c. Coal Co. v. City of Ludlow, 102 Ky. 356; Louisville & N. R. Co. v. Barrall, 25 Ky. L. 1396; Hoffman v. City of Maysville, 29 Ky. L. 1245; McGee, Judge, v. Kennedy, 131 Ky. 41; Evans v. Cook (Ky.), Ill S. W. 327.]</p>

<p>Peremptory Instructions.</p> <p>In a suit against a railroad company for the death of its employe when the testimony is conflicting it is the province of the jury to consider, compare and weigh it; and where there is any evidence to establish the matter in issue, a request for a peremptory instruction should not be granted.</p>

<p>RESPONSE TO PETITION FOR REHEARING.</p> <p>APPEAL FROM BRECKINRIDGE CIRCUIT COURT.</p>

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

<p>Recovery of Wife’s Interest in Land.</p> <p>Where the wife furnishes money to her husband to be used in paying for land, and the title is taken in the husband’s name, and the wife sets up a claim to a part of the land, she can recover neither the money nor land when the evidence shows that after the purchase of said land she and her husband conveyed one-half interest therein to her son, who is a stepson of her husband, it fairly appearing that the one-half interest was about worth what money the wife furnished her husband.</p>

<p>Fraud in Purchase of Property.</p> <p>A contract of purchase made between parties, one of whom is weak minded and the other a bright, experienced business man, whereby the weak minded is deprived of his property for much less than its value, will be canceled and set aside as obtained by fraud.</p>

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

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

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

<p>APPEAL FROM HANCOCK CIRCUIT COURT.</p> <p>[Cited, Noel v. Fitzpatrick, 124 Ky. 793, 100 S. W. 321.]</p>

<p>Enforcement of Vendee’s Lien on Land.</p> <p>A vendee of land by parol, not in possession, can not institute and maintain an action to enforce his lien for money paid on such purchase on the theory that he can not obtain title.</p>

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

<p>Evidence of Mental Incapacity.</p> <p>Where a father eighty years of age, having eight children, conveys nearly the whole of his estate to five of the children, thereby depriving the other children of anything, such unreasonable disposition is evidence of want of mental capacity on the part of the grantor.</p>

<p>APPEAL FROM MERCER CIRCUIT COURT.</p> <p>[Cited, Commonwealth v. Lee, 18 Ky. L. 485, 37 S. W. 72; Messer v. Commonwealth, 26 Ky. L. 42, 80 S. W. 489; Commonwealth v. Miller (Ky.), 115 S. W. 236.]</p>

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

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

<p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>[Cited, Dine v. Donnelly, 134 Ky. 790, 121 S. W. 685.]</p>

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

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

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

<p>Equity Jurisdiction.</p> <p>Equity will not entertain an action to enforce a right' where the party has an ample remedy at law; and the fact that such a party has allowed the time to pass for taking an appeal, or failed to file his motion in time to get a new trial, his own laches having caused the injury, affords no reason for appealing to a court of equity.</p>

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

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

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

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

<p>Parol Proof of Lost Deed.</p> <p>When evidence is given showing that a person has sold and conveyed his interest in real estate, parol 'evidence is admissible to show that the deed is lost, and the contents of such lost instrument may be established by such evidence.</p> <p>Possession of Joint Tenants.</p> <p>Each joint- tenant in real estate has a share in every part of the entire property. The statute of limitations, therefore, does not run against one joint tenant unless there be an actual ouster and adverse holding. But if one tenant openly denies the title of his cotenant, and is in possession of and claims the entire property himself by deed, then the holding is adverse.</p>

<p>Fraudulent Conveyance.</p> <p>A note retaining a lien on land that had not been sold, to the debtor by the creditor, is neither a sale conveyance nor mortgage; and a conveyance of the property to such creditor is held to be in contemplation of insolvency and with the design to prefer, and hence the grantee will hold the property as trustee for all the grantors’ creditors.</p>

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

<p>Absolute Conveyance May Be Shown to Be a Mortgage.</p> <p>An absolute deed may be shown by evidence to be a mortgage; and where such a conveyance is made to create a lien only to secure an open account, and the account is barred by the statute of frauds, the mortgagor may have his title quieted as against such claim.</p>

