Volume 3 — Kentucky Opinions

<p>Pleadings — Ee-opening of Former Adjudications of Same Subject.</p> <p>After answer and proof, on a petition filed by the plaintiff to try a cause of action reversed on a former appeal, if the special causes set forth, be not sustained, the court could not go behind the former adjudication to retry the questions then presented and involved in the record.</p> <p>Judicial Sale of Land Under Attachment — Fraud or Collusion Charged.</p> <p>A judicial sale of land, under an attachment proceeding against a then non-resident, will not be set aside in the absence of fraud and collusion, even though a former, judgment in the same proceedings had been reversed for lack of proper service.</p> <p>Bill of Rights — Duty of Debtor to Discharge Debts — Arbitrary Power.</p> <p>It is not deemed absolute, arbitrary power to compel a debtor to pay what he owes, however efficient or speedy the remedy may be, these being considered as sustaining the obligation of the contract.</p> <p>Same — Debtor and Creditor — Delays in Payment of Debt.</p> <p>All delays after debts are due are regarded as matters of grace on the part of the creditor or the government, especially when regulated by law.</p> <p>Rights of Citizens — Wrongful Taking of Property.</p> <p>To take from a citizen his property without just compensation paid or to be paid, may be justly denounced as absolute, arbitrary power, within the constitutional meaning, but not so where he is merely compelled by legal process to pay out of his property moneys he may owe to others.</p> <p>Attachment — Constitutional Construction.</p> <p>An attachment, authorized by a legislative enactment, is not invalid, which seeks to subject a citizen’s property, by reason of his violation of its provisions, and is not in conflict with the constitutional provision, declaring “absolute, arbitrary power over the lives and property of freeman exists nowhere in a republic, not even in the largest majority.”</p> <p>Attachment — Proceedings Under Legislative Enactment — Right of Debtor to Attack.</p> <p>Though an attachment be authorized and is instituted under an act of the legislature, it does not prevent the debtor from showing the irregularities in the issual of the attachments, particularly those that would vitiate them.</p> <p>Appearance — To Attachment Suit.</p> <p>The appearance to a suit in attachment," removes the necessity of taking refunding bonds as required by the Civil Code as against a defendant constructively summoned, as the creditors could proceed to .obtain judgments in personam.</p> <p>Same;</p> <p>This would not preclude the defendant, by proper' proceeding, from defeating the attachment in whole or in part, for any legal cause existing previous to such appearance.</p> <p>.Process — Constructive Appearance.</p> <p>However defective may be the warning orders in an attachment suit against a non-resident, his appeal to the Appellate Court, is constructive service, and equivalent to an actual service at the filing of the mandate in the lower court.</p> <p>Judgments — Reversal by Appellate Court.</p> <p>After a judgment in rem has been reversed, in an attachment suit, on constructive service, and no judgment in personam rendered on appearance in the court below, it is error for the court to treat said judgment as against the defendant, and allow a judgment over for the excess received by the creditors.</p> <p>Same.</p> <p>The court should ascertain the amount owing each-, creditor, to be cancelled out of funds received by each, and order a return into court of tffe surplus.</p> <p>Same — Debtor and Creditor — Right of Action for Wrongful Attachment.</p> <p>The debtor is thus entitled to an action of damages against such creditors for any sacrifice unnecessarily caused him by such wrongful attachment.</p> <p>Executors and Administrators — Creditors Right of Action Against.</p> <p>A judgment should not be rendered against an administrator in an attachment proceeding, until the creditors shall manifest, in proper form, their claims against the decedent’s estate, for the heirs and distributees are the substantial parties to be affected.</p> <p>Same.</p> <p>The creditors are not relieved of this necessity even though their claims be against an absconding administrator, proceeded against by attachment.</p> <p>Same;</p> <p>Without a personal judgment against an administrator, nor against him in his fiducial capacity, in an attachment suit, his individual means cannot be converted to the payment of debts of the attaching creditors of the intestate.</p> <p>Judgments — Motion to Dismiss Proceedings on Reversal of Cause.</p> <p>Where a judgment has been reversed, and on trial of the consolidated cause in the court below, the dismissal of a motion of the plaintiff to strike out the attachment proceeding of the creditors whose judgments were thus reversed, cannot prejudice the plaintiff’s rights, as upon such dismissal, the court could not revive the reversed judgments.</p>

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

<p>Bailments — Leaving Property Without Instructions as to Ownership.</p> <p>The mere leaving of personal property with a bailee, will not invest him presumptively with ownership.</p> <p>Same.</p> <p>He would only hold a special property, so long as he held possession, and his special rights and responsibilities would end, when the property was taken from him by others than the bailor.</p> <p>Personal Property — Transfer of Same with Notice — Estoppel.</p> <p>An alleged owner of personal property, who is present and makes no objection to a transfer thereof by another party, is estopped from afterward setting up a claim thereto.</p>

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

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

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

<p>Fraudulent Conveyance — Court of Equity Will Not Aid.</p> <p>Property conveyed or transferred by a tfiutual arrangement of parties, for the purpose of defrauding the-creditors of the real owner, cannot be recovered, by the aid of a couit of equity, from either party by the other.</p> <p>Descent and Distribution — Legatee’s Suit for Recovery of Property Fraudulently Transferred.</p> <p>A distributee, suing for the- recovery of property transferred by the deceased under a fraudulent agreement with the defendant, cannot occupy a more favorable position in respect to the fraudulent transaction, than the deceased himself.</p>

<p>Pleading — Burden of Proof — Avoidance.</p> <p>A defendant sought to avoid a bond, on the grounds that the plaintiff procured his signature, to the power of attorney, by deceiving him as to its nature and object. Held, that this issue devolved oH'the defendant the burden of proving the facts thus alleged.</p>

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

<p>Fiduciary Relations — Release of an Implied Warranty.</p> <p>A release by a guardian, to a special receiver, of an implied warranty, of title to notes, made to and in the name of the receiver, is not release of his liability for moneys coming into his hands, and improvi.dently loaned, nor his fiducial acts. t</p> <p>Discharge — Trust—Receiver Appointed to Handle Funds of Minors.</p> <p>A receiver, appointed by the court to loan funds of minors, who makes his report, showing the amount loaned, but does not turn over to the guardian the securities, though they be then in suit, and who is then discharged, is held not to be released from his liability incurred to the minors because of a mismanagement of the trust, but is only a discharge to act subsequently as receiver.</p> <p>Trusts — Duty of Trustee.</p> <p>It is the duty of a trustee, handling the property of minors, to prosecute their interests fully and not to make the trust secondary to his own personal interest, where he holds securities for both, against the same debtor.</p>

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

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

<p>Judicial Sale — Promise to Restore Property — Accounting for Rent.</p> <p>The promise by the purchaser of property, at a judicial sale, to restore same, if his money was returned, does not imply a promise to account for rents or hire for the time he has used same.</p>

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

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

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

<p>Instructions — Failure to Object — Error Waived.</p> <p>Where instruction sare not objected to when offered, nor excepted to when given, the error, if any, was waived.</p> <p>Evidence — Weight—Province of Jury.</p> <p>Where the evidence is conflicting, it is the province of the jury to weigh and determine the facts, and unless their finding is clearly and palpably against the weight of the evidence, the Appellate Court will not interfere.</p>

<p>Fraudulent Conveyance — Recital in Deed Conclusive Between Parties.</p> <p>As between the parties to a deed, the recitals therein contained, are in general conclusive, but not so as to strangers.</p> <p>Same — Burden of Proof.</p> <p>When such an instrument is attacked by a stranger for fraud, the onus is upon the grantee, claiming under it, to show that the transaction is what it purports to be.</p>

