Volume 2 — Kentucky Opinions

<p>Construction of Wills — Devise—Reversion—Breach of Warranty.</p> <p>A testator devised to a daughter certain personal property “to her and her heirs forever” and by a subsequent clause provided, “If any of my daughters die, leaving no child, the estate hereby devised to such ones as such die childless, remaining undisposed of by will, shall pass to my surviving children, and the children of such as may then he dead, shall take the share the parent would have taken if living.” The devisee under this provision sold the personal property by general warranty, and in a suit to collect a balance due thereon for purchase money, the defense pleaded that the devisee did not have a good fee simple title to the property devised, hut only a life interest, and that there was a breach of warranty. Held that the clause of the will set forth only applied to such of the heirs as should die childless, and not having'disposed of the estate devised by them, by last will and that the testator only intended to apply said clause to those to whom he had devised a separate estate with power to dispose of it by bequest; that the bequest of personalty was intended as a fee simple general estate, and there was therefore no breach of warranty.</p>

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

<p>Debtor and Creditor — Debts Purchased by Agent — Participation in Fraud-Equity Will Wot Relieve.</p> <p>Equity will not relieve a debtor from the payment of debts purchased by his agent, where he has participated in the fraud committed on his creditors by his agent.</p>

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

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

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

<p>APPEAL PROM I-IENDERSON CIRCUIT COURT.</p>

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

<p>Agency — Establishment of — Burden of Proof.</p> <p>The burden of proving an agency is on the one claiming to act as such. Instructions as to Competency of Evidence.</p> <p>It is error to refer the competency of evidence to the jury. All evidence permitted, by the court, to go to the jury should be regarded by them as competent.</p>

<p>Nonresident — Judgment—Appeal—Affirmance.</p> <p>A judgment against a non-resident, constructively summoned, can not he affirmed unless by appeal.</p>

<p>Land — Sale of — Failure of Title — Fraud and Mistake — Rescission—Burden of Proof.</p> <p>It is a well established principal that a purchaser who has accepted a conveyance cannot afterwards have a rescission of the contract unless it be for fraud or mistake shown to have operated on him when he accepted the deed and the burden of proof is on the party alleging fraud and mistake.</p> <p>Subsequent Purchasees — Cross Petition — Rescission.</p> <p>A contract will be rescinded on cross-petition of a vendee, who has subsequently purchased'a part of the land from the party who is seeking to rescind the contract of his purchase, on the ground of fraudulent statements made to him, where he has represented to his vendee that the statement he complains of were trae. •</p>

<p>Commissioner’s Report — Judgment of Court — Appeal and Error.</p> <p>Where a commissioner finds against a defendant, contrary to the rules given by the trial judge in referring matters to the commissioner for an equalization among heirs, such part of the commissioner’s report as is violative of the judgment of the presiding judge, will be set aside by the appellate court, on the face of the pleadings.</p>

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

<p>.APPEAL E^OM JEEEERSON CIRCUIT COURT.</p>

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

<p>Appeal and Error — Pleading—Duties of Circuit Clerk in Making Transcript of Record. .</p> <p>It is the duty of an appellant, in order to get a review by the appellate court, to file exceptions to the ruling of the court below in refusing to permit the filing of an amended answer, and then present and file a bill of exceptions making the rejected amended answer a part thereof, and incorporating them in the record. It is no part of the official duty of the clerk to state that the rejected pleadings are the same that he copies, and the appellate court cannot upon that unofficia1 statement so treat them.</p>

<p>Trial — Parties to Suit — Summons.</p> <p>In actions by equitable proceedings plaintiff shall be entitled to a trial at the first term after summons has been served on all the defendants, .as provided by section 137 and section 395 Civ. C., where no issue of fact is made by the pleadings, or wheTe the plaintiff consents that the statements in the answer may be taken as true. The service of process on one of the defendants and judgment thereon is error, other co-defendants not having been summoned.</p>

<p>Pleading — Newly -Discovered Evidence — New Trial.</p> <p>After the adjournment of the court, whether upon petition or otherwise, it has no power to alter, change, or set aside any order or judgment made or entered by it while sitting as a court, but upon discovery of grounds for a new trial, after the term at which the judgment was rendered, an application may be made to the court by petition for a new trial, as provided by section 373, Civ. C.</p>

<p>Alteration of Instruments — Bills and Notes — Release of Maker.</p> <p>Adding the words “interest from the date” to a note after signature and delivery, and without the knowledge or authority of the maker, constitutes such an alteration as will release the maker from the whole amount of the debt. .</p>

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

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

<p>Partnership Contract — Fees for Services Claimed by One Partner.</p> <p>By the terms of a copartnership, one was to advance the funds necessary to conduct the business and the other to perform the services, profits, if any, to be equally divided. Afterwards, an express agreement was entered into to borrow money to make a larger investment: Held that this latter agreement would not change the original contract, unless there was a special agreement made and entered into, to allow fees for. services rendered the firm, the presumption being that partners look to the profits for their compensation.</p>

<p>Lasches — Attorney and Client — Duty of Client to Look After His Cause of Action.</p> <p>It is the duty of a defendant to inform the court of the illness of his attorneys, where su&h facts are within his own knowledge, and to he present in court in person to see that no advantage was taken of him. And in the face of such facts a petitioner will not he acquitted of culpable negligence, or indifference and inattention t° his interests.</p>

<p>Contract — Pleadings—Title by Delivery.</p> <p>Where the allegations and proof fails to establish the delivery of wood sold under contract, or the setting apart of a quantity designated in the' contract, this will not constitute title or delivery and no action on the contract will lie.</p> <p>Same — Instructions.</p> <p>An instruction in effect “that the plaintiff under the contract might recover the price of the wood, without showing actual or constructive delivery” is held erroneous.</p>

<p>Warranty — Conflict of Evidence — Peremptory Instructions — New Trial.</p> <p>Where there is an apparent conflict of testimony, on a question of warranty, the jury should he allowed to decide the measure of damages, and a peremptory instruction is improper.</p>

<p>Exceptions — Appeal and Error.</p> <p>Where the record does not show exceptions to the giving or refusing of instructions below, the Appellate Court cannot revise it.</p> <p>Witness — Absence—Continuance—Drunkenness.</p> <p>It is the duty of a defendant, knowing of the absence of a material witness, to move for a continuance; alleged drunkenness is no legal excuse for a defendant’s absence and culpable neglect of his own ease.</p>

<p>APPEAR EROM JEEEERSON CIRCUIT COURT (c. P.)</p>

<p>Land — Decretal Sale — Bond for Purchase Price — Reasonable Time to Perfect Title — Resale—Difference in Price.</p> <p>The purchaser of land at decretal sale will he required to execute bond for purchase money, if he can get a good title at the time of the sale or in a reasonable time thereafter, and in case of his failing to do so, the land may be resold and if it does not then sell for as much as he bid for it, he would be responsible for the difference. .</p> <p>Wills — Distinction—Proof’ of Contents.</p> <p>Where a will has been destroyed by the burning of the clerk's office its contents must be satisfactorily established by competent evidence.</p>

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

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

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

<p>Deposition — Exceptions.</p> <p>It not appearing that the exceptions of either party to the depositions were acted on in the court below, for this reason they must be regarded as uni-ead.</p> <p>Same.</p> <p>If the depositions were not taken at the place designated in the notice and the adjournment from that place was unorthized by the code, still the defendant was present, and cannot avail himself of such irregularity, if any existed.</p>

<p>APPEAL EROM SI-IELBY CIRCUIT COURT.</p>

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

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

<p>Street Improvements — Contract With City — ¡Ordinance—Grading and Paving District from’Curbing.</p> <p>Curbing is not included in an ordianee directing a street to be graded and paved and the mayor has no fight to put it under contract and charge the cost to adjoining land-owners.</p>

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

<p>Bills of Exchange — Failure to Present for Payment or Pretext — Excuse—• Liability ot Endorsers.</p> <p>Commercial intercourse having been entirely suspended between Kentucky and the city of New Orleans, at which place the bill was payable, at the time of maturity, the failure of the holder to present it for payment '-r protest at that time, did not operate to release the endorser.</p>

<p>Pleading — Petiton for Sale of Land — Unanswered.</p> <p>A petition which alleges ability and readiriess to convey land and states how title is derived, which is not an impossibility, is good, when unanswered.</p> <p>Judgment for Sale of Land — Form and Substance.</p> <p>It is error to adjudge that land be sold as a whole when it does not appear that it is not susceptible of division or to direct that the whole of the proceeds be paid to the creditor, although it might bring twice the amount of the debt.</p>

<p>Bill of Exchange — Limitation—Subsequent Promise Must Be Alleged.</p> <p>When an action on a bill of exchange is barred by limitation, which is pleaded, and a subsequent promise to pay is relied on it must he alleged, and the statement that one deems himself bound for the debt cannot be construed to be an unconditional promise to pay.</p>

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

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

<p>Courts of Foreign States — Jurisdiction of Person — Restraining Sale of Land in this State — Defective Title.</p> <p>Where a deed to land in this state has been adjudged a mortgage by a court of an other state that court having jurisdiction of the person, may restrain the grantee in said deed from selling the land. '</p>

<p>Land — Sale of by Tract — Quantity—More or Less — Validity of Sale.</p> <p>Where land is sold by the tract, the actual puantity, more or less, cannot invalidate the sale.</p>

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

<p>Personal Representation — Suit on Bond — Form of Judgment.</p> <p>By failure to answer the appellant admits that she has assets in her hand sufficient to pay the debt, but the judgment is rendered against her de propriis bonis. Held that the judgment cannot be sustained in the form in which it is rendered, it should have been rendered to be levied of assets in her hands.</p>

<p>Land — Equitable Title — Wills—Descent—Collateral—Kindred.</p> <p>Tipton executed his title bond to his son-in-law, Gilkey, for 100 acres of land and upon the payment of the purchase price was to make a deed. Gilkey paid one-half of the price of the land and the other half having been given to him as an advancement by Tipton. After this, and- before her father’s death, Mrs. Gilkey died, leaving one child, a son. Her father then died intestate; Gilkey then died intestate leaving all his property to his said minor son, and then to his brother in ease his son should die without issue. The land was conveyed to young Gilkey by commissioner’s deed. Young Gilkey having died intestate and without issue; the question is whether the contingent devisees of the elder Gilkey take the land or tlie collateral kindred of young Gilkey, on liis mother’s side: Held that the title passed to the contingent devisees under the will of the . elder Gilkey.</p>

<p>Trusts — Jurisdiction of Circuit Court.</p> <p>A circuit court has jurisdiction to effectuate a trust by the sale of land to relieve it of encumbrance and to reinvest the surplus for the beneficiaries.</p> <p>Same — Mode and Time of Sale — Discretion of the Court — Consent of Infants.</p> <p>No other law than the deed of trust and the sound discretion of the court prescribes the mode or time of sale. The court has the power to make a sale without the consent of the infant beneficiaw.es.</p> <p>Deed of Trust — Grantor’s Capacity — Purchaser at Decretal Sale Secure — Impeachment.</p> <p>When the evidence preponderates in favor of the grantor’s capacity, and there is no implication of fraud or improper influence and the court having so adjudged, the purchaser will be secure against any probable impeachment of the deed hereafter.</p>

<p>Contracts — Lease—Forfeiture—Non-Payment of Rent.</p> <p>Where by the terms of a lease it is stipulated that the lessor may reenter, upon the failure to pay rent, the lessor may annul the contract and is entitled to the possession.</p> <p>Written Contract — Loss of Improvements.</p> <p>The lessee having failed to execute the written contract for the rent of the premises the lessor was entitled to recover the possession. But as such reéovery would involve the loss of the improvement the lessee may elect to execute the writing or submit to eviction.</p>

<p>Wills — Construction—Second Bequest — Codicil—Revocation.</p> <p>A second request in a will or codicil thereto may operate constructively to revoke a former one without an express statement in the will or codicil that such was the testator’s intention, yet to authorize such a construction the intention of the testator to give the last legacy in lien of the first must be fairly deducible from the testamentary writing itself.</p>

<p>Summons — Correction—Return by Sheriff — Petition Taken for Confessed.</p> <p>The court properly allowed an amendment of the return on the summons showing the service was not on Sunday as the original by mistake imported, and the return that the order taking the petition for confessed was not premature.</p> <p>Injunction — Reversal of Judgment — Effect to Dissolve.</p> <p>The judgment of the court of appeals reversing a judgment perpetuating an injunction and remanding the case for only an assessment, et©., had the legal effect to disolve the injunction.</p> <p>Appeal Bonds — Injunction Bonds — Liability—Confessed—Failure to Answer. Same — Preliminary Suits.</p> <p>The entire liability being confessed by failing to answer the allegation charging it, there was no necessity for preliminary suits on the appeal and injunction bonds.</p>

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

<p>Deeds — Procurement—Absence of Fraud — Contents Understood.</p> <p>Where the proof fails to show any fraud on the part of the grantee - in the procurement of a deed, or that the grantor did not thoroughly understand its contents and voluntarily executed it, the court will not set it aside for minor causes.</p>

<p>Land — Judgment of Sale — Affidavit as to Personal Property.</p> <p>It is error to adjudge the sale of land in the absence of an affidavit that the defendant has no personal property.</p> <p>Same — Reasonable Time for Exepting to Report of Sale.</p> <p>Less than three days has never been recognized as a reasonable time to accept a report of sale.</p> <p>Resersal of Judgment of Sale — Restitution.</p> <p>Upon the reversal of a judgment of sale of land the owner is entitled to restitution, where the creditor is the purchaser notwithstanding he has transferred his purchase to a stranger.</p>

<p>Slaves — Contract for Hire.</p> <p>The principal is well established that the hirer of a slave for a particular term is not exonerated from his obligation to pay the price by the death, escape or abduction of the slave.</p>

<p>Pleadings — Amended Petition — Limitation.</p> <p>Limitation does not run against an amended petition which only supplies a defect in the original, as the orginal was not barred by time.</p> <p>New Trial.</p> <p>A new trial should be granted where the verdict greatly exceeds the amount justly receivable.</p>