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

<p>Mandating County Court to Join Another County in Building a Bridge.</p> <p>The county court refused to appoint a commissioner to meet with a commissioner of an adjoining county to agree on a plan to erect a bridge over a stream forming the boundary between the two counties. A mandate was issued by the circuit court requiring the county court to show cause why it so refused. It was held upon its showing its county to be very largely indebted and its financial inability to build such bridge that no mandate would be issued.</p>

<p>Undue Influence in Making a Will.</p> <p>To constitute undue influence in the execution of a will there must be such constraint or coercion as prevents the exercise of the testator’s own purpose and will and destroys free agency.</p> <p>Witnesses to a Will.</p> <p>The statutory meaning of the word “credible” when applied to witnesses attesting a will is held to mean “competent.”</p> <p>Mental Capacity to Make a Will.</p> <p>For proof of facts held to show that the testator had sufficient capacity to make a will, see opinion.</p>

<p>Parol Sale of Land.</p> <p>A parol contract for the sale of land is not enforcible, but where the vendee pays a part or all of the purchase-money under such a contract he ís entitled to subject said land to his claim.</p>

<p>Restoration of Property Wrongfully Sold.</p> <p>Where real estate is sold under a judgment in rem against a nonresident owner, and the proceeding is irregular because the statute was not followed, the non-resident may have the judgment set aside by applying therefor within five years and presenting a valid defense to the action, and in such a proceeding the purchaser must restore the property.</p>

<p>APPEAL FROM NELSON CIRCUIT COURT.</p> <p>[Cited, Central Ky. Asylum v. Kinghton, 113 Ky. 159, 67 S. W. 366.]</p>

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

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

<p>Grantee’s Title No Different from His Grantor’s.</p> <p>Where a father conveys his real estate as a life estate to his son and fee simple to the children of the son, all for love and affection, and the son afterwards conveys such land back to the father, the father has only an estate for the life of his son and can convey no greater estate than he has.</p> <p>Love and Affection as Consideration of Deed.</p> <p>Love and affection are considerations sufficient upon which to base a deed of conveyance, and no one can successfully assert that the deed is made to defraud creditors except the creditors themselves.</p>

<p>Conveyance to Defraud Creditors.</p> <p>Actual fraud is a matter of intention, but like any other fact must be proved; and a conveyance, by a failing debtor, of his real estate to one who pays its fair value, the money being used to pay the grantor’s creditors, or a part of them, will not be set aside as a fraudulent conveyance. The fact that the failing debtor preferred some of his creditors to others is not a fraud and will not vitiate the sale.</p>

<p>Assessment of Bridge Company for Taxation.</p> <p>The Covington and Cincinnati Bridge Co. is taxable by the city of Covington, and where for a given year the valuation is agreed to be $250,000 and the first half of the taxes is paid on that valuation, the council some time thereafter may not, while retaining such taxes, change the assessment to $400,000 and require the company to pay taxes on such valuation.</p>

<p>Setting Aside a Conveyance on Account of Failure of Consideration.</p> <p>A husband conveyed his real estate to his wife for life with remainder to his grandson for consideration of love and affection, “provided (to use the language of the deed) said May Chaney (his wife) continued to live with said first party, as his wife during his lifetime,” if was held where she refused to live with him, but violated her marital vow and married another, that the grantor might have the deed canceled as to her, but not as to his grandson.</p>

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

<p>Sufficiency of Indictment.</p> <p>To make an indictment good under -Gen. Stat., 1883, ch. 29, Art. 11, § 5, it must be charged that the accused wilfully misappropriated, misapplied, concealed and used the money of the state of Kentucky, of which he had .the custody, control and possession, for his own use and purpose or the use of another with intent to deprive the commonwealth of the same.</p>

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

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

<p>Proof of Malice in Murder.</p> <p>The law does not imply malice from some one act, but a jury may legally find its existence from such act because the act may evidence a purpose to do a wrong, which is the essence of malice. No legal presumption of its existence arises from the fact, but it is submitted to the jury upon the question whether malice did or did not prompt one charged with crime.</p> <p>Refusing Instruction Tendered by a Defendant.</p> <p>It is not error for the court to refuse to give an instruction, though a proper one, when the court gives the substance thereof in an instruction of its own.</p>