<p>Attaching Creditor — Prior Lien on Increased Price of Sale.</p> <p>The increased price at which land was sold, after the first sale had been set aside, held to be a part of the proceeds of the attached property, and the attaching creditors had acquired liens on it as valid and available to them, as were their liens on the land.</p> <p>Same — Prior to Lien of Attorney for Services.</p> <p>The liens of the attaching creditors were prior in time and superior to any which the attorney for the debtor acquired on said increased price, by his services rendered.</p> <p>Possession by Debtor of Attached Land Until Valid Sale.</p> <p>The debtor is entitled to remain in possession of land attached, until a valid judgment of sale is rendered, and a legal sale made thereof.</p> <p>Debtor and Creditor — Lien on Rent Before Valid Sale.</p> <p>The attaching creditors have no lien on the rents, which the debtor was deprived of by reaston of the illegal sale of his land.</p> <p>Attorney and Client — Lien for Fee, on Rent Accrued.</p> <p>The attorney for the debtor is entitled to a superior lien, for a reasonable attorney fee, on the rents accruing on the attached land from the time the debtor was dispossessed, until the second, valid sale.</p>

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

<p>Jury Trial — Waived by Failure to Appear,</p> <p>The parties to an action arising on contract, may waive a trial by jury, and in other actions than those arising on contract, or in actions not arising on contracts, a jury may be waived, with the assent of the court, by the failure of the party to appear at the trial.</p> <p>Same — Trial.</p> <p>A trial is, by Section 341, Civil Code, defined to be a judicial examination of the issues, whether of law or fact, in an action.</p> <p>Trial — Actions Ordinary — Allegations of Value or Damages.</p> <p>If there be no issue of fact presented in proceedings, by ordinary, there can be no trial by jury, except where there is an allegation of value or damages claimed.</p>

<p>Wills — Specific Legacy — Time of Payment.</p> <p>If no time is fixed for the payment of a specific pecuniary legacy, it shall be paid one year after the testator’s death, and carry interest after due.</p> <p>Legacy — Contingent Payment — Reasonable Time to Make Sale.</p> <p>Where the payment of a legacy is contingent upon the sale of the property of the testator, the administrator should be allowed a reasonable time within which to make it.</p> <p>Same — Interest, Charged to Executor.</p> <p>Interest due on a legacy is chargable to the executor and not the estate of the testator.</p>

<p>Bills and Notes — Illegal Consideration — New Obligation by Replevying.</p> <p>Although the illegality of an original consideration might constitute a bar to an action on a note, yet where judgment is permitted thereon, a new obligation is created by replevying it.</p>

<p>Criminal Law — Disturbing Religious Worship — Sufficiency of Indictment.</p> <p>An indictment for disturbing religious worship, without stating how, is not sufficiently specific to notify the accused of the character of the proof he will have to repel, or so to identify the offense as to make the judgment a bar to another prosecution for the same act.</p>

<p>Mandate — Judgment in Conformity Thereto — Court of Appeals Without Power to Modify.</p> <p>The Court of Appeals is without legal power to modify or change the judgment of a lower court rendered in conformity to its former opinion and mandate.</p>

<p>Principal and Surety — Payment of Interest on Note.</p> <p>The payment of interest on a note, in advance or after due, does not imply novation or indulgence without thei consent of the sureties. An agreement for prolongation of credit does not suspend the right or obstruct the remedies of sureties, when the consideration is illegal and void.</p>

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

<p>Land — Adverse Holding as Sole Devisee of One as Against Co-devisees of Another — N otice — Limitations.</p> <p>Permelia Feland entered on the land in controversy,' under the will of her father, Robert Feland, and she and those claiming under her continued thus to hold and claim the land adverse to the devisees' of John Feland for more than fifteen years. Held; that such holding and claim would authorize the presumption of notice to her co-devisees, under the will of John Feland, of her manner of holding.</p> <p>Appeal and Error — Reversal for Better Preparation of Case.</p> <p>Though from the face of the pleadings, the Appellate Court, would affirm a judgment, Where injustice might be done thereby, a reversal for a better preparation of the case below;, will more properly adjudicate the rights of all parties.</p> <p>Partition of Land — Equitable Rule.</p> <p>The chancellor should ascertain, through his master, what lands are to be partitioned, how they are and have been occupied and held by the co-parceners and then assign- each one the portion held by them in severalty, if any were so held and if either had made sales, the purchaser would be substituted in place of his vendor and allowed to retain that part so purchased if enough remained to equalize the others, if not, the part so sold would be reduced so as to equalize all the coparceners.</p>

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

<p>Contracts — Recovery for Work Done Under.</p> <p>A contractor cannot recover for defective work, tlie full contract price because be can prove the work to be reasonably worth that much, without regard to the stipulated sum to be paid.</p> <p>Lien — Land in Possession of Husband Subject to Mechanics Lien.</p> <p>Where the husband had possession and control of land, and contracted for the erection of buildings thereon, he is presumed to be the owner, and prima facie, a mechanics lien for unpaid balance due thereon, will attach.</p>

<p>Bills and Notes — Consideration.</p> <p>A compromise with the legatees, to avoid threatened litigation over the will of the testator, is held to be a good and binding, consideration in a note given in full settlement to said devisees, When free from fraud and over-reaching.</p>

<p>Pleadings — Amended Answer as Counter-claim Piled.</p> <p>Where the allegations in an amended counter-claim, show facts material to the issue, on motion, it should he permitted to he filed, it having the effect of requiring the plaintiff to verify his defense to the the counter-claim. •</p>

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

<p>Appeal and Error — Reversal of Cause for New Trial — Surprise.</p> <p>An order was entered by the court, “It is ordered that the issue herein be set for trial on the 3rd day of the next April term.” However on the same day the ease was submitted to the court without due notice to.appellant: Held, to authorize a reversal, and a new trial awarded.</p>

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

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

<p>Ordinance — Street Improvement.</p> <p>An ordinance providing for street improvement “in accordance with specifications! to be furnished by the city engineer, etc.,” and which may be “altered or modified by him,” is held to be void.</p> <p>Same — City Council.</p> <p>The city council cannot by an ordinance delegate to its city engineer, power to fix a grade Tor street improvement, determine what material shall be used, how much of a street shall be improved etc.</p>

<p>Demurrer — Petition.</p> <p>A petition, setting out a contract, and agreements of the parties, and praying for general relief,, is not demurrable.</p> <p>Pleadings — Allegations of Petition.</p> <p>Where a petition, giving all the alleged agreements between the parties, asks for general relief, the plaintiff is entitled to either a specific performance, or a rescission of the contracts as alleged.</p>

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

<p>Appeal — Evidence—Original Papers Destroyed.</p> <p>On an appeal, and the original papers, books, etc., used at the trial below, are shown to have been destroyed by fire, the Appellate Court cannot take judicial cognizance of same, no copies appearing to have been made.</p> <p>Same — Bill of Exceptions.</p> <p>The bill of exceptions will be treated as if such evidence had been entirely omitted.</p>