<p>Assignment — Benefit of Creditor — Wife’s Dower.</p> <p>The wife is entitled to dower in the real estate of her husband assigned for the benefit of creditors.</p> <p>Execution — No Property Found — Levied on Partnership Property — Suit to Enforce.</p> <p>A creditor who has had an execution returned “no property found,” may have another levied on the interest of his creditor in partnership property and may thereafter enforce his lien by a suit in equity.</p> <p>Debtor's Eight to Maintain Family.</p> <p>It is a well settled principle that a creditor has no enforcible claim on the capacity or personal service of an insolvent debtor and the law will permit him to appropriate the products of his industry and skill to the maintenance of his family.</p> <p>Same.</p> <p>But as indulgent as the law is, it will not permit a debtor, after acquiring property by his skill, industry or credit, to secure to himself an estate by making his family the depository of the title for the purpose of defeating his creditors.</p> <p>Insolvent Debtor Doing Business in His Wife’s Name — System of Bankruptcy.</p> <p>If an adventurer in trade may, on becoming insolvent, drop his own name and assume that of his wife as the head of a business and thereby become rich and yet defy his creditors, a more convenient system of bankruptcy could not be conceived, and such acts cannot be tolerated by the Courts.</p>

<p>Purchase Money Lien — Judgment Enjoined Does Not Destroy Lien — Surety on Injunction Bond — Subrogation.</p> <p>Two judgments were rendered against one Caldwell for $500 balance of purchase money lien due on land. His vendors, Wallace & Everett, owed a balance on the same land to their respective vendor, Moore, to liquidate which, the judgments against Caldwell were assigned to the said Moore. Thereupon Caldwell, in order to extinguish these prior liens by reason of said assignment, enjoined the judgments, seeking to sell the mill property. A judgment against Callahan as surety on the injunction bond of Caldwell was rendered. Held, that as these judgments against Caldwell were for purchase money and presumed to be a lien, upon the land, mill and house, the injunction did not destroy this lien, and if Callahan, the surety, was bound and compelled to pay the judgments, he, by subrogation, becomes entitled to this prior lien.</p>

<p>Land — Suit—Tenant—Legal Title — Estate.</p> <p>It does not appear that Rainey entered a sub-tenant under Wiseman, or knowing that his predecessor was Wiseman’s tenant. Held, he was therefore not estopped to acquire the legal title.</p>

<p>Execution — Validity of Judgment — Surrender of Property — Estate.</p> <p>The execution of a replevin bond and the subsequent surrender of prop, erty to be sold under an execution issued on the replevin bond, operates to estop the party so doing and his vendee from claiming an interest in the land so surrendered.</p> <p>Attorneys Fee — Defeated Party.</p> <p>' The appellant being defeated in the action, was liable for legal cost, but beyond that he ought not to be made to contribute to the payment of the fees of his adversary’s counsel.</p>

<p>Attachment — Necessary Affidavit.</p> <p>It is error to sustain an attachment levied on a non-resident’s real estate in the absence of an affidavit to the effect that the defendant has no personal property in this State or not enough thereof to satisfy plaintiffs’ claim.</p> <p>Land Susceptible of Division. ■</p> <p>It is error to adjudge that an entire tract of land be soffi to satisfy a judgment when it is not made to appear that it was not reasonably susceptible of division.</p>

<p>Fraudulent Conveyance — Possession of Real Estate — Presumption of Ownership — Title Recorded — Badge of Fraud — Future Debts.</p> <p>A deed acknowledged and lodged for record the day v bears date is constructive notice to the whole world, in whom the legal t. tie is vested; the possession of real estate does not raise a presumption if ownership against the recorded title, nor is it ever a badge of fraud against the legal title as to future debts.</p> <p>Same — Present Liabilities — Future Debts.</p> <p>To successfully assail this deed it was essential to show tbit the conveyance was in actual fraud of his then existing liabilities or else intentionlly so as to future creditors.</p> <p>Judgment Reversed — Sale Set Aside.</p> <p>When a judgment has been reversed a sale there nder can lot be set aside only upon equitable principles, or the defend? -¿t may eh ct to take the purchase price and the sale will be confirmed.</p>

<p>Assignment for Benefit of Creditors — Deed of Trust.</p> <p>The deed of trust made by defendant to one Baird, as trustee, for the use of his creditors, vested them with rights which did not depend on the trustee executing bond'and taking the oath prescribed by law.</p> <p>Property Embraced in Deed.</p> <p>The original stock and also such new stock as may have been purchased with its proceeds was protected by said deed of trust.</p>

<p>Pleading — Jurisdiction of Circuit Court and Quarterly Courts of Amounts Less Than $50.</p> <p>A petition alleging an indebtedness of $71 was filed in the Circuit Court, amount aue on a promissory note alleged to have been lost and in the progress of the trial an amended petition was filed, stating that the note was entitled to a credit of $35. Held, that the court did not err in sustaining a motion to dismiss the cause for want of jurisdiction, and in determining the question of jurisdiction th amended pleading should be regarded as qualifying and correcting the original petition, since the question of jurisdiction must be determined by the plaintiffs own assertion of his claim and not by the defense of his adversary.</p>

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

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

<p>Promissory Notes — Assignment—Notice—Set Off.</p> <p>Where a promissory note has been assigned without the knowledge of the payee, he is entitled to a set off against the same to the amount he had paid the assignor before he knew of the assignment.</p>

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

<p>Agency — Joint Owners of Contract — Notice of Payment.</p> <p>A contract was entered into by three parties, owners of certain land, to sell to a fourth party, and only one of the owners conducted the negotiations, completed the sale, had the purchase price of the land payable to all jointly. A settlement of the interest on this obligation was made with only one of the owners when it became due, and a rceipt given, signed in the name of all the joint owners. Held, that each payee must be regarded as the agent of the others, and the dealings witn the one are the dealings with all.</p> <p>Notice — Partition of Payments on Obligation to Joint Owners — Parties.</p> <p>Where there is a covenant payable to several co-owners of an obligation, the obligor is not bound to partition the payments and see that each gets his part, nor if there should be controversies relative to it, is he bound without any notification whatever to have all present when he settles with either; in such cases, if any of the payees intend to withdraw the presumed agency from his co-owners, he might notify the obligor of such intention.</p> <p>Same — Fraud—Collusion.</p> <p>In the absence of allegation and proof in a petition coerce payment of an obligation to co-owners, of fraud and collusion, and notice from all to the obligator, a settlement of the obligation with one of the co-owners will not be disturbed.</p>

<p>_ Contracts — Written—Unsigned—Evidence of Parol Agreement.</p> <p>A written contract, unsigned, may he referred to as containing the agreement between the parties with as much ertainty, if not more, than the mere recollection of witnesses, and may be regarded as the establishment of a parol agreement.</p> <p>Same — Extra Work — Price—Original Agreement.</p> <p>. So far as the work was done under the original agreement, it should be enforced and as far as there was an expressed agreement for altrations, this should be likewise enforced, and for such extra work as was . not expressly agreed for, it should be allowed so far as its value can be estimated by the work embraced in the original contract.</p>

<p>Land — Vacant—Previous Entry — Inchoate Title — Subsequent Entry Void.</p> <p>Where a warrant for vacant and unappropriated land has been granted and an entry made in the surveyor’s book describing same, the warrantee has an inchoate title, which is not destroyed by his neglect to carry it into grant, but on the contrary is protected from subsequent entry by statute.</p> <p>Same — Legal Title.</p> <p>Where a patent is not obtained within the time designated by law, the only legal consequence is that the legal title enures from the date of the patent instead of relating back to the date of the survey.</p>

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

<p>Land — Parol Sale — Purchase Money Refunded.</p> <p>A party having sold, by parol, more land than was embraced in his deed and there being no memorandum by which his heirs could be charged, the purchase’ money having been paid, its value should have been ascertained and the amount deducted from the price of the land to which deeedant had title.</p>

<p>APPEAL EROM ESTILL CIRCUIT COUET.</p>

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

<p>Contracts — Sale of Land — Suit to Enforce — Petition to Be Made Party— Statement of Facts.</p> <p>In this suit for enforcing a contract for the sale of land appellants filed a petition to be made parties, alleging they were the “owners of the land and interested parties.” No facts were stated showing the character of their claim, or how it was derived, whether from devise, contract or inheritance. Held, that each claim is too vauge and indefinite for judicial review, and the cross petition was properly dismissed.</p>

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

<p>APPEAL FROM UNION CIROUIT COUET.</p>

<p>APPEAL PROM JEEEERSON (LOUISVILLE CHANCERY) OOURT.</p>

<p>Parol Lease — Evidence to Sustain a Resulting Lien.</p> <p>Although a moral sub-lease from the lessee of minors, for the indefinite term of their minority was void, it is still available for.protecting the sub-lessee’s possession as a resulting lien for improvements made by him with the sanction of the lessee and agent of the infants in face of an assurance by them that he might enjoy the possession during said infancy.</p> <p>New Trial — Testimony of Absent Witnesses.</p> <p>Where an affidavit of defendant for a continuance manifests due dilligence in preparing for the defense, and shows that the testimony of his absent witnesses would be material for establishing his lien and the extent of it, a motion for a continuance should be sustained and where overruled, a new trial will be awarded by the appellate court.</p>

<p>■Lien — Vendetioni Exponas — Writs Of — Evidence of Legal Levy.</p> <p>When the appellants, in the court below, fail to produce or require the appellee to file all the executions which had been issued, the presumption of an execution lien arising from the undenied allegation and proof that writs Vendetioni Exponas had been issued to sell the land, must be held to be sufficient evidence of a legal levy on it which operated as a lien.</p> <p>Subrogation — Discharge of Lien of Creditors.</p> <p>The payment to creditors of the amount of a lien on land, by advancements for the judgment debtor, entitles the person making such advances to subrogation to the li<?n of the creditors to the amount of the debts thus satisfied.</p>

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

<p>APPEAL PROM ESTILL CIECUIT COUET.</p>

<p>Champerty — Actions.</p> <p>An action, cannot be maintained in the name of one for the sole benefit of another under a ehampertous agreement.</p>

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

<p>appeal PROM louisville chancery ooubt.</p>

<p>Wills — Antipathy Toward Children — Mental Delusion — Verdict—Judgment.</p> <p>The antipathy which the deceased indulged toward his children, without cause, and out of which he could not be reasoned, indicates mental delusion, which resulted in the production of the document now sought to established as his will and if this conclusion was more doubtful than it is,</p> <p>' it might be made preponderant by the verdict of a jury of neighbors, confirmed by a judgment of the circuit court.</p>

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

<p>Instructions.</p> <p>It is error to instruct tile jury that they ought to take as true all the allegations in the petition, not denied by the defendant in his answer.</p> <p>Same.</p> <p>By this instruction questions of law were submitted to the jury— whether a fact which alleged in any part of the pleadings be material or immaterial to the matter in issue, is a question of law for the court.</p> <p>Deposition — Notice—Misnomer</p> <p>A notice-to take depositions was in the name of Greene, appellee, and in the caption, it stated that they are to be used in the case of Green assignee of Shepperd. Held, tnat it was not insufficient to authorize the court to exclude the depositions.</p>

<p>Personal Property — Possession.</p> <p>The possession of personal property is prima facia evidence of ownership which would entitle the party so possessed to maintain an action against whoever may deprive him of his possession.</p>

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

<p>Fraudulent Conveyance.</p> <p>The husband being insolvent, bought a house and lot, and failing to pay for same, the wife’s father paid the purchase money and had the conveyance made to her. Held, that there was neither actual or constructive fraud in the conveyance.</p> <p>Improvement on.Wife’s Property.</p> <p>The husband may put such improvements on his wife’s property as will make it reasonably fit for occupancy by himself and family without such improvements being subject to his debts.</p>

<p>Attachment Non-residents — Want of Authority to Enter Appearance By At; tomey — How Made Known.</p> <p>It will not be judicially presumed that an attorney had no authority to enter an appearance for a defendant, but if he should do so without such an authority the whole judgment would be void; this'can only be shown by a direct proceeding for that purpose.</p> <p>Sureties — Judgment, For Before Paying Debt.</p> <p>It was error to render judgment in favor of Rutherford's sureties before they had paid the debt.</p> <p>Vendors’ Lien — Answer Must Be Made a Cross-Petition.</p> <p>Gudgell had obtained a judgment at law against Rutherford and filed an answer to the attachment suit asserting a vendor’s lien, but he failed to make his an'swer a cross_petition against Rutherford, nor in any manner made him a party. Held, that the entry of Rutherford’s appearance did not make him a party to Gudgell’s answer.</p> <p>Attachment — Levy—Priority of Liens.</p> <p>When the sheriff levies attachments, first coming to his hands, on a reasonable amount of property, the levy of subsequent attachments on other property will give those a prior lien over the first attachments.</p> <p>Judgment of Sale — Commissioners Deed — Lien For Purchase Money.</p> <p>The judgment directing the sale did not reserve a lien for the purchase money; it was error to convey without reserving a lien. The purchaser being a party to the record, his purchase may be ordered to be cancelled. But where a purchaser is not a party his deed may be set aside by a special proceeding, but this will not effect his purchase.</p> <p>Judgment in Favor of Sureties — Sureties’ Right to Collect Debt.</p> <p>A judgment against the principal in favor of the sureties on his bond, who had not paid the debt, should be for the payment of the amount ot the holders of the unpaid debt; the sureties have no right to collect the money.</p>

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

<p>Evidence — Principal and Agent — Competency of Agent as Witness.</p> <p>W. D. Dempsy was agent of Woodward to purchase tobacco for the market, and as such agent employed one Williams to make all purchases, which was done in the name of Dempsey, who took all obligations for delivery of the tobacco in the name of Dempsey. Afterwards, while Dempsey was still the agent of Woodward, and before the delivery of any of the tobacco or payment therefor, Dempsey told plaintiffs, who sold the tobacco, that all purchases were made for Woodward, that the tobacco would belong to Woodward who would make payment therefor'. Held, that this evidence would be competent to establish who was the real purchaser and who was responsible therefor.</p> <p>Same.</p> <p>The contract for the purchase being in the name of Dempsey, agent of appellee, without disclosing his agency, or the name of his principal, would render Dempsey personally responsible, but could not exempt his principal from liability.</p>

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

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

<p>Bond For Title For Conveyance of Land to Defraud Creditors — Equity.</p> <p>A court of equity will not enforce a conveyance of land under a bond for title given by the intestate for the purpose of defrauding creditors, even though the creditors of the intestate did not join in the bill to set aside the contract bond.</p> <p>Pleadings — Jurisdiction of Courts Over Property not in Controversy.</p> <p>The Circuit Court has no right to assume jurisdiction over land not embraced in the petition, nor the appointing of a commission to ascertain the rents, profits, etc., due from a defendant in possession, until an amended pleading shall have been filed charging the defendant with the use and occupation of the land.</p>