<p>Rights of a Wife as Against Husband’s Creditors.</p> <p>Where there is no agreement between a husband and wife that title to real estate shall be taken in her name, the fact that her labors helped to make the money and that some of her money went into the land will not enable her to assert an interest therein as against her husband’s creditors.</p> <p>Homestead Claim.</p> <p>Temporary removal from a homestead with a purpose to return to it will not waive the right to a homestead as against creditors.</p>

<p>APPEAL FROM LOUISVILLE LAW AND EQUITY COURT.</p>

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

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

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

<p>Dismissal of Appeal.</p> <p>There is no law authorizing an appeal from the county court to the Court of Appeals. I.t follows that this appeal should be dis-missed.</p>

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

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

<p>Petition for Rehearing.</p> <p>Although no response is filed to a petition for a rehearing it is the duty of this court to determine the questions raised by it.</p> <p>Distribution of Debtor’s Insurance.</p> <p>Where a debtor has taken out insurance to secure his indebtedness and after a fire has collected the insurance it should be prorated among all creditors.</p>

<p>Questions Adjudicated in Trial Court.</p> <p>When the trial court decides a cause its decision and judgment is conclusive of all matters between the parties which are included within the issues formed, even though the court does not expressly mention every issue involved.</p>

<p>Protection of Mental Incompetents.</p> <p>Where one is shown to be mentally incompetent to care for himself and his estate, he is as much entitled to the protection and care of a court of equity as is one who is technically a lunatic, and this protection may be secured upon the petition of next friends.</p> <p>Instructions.</p> <p>An instruction, in a case to enjoin one mentally deficient from wasting his property, that if the person could not prudently manage his estate then the jury must find against him, is not correct, for it is a fact that many persons of unimpaired intellects do not manage their estates profitably.</p> <p>In a trial of a proceeding instituted by children to enjoin a parent from disposing of his estate and asking for the appointment of a committee for him on the ground of mental imbecility produced by old age, disease and the excessive use of intoxicants, an instruction is correct charging that if the jury believe from the evidence that the parent by reason of the infirmities of age or the excessive use of liquor, or disease, is not possessed of capacity adequate to the reasonably prudential management and control of such property, with safety to his own interests and the just and lawful demands of his family, they must find defendant not capable of exercising dominion over his property.</p>

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

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

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

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

<p>Motion to Set Aside Judgment.</p> <p>Where process is duly served in a cause and steps taken by a plaintiff to enforce a contractor’s lien, and na appearance is made by the defendant in the cause until long after judgment is entered and the property sold under it, such sale and the judgment will not be set aside at the instance of the defendant, in the absence of fraud in procuring the judgment or in the sale of the property.</p> <p>Power of Court Over Its Judgments.</p> <p>The Louisville Chancery Court has such control over its judgments for sixty days after their rendition as circuit courts have over their judgments during the term at which they are rendered.</p> <p>Order Confirming Sale.</p> <p>An order of the court confirming a sale of real estate, not void, will not be set aside upon the application of a party who was regularly before the court when the order was made, and who makes no objection thereto for eleven years thereafter.</p>

<p>Power to Hold Special Term of Court.</p> <p>The statute authorizes the holding of special terms of court for the trial of chancery, penal or criminal causes. This being so, where necessary, two special terms may be held.</p> <p>Waiver of Process and Notice.</p> <p>One who has appeared in a cause can not object because p'rocess was not served on him, for his appearance waives notice or process.</p> <p>Judgment by Consent. ■</p> <p>One can not object to a judgment which was rendered by his express consent.</p>

<p>Probate of Will.</p> <p>Before a will or instrument purporting to be a will can take effect or be received in evidence it must be duly proved and admitted to record in the proper office; and unless this is done the estate will descend and be distributed according to the laws of descent, and the recording of such an instrument by the clerk will not take the place of its probate.</p>