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

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

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

<p>Interest — Payment of Fund to Clerk Without an Order of Court.</p> <p>The deposit with the Clerk of a fund owing, and part of which had been attached, without an order of court, will not stop -the running of interest thereon, as to that part outside of amount attached.</p> <p>Bills and Notes — Deposit of Amount Due With Clerk.</p> <p>The deposit of amount due on a note, with the cierk, without an order of the court, is not a legal payment so as to amount to a discharge of liability thereon.</p> <p>Same.</p> <p>The obligor in a note, who voluntarily makes such a deposit, assumes all responsibility therefor, and cannot look to the court., for aid, though the court permitted the order reciting the fact that the funds were placed in the hands of the clerk, to be filed.</p> <p>Payment of Money to The Clerk of Court.</p> <p>The deposit of money, due on an obligation, to the clerk without an order of court, is not a payment pro tanto of the. amount, but subject to such adjustment as may thereafter be made by the termination of the suit.</p>

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

<p>Exceptions to Over-ruling Motion for New Trial.</p> <p>It is not necessary that a litigant should formerly except to the opinion of the court in over-ruling a motion for a new trial.</p> <p>New Trial.</p> <p>Where the findings of the jury are not so palpably against the evidence, a new trial will not be awarded, after it was refused by the court below.</p>

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

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

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

<p>Parent and Chiid — Deed for Support of Parent — Consideration.</p> <p>A deed given a son, providing as a consideration, for the support of the parent, will be vacated subsequently, on proof shown that the conditions imposed were not complied with. And a subsequent conveyance by the father will be upheld.</p>

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

<p>Judgment in Excess of Amount Claimed in Petition.</p> <p>A judgment for an amount in excess of that claimed in the petition, will be reduced to its proper sum.</p> <p>Same — Remittiter.</p> <p>A remittiter of the excess, when application is made by the defendant for an injunction to prohibit collection of the judgment, will not cure the defect and render it unnecessary for the judgment to be reversed.</p>

<p>Criminal Law.</p> <p>Where the facts and evidence shows, an accused was guilty of an unwarranted attack upon the deceased, who was acting in a role of defense, a verdict will not he disturbed.</p> <p>Instructions.</p> <p>A hypothetical instruction, assuming self-defense without any exculpatory evidence is not sufficient grounds for a new trial.</p>

<p>APPEAL FROM HART CIRCUIT COURT.</p> <p>State of Kentucky,</p> <p>County of Franklin. Set.</p> <p>Thomas J. Chestnut states that he was a deputy and copying-clerk in the office of Gen’l Leslie Combs, Clerk of the Court of Appeals of Kentucky, in April, 1863. That the writing hereto attached purporting to be a copy of the opinion of the court, in the case of Amos Goodman et al, appellants, v. Robert Bolton and wife, Llary Vass and A. O. Long, appellees, from the Hart circuit court, is in his handwriting, and is a true and correct .copy of the opinion of the court in said case, made by affiant from the original opinion.</p> <p>Subscribed and sworn to before me by Thos. J. Chestnut this 27th day of January, 1869.</p> <p> Charles Haydon, D. C. C. A. T. J. Chestnutt. </p> <p>State of Kentucky,</p> <p>Franklin County, Set.</p> <p>Alvin Duvall states that he is the clerk of the court of appeals, and that upon the examination of the files and records in his office, he finds that the opinion of the court in the case of Goodman et al v. Bolton et al, from Hart is not on file. He supposes it to have been destroyed by fire, at the time of the burning of the office of the clerk of the court of appeals.</p> <p> A. Duvall. </p> <p>Subscribed and sworn to before me by Alvin Duvall this 27th day of January, 1869.</p> <p> Charles llaydon, D. C. C. A. </p> <p>State of Kentucky,</p> <p>County of Franklin. Set.</p> <p>James A. Dawson states that he represented appellants, as attorney in this court, in the case from Hart, of Goodman et al v. Bolton et al, and that the accompanying copy of the opinion of the court in said case, the same mentioned in the affidavit of Thos. J. Chestnut, was delivered to him by the clerk of the court of appeals as a copy of the opinion in said case. It was not certified, because it was asked for and obtained by him before the time allowed for filing a petition for a rehearing had expired, before the mandate became final, and before the clerk of said court was authorized to open an official copy of said opinion.</p> <p>Affiant farther states that petitions for a rehearing were filed both by appellants and appellees, and that they were both overruled and the original opinion of which the accompanying copy is a transcript was the final order and ruling of the court in said case.</p> <p>He states that it is important to the interests of the parties to said suit, and those holding and claiming lands under them, that the lost opinion of the court shall be replaced in substantial and authentic form. Wherefore he asks that the accompanying transcript may be received and adjudged the opinion of the court in said case.</p> <p> James A. Dawson. </p> <p>Sworn to before me by James A. Dawson, 27th day of January, 1869. Charles Haydon.</p> <p> Charles Haydon, D. C. O. A. </p>

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

<p>Pleading — Answer as a Denial of Allegations in Petition.</p> <p>An answer affirmatively alleging an offer to sell property as charged in the petition, which was accepted “provided Parker and wife would make a good deed,” is not equivalent to a denial of the allegations that the grantors made the deed variant from the contract by mistake.</p>

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

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

<p>Pleading — Petition—Presumptive Heirs.</p> <p>"Where, in a petition, presumptive heirs ai'e made known to the court, it is error to require the plaintiff to proceed against other, unknown heirs.</p> <p>Same — Dismissal of Petition.</p> <p>The allegations that his vendor was an heir of her deceased brothers and sisters, and that he is entitled to her inheritance, is sufficient, and a dismissal of the petition, without prejudice, is erroneous.</p> <p>Same — Forced Election.</p> <p>The forced election, of the purchaser, is erroneous, after the appearance to the suit of one of the claimants, as he should neither be compelled to pay the amount of purchase nor accept the deed, until an adjudication of title.</p> <p>Parties — Non-Residents and Unknown Heirs.</p> <p>In a suit to confirm ,a title to a purchase of lands, and there be nonresident or unknown heirs, the court should not order them proceeded against as such, as time would bar their claim on such judgment.</p>

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

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

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

<p>Motion to Quash Sale — Consolidation.</p> <p>The consolidation of several motions to quash the same sale, for several causes, is proper.</p> <p>Sales by Sheriff Under Execution Levied by Jailer</p> <p>The sale of land by the sheriff, under an execution formerly levied by the jailer, is illegal and void.</p> <p>Same — Levy After Return Day.</p> <p>A sale made by a sheriff, upon a levy made after the return day, is void.</p>

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

<p>Pleading — Defects in Answer Supplied by Petition and Exhibits.</p> <p>Where the appellants’ petition states the character of appellee’s title, and makes a deed from the grantor, a part of the record, which shows the grantor conveyed the land to the appellee for a valuable consideration, with warranty, more than twenty years before the commencement of the action, it supplies the defects in the answer, and shows a complete bar to the action.</p> <p>Limitation of Actions — Infants—Disability.</p> <p>Though, at the time the right of action accrued, two of plaintiffs were infants, and more than three years elapsed after their disability was removed before the action was begun. Held, that they had lost their remedy.</p>

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

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

<p>Usury — Action to Recover — Limitation.</p> <p>The right to recover back usurious interest paid is limited by the Act of March 17, 1862, to one year from the time of payment.</p>

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

<p>Corporations — Subscription to Stock in Turnpike Company.</p> <p>A subscription to the capital stock in a turnpike company, in writing, is a binding obligation and enforcible according to the terms of same.</p> <p>Same — Promise to Pay Amount Subscribed — Demand.</p> <p>A promise to pay a subscription to stock in a corporation, at such times as called upon thereafter, is in effect a promise to pay on demand, and no precedent act is necessary on the part of the payee holding such an undertaking, to entitle him to his action.</p>