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

<p>APPEAL from: estill circuit court.</p>

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

<p>Cost.</p> <p>The plaintiff is entitled to his cost, although his action is practically defeated.</p> <p>Judgment — Clerical Misprision.</p> <p>A clerical misprision is no cause for reversal until a motion to correct has been made in the lower court and overruled.</p>

<p>Contracts — Aiding Rebellion — Right to Recover.,</p> <p>The mere sale and delivery of property with a knowledge that the buyer intended it for the use of those who were in rebellion against the Government, without some participation in the act itself of giving aid to those in rebellion, was not sufficient to deprive the vendor of the right to recover.</p>

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

<p>Wills — Construction—Intention of Testator.</p> <p>A testator devised his property by will, and after the payment of his debts and. two specific legacies, directs that “the residue of his estate shall be equally divided between his son W. B. Corley, his daugh- ■ ter Mary H. Hall, and It. C. Neal, and Acquilla Neal, the héirs of his deceased daughter Susan 0. Neal to have ‘one. share’ whefi they became twenty-one yars old; and Matilda D. Corley, the only heir of his deceased son Aquilla D. Corley, to have one hundred dollars more than an equal fourth part of his estate after his sister Nancy Wood shall receive twenty-five dollars.” And "in the event that either of the infant heirs, K. C. Neal, Aquilla Neal 'or Matilda D. Corley, shall die without an heir,’ their respective share shall return back into or remain in my estate and be equally divided between my surviving children, etc.”, One of the minors died childless and it is Held, that it clearly'appears, after the payment of specific legacies, the residue of the estate should be equally divided into four parts, and that the devisees should take per stripes, and that there is nothing in the context which could be construed into an intention to give either branch less than one-fourh.</p>

<p>Bill of Exceptions — Time to File.</p> <p>A bill of exception filed at a subsequent term of the court with an order extending the time, will not be considered by the Court of Appeals.</p> <p>New Trial — Exception.</p> <p>If no exceptions are taken at the time, to the ruling of ihe court below in granting a new trial, if any error is committed the same must , be regarded as waived.</p>

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

<p>Answer — Petition—Pleading—Attachment.</p> <p>After issue made and trial begun upon the merits of a case, it is too late for an objection to the petition or attachment for want of verification.</p>

<p>Appeal prom graves circuit court.</p>

<p>Notes — Federal Stamp.</p> <p>A note on which the original petition was filed having been excluded, on the plea that it was void for want of a revenue stamp; Held, that appellant was estoppel from objecting to an amended petition on the oral contract, for which the note was given.</p>

<p>Judgment hy Default — Pleadings—Sufficiency of Petition — Administrator— Action Against.</p> <p>A petition was filed against the sureties on a constable’s bond, and against the administrator of the deceased constable, for failure to pay over money collected on claims put in his hands for collection as constable. No defense was made to the action, and a personal judgment was rendered against the administrator and the two sureties: Held that</p> <p>without allegation or proof that any assets came into the hands of the administrator, it was erroneous to render a judgment against him, and even with such proof the judgment against him could be only for the debt, interest and costs to be levied of assets in 'his hands to be administered.</p>

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

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

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

<p>Land and Conveyances — Partition—Legal Title Holder — Parties.</p> <p>Where the legal title to land in contest is in one not a plaintiff nor defendant to the action, he cannot be concluded nor his title passed by the pleadings, proof, or judgment to which he was no party.</p>

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

<p>Estoppel — Lands and Conveyances — Purchase at Commissioner’s Sale.</p> <p>A purchaser of land at a commissioner’s sale, and which was sold as containing 40 or 50 acres, more or less, is estopped from seeking to be relieved of his purchase on the ground that there was only 36 acres in the tract bought by him. Having purchased the tract in gross and with knowledge of all the facts, he took upon himself voluntarily the risk as to the quantity.</p>

<p>Appeal and Error.</p> <p>Errors by the trial court cannot be available in the Appellate Court, unless excepted to as allowed by section 275 Criminal Code.</p> <p>Judgment — New Trial.</p> <p>The refusal of the trial court to grant a new trial on the ground that the verdict of the jury was not sustained by the evidence, is not subject to revision by the Appellate Court. By section 349 Criminal Code, “an error in granting or refusing a, new trial,” is not one which is sufficient to reverse a judgment.</p>

<p>Cause of Action — Seizure and Removal of Property by Aiding and Inciting— Demurrer.</p> <p>A petition that alleges the unlawful seizure and removal or conversion of property of the plaintiff by Confederate soldiers, and that the defendants, citizens of the county, were at the time aiding, inciting and advising the same, and that they directly and indirently participated in said seizure and removal of the property and aided therein, is Held to constitute a valid cause of action, and a demurrer thereto should have been overruled.</p>

<p>Guardian’s Bond — Counter Security — Right of County Court to Release.</p> <p>When it is required of a guardian, and he gives his surety counter-security it may be proper and the county court might be authorized to release the surety requiring the counter security of the guardian. But until such requirement is complied 'with the court has no authority to release any surety .</p> <p>Same.</p> <p>The counter-security contemplated and required is the execution of a bond or covenant by the guardian with one or more good sureties, approved by the court, who must undertake faithfully to discharge the trust 'of guardian and to. secure the surety making the application from loss and all the liabilities he may have .incurred by reason of having been bound as the surety of the guardian. Less than that, the court has no legal power to do, and until that is done, the former surety remains bound.</p> <p>Bond — Construction of its Sufficiency — Release of Surety — Right of Wards to Sue Guardian or One or More of the Sureties.</p> <p>A bond that does 'not show the name of the guardian, ward or surety, though signed by guardian and his surety, is held not to be a sufficient bond as is required by Statute, or suffic.ent as an indemnity to a former surety who makes demand for new security, and will therefore not release the former surety. The wards have the right to sue the guardian alone, or with one or more of his sureties, and a judgment against one of such sureties, he cannot reverse because the other sureties were not made parties to the suit.</p>

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

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

<p>Exceptions to Depositions — Trial.</p> <p>Exceptions to depositions made in the trial court, and which are not disposed of by the chancellor, are presumed to have been waived.</p> <p>Fraudulent Conveyance — Attachment—Preferred Creditors.</p> <p>Where the evidence conduces to prove the frauduent transfer of property for the purpose of preferring creditors, and the willful appropriation of the assets of a defendant to his own personal use, at a time when he was fully aware of his insolvency, it will justify an attachment by one creditors and the decree of the chancellor setting aside such fraudulent transfers of property by defendant, will not be disturbed.</p> <p>Acts of the Legislature Repealed — Effect or Statutes in Force.</p> <p>The repeal of an Act of the Legislature will not affect existing suits, commenced under jurisdiction of officers of the court created by such Act.</p>

<p>Instruction.</p> <p>An instruction which in effect tells the jury that the measure of compensation for the injury complained of in the petition, is double the fair and reasonable rent of his property for the time he was wrongfully kept out of possession, is held not improper and erroneous.</p> <p>Attorney’s Fee — Two Causes in One Petition.</p> <p>"Where two causes of action are joined in one petition, only one attor. ney fee can be taxed against the defendant.</p>

<p>Pleadings — Answer—Judgment for Costs.</p> <p>The answer was not sufficient to escape a judgment for costs, but was an sion of a lot belonging to the plaintiffs,” is npt a "denial that che was in possession in fact, but only that her possession is unlawful, nor construed as a plain and simple denial of the title alleged m the petition. Nor does a denial “that she keeps plaintiff out of his rightful property” deny that she ,held the ground nor that it was the property of the co-plaintiff. The answer was not sufficient to escape a judgment for costs, but was an admission of title in the plaintiffs, and of her own possession.</p>

<p>Bill of Exchange — Set-off and Counterclaim — Purchaser for Value of Bill of Exchange.</p> <p>A set-off or conterclaim existing between the original parties to a Bill of Exchange cannot be adjudged against an assignee, after the Bill has gone into circulation, in the regular course of business, for a valuable consideration.</p> <p>Pleading — Demurrer—Issue Joined — Objections.</p> <p>Though a petition may be defective because of insufficient averments as to the principal causes of action stated, to be availed of a demurrer thereto must be put in before issue joined by defendant answering setting up by way of defense, set-offs and counter-claims. And it is too late to object to the validity of the petition for the first time, before the Appelate Court.</p>

This is an action iu ejectment by Hattie Jones and others to dispossess their grandmother and mother-in-law, respectively, of a house and lot in Louisville. John S. Jones, died intestate, possessed of a house and lot in the city of Louisville and leaving a widow and two children (appellant in the case) his lawful heirs.

<p>Contract for Sale of Land — Reeission—Damages for Breach — Rent.</p> <p>Upon reeission of a contract for sale of land, damages resulting to the rendee by reason of the failure of the vendor to carry out an agreed reeission between the parties, will be allowed the vendee, it appearing that he vacated the premises at vendor’s demand some .three months prior to the settlement of the vendor, for which time the vendee would be entitled to his rental of t-o premises.</p>

<p>Clerical Misprision.</p> <p>A judgment will not be reversed for a clerical misprision, until the objection has been presented and acted on by the Court rendering the judgment.</p> <p>Pleadings — Petition, Allegations as to Ownership of Land.</p> <p>The Allegation that the property was Mrs. Stewart’s and that she .exchanged her property for it, are the mere conclusion of the pleader, the character of property whether real or personal and the manner in which she derived title to it, should have been set forth, so as to enable the Court to decide from the facts alleged whose property it was.</p>

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

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

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

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

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

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

<p>Vendor and Purchaser — Perfect Title.</p> <p>The vendor has a right to expect, and require a perfect legal title before he shall be required to pay the last installment of the consideration.</p>

<p>APPEAL EROM I,OUISVir.TE CIRCUIT COURT.</p>

<p>Landmarks — Boundaries—Establishment' by Long Eecognition — Lands and Conveyances.</p> <p>Where the original owners of lands recognize a specific line or landmark in conveyances, as a boundary, and their vendees for more t'han twenty-five years afterwards, accepted and used such recognition, such a boundary rvill not be disturbed. ' Such boundary wall not be effected by a junior conveyance, attempting to go beyond the line, a prior conveyance having included the land in the junior one, down to the boundary in controversy.</p>

<p>New Trial — Misconduct of Jury — Evidence.</p> <p>Jurors. are not permitted to' testify as to any misconduct of themselves, or their fellow-jurors, nor as to what influenced them in making up their verdict. It is against the policy of the law to allow such evidence.</p>

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

<p>Attachment — Grounds for — Bill of Sale — Fraudulent Intent to Prefer Creditors</p> <p>M. Oanpelt, having agreed to mortgage certain property to Hodge, his creditor, as collateral security, shortly thereafter by bill of sale, transferred all his property to one Kuglar, but possession not actually having been delivered. This was done in seeming contemplation of the removal from the State of said Oanpelt before the expiration of his lease from Hodge. Held to be sufficient to sustain an attachment by the creditor, Hodge.</p>

<p>Mandate of Appellate Court — Duty of Judge of Lower Court to Obey.</p> <p>It is not discretionary with a Judge of the lower Court to enter the mandate of the Court of Appeals. When such a mandate, accompanied with a motion for- judgment, is presented, same must be entered, and final judgment given.</p> <p>Supplemental Pleadings — Mandate of Appellate Court — Relief from on Grounds Not Litigated — Judgment.</p> <p>After the mandate of the Appellate Court shall have been entered and final judgment rendered by the trial judge in the Court below, said judgment may be stayed by supplementary pleadings if the grounds for relief show; in the allegations, matters not litigated. But the Court cannot allow such proceedings to be begun before the mandate shall be entered or accept such pleadings in lieu thereof.</p>

This is an action to recover on a bill of exchange drawn by Isbell in favor of J. S. Stockton to give credit to Leveridge who sold them to the bank for their full value and Leveridge made default and failed to take up the bill when due. The amount of the bill was $2,070.74 and on the back of the bill was several endorsers. The Bank secured a default judgment against Isbell, &c., in the lower court and Isbell appealed.