<p>APPEAL FROM PULASKI CIRCUIT COURT.</p> <p>[Cited, Cotton v. Brown, 9 Ky. L. 116, 4 S. W. 294; Woods v. James, 87 Ky. 518, 9 S. W. 513; Cavanaugh v .Britt, 90 Ky. 278, 12. Ky. L. 204, 13 S. W. 922'; Exchange Bank v. Trimble, 108 Ky. 234, 56 S. W. 156.1</p>

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

<p>Estoppel of Grantee.</p> <p>Where the purchaser of real estate executes notes and accepts a title bond, and afterwards voluntarily accepts a deed of conveyance of the land and makes no claim of a deficiency of acreage, and then sells and conveys the land, he is not in a position to resist recovery on his notes given for the purchase of the land on the ground that his grantor sold and bound himself by the title bond to convey a greater quantity than was afterwards found to be inside the boundary of the tract.</p>

<p>Res Gestae.</p> <p>The declarations of the participants in an act which accompany it and serve to explain or qualify it are admissible in testimony as a part of the res gestae, but the statement of a bystander is inadmissible.</p> <p>Hearsay Evidence.</p> <p>At the trial of one charged with burglary, a woman who was in the house entered by the burglar was permitted to testify that her son, who was not used as a witness, when he saw the burglar in the house said to him, “What are you doing here, Henry French” (the same French on trial); and it was held to be error because the son’s statement was mere hearsay, coming from the mother and was not a part of the res gestae.</p>

<p>APPEAL FROM MARION CIRCUIT COURT.</p> <p>[Cited, Holt v. Mynthier, Admx., 29 Ky. L.’820, 96 S. W. 477.]</p>

<p>Homestead Right.</p> <p>Where the homestead claimed is shown not to be worth exceeding $1,000, the chancellor does not err in refusing to subject it to sale for the mere purpose of ascertaining whether it would bring more money.</p>

<p>Law of Self-defense — Instruction.</p> <p>In the trial of a charge of maliciously cutting with intent to kill, a charge is incomplete as to the law of 'self-defense stating that “If the jury believes from the evidence that the defendant cut Winfrey with an axe, but at the time he believed or had reasonable grounds to believe that his life was in danger, or that he was in danger of receiving great bodily harm at the hands of Winfrey, and that he could not otherwise safely escape, he should be acquitted” for the question is not whether a person having reasonable grounds to be- . lieve he is in danger of losing his life or suffering great bodily harm at the hand of an assailant could escape otherwise than by taking life, or using the means in his power in self-defense, but it is always, in such cases, whether he has any other apparently safe means of escape.</p>

<p>Duty of Guardian to His Ward.</p> <p>Where a guardian acts honestly in making investments for his ward, and out of his own means improves land bought for his ward, thus giving to the land its rental value, he should be allowed to take the rents thereof to repay himself; but if he has sold valuable timber off the land he must be charged with the value less his labor in preparing it for market.</p> <p>Relationship of Guardian and Ward.</p> <p>Where a ward is the sister of the guardian and lives with him, and he desires to charge her for her board, he may legally do so.</p>

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

<p>County Tax to Pay County Bonds Issued to'Pay for Stock Subscription in Railroad Company.</p> <p>A • railroad company can not be taxed by a county to pay the subscription of the same county to its construction. To do so would produce an inequality not contemplated or authorized as between those aiding in its construction. But where the aided company fails and its property is sold on foreclosure, and a new company is formed and builds the road, its property is taxable for the purpose of paying such bonds.</p>

<p>Trading with a Lunatic.</p> <p>A lunatic or person 'of weak mind who has been imposed upon by the artful and shrewd business man in the sale or purchase of property will always be protected by a court of equity; still, if the purchase is 'made in good faith and' a fair and full consideration paid, the transaction will not be disturbed.</p>

<p>Interest Collectible from an Estate.</p> <p>Where there are several obligors on a note and the note provides for ten per cent, interest, which at its date the law permitted, and one of the obligors dies, his estate is only liable for six per cent, interest after the maturity of the note or after judgment, while the interest to be collected from the living obligors will be ten per cent.</p> <p>Rate- of Interest Chargeable to Estates.</p> <p>Under Gen. Stat. 1883, ch. 60, art. 1, §5, only six per cent, interest can be collected from one’s estate, even though the contract called for a greater rate, but if there are other living obligors on the same obligation, payments of interest, according to the contract, may be collected from them, provided the rate is not prohibited by the statute.</p>