<p>Husband and Wife — Acquiescence by Husband.</p> <p>A husband, who acquiesceses in the individual rights of the wife to her property, cannot afterwards, claim an interest therein so as to exclude the rightful heirs.</p> <p>Same.</p> <p>Nor would the creditors of the husband have a right to a better claim than the husband.</p>

<p>Partnership Accounts — Purchase of Land with Funds — Burden of Proof.</p> <p>Where, in a suit for purchase of land, claimed to have been made with partnership funds, the burden of proof is on him so charged to show that there was not sufficient funds with which the purchase could have been made.</p> <p>Same.</p> <p>"Where the evidence shows that a partnership business for a period of years made no profits, the presumption is that lands purchased by one partner was for his individual benefit and not for the partnership account.</p>

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

<p>New Trial — Additional Evidence of Same Witnesses no Grounds for.</p> <p>Upon an application for a new trial, it is not sufficient where the only allegations are that by a further examination of witnesses, who had formerly testified, the necessary facts would be brought out to justify a judgment.</p>

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

<p>Bond — Mere Misdescription in Writing Constable’s Bond.</p> <p>The use of tbe word “constable” in writing a marshal’s bond, being a mere misdescription, it could legally neither enlarge nor diminish the obligor’s responsibility.</p> <p>Same.</p> <p>It would be a sufficient bond if the word “constable” in “And in all other things shall faithfully and truly perform the said office of constable etc.,!’ was exxtii'ely omitted.</p> <p>Same — Liability for Taxes Collected.</p> <p>The defendant having entered upon his duties, collected taxes in performance thereof, he cannot escape responsibility for failure to properly .pay same over.</p>

<p>Action — Cause of — Necessary Facts.</p> <p>A joint judgment against True, as principal and Fish as surety in a note, was replevied. True, without making Fish a party, enjoined the enforcement of the replevin bond; and appellant instituted suit as bondsman for True, against Fish, former bondsman: Held not to constitute a cause of action.</p> <p>Same — Liability on Bond — Parties.</p> <p>A bondsman in a replevin suit, is released from liability, when an injunction, with others as bondsmen thereon is issued to restrain its operation, and the former bondsman is not made a party to the injunction suit.</p> <p>Same.</p> <p>The law cannot presume that the injunction was not prejudicial to the former bondsman, and against his will.</p>

<p>Bonds — Presumption of Validity.</p> <p>The legal presumption of validity attaches to a bond; the extraneous evidence therefore of invalidity should so far over come the same evidence of validity as also to rpbut the legal presumption of genuineness.</p> <p>Same — Liability of Clerk for Attesting to Validity of Bond.</p> <p>Where a clerk so far neglects his duties as to take and attest a bond without getting the names of the proposed securities, (and which had been approved by the court), to it in such a manner as to bind them, he and his sureties are liable for this official misconduct.</p>

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

<p>Descent and Distribution — Acquiescence by One Heir in Application of Legacy.</p> <p>The erection of a building on property held by a legatee, with a reversion to remaindermen, out of funds belonging to the legatee in fee simple, and -without objection is held to enure to the benefit of the trust.</p> <p>Same.</p> <p>Such legatee cannot afterwards cause a sale of the property for a division of the proceeds.</p>

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

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

<p>Witnesses — Competency.</p> <p>An examination of a witness upon his voir dire, to prove him incompetent, will exclude other evidence to disprove his statements. Having elected one mode, they could not resort to another.</p> <p>Pleading — Filing Amended Petition.</p> <p>It is error for the court to refuse the filing of an amended petition, at the close of the trial, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding, to the facts proved.</p> <p>Damages — Instructions—Loss by Failure to Deliver Cotton Bought.</p> <p>In an action for recovery of damages for loss in failure of vendor to deliver cotton bought on contract, an instruction that if the jury believed from the evidence the allegations of the petition and that the defendants failed to make the delivery according to the terms of the contract, and that after the failure, the plaintiffs received the cotton from defendants, they must find for the defendant is erroneous. „</p> <p>Same;</p> <p>Such an instruction is misleading, as it leaves out of view the question of damages resulting from the violation of the contract.</p>

<p>Statute of Limitations — Filing of Suit after Lapse of Five Years.</p> <p>Though the limitation of five years for filing suit, after judgment rendered, for setting same aside, has expired, the statute will not begin to run, until after the actual time of discovery of the cause of .action thereon.</p> <p>Same — Demurrer.</p> <p>A demurrer to such petition should not have been sustained.</p>

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

<p>Substitution — Judicial Sale — Purchaser Substituted for Eights of Creditor.</p> <p>A purchaser of land at an execution sale, becomes substituted to the rights of the creditors, in a subsequent suit to assert claim to the land by assignment of a title bond.</p> <p>Same — Creditors.</p> <p>As against creditors, the assignees claim to the land does not depend alone upon proof of the fact that he was a purchaser from his fraudulent vendor, without notice of his fraudulent purpose, but upon evidence of the additional fact that he was a purchaser for a valuable consideration.</p> <p>Fraudulent Conveyances — Debtor and Creditors.</p> <p>A sale of property made to defraud creditors is valid against the fraudulent vendor and his representatives, and also valid against all merely voluntary conveyances subsequently made by him.</p> <p>Evidence — Recitals of Consideration in Assignment of Bond for Title.</p> <p>While the recital in an assignment of a bond for title, that it was made for a valuable consideration, is evidence as between the parties thereto, it is not evidence of the facts recited, nor for any purpose as against strangers.</p> <p>Vendor and Purchaser — Vendee as Subsequent Renter of Land.</p> <p>An alleged vendee of a tract of land who was present at a subsequent rental of same by a commissioner as the land of his vendor, and is the highest bidder therefor, and does not make known his ownership, cannot afterwards set up claim to same as against the rights of creditors.</p> <p>Same — Estoppel—Parol Sale.</p> <p>A vendor of a parol sale of land, to whom all but a small portion, of the purchase money was paid, possession having been given the vendee, and who in an answer to a suit for specific performance, admits the parol sale, but declines to perform further, claiming a breach of contract, is estopped from pleading the statute for a specific execution as to creditors of the vendee.</p> <p>Same — Rescission.</p> <p>Nor can a rescission of the contract be had, as against the creditors, both the vendor and vendee, being co-defendants to a suit for specific execution. •</p> <p>Same — Statements of Vendor at Judicial Sale — Estoppel.</p> <p>A vendor of a parol sale, who is asked regarding the title of his vendee, at a judicial sale of the interest of the vendee, and answers that the vendee has a perfect title thereto, is estopped to assert ownership subsequently, whether his statements were true or false.</p> <p>Same.</p> <p>The law holds the vendor bound by his statements, and will not allow him afterwards to assert a title, in opposition to the title of the purchaser at the sale.</p>

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

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

<p>Street Improvement — Grading and Paving.</p> <p>To authorize the power of assessing the property holders for street paving, grading, etc., the ordinance, and proceedings must be strictly legal.</p>

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

<p>Oil Leases — Surrender—Non-payment of Penalty Provided.</p> <p>Where an oil lease, providing for a payment of $50.00 per year for not commencing work, thereunder, this penalty is lost by a subsequent surrender and acceptance of the lease.</p> <p>Same — Rents.</p> <p>Such a payment, provided for, cannot be held as an amount due for rent, but merely a penalty for non-performance.</p>