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

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

<p>APPEAL PROM JEEEERSON COURT OE COMMON PLEAS.</p>

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

<p>APPEAL,FROM JERRERSON COURT OR COMMON PLEAS.</p>

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

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

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

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

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

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

<p>Pleadings — Amended Cross-Petition, Offer to File.</p> <p>Allegations of fraud, in a cross-petition, and of the payment of a portion of the mortgage, in litigation, uneontroverted in that there was a mere motion to reject the filing of same, which was sustained, presented a prima facie case for relief, and it was error for the court to reject the amended cross-petition as offered.</p>

<p>Minor — Failure to Appoint Guardian.</p> <p>It is reversible error to render a judgment against a minor without having a guardian appointed to defend for him.</p> <p>Minor’s Contract, Enforcable When — Evidence.</p> <p>The purchase of a horse by a minor to operate a farm upon which he was living as the head of a family, and from the use of which a support for himself and family was obtained; and the jury believed that the purchase by the minor of the house was necessary for the minor’s use, though while he could not bind himself by the execution of a note therefor, the law will bind him to pay the reasonable value of the horse; and what he promised to pay for the horse, will be competent evidence conducing to show its value.</p>

<p>Tenancy — Lands—Permanent Improvements.</p> <p>Under a lease or tenancy by permission, fencing, grubbing ditching and clearing lands are not permanent improvements, as all these things are necessary to be done to enlarge the products of the farm and increase the ' profits of the tenant, but improvements to buildings and the making of a cistern are of a permanent character and the owner is liable therefor.</p> <p>Contracts — Verbal Agreement to Cultivate Farm — Pleadingss.</p> <p>In a suit for recovery of amount due under verbal contract to manage a farm, and “if the sum of $1,000.00 is not made annually, the deficit to be made up by the owner,” it must be alleged in the petition that this particular amount was not realized,- and show in what the discrepancy will consist,’in order to recover thereon.</p>

<p>Deeds — Acknowledgment—Certificate.</p> <p>The acknowledgment to a deed that the grantor appeared before the “Clerk of Logan County,” and wherefrom the caption it appears that the acknowledgment was taken in the “County Clerk’s Office” is held to be good ,though the word “Court” is omitted after the word “County.’ But as it must be judicially known that there was eo nonine no clerk of “Logan County” while there was a clerk of the County Court of said county, it is presumed that he, as such, was by law authorized to take the acknowledgment.</p> <p>Notice of Meeting of Prosessioner — Appearance.</p> <p>The appearance and entering of objections to some of the acts of the prosessioners, is held to waive formal notice of the time and place of their meeting.</p>

<p>Bills of Exchange — Pleading—Petition—Demurrer.</p> <p>In a suit on a promissory note or bill of exchange, and the petition does not aver protest, and notice, either for non acceptance or non payment nor aver any excuse as that the drawer had no funds with, or authority from the drawer to draw upon him, the petition is subject to a general demurrer.</p> <p>Bills of Exchange — Setoff and Counter Claim.</p> <p>Setoffs and counter-claims between the original parties cannot be adjudged 1 againrt an asignee as to bills of exchange, which have gone into circulation in the regular course of business, for a valuable consideration.</p> <p>Appeal and Error — Defective Pleadings in Court Below.</p> <p>However defective a petition may be, after issue joined in the court below, no demurrer having been filed to correct the errors of pleading, it is too late to object for the first time in the Appellate Court, to the' defects, especially as no motion was made for a new trial.</p>

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

<p>Street Improvement — Assessment of Property Covered by Railroad Track Ordinance.</p> <p>The owners of property along a street, upon which runs a railroad track, cannot be required to pay for paving or otherwise improving so much of it as is covered by the railroad track, it being the duty of the owners of the track to keep it in order, consequently a general ordinance and the contract under it .for paving, curbing, macadamizing and gravelling that street, without excepting the track, is illegal and not enforeible.</p> <p>Same.</p> <p>But an amendatory ordinance requiring the improvement of so much of the street as is not touched by the railway track, is legal and binding against the property adjacent thereto.</p> <p>Same.</p> <p>An objection that in the commissioners ^report, or the petition that the “graveling” is not specified connot avail, as it is a part of the maeadmizing which the petition alleges was eompleteed according to contract.</p> <p>Evidence — Prima Facie.</p> <p>The report, estimates and apportionments of street paving by the commissioners under the charter of the city is prima facie evidence of the liability of the property owners for the amount of the contribution assessed,against them.</p>

<p>New Trial — Verdict Not Sustained by the Evidence.</p> <p>On the issues formed, there was a contrariety of evidence before the jury, which it was their peculiar province to weigh. On well settled principal of practice, the Court should not have granted a new trial on the grounds that the jury had erred, unless the verdict was clearly against the evidence.</p>

<p>Wills — Construction—Devise to Wife for Her Separate Use — Exclusion of Husband.</p> <p>A devise to a wife which provided that she should have and enjoy the annual rents, hire, and interest of the estate, with the privilege of disposing of it by devise or gift as she might desire, is held to be a devise for the separate use of the wife to the exclusion of her husband’s marital rights therein.</p>

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

<p>Bills and Notes — Waiver of Claim for Set — Off—Assignment—Declaration in Presence of Purchaser.</p> <p>Where the maker of a note is present when a transfer thereof is made from one holder to another, and offers no objections thereto, but says that the note is good and offers to settle it by delivery to the holder of other collateral therefor, he will be considered as having waived any claims, demands, or ofl'-sets he may have to the note.</p>

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

<p>Usury — Voluntary Payment on Note Before Due, Does Not Stop Interest— Jurisdiction of Appellate Court.</p> <p>The voluntary payment on a note before its maturity, gives the payor no right to stop the merest; therefore only so much as was paid over and above the legal interest, on the sum borrowed, would be usurious. An over-payment thus made of $48.03 is a sum of which the Appellate Court has no jurisdiction.</p>

<p>Wills — Revocation—Writing Must he Executed — Proof.</p> <p>A paper cannot he regarded as a revocation of a will previously made, unless it was in fact a will or codicil, or a writing declaring an intention to revoke the former will, and executed in the manner in which a will is required to he executed, and that without proof of the contents of the paper, it could not constitute a valid revocation in either of those iorms.</p>

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

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

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

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

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

<p>Pleadings — Appeal and Error — Amendments Allowed. ,</p> <p>“Ordinary actions are unlike suits in equity; in the latter, the Court of Appeals almost universally settles the rights of the parties, on the pleadings and evidence in the case, and the court below has only to carry out the directions of the Appellate Court, but in ordinary Actions, a new trial only is awarded. Hence, amended pleadings if offered, in good faith and reasonable time so as not to indicate a spirit of vexatious delay, should be liberally indulged, so as to make the issues conform to the facts and evidence.”</p> <p>New Trials Granted in Ordinary Actions — Evidence in Former Trial — Amended Pleadings.</p> <p>Where a new trial is awarded by the Court of Appeals.in an ordinary action, the parties are not bound by the evidence on the former trial, but can introduce it over again with such alterations and additions as they see proper; hence amended pleadings should be liberally indulged in.</p>

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

<p>Land — Sale in Gross — Deficiency.</p> <p>When the vendor knows -¿here is a material deficiency in the number of acres of land sold, the law will not permit him to conceal this, nor to represent the number of acres in gross and then escape responsibility by the use of the words, “more or less.”</p> <p>Notes — Assignment—Credits—Attitude of Assign.</p> <p>Where two notes are due, one only of which has been assigned, the court will apply credits to the unassigned note, but not so when the unassign'ed note is not due.</p>

<p>Land — Sale—Verbal Contract.</p> <p>A verbal contract for the sale of land is rot legally obligatory upon either Party, until some writing evidencing the sale,- and sufficient to take the contract out of the operation of the Statute of Frauds, is execute'd by the vendor and accepted by the vendee.</p>

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

<p>Apprenticing Children — Age—Judgment.</p> <p>It is an essential part of every judgment, ordering the apprenticing of a child, to ascertain and fix its age.</p>

<p>Instructions — Abstract Proposition.</p> <p>An instruction upon a mere abstract proposition of law should never be given without some evidence to authorize it.</p>

<p>Appearance — Exceptions to Commissioner’s Report Regarded as Sufficient— Service.</p> <p>, ■ The filing of exceptions to a master commissioner’s report, by an administrator, who had not been served with process to the suit is held to be a sufficient appearance.</p>

<p>New Trial — Affidavit Must Show Good Defense — Unavoidable Absence.</p> <p>To entitle an appellant to a new trial, it is not sufficient to show that he had a good excuse for being absent from court; but he must show a good defense to the action by setting forth that defense to enable the court to judge of its sufficiency, and that he had made the necessary preparations or efforts to be ready to try the case, and that he was prevented from making his defense by his absence, which was unavoidable.</p>

<p>Rent — Tenant Liable for After Conveyance by Landlord — Implied Right to Ingress and 'Egress.</p> <p>A conveyance of land with a reversion that the tenant then in possession should have the use of the land until the fall of the year in which the land is sold, gives the tenant the implied right of ingress and egress thereafter for the purpose of removing the crop raised by him on the land; and the tenant is not liable for rent for this use of the land.</p>

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

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

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

<p>Deed of Gift — Mortgage—Infant’s 'Contracts Void — Fraudulent Conveyance.</p> <p>On the 16th day of May, 1865, Mary Price made a voluntary deed of gift to her infant daughter, Florida Price, of various articles of household furniture and the deed was duly recorded. Afterwards, the mother and daughter executed thir joint note with a mortgage on the furniture to secure its payment: Held, that as the record discloses no evidence of actual fraud in the execution of the deed of gift, and as it was made before the debt of appelle existed, it therefore operated to vest the title to the property in the infant and she had a right to avoid the note and mortgage on the grounds of her infancy.</p>

The instructions referred to in the opinion, are as follows: First. “If the jury believe from the evidence that the intention of West was to purchase flour and that he was going for that purpose and had no intention of engaging in the alleged taking of the $400, they should find for the defendant West.” Fourth. “The fact of West not receiving any portion of the money is a circumstance together with other circumstances elicited in evidence, from which they may infer his…

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

<p>Judicial Sales — Lands and Conveyances — Duty of Officer.</p> <p>It is the duty of an officer, selling land under judgment to satisfy an existing lien thereon, to disclose to the bidders any incumbrance existing other than that for which the sale is being conducted, in order that bidders might fully understand the character of title they would acquire if they purchased.</p> <p>Same.</p> <p>Where srich sales occur, the officer, after offering the- land to bidders, in a solid lot should attempt, before closing the sale, to raise the amount of the debt by offering a designated side or end of the tract or lot; the defendants in the execution being infants, not present at the sale as must be assumed, and incapable of making the designation, if they had been present.</p> <p>Judicial Sales, City of Louisville — Officers Discretion.</p> <p>By section 812, C. C. in the sale of a small portion of real estate in the city of Louisville, and county of Jefferson, if the defendant does not require less than the whole to be sold, where less will produce the debt, the officer making the sale may exercise.his discretion, with a view to the interest of the defendant, whether to sell the whole,'or less than the whole, as he may or not think it advantageously susceptible of division. When the whole is sold by the officer, under the power here conferred, where the defendants are infants, and the officer must exercise the discretion conferred upon him, by reason of their disability to direct how the sale should be made, the facts should be stated in the return.</p> <p>Same — Purchaser for Value.</p> <p>An attorney, who admits that he recovered the judgment for the satisfaction of which the land was sold, and was present at the sale, was the surety of the purchaser in the sale bond, and must have known all about the manner of making the sale, cannot be an innocent, purchaser without notice of the imperfection of his vendors title.</p>

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

<p>Slander — Plea of Justification — Introduction of Evidence — Conclusion of Argument.</p> <p>In an action for slander, the defendant confessed by his answer, the allegations of the petition, that he had imputed to the plaintiff the crime of perjury. Therefore, it was incumbent on him to make out the truth of his justification. The exact form of the words containing the charge were immaterial, so that the substance were proven. Under such state of facts the defendant was entitled to introduce his evidence and then to the conclusion of the argument and this is not relieved because plaintiff introduced his evidence first.</p> <p>Instruction — Slander—Evidence.</p> <p>Where there is a contrariety of evidence in an action for slander, the question is one fact peculiarly within the province of the jury, and they should be instructed that if they believe from the evidence, plaintiff denied the malice, but truthfully explained the arrest, its manner, and the part he took in it, they should find for him. .</p> <p>Same.</p> <p>Defendant had a right to an instruction predicated on the jury’s belief of the evidence presented by him as to his justification, and if the jury should consider this as over-balancing plaintiff’s evidence, to find accordingly.</p> <p>Amended Answer After Evidence Closed — Pleadings.</p> <p>A defendant may, after the evidence is all closed, amend his answer so as to conform to the proof.</p>

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

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

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

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

<p>Evidence — Acceptance of Deed Showing Consideration, Prima Facie Evidence Pleadings. — Deeds.</p> <p>The admission in a replication to a counter-claim, of the acceptance of a deed, showing on its face a specific consideration, is prima facie evidence of an agreed price to be paid- for land embraced in the deed.</p> <p>Rplication — Burden of Proof — Pleadings.</p> <p>Where a replication states facts, which if proved, would countervail the import of the recital of a consideration in a deed offered by a defendant, and controverts the material allegations of a counterclaim, the burden of proof is on the defendant.</p>

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

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

<p>Color of Title — Fraudulent Assignment — Possession of Land Under.</p> <p>The possession and occupancy of lands under color of title, will give no rights thereunder to the holder of the premises, where the title thus asserted is procured by a fraudulent transfer.</p> <p>Lands and Conveyances — Original Survey — Assignment of — Fraudulent Conveyance.</p> <p>An assignment of an original survey to a large tract of land, on a copy of the original, was made and afterwards the lands were patented tc the assignor. The assignment was without consideration an at a time when the assignor was seeking to absolve himself of a large obligation on a bond of a defaulting sheriff. Held, to be a fraudulent transfer of title, though the assignee acquired possession of the lands after the death of the assignor.</p>

<p>Wills — Devise—Residuary Legatees — Executors and Administrators.</p> <p>A will wliicli provides “that one-twelfth of my property or proceeds arising therefrom to be taken possession of by the administrator, and held in trust for the use of my daughter during her life, and pay her yearly what may be deemed reasonable for the use thereof, and at her death, the principal to be paid to her children” is held to provide for the legatee alone, during her life, from the product of the trust funds, and she would have no right to consume the principal, and a loan to her by the administrator of a portion of said principal, was a misappropriation, for which he could be held lible.</p> <p>Pleadings — Allowance for Disposition of Trust Funds Without Allegation in Petition.</p> <p>Ah allowance by a commissioner of a credit for administration of the principal of a trust fund, against the account due the residuary legatee thereof, without necessary allegations in a cross petition by an adverse party, that said fund should- be charged against said devisee, is radically erroneous.</p> <p>Judgment — Erroneous as to Representatives of a Defendant Intestate' When Not Before The Court.</p> <p>A judgment rendered in a suit, in which an intestate was a party thereto, is erroneous, when the representatives of the deoeasd are not brought before the court.</p> <p>Pleadings — Answer—Appearance.</p> <p>An answer signed by one of the devisees of a trust fund, reciting that all three devisees were respondents, is not an appearance for all.</p> <p>Administrators — Settlement—Life Estate — Surrender to Residuary Legatees.</p> <p>Where a surrender of a life estate to her children, is made by a legatee, a settlement should be adjudged up to said- surrender, in a suit against the bondsmen of the administrator for an accounting.</p>