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

<p>Construction of Terms of a Will.</p> <p>Where a testator gives to his widow and minor children real estate for the use and benefit during the life of the widow, and directs that when the youngest child should arrive at twenty-one years of age and the widow then not be living, the land be sold and the proceeds distributed equally among all his children after taking into consideration advancements made, it is held that prior to the death of the widow a purchaser of the interests of two of the three children can not maintain an action for possession of three-fourths of the land,' and that the will gave no power to the children to sell their interest and the widow could not be required to permit a joint occupancy of the land by a stranger.</p>

<p>Dismissing Cause for Want of Prosecution.</p> <p>Where laches is attributable to a plaintiff whose cause has been pending, his cause may be dismissed for want of prosecution or without prejudice. The practice of filing away civil causes and redocketing upon motion at a later date is not authorized by our code.</p>

<p>Inadequacy of Price in Judicial Sales.</p> <p>A judicial sale is not to be set aside on the ground of inadequacy of price alone unless it be so gross as to import fraud.</p> <p>Invalid Judicial Sales.</p> <p>While land sold at judicial sale will not be set aside on account of the inadequate price received unless the price is so grossly inadequate as to import fraud, still if, added to an inadequate price, the officer in making the sale fails to follow the decree under which the sale is made and an injustice is done, such a sale will be set aside.</p>

<p>Negligence in Personal Injury Case.</p> <p>A railroad company has the exclusive right to the use of the track at a crossing not established by law as a public crossing, and it is not bound to anticipate the presence there of'persons crossing the track; and can only be held liable for injury to one crossing the track in the event that the company’s employes after discovering tile danger could have averted it and failed to do so.</p> <p>Duty of Persons on Railroad Track.</p> <p>Persons, as to places which are not public ways or thoroughfares, must be held to presume that trains may be passing at any time, and a railroad company can not be held liable for injuries received at such points unless after the discovery of the danger by its employes the accident could have been averted by them.</p> <p>Peremptory Instruction.</p> <p>In the trial of a personal injury case the court is only justified in charging the jury to find for the defendant, the,railroad company, where there is no evidence produced to sustain the charge of negligence upon the part of those operating the train.</p>

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

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

<p>Causes for Divorce.</p> <p>A woman was married in Germany and had several children, but abandoned her husband and married in this country without disclosing her antecedent history. It was held that the husband was entitled to a divorce on account of the fraud worked upon him, as well as on the ground that the parties had lived apart for five years.</p>

<p>Assignment of Dower Interest.</p> <p>Where a woman owning a dower interest leases it for life to another for $50 per annum, and the lessee transfers it to another, who does not assume to pay the annual charges but takes possession, he becomes liable to pay the value of the annual dower interest, and the woman owning it may recover it and have the dower interest sold to pay the rental.</p>

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

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

<p>Recovery for Death of Employe of Railroad Company.</p> <p>The lack of ordinary care by a railroad company may make it liable for the personal injury of one not in its employment, but it can in no case be liable for the injury or death of its employes unless it is guilty of wilful neglect.</p>

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

<p>Contract of Guardian as to Fees for Professional Services.</p> <p>While a guardian may make a contract with an attorney to secure the ward’s legal rights, such contract will not control the chancellor in determining the amount of what allowance should be made. Only a reasonable and fair compensation will be allowed.</p>

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

<p>Special Finding by Court in Misdemeanor Cases.</p> <p>There is no provision of the statute for special findings in misdemeanor cases when a jury is waived; but since such findings are equivalent to the special verdict provided by Crim. Code, 1876, §§ 257 and 260, the court will so regard them.</p> <p>Effect of License to Sell Intoxicating Liquors.</p> <p>A license to sell intoxicating liquors does not preclude the holder thereof from selecting' a particular class of persons as those to whom alone he will sell.</p> <p>Sale of Liquors by a Club.</p> <p>Where a club room is maintained in which liquors are given to the members, who at the time of receiving them are required to sign a ticket and thereafter to pay the sum named on the ticket, and where visitors are for a time given the privilege of members in receiving liquors by signing tickets which they must redeem at the end of the time limit, it amounts to a sale of such liquors, for which license is required.</p>