<p>Sales — Purchase of Land for Acting Commissioners.</p> <p>A sale of land, by a commissioner, made to himself by a party standing in the relation of trustee or agent, will not be permitted to stand, if any profit or advantage was made by the purchase.</p>

<p>Pendente Lite Purchasers — Judgment.</p> <p>Purchasers of land, while suit was pending against the owners for a large amount due on notes, are held to he pendente lite purchasers, and are hound by the judgment subsequently rendered against their vendors.</p> <p>Process — Actual Service.</p> <p>Actual service of process, on a second amended petition, at a later term of court, to enforce the second installment of purchase money, is not necessary, where on the first petition, service was had, and the defendant entered an appearance.</p>

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

<p>Corporations — Signer of Subscription to Capital Stock — Estoppel.</p> <p>The signer of a subscription to the capital stock of a corporation, is estopped to deny its existence.</p> <p>Same</p> <p>This rule will apply, though before due date of subscription, the corporate name was changed by legislative enactment</p> <p>Same.</p> <p>As long as the objects and purposes of the corporation were the same as when the subscription was signed, the subscriber remained bound.</p>

<p>Process — Service on Minor before Guardian Appointed — Warning Order.</p> <p>Constructive service, by warning order, cannot be had on a minor, before appointment of guardian, though the appointment be made before the expiration of the thirty days limitation.</p> <p>Revivor — Notice.</p> <p>A revivor of an action by an administrator, must be upon duly executed notice, or by service of process on the amended petition, or by service of the order of revivor.</p> <p>Same — Judgment.</p> <p>A judgment upon a bill or order of revivor, without service of any kind, is void.</p> <p>Consent Order Selecting Judge Pro Tern — Minors.</p> <p>A consent order, selecting a pro tern judge, while binding on the adult litigants, is not binding on the minor defendants or plaintiffs, as they could make no consent.</p> <p>Officer — Right to Sell Under a Venditioni Exponas.</p> <p>As an officer, by section 1, article 6, chapter 36, revised statutes 475, is authorized to sell, after the reutm day, under an execution, whilst it still remained in his hands, a fortiori, he may sell under a venditioni exponas.</p> <p>Sales — Property Devised Under Separate Clauses of Will.</p> <p>It is error to sell, as a whole, the entire interest of one of the devisees of an estate, where the property embraced in the sale, was devised under separate clauses of a will, with different limitations thereon.</p> <p>Same — Restitution.</p> <p>Before such a sale should be declared void, the purchase money should be refunded, upon equitable terms.</p>

<p>Attachment for Rent — Improper Bond.</p> <p>Where an attachment for rent is issued, under the statute, a proper bond in compliance therewith, providing for damages in double the amount, shall be given. Any bond, not in conformity thereto, would deprive the defendant of his action for such damages.</p>

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

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

<p>Execution — Eight to Levy on Property of Joint Debtors.</p> <p>Under an execution against Ard and Kelly, the lands of Kelly was pointed out to the officer, who levied on and sold same. Afterwards, Ard claimed the land as his, and refused possession. Held that though the levy was on the land as belonging to Kelly, the title of both Ard and Kelly passed by the officers sale and execution.</p> <p>Same — Ho Judgment in Eecord.</p> <p>When an execution is shown against a defendant in possession and • he surrenders land to satisfy it, no judgment need be shown as to him, however a judgment is essential to uphold the sale and conveyance of an adversary title.</p>

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

<p>Tort — Liability for Sale of Property Taken.</p> <p>A defendant, who disposes of property taken at his instance though not the identical property he described in his order for possession, is liable for the wrongful conversion thereof.</p>

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

<p>Gift — Undue Influence — Deed.</p> <p>A deed by a grantor to three of his children, and to the exclusion of others, executed during the life of the deceased, and at a time when in full control of his mental faculties, and in accordance with an oft expressed desire, will be held binding, though it cover all the property of the grantor.</p>

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

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

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

<p>Waiver of Right to Redeem Land — Estoppel—Laches.</p> <p>A defendant, who, by cross petition is permitted to have a judgment entered by agreement, cannot be subsequently heard to controvert the right of others, coming into possession of the property, by reason of his failure to perform said judgment.</p>

<p>Pleading — Answer not Replied To.</p> <p>A plaintiff, who fails to controvert the allegations in an answer, setting up by counter-claim that a portion of the land in controversy, and which had been sold him, had been otherwise disposed of before sale to him, cannot complain of a reduction of his judgment to the extent of the value of the deficiency.</p>

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

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

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

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

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

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

<p>Claimants Issue — Idem Sonans — Interpleader.</p> <p>Where a claimant by inter-pleading claims property attached in the name of M. D. Cord, as due him by assignment of claim from S. P. Cord, this is held not idem sonans, and the dismissal of the petition is proper.</p> <p>Same — Re-opening Case, After Adjudication.</p> <p>After a cause has been fully adjudicated, money attached, paid over and the parties dismised out of court, no matter for what cause the delay, a claimant of the attached fund cannot be permitted to re-open the case for further adjudication.</p>

<p>Lauds — Parol Division.</p> <p>The chancery court has power to adopt a parol division of lands made by the widow and heirs of an intestate. Or a re-division could be ordered upon the same equitable terms.</p> <p>Same — Vendor and Purchaser.</p> <p>Under such division, one of the heirs, would have the right to pay into court- his pro rata part of his ancestors indebtedness, and thus free his lands from subsequent sale. And this right Would also descend to his vendee by a subsequent purchase.</p> <p>Same.</p> <p>This would not only include what the vendor owed as purchase price on the land, but also whatever amount would be lacking of paying his debts, out of his personal estate.-</p>

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

<p>Assault and Battery — Instructions.</p> <p>In an action for assault and battery, an instruction, “if the jury believe from the evidence that, at the time the blow was struck by defendant, she believed and had reasonable ground to believe that it was necessary to protect herself from bodily harm, she had a right to use such force as was necessary to protect herself” was held, erroneous.</p> <p>Same — Excuse on Ground of Self Defense.</p> <p>To excuse the defendant on the ground of self defense, the matter constituting same, should be stated in the answer, that the plaintiff’s may have notice of the defense relied on.</p> <p>Evidence, in Mitigation of Damages.</p> <p>Evidence conducing to show immediate provocation or attempted violence on the part of a plaintiff, in an action for damages for assault and battery, is competent as part of the res gestae, and in mitigation of damages, but not as a dismissal of the .suit.</p>

<p>Bills and Notes — Payment to Administrator for Rent — Demurrer.</p> <p>A note was given the administrator for rent of decedent’s property, and upon suit being brought, appellants resist payment upon the ground of a possibility of having to make payment to the heirs for the same debt. Held that a demurrer to this answer was improperly overruled.</p> <p>Same — Payment.</p> <p>A payment to a duly qualified administrator is a payment to the heirs of the estate.</p> <p>Same — Administrator’s Bond.</p> <p>Devisees seeking to recover payment of rent to an administrator would be required to exhaust their remedy against the sureties of the administrator before calling on the tenant for reimbursement.</p>

<p>Principal and Surety — Pelease of Surety.</p> <p>An agreement by the obligee in a note for forbearance, without a specified time of payment, of a note, or payment of interest in advance, will not operate to release the sureties.</p>