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

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

<p>Executory Contracts — Pleadings—Cross Petitions.</p> <p>A transfer of an expectancy by heirs of an estate must be alleged by cross petition, in a suit by the holders of these equities to enforce ' same as against one of the legatees, it being a contest between equities as to which litigant is entitled to the legal title.</p> <p>Same.</p> <p>The vendee of the executory contracts after the death of the vendor, does not bcome possessed of the legal title to the lands embraced in the contracts executed by the heirs, but holds a mere equity</p> <p>Title Bond — Resulting Trust — Expectancy.</p> <p>A father who holds the bonds of his children to convey to him their expectancy to be derived from the estate of their deceased mother, transferred said bonds by assignments to his son. In a suit to enforce the executory contracts, the father, though not being possessed of the legal title to land, and having agreed not to dispose of his equity, with notice to his vendee, the legal title cannot be co-erced at the instance of the heirs so as to defeat the equity of the purchaser of their expectant interest, by a third party. They are deemed, in equity by their bond*, to be the holders of the legal title in trust for their father during his life, and with remainder to their vendee, at his death.</p> <p>Multiplicity of Suits — Consolidation of Actions.</p> <p>Several suits growing out of and connected with the same subject matter should be consolidated, and settled in one suit.</p> <p>Cross-Petition — Answer by Defendants — Waiver of Right to Question its Legal Form. •</p> <p>An answer as to its merits to a cross-petition, (that sets up a cause of action), by the defendants, without having demurred or moved to dismiss same, is held to be a waiver of any subsequent right to do so. It must be treated as part of the whole suit.</p> <p>Vendor and Purchaser — Bona Fide purchaser of an Expectancy.</p> <p>The purchaser of an expectancy by a vendee, with knowledge that the interest of- the claimants who had sold by executory contract- to his vendor,’ held only a resulting trust, assigned to a third party, to take effect, at the death of his vendor; is held not to be a bona fide purchaser, to defeat the repayment of the amount thus paid for the expectancy of the heirs, by such third party.</p>

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

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

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

<p>Parol Agreement — Extension of Time on Note, Inadmissible as Evidence.</p> <p>A mere parol agreement to extend' the time of payment of a note would be in contradiction of the note itself, and therefore inadmissible.</p> <p>Principal and Surety — Liability Increased — Discharge of Surety.</p> <p>In order to discharge the surety, by an agreement between the principal and the creditor, without the concurrence of the surety, there must be a binding contract between them for enlarging the time of performance, thereby increasing the risk of the surety.</p> <p>Pills and Notes — Surety—Acceptance by Holder, of a Future Order for Collection to be Applied on.</p> <p>The acceptance of an order from the obligor on a note, by the creditor payable on a third party at a future time, does not operate as a stay of proceedings on the note against the obligor and sureties, nor compells the creditor to delay proceedings until such time as default on. the order be made. It is merely an acceptance as collateral security for the debt.</p> <p>Duty of Surety to Discharge Debt — Eights to be Subrogated — Delay of Collection does not Discharge Surety.</p> <p>The mere delay on the part of a creditor to collect his debt, unless the indulgency be such as to bring the surety within the Statute of Limitations, will not discharge the surety. It is as well the duty of the surety as of the obligor to discharge the obligation when it matures, and he may do this then, or any time afterwards for his own security, either to proceed immediately against his principal, or to be subrogated to the rights of the creditor. It is only when the creditor and principal debtor witout the privity and consent of the surety, make a binding, valid agreement, change the terms of the original undertaking, by enlarging the time of performance, and increasing the risk of the surety, that he will be discharged.</p> <p>Demurrer — Allegations in an Answer.</p> <p>The allegations in an answer, forming both the conclusions of the Law and the facts in the ease are demurrable.</p>

<p>Administrators — Connty Court Settlement Prima Facie Eight — Surcharge.</p> <p>A settlement made by an administrator, with the County Court is prima facie right, but when the administrator seeks to subject land descended to the heirs and they surcharge the settlement, and show errors, this prima facie presumption is greatly weakened.</p>

<p>Sale — Bond for Purchase Money — Parties to Suit — Pleadings.</p> <p>In a suit to enforce a sale bond of personalty, it is necessary to bring all originally interested parties before the Court, that their interest, . as appearing, either by enforcement or cancellation of the bond, may be protected.</p> <p>Estoppel — Parties to Attachment Suit — Sales Under.</p> <p>Parties to an attachment suit, where personal property is sold there under, are estopped from sitting up an adverse title inconsistent with said adjustication which is binding upon them until reversed.</p>

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

<p>Warehouse-Maxi — Absence of Instructions — Unforseen Emergency.</p> <p>A warehouse man, in the absence of any direct instructions, by the consignor, may exercise his own discretion and in eases of unforseen emergncv may act contrary to general instructions provided he acts in good faith.</p>

<p>Lands and Conveyances — Perfection of Title — Consideration Subjoined.</p> <p>In the sale of lands, the vendors title not being perfect, and the possible perfection of it, being uncertain, tedious and expensive, the vendee has the right to enjoin the eoleetion of the consideration until the vendor should, at his own expense, perfect it.</p> <p>Feme Covert — Unrecorded Deed — Adverse Possession.</p> <p>A feme covert is not bound by an unrecorded deed and the possession' of land by -a vendor under such is held not to be adverse to femes covert.</p> <p>Vendee in Possession — Time to Perfect Title.</p> <p>When a vendee is in the undisputed possession, of lands, equity requires him to wait a reasonable time for obtaining an assured title.</p> <p>Limitation — Married Women.</p> <p>The statute of limitations does not begin to run against a married woman until she becomes discovert.</p>

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

<p>Donatio Mortis Causa.</p> <p>According to the well settled doctrine on the subject, to constitute a donatio mortis causa, there must be three attributes:</p> <p>1. The gift must be with a view of the donor’s death. 2. It must be conditioned to take effect only on donor’s death by his existing disorder. 3. There must be an actual delivery of the subject of the donation.</p> <p>Same — Choses in Action — Pass by Donation.</p> <p>Not only negotiable notes, and bills of exchange, payable to bearer, or endorsed in blank, and bank notes, but promissory notes not made payable to “bearer” without an assignment from the payees’ donor may be the subject of a donatio mortis causa, as the beneficial interest therein may pass by delivery.</p> <p>Same — Gift in Contemplation of Death.</p> <p>The delivery, of a note to a possible future heir of the donor, who was old and in feeble health, would not amount to a donatio mortis causa, where the gift was accompanied by the statement that it was to take effect if he died, he being at the time very feeble, and believing that he could not live long, and stating that if he did not die, and lived to need it the note could be returned to him. The donor lived for several months afterwards and the pleadings show nothing to intimate that the donor died of the same illness existing at the time of the alleged donation.</p>

<p>Contracts — Cancellation—Feeble Intellect — Inadequacy of Price — Innocent Purchasers.</p> <p>Whilst the general equity rule that feeble intellect, with inadequacy of price, with but slight circumstances evidencing fraud or over-reaching, will suffice to the caneelment of contracts, yet when such contract has been acquiesced in for more than fourteen years and the land has gone into the hands of innocent Purchacers, there should be great preponderating evidence and circumstance against the sale before the property rights of innocent purchasers should be disturbed.</p>

<p>Vendor’s Lien — Prior to Widow’s Claim as Devisee.</p> <p>The unpaid purchase money on land is prior to a widow’s interest in her husband’s real estate as devisee.</p> <p>Same — Sale Free from Widow’s Dower.</p> <p>A court of equity may properly sell so much of a decedent’s land as is necessary to pay the purchase money due, free from the widow’s dower.</p> <p>Husband’s Will — Renunciation by Wife — Dower.</p> <p>The wife must renounce her husband’s will before she can have dower assigned.</p> <p>Second Marriage — Effect on Dower.</p> <p>A wife’s dowerable interest in her husband’s land ceases upon her second marriage.</p>

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

<p>Personal Property — Warranty—Limitation.</p> <p>Where personal property is retained for five years, without complaint, if there was a warranty at the time of the sale of same, the law pre-. sumes that the property was as warranted o he.</p>

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

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

<p>Assignment for Benefit of Creditors — Duty and Liability of Trustee.</p> <p>Where a trustee prevents the consummation of a judicial sale of tru.it property by asserting an unfounded claim against it, and the property is therefore resold, he will be held responsible to the creditors for the difference in the price which it brought at the last sale and the amount bid at the first sale.</p> <p>Same.</p> <p>A trustee has no right to purchase trust property at a judicial i».;. and pay for same out of trust funds, unless authorized by the creditors,</p> <p>Same — Sale of Debts without Consent of Creditors.</p> <p>A trustee has no right to sell debts owing the assignor at a sacrifice, without the consent of the creditors.</p> <p>Same.</p> <p>A trustee had no right to consent to the assignor collecting the debts without the consent of the creditors.</p> <p>Same. -</p> <p>A trustee had no right to consent to the assignor collecting the debts transferred to him as trustee, and was properly held responsible for same.</p> <p>Same — Preferring Creditors.</p> <p>A trustee is not entitled to the exclusive privilege of having the debts of the assignor, for which he was bound, as surety, paid in full before the other creditors are allowed to participate.</p>

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

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

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

<p>Coroner’s Deed — Evidence of Title — Authority to Execute — Peremptory Instructions.</p> <p>Where neither the judgment, nor execution under which a coroner’s deed perports to have been made, even offered in evidence, which was necessary to render the deed competent, a peremptory instruction is proper.</p>

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

<p>Actions — Failure to Prosecute Suit — Damages—Sufficient Evidence — Breach of Bond.</p> <p>In an action in equity on the bond of the plaintiff in a replevin suit for his failure to prosecute same, the loss the defendant therein might have sustained for a breach of the bond was a subject of proof, and he must show that he had been deprived of his property, and the extent of the loss therefrom by proving the value of the property replevied. A mere judgment for the face of the bond, for the alleged breach, is not sufficient.</p>

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

<p>Lands — Judicial Sales to Pay Purchase Money — Recission.</p> <p>A sale of lands under an order of the court, bond executed by the purchaser, and the sale confirmed without exception to the commissioners report filed prior thereto, is not susceptible of recission, unless the purchaser be prejudiced by being required to pay more than is adjudged in his sale bond.</p>

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

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

<p>Lands and Conveyances — Special Warranty — Estoppel—As to Devisees Under Will — Fraudulent Conveyance.</p> <p>A conveyance by deed from father to son, with a warranty of title against “himself, his heirs and all persons claiming under him,” will operate as an estoppel, not only as to the claims of the grantor himself.but against his devisees, heirs and representatives, and is not subject to a collateral attack except for fraud, or force in the procurement thereof.</p>

<p>Fraudulent Conveyance — Preference of Creditors — Subrogation—Innocent Purchaser — Purchaser with Notice.</p> <p>One who purchases property of an insolvent debtor, whose precarious condition was known to him at the time, will be deemed to hold the property in trust for the creditors generally. The payment of part of the purchase money, on the order of the debtor, to a third party, will only give the purchaser a right to be substituted therefor but' he cannot claim a lien for such an amount so paid, over the creditors.</p>

<p>Lands and Conveyances — Lien not Reserved in Deed — Suit to collect — Lis Pendens Purchaser.</p> <p>John G. Morton purchased of J. R. Cargile a tract of land for a recited consideration of $1,800. Cargile had purchased the land of W. C. Langley for $3,436, payable in three notes, accepting a bond for title therefor, and when the first note became due a payment of some $700 was made, and to enforce the collection of balance of said note a suit in equity by default produced a judgment for the sale of enough of the land to satisfy the amount. Default being made on the second note a like suit was filed. John G. Morton, before his purchase from Cargile, was appointed commissioner by the court to sell the land under the judgment, and at the time of his purchase, told a witness Cox, that he would sell him the land, if he would take such title as he got from Cargile. Langley had made a deed to Cargile reciting “that Cargile has fully complied with the requirements of said bond” and retained no lien therein for the purchase money. This he claims by amended petition to have been a mistake in drafting as none of the purchase money but the $700 was paid. Held, that Morton was lis pendens purchaser with actual notice of the existence of the suit and its objects, having been appointed to carry out the judgment of the court, and by his own voluntary act trying to defeat the judgment he was ordered to execute.</p>

<p>Lands and Conveyances — Restitution—Parties to Suit — Pro Forma Defendant not Barred.</p> <p>In a suit by a plaintiff for specific performance and conveyance against the holder of the record title to land, the joining of a defendant to forma who claimed an equity therein, does not bar him of a right to sue his co-defendant for a restitution, it being shown that the suit by plaintiff was for the absolute title to the land in controversy, the co-defendant being a mere holder in trust.</p> <p>Same.</p> <p>The co-operating with the plaintiff by such defendant for the purpose of settling who was entitled to the possession of the land, would not, by cross pleading or otherwise, be an assertion of a claim against the co-defendant for that equity which he would have no right to demand unless the plaintiff failed in enforcing the executory sale tc him, and would not bar such equity, asserted in a separate suit.</p>

<p>Contracts — Building Court House — County Judge as Contractor — Pleading— Answer.</p> <p>While the official duties of the presiding Judge of the County 'Court, require that he should participate actively in arranging for the erection of the public buildings of the county, appointment of necessary committees thereon, and to guard the interests of the people of the county in general and a proper sense of propriety should therefore restrain him from becoming a contractor for the erection of these public works, where his interests would conflict with his official duties, a successful bidding for and securing such a contract by him should be allowed to stand, where there is no statutory inhibitation against a county judge, nor the pleadings show that he derived any advantage from his official position nor anything unfair in awarding the contract, nor a more advantageous one could have been made with others, and where the contract made was approved by the justices of the county court.</p> <p>Same.</p> <p>Such failure to make the "answer to the suit - a good defense, was properly refused when offered to be filed in the court below.</p>

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

<p>APPEAL PROM JEPEERSON CIRCUIT COURT, CHANCERY DIVISION.</p>

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

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

<p>Evidence — Competency—Objections to Opinion of Witness.</p> <p>A question to a witness whether in his “opinion from his occupation as a farmer, habits of observing stock, and opportunity as a neighbor of the appellant, if the mule in controversy had been at the farm and in possession of appellant as early as October or November, 1862, he would not have known it, before August, 1863, the first time he saw it” is held not to be incompetent and illegal, the particular mode of interrogation not being erroneous. To have changed the form would have but resulted in producing the same reply, and it would be hyperteehnical to reverse on such objections.</p> <p>Appeal and Error — New Trial — Requirements in Motion for.</p> <p>The provisions in Sec. 372 Civ. Code, as to applications for a new trial by motion etc., requires, all errors, which the party complaining, deems to have been committed prejudicial to him in the progress of the trial, must be presented in writing as grounds for a new trial, in order to direct the attention of the Appellate Court to the alleged errors, for correction. The mere objeción to the introduction of testimony during the trial, is not sufficient.</p>

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

<p>Cross-Petition — Pleadings—Demurrer.</p> <p>Where a defendant has a cause' of action against a co-defendant, or a person not a party to the action, and affecting the subject matter of the action, he may make his answer a cross-petition against a co-defendant, or such other person, and such cross-petition is not demurrable.</p>