<p>Attorneys’ Fees and Lien on Fund.</p> <p>Where attorneys are employed by one claiming a reversionary title to property and are successful, but before the fund is actually received by the claimant his assignees bring action against him to recover the fund, they can not prevent the attorneys of the claimant from being paid out of the fund by asserting that it has always belonged to the assignees and that they did not employ the attorneys.</p> <p>Attorneys’ Lien.</p> <p>Where attorneys are employed and their efforts results in creating a fund, they have a lien upon it for the reasonable value of their services.</p> <p>Amount of Attorneys’ Fees, How Determined.</p> <p>In determining the fees due attorneys for services in creating or preserving’a fund this court will have recourse to the evidence introduced to show their value, and also to what is shown by the record they have done.</p>

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

<p>APPEAL FROM PENDLETON CIRCUIT COURT.</p> <p>[Cited, Wright v. Bayless (Ky.), 118 S. W. 918.]</p>

<p>Authority of Agent.</p> <p>If one is authorized by his principal to do all of his business of a certain kind he is as to it a general agent.</p> <p>Irtstruction and Interrogatories.</p> <p>Where one claims to have been employed by an agent and not by the principal, and there is no evidence even tending to show his employment by the principal, an instruction or interrogatory as to any employment by any one else would be improper, for instructions should apply to the case in hand.</p> <p>Ratification by Principal of Agent’s Acts in Employing Another.</p> <p>The principal is liable if he ratifies the unauthorized act of the agent, and if the principal ratifies the act of the subagent he is liable to same as if he had originally employed such subagent, or given the agent the power to do so; and thé ratification will often be implied by the acceptance of the benefits arising from the services of the subagent; but such acceptance must be under circumstances implying an obligation to pay for them.</p>

<p>Consolidation of Causes.</p> <p>Even when no formal order is made consolidating pending causes, if they are treated as consolidated and tried as one action without objection they will be treated by this court as consolidated.</p> <p>Claim of Actual Settlement on Land.</p> <p>One who holds possession of land as a tenant can not assert that he has any preference as an actual settler upon his applying for a patent on such land.</p>

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

<p>Election by the Commonwealth.</p> <p>In the trial of one charged with arson on March 10, the commonwealth can not be held to have elected to try the defendant on a similar charge of January 14, by merely showing as a circumstance his connection with such acts on the former date.</p> <p>Exclusion of Testimony.</p> <p>Where in a trial of one charged with arson the court excludes from the consideration of the jury all the testimony as to an effort of the accused to burn a building on a prior date to the one charged, and the defendant is convicted, he can raise no question as to the correctness of the court’s ruling.</p>

<p>Validity of Improvement Ordinance.</p> <p>While in enforcing a lien on account of an improvement made it must appear that the authority given to make such improvement has been strictly followed, still an ordinance giving such authority will not be held invalid because of the fact that the places in the municipality where the ordinance was posted were not shown by the proof to have been public places.</p> <p>Interest on Improvement Assessment.</p> <p>One enforcing an assessment for a street improvement is not entitled to interest, but where interest is included in the judgment and the same is remitted the error is cured.</p>

<p>Homestead Exemption.</p> <p>If one removes permanently from his homestead, or if he removes to another state with his family and engages in business there still claiming that he intends to return to this state, he waives his homestead right here and can not thereafter claim such exemption.</p> <p>Purchase Subject to Homestead.</p> <p>Where real estate is sold under an execution subject to the homestead right of a defendant, and the holder of the judgment purchases the property at such sale, they must be held to have purchased subject to a homestead right and to have acquired no interest, save whatever might remain after the allowance of the exemption.</p>

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

<p>Two Offenses in One Indictment.</p> <p>Criminal Code 1876, § 127, Subsec. 4, expressly provides that the charges of robbery and burglary may be joined in one indictment.</p> <p>Time of Commission of Offense.</p> <p>It is only necessary to state in an indictment, in substance, that the offense charged was committed at a time before the indictment was returned, no greater precision as to the time of the commission being required.</p>

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