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

<p>Wills — In Handwriting of Testator.</p> <p>Where nothing else appears, proof that a will was wholly written by the testator, is sufficient to admit it to record, the legal presumption of publication arising from this, and the assailing evidence must overcome this presumption.</p> <p>Same — Sanity—Evidence to Overcome.</p> <p>Sanity is presumed by law, and evidence therefore must, not only be sufficient to counter-balance the evidence of sanity, but also to overcome this legal presumption.</p> <p>Same — Evidence Responsive to New Matter of Defendants.</p> <p>Where a witness of the defendant, in his statements as to a will, sought to be declared void, states new matter as to a conversation between him and witness for plaintiff, the plaintiff would be entitled to reintroduce the witness, as responsive to and explanitory of the new matter of plaintiff.</p> <p>Wills — Attest.</p> <p>A will, written in the handwriting of the testator, closed with “In witness of all which I have hereunto set my hand and seal this 12th day of April, 1849. — Attest.” Held that the word “attest” in its relative position to the name of testator, does not evidence that he intended to acknowledge it before witnesses previous to its taking effect.</p> <p>Same.</p> <p>This would not be sufficient to authorize the rejection of the paper as an unfinished and incomplete will.</p>

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

<p>Laches — Non-assertion of Mortgage.</p> <p>A holder of a mortgage, who for 10 or 12 years is cognizant of a suit in relation to the property mortgaged, and does not appear and present his claim for adjudication, is held guilty of laches.</p> <p>Descent and Distribution — Sale of Interest to Pay Debts of Devisee.</p> <p>Where a devisee, who desires hisi debts paid, part of which is due the administrator, it should be done as far as practicable out of the personal assets descending to him, out of the estate, and not by an allowance for same of a set-off against the estate.</p>

<p>Vendor and Purchaser — Non-performance of Contract — Not Available to Heirs.</p> <p>While a parol vendor may avail himself of the statute of frauds to avoid a specific performance, the heirs of a husband of the vendee, cannot invoke same to the exclusion of the rights of said vendee.</p>

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

<p>Guardian and Ward — Judgment Against Minors.</p> <p>Tire mere appointment of a guardian ad litem for infants, to take care of their interests, is not sufficient. Before a judgment could be rendered affecting the infants’ interest, it must appear that the appointment had been accepted, and a necessary answer tendered for them.</p>

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

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

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

<p>New Trial — Officers—Return of Summons — Correction of Error in Chancery-Court.</p> <p>To entitle a defendant to relief, from a return of summons, not actually served, he must allege there was a fraudulent combination between the sheriff and the plaintiff to. make a false return, and upon proof, a court of equity would be empowered to grant relief.</p> <p>Same.</p> <p>But when the plaintiff acts in good faith, and the sheriff returns, the process executed when it never was, the return is conclusive against the defendant.</p> <p>Same.</p> <p>If the sheriff is made a defendant to the action, and has made a false return, it is within the power of the court to compel him to correct the error.</p>

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

<p>Deeds — Acceptance Discharges Title Bond.</p> <p>A deed made and accepted, in pursuance to a title bond, for the land embraced therein, is a discharge and merger of the latter.</p> <p>Same — Action—Remedy.</p> <p>An action will not lie on the title bond, for a deficit. The remedy of plaintiff would be a reformation of the deed, and recovery of the over-plus paid.</p>

<p>Landlord and Tenant — Renter Pendente Lite.</p> <p>A tenant, who rents lands of the husband, while a suit is in progress between husband and wife for divorce and alimony, and restoration of property, will be held liable to the wife, a successful litigant, for her prorata of the rent, notwithstanding a prior payment of same to the husband.-</p>

<p>Negligence! — Damages for Personal Injury.</p> <p>In cases where the negligence is in leaving a horse and wagon without' an attendant, or any way secured or guarded, exemplary or vindictive damages are not to be given unless the negligence complained of is so gross as to raise the presumption of malice.</p> <p>Same — Instructions.</p> <p>It was error to leave it discretionary to the jury to find such damages as the plaintiff sustained not exceeding the amount claimed in the petition.</p> <p>Same — Damages.</p> <p>The instruction should be for compensation and remuneration for loss of time, necssary expenditures and permanent disability.</p>

<p>Agency — Duty to Account for Note Delivered for Collection.</p> <p>Where an agent accepts a note delivered for collection, and sends it to another for attention, the onus is on him to show that the note was delivered to him to be thus forwarded for collection.</p>

<p>Contract — Settlement of Accounts.</p> <p>In a suit for settlement of accounts between two firms, a contrariety of evidence as to terms of the contract was shown. After submission to a commissioner, who reported the same amount due, as a receipt given in settlement, formerly, the judgment of the lower court thereon will not be disturbed.</p>

<p>Demurrer — Necessary Parties to Action.</p> <p>A defendant, who demurs to an amended petition or replication to their answer and cross-petition, for non-joinder, will first have to correct his own pleading, where his demurrer is on account of the same deficiency as in his cross-petition.</p>

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

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

<p>Descent and Distribution — Sale of Trust Property — Wills.</p> <p>Under a will, property was devised to a wife, and in the event of her marriage, to he sold and distributed in connection with her children; she sold property of $600 and invested it in lands, and shortly thereafter married: Held that the distributees were equitably substiuted to a correspondent equity in the ’land. . -</p> <p>Same — Notice—Subsequent Purchasers.</p> <p>Subsequent purchasers of the land are held to have been purchasers with notice of this equity.</p> <p>Guardian and Ward — Fiducial Relations — Estoppel.</p> <p>The fiducial relations of a guardian will estop him from denying the interest of his wards in land, sold by order of court and bought in by him for a mere trifle.</p>

<p>Vendor and Purchaser — Rescission—Improvements.</p> <p>Upon rescission of a parol exchange of lands, improvements placed upon the property by a debtor, are subject to sale for the benefit of creditors, subject, however, to adjustment in the difference of rents of the two places.</p> <p>Same — Creditors—Husband’s Sale of Wife’s Land.</p> <p>As a husband has no power to make a sale of the wife’s land, his creditors or trustee could not enforce a parol sale made by him, as they would stand in no better attitude than the debtor.</p> <p>Same.</p> <p>Upon acquiescence in a parol exchange of lands by the wife, upon a rescission, she will be held liable for improvements made by her vendee, though she had given no authority for the original exchange.</p>

<p>Arbitration and Award.</p> <p>Where an arbitrator, discloses the fact that he has pei-sonal knowledge of part of the transaction, but not released from acting, the plaintiff cannot subsequently complain, and an exception to the award on that ground was properly overruled.</p>

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

<p>Prima Facie Evidence of Insolvency — Return Nulla Bona.</p> <p>The return of an execution, “no property found,” is only prima facie evidence of insolvency.</p> <p>Same.</p> <p>Such a return would not lay the foundation for the interposition of the court to make provision for a wife, out of the effects of the husband, without other evidence, allegation or prayer for that purpose.</p>

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

<p>Pleading — Petition Must Allege Rejection of Credit on Note.</p> <p>To authorize the rejection of a credit entered on a note, it must be alleged that the claim therefor had been presented and refused by a commissioner of the court, said note having been formerly in a commissioner’s hands, or facts should be stated which would furnish a valid and sufficient reason why the commissioner would reject it.</p>

<p>Demurrer — Allegations of Petition by Distributee for Misappropriation.</p> <p>A petition by a distributee, against an executor and another, alleging a combination to defraud the estate by a misappropriation of the assets, in the absence of the disclosure of the plaintiffs interest, not set forth, a demurrer thereto was property sustained.</p>

<p>Witnesses — Foundation for Impeachment.</p> <p>Where the impeaching witness testifies to matters not in contradiction to answers made by a witness whose evidence is sought to be impeached, and that he does not say the witness made the statements contained in the question, but that he made a different _ statement, it is not a foundation for impeachment, and should have been ruled out.</p>