<p>Land Sold on Installments — Interest Reserved in Note not Usury.</p> <p>The reservation of ten Per cent interest, for one year, in a note for the purchase price of land, in the event of non-payment when due, was a part of the consideration and not usury.</p>

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

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

<p>New Trial — Verdict not Sustained by Evidence.</p> <p>The evidence must be palpably against the verdict to authorize a reversal on the ground that the verdict is against the weight of the evidence</p> <p>New Trial — Newly Discovered Evidence.</p> <p>Newly discovered evidence, disclosed after a trial, relating to matters which were contested on the trial and as to which several witnesses were examined, Held, not sufficient to authorrize a new trial.</p>

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

<p>Husband and Wife — Wife’s Separate Estate for Life — Remainder to Children Held in Trust — Mortgage with Consent of donor.</p> <p>The husband bought and paid for land and had the legal title conveyed to himself in trust for the separate use of his wife and of her children during life and after her death the remainder for said children: Held, that the husband was not only trustee but donor of the trust, and had a legal right in conjunction with his wife to sell or mortgage her interest for her support.</p>

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

<p>Voluntary Conveyances — Subsequent Debt.</p> <p>A voluntary conveyance, without consideration, cannot be avoided on that account alone, by creditors whose debt occurred subsequent to the execution of the deed.</p> <p>Same — Balance of Purchase Price, Unpaid, Subject to Debts.</p> <p>The residue of the unpaid purchase price due under a voluntary conveyance is subject to execution by creditors, whose debts accrrued subsequent thereto.</p> <p>Recitals in Deed not Evidence Against Stranger — Good Between Parties.</p> <p>The recitals in a deed are not evidence against a stranger, athough , they are as between the parties to the instrument.</p> <p>Deeds — True Consideration — Burden of Proof.</p> <p>The burden of proof is on the parties to a voluntary conveyance, to show that a stated consideration, admitted by them to be erroneous, is not valid and nothing is owing thereon.</p>

<p>Judgment — Rendered at same Term of Confession — Motion to Set Aside.</p> <p>If a final judgment be rendered at the same term upon a confession on motion, the court should set it aside, and a refusal to do so is reversable error; but not erroneous on a non order of confession when the final judgment was not rendered until the succeeding term, and when no defense was presented.</p> <p>Misprisions — Judgment and Final Orders Corrected.</p> <p>Sec. 579 Civ. Code, which authorizes the court, at a subsequent term, to correct its misprision, applies to judgments or final orders.</p>

<p>Ante-Nuptial Contract.</p> <p>The written consent of tbe husband to the use of tbe wife’s property, made at tbe date of marriage, and attached to and recorded with the wife’s will, held to be an ante-nuptial contract.</p> <p>Contract Between Husband and Wife — Use of Wife’s Property — Express Contract.</p> <p>Under a written agreement between husband and wife, that she retained the right to hire out her personal property or keep same as she may think proper, should she decide to keep same for the family use, the law will imply no contract on the part of the husband to Pay hire during their joint lives.</p> <p>Same — Use of Property by Husband After Wife’s death.</p> <p>The retention and use of the personal property of the wife, by the husband, after her death, will imply a promise to make a reasonable compensation therefor.</p>

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

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

<p>APPEAL PROM JEPPERSON CIRCUIT COURT, CHANCERY DIVISION.</p>

<p>Partnership — Silent Partner — Abuse of Confidence and Trust.</p> <p>Allison and Bush, appellee, were friends, and business associates in the banking business. Bush and Shivell, appellees, were law partners, Shivell and Allison, each owned a share in a mining enterprise, and Bush was the silent interested partner in the share of each. Bush persuaded Allison to buy another share, engaged to negotiate the purchase and promised to secure it at cost, to Allison. Bush and Shivell ' bought a share of Bright for $500 and had it transferred to Shivell who transferred to Allison. Bush then informed Allison a share had been bought for him. Bush and Shivell then bought a share from another' party, for $1500, no payment being made on same. Appellees made draft on appellant for “purchase money for the Bright interest” etc, and the $1,500 was paid. In a suit to recover $1,000, held that the transaction was a combined abuse of confidence and trust and appellant entitled to restitution of the difference in price of the two shares.</p>

<p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>A suit was filed by an administrator to settle the estate of W. T. Haggins. Among the liabilities were notes aggregating $4,200, given by Haggins to appellant North. The evidence was that in 1856 Haggins applied to W. W. Fry, attorney, to secure for him $5,000.00. This application was made by T. T. Brent for Hag-gins. Fry was the attorney and advisory counsel of appellant, and sought and secured the loan through W. W. North, son and agent of appellant, the notes and mortgage being made to T. T. Brent, and endorsed by him over to the appellant. Notes were executed, one for $5,000.00 without interest, and ten for $250.00 each, payable semi-annually, and bearing interest at 10 per cent. All of these latter notes were paid at maturity, but before the due date of the large note, Haggins applied for an extension of five years. The' old note and mortgage was cancelled and new notes and a mortgage was executed, the notes being one for $250.00 and nine for $500.00 each, payable semi-annually, a payment of $250.00 cash having been made. Notes bear interest at ten per cent.</p> <p>The administrator seeks to cancel such of these latter notes, as will amount to the usury, as shown in the transaction. A commissioner’s report showed usury of $1,520.00, which was purged. From a decree of the chancellor, sustaining the report of the commissioner, this appeal is prosecuted.</p>

<p>APPEAL EROM MARSHALL CIRCUIT COURT.</p> <p>This was a suit to enforce payment of the balance of the purchase price of a sawmill outfit. The petition avers the execution and delivery to plaintiffs of two notes of $500 each, due four and eight months, and a mortgage upon the outfit to secure same; that afterwards, Thomas S. Lackey and William Lackey, appellant, executed two notes for $539 each in two and four months, as additional security for the two notes first given. Defendants answering, denied that the mortgage was given at the time of the execution of the notes, but at plaintiff’s urgent, request, was executed some two months afterwards; that the last two named notes were given, with Thomas S. Lackey as security, in full satisfaction of the notes of $500 each and the mortgage, and that it was afterwards contracted and agreed that defendants could deliver for plaintiffs on the Ohio river at Hamletsburg, Ohio, 100,000 feet of lumber at $12.50 per thousand, to be in full satisfaction of the said last two notes. That pursuant to said agreement, they delivered the lumber at the place designated, and that by reason of the failure of plaintiffs to give them the benefit of the value of said lumber, they claim damages in the sum of $1,500. A demurrer was filed to the answer, and sustained. An amended answer was filed, alleging payment in full of the notes.</p> <p>The evidence showed that a contract was made with the agent of plaintiffs for the lumber as alleged in defendants answer, and that about 100,000 feet was placed on the bant of the Ohio river, in easy access for shipment, within the agreed time, and that afterwards, during high water, part of it was washed away.</p> <p>From a verdict and judgment for plaintiffs, defendants prosecute this appeal.</p>

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

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

This was an action brought in the Scott county court to close a certain road, which is alleged to be little traveled, and expensive to keep in repair. The road was less than a mile in length, and only two parties lived on same, one of whom was in favor of closing it. Another public road, was within a short distance, paralleling it within a half to three-quarters of a mile.

These parties entered into a contract to buy horses, to be sold to the United States Government, to be furnished in lots of one hundred at a time. A contract had previously been made by Henderson with the Government, whereby, amongst other conditions, the horses were to be inspected, and such as were accepted, to be paid for at $96 each.

<p>Husband and Wife — Lands Purchased by Wife — Erroneous Conveyance to Husband. —</p> <p>A deed from husband to wife, though technically invalid, is held good, where it is shown that the land' embraced therein was paid for by the wife out of her patrimony and the deed made to the husband through mistake. - v</p> <p>Same — Creditors Suit — Lien Created by Payment by Wife.</p> <p>In a suit by a creditor to subject the lands in the name of the wife, conveyed to her by her insolvent husband, it is held that the wife will have a prior lien thereon for moneys she paid for the land out of her individual means.</p> <p>Same — Sales—Oppressive Costs.</p> <p>A sale of the lands upon which a lien is thu3 created, to reimburse the wife, is held unjudicial where the value of the land is shown to be no more than the price paid- by the wife for which she holds a lien, and would create inconvenience and oppressiveness in its cost</p>

<p>Guardian and Ward — Duty of Guardian to Make Proper Report.</p> <p>The purchase by a guardian, of a portion of an estate of a deeendant, and execution of his note therefor to the father of his wards, will not -relieve him of his duty to report the indebtedness to the, proper court as the estate of the wards in his hands.</p> <p>Purchase of Personal Property by Wards Credited to account of Guardian.</p> <p>Where minors, purchase at a judicial sale, personal property, of the estate of which they are heirs and take possession of and use the same, continually, their guardian should be credited against an estate under his control with the amount bid by the ward’s. Or upon an adjustment of accounts said property should be turned in to the hands of the guardian.</p> <p>Principal and Surety — Judgment against Principal Alone — Erroneous.</p> <p>In a suit on a guardian’s bond, a judgment against the principal alone, is erroneous. It should be against the principal and his sureties.</p>

<p>Witness — Competency of for a Co-defendant.</p> <p>After judgment has been rendered against one of the defendants to a suit on a joint note, he is held to be a competent witness for his co-defendant in his defense to the action.</p> <p>Principal and Surety — Agreement for Delay Between the Principal Debtor and Creditor — Pelease of Surety.</p> <p>An agreement for delay between the principal debtor and creditor, will not exonorate the Burety, unless it be a binding agreement, founded on a sufficient consideration, which may be enforced to the detriment of the surety by suspending the right of action and thereby obstructing his legal or equitable rights.</p> <p>Same.</p> <p>The partial payment by a debtor of another debt due his creditor, is held not to be a sufficient consideration to uphold an agreement for an extension on- another debt, as to release a surety on same: this not being a new consideration, but a compliance with that he was already legally required to do.</p> <p>Same.</p> <p>In the absence of specific allegations or proof that the giving of a mortgage as additional security would have rendered an agreement to delay suing on the note for any specific time, obligatory and enforeible, it is not available as a defense for the surety, seeking to avoid his liability; but such aditional security is held to thus enure to the benefit of the surety.</p>

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

<p>Stock Brokers — Specific Contract — Custom and Usage Amongst Brokers.</p> <p>Where in the pleadings, there is a conflict as to the terms of a contract between stock brokers, and no evidence tending to establish the agreement, the court will assume the contract to be according to the custom and usage between brokers and their customers in relation to transactions of a like character.</p> <p>Same.</p> <p>A broker is bound to obey strictly the orders of his customers or principal in relation to keeping or disposing or stocks in his hands, and so long as the principal keeps up his margin, the broker is not authorized to dispose of the stocks: should he do so he would be liable to his principal for ills highest price the stocks may have attained during the time of the transactions.</p>

<p>of Wording of Will.</p> <p>A will which devises lands to Mrs. Edwards “and the heirs of her body forever,” is held to create in the estate thus devised, a fee simple title.</p> <p>Lands and Conveyances — Deeds by heirs, of an Expectancy. A sale of</p> <p>as conveyances, to one, under the supposition that their mother had only a life interest in property devised her by her husband, will be confirmed, and the title subsequently acquired by the grantors, from their mother, will inure to the benefit of their vendee so as to vest a legal title in him.</p>

<p>Fixtures — Landlord and Tenant.</p> <p>' A claim of a tenant to have buildings, put upon the leased premises for his convenience and for the purpose of trade, considered as personal property, is to be considered with the greatest latitude and indulgence. And is held, that the Circuit Court did not err in so considering the claim of appellee.</p>

' APPEAL PROM LOUISVILLE CHANCERY COURT. This was an action in equity by appellant, to annual a judgment at law obtained by appellee, upon which an injunction was obtained upon the following facts: That appellee having been indicted in the city court of Louisville, fled to Canada to avoid arrest, and while there, sent a power of attorney to appellant to transact all business for him, sell his land, etc., and his wife, coming back to Louisville, saw appellant, and they had…

<p>Evidence — Facts as to wrongful Conversion of Property — Demurrer.</p> <p>Facts in a petition as to money alleged to have been eo-erced from the plaintiff and which may be denied by the answer, are questions for the-consideration of the jury; and a demurer to the petition should have been over-ruled.</p> <p>Threats — Money Obtained by Co-ercion — Demurrer—Actions.</p> <p>Money obtained from a plaintiff by threats to have' his son arrested for an alleged offence, is a proper ground of action for recovery, and it is error to sustain a demurrer thereto.</p> <p>Tort — Actions for Recovery Under.</p> <p>To render a defendant liable for the conduct of others in an action for the wrongful taking of property, it must be shown that there was an active participation in the taking, or that he advised and counselled therein.</p>

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

<p>Dower — Right to Collect Rents on Mansion House until Dower Assigned. Though the rents from a deceased estate including the mansion house,</p> <p>may amount to more than the wife’s one-third of the rental value of the whole estate, she cannot be deprived of the rents to her exclusively from the mansion house, since she - is entitled to hold that and curtilage without charge until her dower may be assigned her.</p>

<p>Deeds — Mistake in Drafting — Intention of Donor.</p> <p>A father intending to divide all his lands to his children, Instructed his draftsman, to make out deeds to each of his daughters. Only one of the deeds was read over to him before signing all. Afterwards it was discovered that one of the deeds was made to the husband of one of the daughters and this only shortly before her death. The property was recognized by the husband, as belonging to his wife, during her life: Held to be such a mistake as will authorize the court to cancel the deed to the husband.</p>

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

<p>Lands and Conveyances — Joint Owners.</p> <p>The preponderance of evidence as to a purchase of lands by joint owners, though the deed be taken in the name of one, held to be sufficient to adjudge against an estate a reconveyance of one half to the surviving- brother.</p>

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

<p>Pleadings — Parties to Suit.</p> <p>In a suit to enforce a specific conveyance, for a division of property ordered by a judgment of court, it is proper to join as parties defendant, all persons in possession of the land, by pretended purchase or otherwise.</p>

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

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

<p>Descent and Distribution — Life Estate — Remainder.</p> <p>A remainder interest in a life estate,' is subject to sale under an execution, and an absolute deed therefor may be made.</p> <p>Same — Remainder.</p> <p>The father of the remaindermen, having purchased their interest at execution sale his nóte, given therefor is subject to be paid out of the deceased estate. But this will not affect the life estate of the wife in the land and she cannot be estopped from asserting her tenancy to the tract.</p>