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

<p>Bills and Notes — Consideration.</p> <p>A note, given to secure a payment for property taken, as a bribe to prevent prosecution of one of the obligors, is illegal and without consideration.</p> <p>Same.</p> <p>But notwithstanding a previous intention or threat to institute such a prosecution if the note was given for the value of the property taken, and to compromise the plaintiffs claim to damages for trespass, the consideration is legal.</p>

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

<p>Judgment — Default—Incomplete Petition.</p> <p>A judgment by default on a petition to set aside a conveyance as fraudulent, is premature, unless the records of the suit and the conveyance be in the pleadings.</p>

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

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

<p>Descent and Distribution — Wills—Construction.</p> <p>A will provides “and should any of my said daughters or granddaughters die, having no living' child, then the estate given them herein, to be equally divided between the devisees hereinbefore named etc.” Held, that upon the happening of such contingency, the devisees would take per capita and not per stirpes.</p>

<p>Deeds — Evidence Aliunde a¡s to Ownership.</p> <p>In a controversy over a lost deed of purchase, and a denial of joint ownership is set up, evidence aliunde as to recognition by defendant of an exercise of joint ownership by the plaintiff shortly after the alleged purchase, will preponderate.</p>

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

<p>"Written Instruments — Terms Varied by Parol Testimony.</p> <p>Terms of a written contract may be changed by parol proof, where it is shown that the written instrument was a mere form and to include general terms applicable to other parties thereto.</p> <p>Attachment — Contract—Premature Suit.</p> <p>Johnson contracted, in writing with Whalen to cut his lumber, payable on delivery, but subsequently made a parol agreement to give him twelve months time. A few months afterwards, Johnson sold his mill, and the vendee continued to cut for Whalen. Held that an attachment against Whalen before the end of the credit period was premature.</p> <p>Same.</p> <p>The vendee of the mill, in the absence of a special agreement, took same under whatever contract the vendor had with his then customers, and subject to their rights.</p>

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

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

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

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

<p>Gifts — Not Subject to Bankruptcy Proceedings.</p> <p>A gift by a father to his “son and his heirs,” is held to enure to the use and benefit of them alone, and not subject to proceedings in bankruptcy to subject same to the debts of the son.</p> <p>Same — Creditors.</p> <p>As creditors have no right to prescribe the terms of a gift, a condition that property deeded to the debtor and his heirs, free from his debts, is held to be both moral and 'legally right.</p> <p>Same — Answer—Demurrer.</p> <p>An answer setting up such grounds of defense, is not snbjeet to demurrer.</p>

<p>Attorney and Client — Consent Judgment — Power to Change.</p> <p>After a consent judgment has been agreed on by litigants, their attorneys cannot change or annul same.</p> <p>Same.</p> <p>An attorney has no power to compromise his clients suits, nor to set aside a judgment in his favor.</p>

<p>Decree Rendered — Pleading.</p> <p>After a decree rendered confirming a sale of lands, tlie husband, having a life estate by the curtesy entered his appearance and filed an answer approving the sale. Held to cure the defect of title, and the appeal therefrom dismissed.</p>

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

<p>Bailments — Contract for Hire of Property — Breach of Warranty.</p> <p>A bailee, for hire of property for a specific period, if deprived of the use thereof by a superior title, or by the act of law, he may resort to the implied warranty of undisturbed possession for the term.</p> <p>Same — Act of Government.</p> <p>If in the exercise of Eminent Domain or other power in the government, it takes the property, it thereby becomes responsible to the holder of the title for its value, but not to the bailee for a term.</p> <p>Warranty, as Against Acts of Government.</p> <p>Unless there be an express covenant to such, no general warranty of title can be contraed as a guárranty against the action of the government</p> <p>Federal Government — Rights Against Citizens.</p> <p>As the Federal Government has the right to take property, without first making compensation, there is no legal means of enforcing a claim therefor, and a citizen must depend upon the good faith of his government.</p> <p>Warranty — Action on For Breach by Act of Government.</p> <p>No action for warranty of title, can be maintained, where the Government, either legúlly or revolutionary may destroy the right of property subsequent to said warranty.</p> <p>Same.</p> <p>Public necessity, being superior to individual rights, the Government may resume the possession of property, when such public necessity arises, and the Government alone is the judge of this.</p> <p>Same.</p> <p>The warranty of title by one individual to another can not be construed as warranting against the superior right of the Government to resume the property when public necessity requires.</p> <p>Same — Right of Government.</p> <p>The right to blow up and destroy a house in a city, to prevent the .spread of a conflagration, is a legal public right of the State or Government, without compensation, it being not the eexreise of eminent domain.</p>

<p>Contracts — Condition Precedent.</p> <p>In a contract for burning 200,000 brick where the evidence shows they were to be used for the erection of a dwelling, the making and burning the exact number is not a condition precedent.</p> <p>Same.</p> <p>Where the conditions were that the vendee should perforin certain functions, before a strict adherence can be had of the vendor, the vendee should specifically perform</p>

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

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

<p>Dedication — Streets and Alleys — Sale of Lots — Maps and Plats — Easements— Street Improvement.</p> <p>Appellant was the owner of the ground west of Cabell street, in the City of Louisville, and desiring to sell, divided it into lots and staking off a continuation of Franklin street the same width as east of Cabell street; he proclaimed at his auction sale, at which lots on both sides were sold, that they only came up to it as it was for a street but if the city wanted it, it would have to buy it from him. This, therefore, involves the question first whether this was a dedication so far as the lot holders are concerned, and if so, secondly, whether, the reservation as against the city was inconsistent therewith. Held that when a proprietor makes a plat of his lots designating a space between them as a street, that this raised a presumed dedication of that space to public use, not that it was an absolute dedication.</p> <p>Same — Legal Title — Purchasers—Public Easement.</p> <p>Held, that the sale of the lots on either side of the space designated as, a street carries the legal title to the purchasers to the middle of such space, subject, however, to the public easement.</p> <p>Same — Legal Custody and Control of Space Passed to the City.</p> <p>As the proprietor parted with the legal title to' one-half of this space in front of each lot as he respectively conveyed them, and only retained it in trust for the purchasers when the legal title was not conveyed, and as this gave the purchasers the right to have said space opened and improved so as to facilitate the ingress and egress to and from their lots, no legal title by such dedication passed to the city but only the legal custody and control of it as a public highway, he could not reserve the right to make the city pay for this custody so far as he parted with the title to the lots.</p> <p>Same — A Different Question Arises Where the Proprietor has not Parted With the Legal Title to Lots Adjoining Said Space.</p> <p>So far as the proprietor did not sell or convey the lots he retained the legal title to this space charged with the same easement, but with a legal right to all accretions to. himself. Held: that the dedication for a valuable consideration, to the public use to the owners and a reservation against the city amounted to nothing as he retained the legal title to the space in front of th unsold. lots, charged with the same public use. The city as a representative of each citiezn and the public necessarily becomes a trustee and custodian of. this space and therefore the proprietor has no claim against the city in its corporate capacity.</p> <p>Same — Reservation Against Improvements.</p> <p>It is possible that the reservation against charging him for improvements might be considered as binding being part of the original dedication and entering into its consideration.</p>

<p>Vendor and Purchaser — Decretal Sale — Retention of Property by Defendant— Constructive Fraud.</p> <p>The possession of personal property by an execution creditor after a decretal sale as agent of the purchaser does not come under the rule that a vendor’s possession after his absolute sale of movable property is a constructive fraud.</p>