<p>Contracts — Covenants—Specific Execution.</p> <p>An covenant by several obligors to pay certain debts out of any church funds that may come into their hands, will render them personally liable for a breach thereof, where such funds were proven to have been received by them.</p>

<p>Vendor and Purchaser — Reservation in Deed — Consideration for Release.</p> <p>A deed contained the following provision “said vendors reserve for their use, etc, a sufficiency of said land, for their support and maintenance during their lives.” Arbitrators having been appointed, some 30 acres were set aside for use of Royse and wife. At his death, the wife entered into an agreement with Blair the purchaser^ “conditioned that when the surplus on hand etc., shall be used by me as a support etc., that he will on request of me, or my agent, lay off a sufficiency of land according to the arbitration bond now filed in Milton Howe’s office, according to the requirements of said bond.” Whereupon she surrendered to Blair the land. Held that in the absence of the filing of said bond or proof, and no provision being made for the support of the wife, it was without consideration for the surrender of the land.</p>

<p>Landlord and Tenant — Tenant not Liable for Natural Decline in Value.</p> <p>A tenant cannot be held liable for the natural decline of property, used by him in the cultivation of a farm, where the stock, impliments, etc., were to be furnished by the landlord.</p> <p>Same — Rents—Damages for Non-Performance of Contract.</p> <p>Under a contract between landlord and tenant, to cultivate a farm and profits to be yearly .divided, the landlord is not entitled to charge for rents of the farm. If the tenant fails to perform his contract, the landlord is entitled to damages, but a reasonable rent of the land, would not be a criterion therefor.,</p> <p>I</p> <p>Limitations — Statute of.</p> <p>In the settlement of mutual accounts between landlord and tenant, under a specific lease, the Statute of Limitations will not apply for either party.</p> <p>Landlord and Tenant — Tenant Entitled to Credit for Portions of Lands Sold by Landlord. '</p> <p>In a settlement of accounts between landlord and tenant, the tenant is entitled to credit for an allowance for whatever portion of the leased premises may have been sold and delivered to others by the landlord.</p>

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

<p>Divorce — Pendente Lite Allowance for Maintenance.</p> <p>An order of Ccmrt for a payment of $300 to the wife for her maintenance in an action for a divorce, a vinculo, held not to be excessive, but necessary and proper by the action of the plaintiff in prosecuting his suit.</p> <p>Costs — Divorce.</p> <p>Under Sec. 32, Chap. 25, Rev. Stat. requiring the husband to pay all costs of a divorce suit, where the wife is not in fault, held, that though the lower court granted the relief of the plaintiff, for which a reversal could not be had costs were properly adjudged against him on the evidence, the wife proving their separation to be only ¡Temporary.</p> <p>Covenant — Divorce.</p> <p>A contract of separation by husband and wife, with a provision which obligated the wife not to impose on him any liability “nor in any manner whatever, make him or his estate responsible for any money or debts other than the note before mentioned,” held not a guarantee against an allowance, pendente lite, by the court of $300 for the maintenance of the wife.</p>

<p>Trusts — Right of Redemption of Trust Property — Sales.</p> <p>A sale of mortgaged property with a right of redemption by the mortgagor being given by the purchaser, the property being of a value of $2.000 and sold for $179.08, and the mortgagor continuing in possession without a definite contract as to rent or future surrender, is held not to be a sale absolute, but in trust for the creditors of the mortgagor.</p> <p>Same — Lien.</p> <p>Upon a subsequent sale of the property, the former mortgagee will be entitled to a prior claim upon the sale funds, out of which his lien will be first settled.</p> <p>Accounts — Accounting—Guardian and Ward.</p> <p>An account against a guardian, though the evidence conduces to prove a part of same was not just, where the guardian admits the whole amount to be due, and himself became a witness to prove it, will be enforced by a judgment of the Court, as against a third party.</p>

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

<p>Fraudulent Conveyance — Lasches—Creditors.</p> <p>Where one assigns all chattels, choses in actions etc., for the benefit of his creditors, and 'the trustee appointed, fails -to act, and the assignor permitted -to control, consume or squander the assets, the creditors are held to be guilty of lasches.</p> <p>Same — Proof of Insolvency of Debtor — Estoppel.</p> <p>In the absence" of proof of the insolvency of a debtor, but that the evidence conduces to show that all personal property, assigned for the benefit of creditor, was ample to liquidate all claims, the creditors will be estopped from further action to set aside conveyances of real estate as fraudulnt.</p>

An action ordinary was instituted in February, 1866, against Shean by appellees to recover $1,050 rent on 104 acres of land for a period of five years, which Shean had in use, and in April, 1866, an amended petition, was filed, alleging an indebtedness of $1,075 for hire of personal property.

<p>Criminal Law — Indictment—Offence of a Breach of Tavern Bond.</p> <p>A surety on the bond of tavern keepers cannot be prosecuted under an indictment alleging an “offence of a breach of tavern bond.” A surety is not subject to indictment; he can only be proceeded against under a civil action.</p> <p>Same.</p> <p>Such proceeding, being a prosecution, not for a misdemeanor, but for a mere breach of his obligation to recover the statutory penalty, is not the subject of an indictment, which is an accusation by a grand jury charging a person with the commission of a public offence.</p>

<p>Fire Insurance — Cancellation of Policy.</p> <p>The wrongful procurement of a policy of Insurance by the Company, and cancellation of same, will in no manner protect them against their responsibility on account of the loss of the insured property by fire.</p> <p>Same — Duty of Agent to Properly Describe Property.</p> <p>A variance between the policy and the application as to the description of the property is unavailable to the Company it being their duty in filling out the policy to describe it to a common intent; for which error, they are at fault, and not the insured.</p> <p>Attachment — Creditors Eight to Proceeds of Insurance Policy.</p> <p>A creditor, as vendor of the insured property of one to whom the policy had been asigned, has a right to attach the liability of the Insurance Company to the assignee. '</p>

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

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

<p>Pleading — Time of Piling Answer and Cross Petition.</p> <p>A pleading filed as an answer and cross-petition after the final decision of the appellate court, and before the mandate had been entered in the Circuit Court, could not be admitted as an answer, and as a petition for review, it is premature until the mandate had been entered.</p> <p>Same — Bill of Review — Newly Discovered Evidence.</p> <p>In the absence of an allegation in a bill of review, that evidence, offered to sustain same, might not; by ordinary diligence, have been discovered in time to have been used on the first hearing, it is not error to dismiss the proceedings.</p>

<p>Appeal and Error — Appearance in Appellate Court — Waiver of Errors.</p> <p>■ The appearance before the appellate court by brief, of an administrator, and as to whom no appeal had been taken nor bond executed, will cure any defects in errors or irregularities, against which he cannot complain.</p>

A petition was filed in the Garrard circuit court by the heirs of E. Higgenbothom against appellees to cancel deeds executed by E. Higgenbothom and wife to them, which were made some fifteen or twenty years prior thereto, claiming that the deeds had been secured by undue influence and false representations. Defendants answering, denied all the allegations of the petition, and claimed the land purchased in good faith, for a valuable consideration.

This was a suit for ouster of appellant from certain lands -held by him under lease from Merritt ITodges. Klette was the original owner of the land, and his tenants allowed ITodges, some 10 or 12 years before, to come into possession of same, under an alleged lease from Klette, and three years before the institution of this action Hodges placed John Casey in possession as his tenant, who refused to vacate, claiming title to the lands.

Michael Murpby sued Henry 0. Howard for $82.03, being the balance claimed due him for services as a farm laborer, part of his wages, some $111, having been paid by his employer. Defendant answered, denying the indebtedness, or any part thereof, but alleged in justification of his refusal to pay the demands of plaintiff, that he had employed said Murphy to work for him for one year for the sum of $300.

<p>Pleadings — Answer—Necessary Parties Alleged to have been Omitted.</p> <p>In a foreclosure proceeding, where several parties are interested, the-. that other parties are interested, and should be joined as defendants,, to be a good defense it must also show the facts, and how that interest, occurs to enable the court to determine the question.</p> <p>Judgment — Must Show all Interests in Mortgaged Property.</p> <p>In a forelosure proceeding, where several parties are interested, the-judgment must show the particular interest of each, to determine their-standing in the issue.</p> <p>Mortgages — Sale of Property Under Execution — Installments Not Due.</p> <p>Where a judgment directs the commissioner to sell so much of the-land as may be necessary to pay the installment of the purchase money then due and sued for if the whole tract would not bring more or not. even enough to pay same, that fact would not deprive the judgment creditor of his right to his judgment and the execution thereof, other-installments being not yet due.</p>

<p>Marshal’s Bond — Mistake in Eexcution — Default Judgment.</p> <p>On appeal from a judgment by default as to the validity of a marshal’s bond reciting that “David Webb, as Marshal,” and others as “sureties do hereby covenant that the said David Webb as constable of Daviess county shall well and truly etc.,” an objection as to this informality is not available for the first time in the Appellate Court.</p>

<p>Equity — Guardian and Ward — Necessities for Ward’s Maintenance.</p> <p>A ward cannot hold her guardian responsible for necessities furnished her, beyond her annual revenue which he had a right to anticipate, in the belief that ultimately the aggregate outlay would not exceed the aggregate income.</p> <p>Same.</p> <p>The matrimonial outfit of the ward is held to be “necessities” in a suit by a ward against her guardian for recovery of amounts advanced her beyond her annual income.</p> <p>Same — Accounting—Waiver of Rights.</p> <p>A settlement with a guardian by his ward and her husband, based on the cómmisisoner’s report, is held to waive her right of action against the guardian for payments to her upon her order, though they exceed her annual, income.</p>

<p>APPEAL EROM HARDIN CIRCUIT OOURT.</p>

<p>Judgment — Favorable to Defendants."</p> <p>A judgment of court, more favorable to defendants than the record discloses, and from -which the complainants do not appeal,, will not be disturbed.</p>

<p>Demurrer — Defense to Action on Note — Pleading.</p> <p>Where the facts, in an answer to a suit on a note, show it to have been given in consideration of a half interest in a business, and that the plaintiff had made no settlement of the partnership affairs, which was in liquidation, it is sufficient to constitute a good defense, and a demurrer thereto should be overruled.</p>

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

appeal PROM louisville chancery court The 22nd clause of the will which is referred to in the opinion is as follows: “As my brother, William Garvin, has requested that I should not leave any legacy to him, and as he and his family do not stand in need of it, at his request, I have omitted any provisions for his benefit, but as a substitute therefor, and as a testimonial of my warm and sincere affection for him and his family, I bequeath to my said brother, William Garvin,…

The words spoken by defendant and sued on as slanderous, by the plaintiff are as follows, to wit: “Mary Fresh, you are a whore; a bad woman.” Then to John Fresh, husband of Mary Fresh, defendant said: “Your wife cuts herself in the finger, when she was Brown’s wife, and before you, Fresh, married her; you, Fresh, understand what I meañ, Brown had to get a doctor to cure ber twice.” Defendant tben langbed and said: “You, Fresh, understand that.” All being spoken in the…

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

<p>Judgment — Damages Assessed by Jury — Justice Court — Trespass.</p> <p>In an action for trespass, before a justice of the peace, a failure to have the damages assessed by a jury, will not make the judgment void, but voidable only.</p> <p>Same — Appeal.</p> <p>Such a judgment can only be corrected on appeal from the Justice Court to the proper tribunal, and not by objection in the Court of Appeals that judgment was void.</p> <p>Jurisdiction of Justice Courts — Jefferson County.</p> <p>An action for trespass quare clausum fregit, though by implication is an assertion of actual possession, does not come within the prohibition of the act of 4th of March 1866, Myers, Suppt. 575, regulating the jurisdiction of Justices of the Peace for Jefferson and Kenton counties.</p>

<p>Depositions — Exceptions to — Waiver.</p> <p>After exceptions to depositions have been sustained, the depositions withdrawn, and then by agreement of the parties, the plaintiff is permitted to read the depositions upon the trial of the cause, the objections are thereby waived, and cannot be available for reversal in the Court of Appeals.</p> <p>Evidence — Irrelevant and Incompetent.</p> <p>Though it be competent to prove by a witness what the laws of Congress are, and Government rights, if irrelevant and not pertinent to the issue, such evidence should be rejected on objection to same.</p>

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

<p>Bills and Notes — Co-Sureties—Presumptive Notice.</p> <p>C. J. Taylor and Merrill were principals in a note given by them for borrowed money while they were partners in business. A new note was given by them in lieu of the old one, signed 0. J. Taylor, and Merrill “surety.” S. P. and J. G. Taylor also signed the last note as sureties: Held, that the word “surety” after the name of Merrill may have been presumptive notice to the other - parties, of the character in which he assumed to bind himself, this would not make him the co-surety of S. P. and J. G. Taylor unless he had ceased to stand, as between him and 0. J.' Taylor, in the attitude of principal in the original debt.</p> <p>Same.</p> <p>The evidence showed that on the dissolution of the partnership, 0. J. Taylor undertook to collect the means of the firm and out of that, pay the debts. This would not change the character of Merrills responsibility from principal to surety. Until this agreement was fully carried out, the obligations were the debt of both.</p>

<p>Adverse Possession — Thirty Years Occupancy — Paper Title not Necessary.</p> <p>A claimant of land under a senior patent who has been in possession constructively for more than thirty years, is not required to show actual record title, in defense of his claim.</p> <p>Evidence — Arbitrators Award Competent Testimony.</p> <p>. In a suit between two claimants for land, where the vendor, under whom paintiffs claim, accepted a deed to an! asserted title to the land. ’ recognizing the boundary as fixed by arbitrators, such an award is held to be competent evidence to establish title.</p> <p>Lands and Conveyances — Adverse Possession — Boundaries.</p> <p>The possession of land under an Older patent, constructively puts the party in possession, • up to the patent boundaries ,which constructive possession cannot subsequently be ousted under a junior patent only by actual enclosed possession.</p>

<p>APPEAL FROM JEEEERSON CIRCUIT COURT, C. P.</p>

<p>APPEAL EROM JEEEEBSON CIRCUIT COURT. CITY.</p>

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

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

<p>Lands and Conveyances — Sale to Son by Father — Unpaid Purchase Price— Distribution.</p> <p>A sale of land by father to son, for a consideration, only a small portion of which is ever paid by the son, is hold to inure to the benefit of all the heirs less an advancement to him, equal in proportion to that each of the other children may have received.</p> <p>Deeds — Acknowledgement of Payment of Purchase Price not Conclusive.</p> <p>The acknowledgement of payment in a deed of conveyance cannot be held to be conclusive, but is subject to be rebutted.</p> <p>Parent and Child — Contract of Child to Support his Parents — Consideration.</p> <p>A conveyance by a father to his son of a valuable estate in consideration of his giving them a support, cannot be enquired into by the other children after the death of the parent, no complaint by them nor the other heirs, having been made during the life of the parents.</p> <p>Same — Fraud and Undue Influence.</p> <p>Nor can a plea of fraud and undue influence be substantiated, after submitting for more than eighteen years, whilst the son was supporting his parents: After their demise, the heirs should not be permitted to attempt the vindication of their injured parents’ rights, when too late to do them any good, and when all the benefits would inure to them.</p> <p>Gifts — Parent and Child — Advancements.</p> <p>In a suit for restitution by some of the heirs against a son, for distribution of property placed in his hands by the father, each of the heirs is held entitled to an advancement equal to the largest amount made any one of them during the life of the parent, to be first paid to them out of the whole estate.</p>

The instructions referred to in the -opinion of the court are as follows, to wit: For plaintiff: “If the jury believe from all tbe evidence in tbis canse that the plaintiff and defendant traded borses and each delivered to tbe other tbe animals so traded, and that tbe defendant, witbont tbe knowledge and consent of plaintiff, took from tbe possession of plaintiff bis mare, then they will find for plaintiff, and in their verdict ascertain and fix tbe amount claimed in tbe…

<p>Instructions— Action on Open Account.</p> <p>In a suit against the firm of Alexander & Co., for the proceeds of the sale_ of tobacco, their correspondent having remitted the proceeds to the credit of the firm of Jo. B. Alexander & Co., of the same town, an instruction “that any one or more of the members of said firm of Alexander & Co., had a right to direct the mode of transmitting the proceeds of the tobacco to them, and if Kirkpatrick & Co., in good faith transmitted the proceeds to their correspondent, believing the letters from Jo. B. Alexander & Co., was the firm of Alexander & Co., without knowledge that there were two firms different in their constituent members, the transmission would bind all,” is held to be a proper construction of the law.</p> <p>Same.</p> <p>And the following instruction was properly refused; “that a payment by Kirkpatrick & Co., on the order of Jo. B. Alexander & Co., did not bind the firm of Alexander & Co., although such order was understood and acted upon by Kirkpatrick & Co., as the order of Alexander & Co., of whom said Jo. B. Alexander and Baker were members.”</p>

<p>Bills and Notes — Fraudulent Sale to Hinder and Delay Creditors.</p> <p>Two notes were given to Benton, by A. M. and Z. C. Merrill. Benton then placed both notes in the hands of Richardson for collection and then assigned the receipt of Richardson to Crawford. In the absence of proof of a valid sale for a valuable consideration, or a ’satisfactory , explanation as to the different transfers, it is held that creditors of Benton could attack the attempted collection of the notes by Crawford, as having been transferred to defraud creditors.</p>

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

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

<p>APPEAL PROM JEPPERSON COURT. C. P.</p>

<p>Divorce.</p> <p>A divorce, a mensa et thoro, where the proof shows that though for some years her husband had been habitually drunk and had treated her cruelly, yet, within the statutory period of five years before institution of her suit, his intemperance was only occasionally and unaccompanied by maltreatment, neglect or essential waste, and had attempted a reconciliation and restitution of conjugal rights, is held to be all that the evidence justifies.</p>

Bruce & Go. filed their petition in the Daviess circuit court, seeking recovery on a bill of acceptance, drawn September 23, 1867, and accepted same day by Crowe & Co. Defendants demurrer being over-ruled, they answered alleging in bar of their action that Bruce & Go. agreed with them at the time of the acceptance of the bill, that they should have four months’ time in which to make payment, and left the acceptance with the Deposit Bank of Ownsboro for convenience of…

<p>Statute of Limitations — Promise to Settle Mutual Accounts — Instructions.</p> <p>In a suit on account, where the plea of limitations is filed with the answer, a refusal of the court to give an instruction for the defendant, that a promise to settle mutual subsisting accounts or an acknowledgement that he did not dispute plaintiffs account but that he had a larger account against ' him, was not such an acknowledgement as would take the accounts of the plaintiff out of the Statute of Limitations, is held to be erroneous</p> <p>Same — Express Acknowledgment of the Debt.</p> <p>In order to take a case out of the Statute of Limitations an express acknowledgment of the debt, as a debt due at that time (coupled with the original consideration), or an express promise to pay it, must be proved to have been made within the time prescribed by the statute.</p> <p>Same.</p> <p>This rule should never be extended beyond its letter, and therefore none but an express acknowledgment of the subsistence of the debt, from which it may be reasonably inferred that the party making it, intends to pay the debt, will be sufficient.</p> <p>Exceptions to Instructions — When Must be Made.</p> <p>Unless an objection be made to an instruction, when it is offered, it cannot avail an appeal, though an exception be taken to the ruling of the court when the instruction was given.</p> <p>Evidence — Jury to Determine its Weight — Peremptory Instruction.</p> <p>Evidence introduced by a defendant tending to prove an indebtedness of the plaintiff on the accounts relied on as set-offs should be submitted to the jury, that they may detrmine what parts, if any, or how much of the accounts had been proved, and not by a peremptory • instruction limit the credits to the admissions in the reply.</p> <p>Limitation of Actions — Set-off and Cross Petition.</p> <p>A set-off being a substitute for a cross petition ,and as to the time the statute began to run, must be treated as brought simultaneously with the original action.</p>

<p>Pleading — Answer, When not Required to be Denied under Oath — Written Instruments Filed. ,</p> <p>Where in an answer a receipt is referred to as having been duly-signed by the plaintiff, it must be filed with the pleadings in order to require the,plaintiff to a denial of same under oath. The averment in the answer that it was executed, is not sufficient.</p> <p>Mortgages — Fraudulent Transfer.</p> <p>Facts as to dismissal of a suit to foreclose a mortgage, and a receipt given in full liquidation by acceptance of rent notes by mortgagor, held sufficient to declare fraudulent a subsequent assignment of said mortgage, and denial of genuineness of the receipt.</p>

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

<p>Judicial Sale — Warranty of Title.</p> <p>The court having construed a deed, as being a mortgage and ordered a sale to liquiate the debt for which the deed was executed, the mortgagee cannot then be required to warrant the title to the purchaser at the forclosure sale. He can only be required to reconvey such title as he received from ,the grantor.</p>

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

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

<p>Boundaries — Patents—Meanders of River — Accidental Divergence.</p> <p>A patent in a survey that calls to run from a point of beginning, with the meanders of a river, necessarily imports that the river is the boundary. And though the courses and distances as designated may not always correspond with the sinuosities of the river, yet, as in all other cases of apparent and generally accidental divergence, the natural boundary controls and defines the land appropiated.</p> <p>Adverse Possession — Conflicting Occupancy.</p> <p>Without conflicting occupancy, the long possession by residence under - an elder grant, • claiming possession and use co-extensively with the entire boundary of a patent, is constructively actual and adverse possession to the same extent.</p> <p>Same — Statute of Limitations — Right of Action.</p> <p>The Statute of Limitations, limiting the right of entry to fifteen years, will not bar an action for recovery of land, in a suit between conflicting patents, and will not begin to run until after the junior patent has been actually obtained, since the plaintiff would have no right of entry or cause of action, until, so obtained.</p>

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

<p>Bills and Notes — Usury, Waiver of Claim for — Administrators.</p> <p>An obligor and sureties in a note, haye the right to claim usurious payment of interest on a note, given a deceased, while that note is in the hands of the administrator.</p> <p>Same.</p> <p>But where it has passed into the hands of one of the distributees as his share of the estate, and the distributee is induced to accept a renewal, and to receipt the administrator in full settlement, the estate being closed, they cannot then set up a claim for usury except for that part as would have fallen on the distributee as his share of such loss based on a prorata distribution.</p> <p>Same.</p> <p>A right they had, while the note was in the hands of the administrator, was waived by inducing the distributee to take the new note, except so, far as his individual interest therein.was concerned.</p>

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

<p>New Trial — Violation or Eight Instruction by Jury.</p> <p>Though there-be no substantial error in giving or refusing instructions, a verdict inconsistent with a proper instruction given, will authorize the granting of a new trial.</p> <p>Evidence — Interested Party to Suit, as a Witness.</p> <p>One whose interest appears as against a defendant, and for the plaintiff, in a suit for breach of warranty, is incompetent as witness.</p> <p>Instructions.</p> <p>Where a private sale, under an execution levy is made, and no proof, in a subsequent action, that this sale, produced as much as a public sale, it is error for the court to refuse an instruction, “that such a sale was a breach of the sheriffs bond and made him liable to this action for whatever damage resulted to Powell from failing to make a public and official sale of the horses.”</p> <p>Idemnifying Bond — Execution Sale — Sheriff.</p> <p>In the absence of proof or notice that property levied on under an execution belongs to other than the execution debtor, the sheriff has no right to require an idemnifying bond.</p> <p>Same — Notice of Sale Without Bond.</p> <p>If the sheriff has, in good faith, reasonable doubt as to the liability of property to the execution, he has no right to release the levy, without reasonable notice to the execution debtor that he would not sell without a sufficient bond.</p> <p>Same — Sufficient Notice to Execution Debtor.</p> <p>Notice to an' execution debtor, of a discharge of a levy, without a bond of indemnity be forthcoming, given at twelve o’clock on the day of sale, held insufficient.</p> <p>Same — Evidence—Interested Witness.</p> <p>The levying deputy, being liable to his principal for a release of the levy, he was incompetent as a witness to prove a reasonable notice on his demand of the execution debtor, for a bond of indemnity.</p>

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

<p>Judgment Against a Non-Resident — Pleadings—Essentials of Petition.</p> <p>As a petition, against a non-resident, averring a readiness to convey lands sold to defendant, stands traversed, it is essential to recovery, that the plaintiff show he possesses an unencumbered legal title, and a tender of such a deed made in court.</p> <p>Same.</p> <p>It is error to adjudge a sale of a defendant, non-residents’ property, where the allegations of the petition neither allege nor seeks to point out the interest the defendant holds in the property, nor such title shown in the judgment.</p> <p>Sale of Personal Property — Stock in a Petrolium Company.</p> <p>The measure of damages for failure to pay for subscription to stock is not its par, but its cash value on the day to be paid.</p>

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

<p>Attorney and Client — Excessive Eee in Divorce Proceedings.</p> <p>Though the evidence may show the services of attorneys for the wife, in divorce proceedings, to be worth $300, in the absence of evidence as to the ability of the husband to make such a payment in that the estate is not ample, the court will not reverse the court below for an allowance of only $150.</p>

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

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

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

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

<p>Witness — Competency.</p> <p>One, who is remote vendor of an appellant, is held to be a competent witness for him, and his evidence being material, and not known what effect it would have with the jury, the court erred in rejecting</p> <p>his depositions.</p>

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

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

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

<p>Jurisdiction — Action for Trespass by Master of a Steamer.</p> <p>An action of trepass nlay be maintained against the master of a steamer, for wrongs committed, though no action therefor could be maintained against the boat except in the Admirality Courts of the United States.</p>

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

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

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

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

<p>Consignment of Goods to be Sold on Commission — Responsibility for Loss by Fire..</p> <p>Where the evidence conclusively shows, that goods, consigned to a merchant, were simply sent out to be sold on commission, he can be held responsible only for the portion disposed of, his store and contents being destroyed by fire.</p>

<p>Discretion of Court to set Aside Judgment.</p> <p>Acting under Sec. 800, Civ. C. the Chancellor, suspended a judgment rendered, within the prescribed time, held, that having thus retained the power, within a reasonable time thereafter, to set aside the verdict, he did not abuse a legal discretion in subsequently doing so.</p>

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

<p>Judgment at Same Term Answer Filed, without Citation or Appearance.</p> <p>It is error to render judgment against a defendant on a cross petition, during the same term it was filed, without citation or appearance, or a waiver of it not appearing in the record.</p>

<p>Pleading — Cross Petition.</p> <p>Where a cross petition and counter-claim depend on the facts stated in the answer to original petition, held that those facts showing imposture and entire want of title either legal or equitable, are admitted by the failure to respond to the allegations specifically, as required by the Code.</p>

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

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

<p>Sureties on Bond — Liability for Default of Sheriff — Estate.</p> <p>Where a settlement is made by a sheriff with the court commissioner, 'showing a balance due, in a suit against his sureties, and the administrator of his estate, they are held jointly liable.</p>

<p>Commissioners Sale — Presumptive as to Advertisement.</p> <p>In the absence of proof to the contrary, it will be presumed that the commissioner advertised the sale as directed by the judgment, espe* daily when his report shows he did.</p> <p>Pleadings — Defective Petition Cured by Subsequent Pleadings and Exhibits.</p> <p>The facts set out in the defendants answer and cross-petition together with the title bond filed therewith, clearly shows that there was a vendor’s lien as to all the notes. Held that the defect in the original petition was thereby cured, at least after judgment.</p>

<p>Pleading — Petition on Merchants Account — Price of Goods — Agreement.</p> <p>The allegations, in a petition on a merchants account, that the debtor is indebted to him in the sum of fifty-five dollars for goods and merchandise sold and delivered by the plaintiff to the defendant, the particulars of which are set out in an account filed therewith imparts prima facie, that the price had also been agreed upon or that they were reasonably worth it, and must be deemed setting out a cause of action.</p> <p>Same — Averments in Answer Denied by Law.</p> <p>The answer averred that the tea was not of the' quality authorized to be purchased by them and that they had offered to return it. Held, that this averment stands denied by law, nor is this deficit supplied by the offer in the answer to return it.</p>

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

<p>Principal and Agent — Attachment of Funds in hands of Agent — Right to Retain Fund for Indemnity — Injunction.</p> <p>An agent has an equitable right to retain the funds of his principal for indemnity and to enjoin any appropiation of it by the attaching creditors.</p>

<p>Adverse Possession — Notice—Registration of Deed — Limitation.</p> <p>Where lapse of time and the Statute of Limitations are relied on as a bar to an action to recover possession of land the plaintiff will be presumed to have notice o fthe adverse holding from the time of the registration of the deed.</p>

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