<p>Bills and Notes — Accomodation Endorser — Indemnity—Exoneration.</p> <p>The last accommodation endorser on a bill may look for indemnity to the one endorsing next before him and a lien resulting, on the levy of an execution on the former endorsers property inures to the last endorsers benefit, and if the payee interferes and suspends the execution the last endorser is exonerated.</p>

<p>Husband and Wife — Executory Contract — Specific Performance; — Resulting Trust.</p> <p>The plea of cooverture will protect a wifé against a specific enforcement of an executory sale by her husband and herself, but under appallants prayer for general relief he is equitably entitled to a restitution of the amount paid by him to the appellee and her husband. Successful resistance would be a fraud on appellant, and therefore, by a resulting trust, a lien attached to her equitable interest in the land.</p>

<p>Will — Heir Cut Off from His Co-equal Eights.</p> <p>An heir should not be adjudged as cut off from his co-equal rights by a will, unless the proper interpretation of it clearly manifests such intention.</p> <p>Words and Phrases.</p> <p>“All,” used in a will, imports, all those among whom the advancements mentioned were to be equalized.</p>

<p>Trial — Preponderance of Evidence — Provience of Jury.</p> <p>It is the provience of the jury to decide on which side the evidence preponderates, and their finding will not be disturbed.</p> <p>Same — Instructions—Isolated Facts.</p> <p>A judgment will be reversed where an instruction restricts the inquiry to the isolated facts.</p>

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

<p>Frauds, Statute of — Parol Contracts for Sale of Land — Terms of Sale Must Appear.</p> <p>Before a court of equity will enforce a parol contract for the sale of land the terms must clearly appear as to price and time of payment.</p>

<p>Attachment — Suit on Bond — Criterion of Damages as to Attorney’s Fee.</p> <p>The rule is that if the plaintiff has paid or contracted to pay a specified sum he can recover so much thereof as would be a reasonable compensation to his attorney, for defending the attachment, and not the original suit, limiting this to compensation to one attorney only.</p>

<p>Wills — Construction—Intention of Testator — Discription of Devisees.</p> <p>“At the death of my wife the .property and money remaining of all kinds I will to the following named persons: viz, the children of my brother and sisters Joseph Falconer, Frances Wilson, Martha Stephens, Ann Juett; my nephew Joseph Falconer.” “It is my will and I wish it distinctly understood that no person, or persons shall inherit any part of my estate except those named herein.” Held: That the issue of such brothers and sisters aa were dead at the date of the will do not answer the description and were consequently excluded.</p>

<p>New Trial — Default Judgment — Petition—Petition for a New Trial — Reason for not Defending Original Suit.</p> <p>In an action for a new trial the petition must state facts showing some legal reason why defense was not made to the original suit, nor is the fact that the judgment was reversably erroneous any legal reason why new trial should he granted, the remedy being by appeal.</p>

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

<p>Contracts — Defective Work — Abatement of Price — Jury and Verdict.</p> <p>The verdict was for less than the full contract price for the three miles of road which appellee undertook to build, showing that there was an abatement for defective work, and the court of appeals is not authorized to interfere with the finding of the jury where the evidence is conflicting.</p> <p>Appeal and Error — Instructions—Exceptions.</p> <p>No exceptions were taken to the ruling of the court in giving instructions asked for by appellee and refusing the one asked for by appellant, which must be regarded as a waiver of the errors of the court.</p>

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

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

<p>Wills — Devise of Land in Fee Simple — Defeasible Contingency. Uncertainty.</p> <p>A legatory clause in a will giving land to another In fee simple will not he defeated by a subsequent provision made defeasible at the death of the legatee on a contingency that never occured and which was void for uncertainty.</p>

<p>Parent and Child — Retention of Infant’s Estate for Necessaries, Board and. Clothing — Creditors.</p> <p>The mother has a right to retain so much of her infant child’s estate for her full'and reasonable indemnity for his board, clothing and tuition during his minority as! against his creditors.</p>

<p>Husband and Wife — Feme Sole — Feme Trader — Husband”s Agent, Proceedings — Necessary Parties.</p> <p>"Where a husband permits his wife to hold herself out as a Feme Trader when in fact she is not such trader, the property made out of the commerce she was pursuing legally belongs to her husband. She will be regarded as his agent and her obligations and liabilities thus made are binding on him. The husband is necessary to a proceeding to enforce her contract.</p>

<p>Wills — Patent Ambiguity — Extraneous Evidence not Admissible.</p> <p>Though extraneous evidence would lead to a different construction of a will, the ambignity being patent, that evidence is in admissible.</p>

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

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

<p>Actions — Records of Other Suits — When to he Filed.</p> <p>It is immaterial whether the papers in a suit competent to he used on the trial of another cause pending in the same court he filed before or after the trial is commenced.</p>

<p>Exceptions, Bill of — Extention of Time to File.</p> <p>The bill of exceptions containing the evidence was not hied according to the order given a day therefor, nor was any order extending the time made, held that, it cannot be regarded, though subsequently signed by the judge and filed by order of court.</p> <p>Sheriff — Principal and Surety — Liable for Illegal Acts of Deputy Done Under iColor of the Office.</p> <p>The sheriff and his security on nis official bond are liable for the illegal acts of his deputy done under the color of the office and will not be heard to say that the execution under which the deputy acted was improperly issued.</p>

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

<p>Vendor and Purchaser — Parol Sale of Land — Specific Performance — Estoppel.</p> <p>Where a party repudiates a parol contract for the sale of land and refuses to execute it, he is estopped to claim any of the benefits arising therefrom.</p>

<p>Eminent Domain — Appropriation of Land to Public Use — Interest from Date of Entry.</p> <p>The money being due at the time the appellant entered and appropriated appellees land, he is entitled to interest from that date.</p>

<p>Limitation of Actions — Accounts—Mutual Parments — Expected Set Off</p> <p>The statute of limitations does not run against actual payment or expected set-off.</p>

<p>New Trial — Confession of Judgment — Waiver—Neglect to Prepare Defense.</p> <p>If the confession of the judgment is not a waiver of any defense, the neglect to prepare for trial before judgment will deprive one of any pretense to a new trial.</p>

<p>Limitation of Actions — Resulting Trust.</p> <p>A resulting trust is not excepted from the operation of the statutes of limitation, which was not suspended by the death of the ancestor of the appellants.</p>

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

<p>Appeal and Error — Defective Record— How Corrected.</p> <p>Before submission of a cause on appeal, verified by the certificate of the clerk, such corrections as are necessary may be made as prescribed by the code, but after adjudication, it is too late to move its correction.</p>

<p>Executors and Administrators — Administrator de Bonis Won-Refunding Bond— Settlement.</p> <p>An adminstrator de bonis non cannot be compelled to accept a refunding bond taken by an executor and thereby discharge the legatees from liability incurred by their testator as executor.</p>

<p>Frauds, Statute of — Sale of Land by Judgment of Court.</p> <p>The sale of land by judgment of court is not -within the provisions of the statute of Fraud and Perjuries and therefore need not be in writing.</p> <p>Same — Trust—Purchase for Another.</p> <p>The agreement between Cantrill and Talbott and Mrs. Shropshire that they would purchase for her benefit is also binding on both and any attempt to convey the title to another would be a violation of the trust.</p>

<p>APPEAL FROM FULTON COMMON PLEAS COURT.</p>

<p>Husband and Wife — Potential Right of Dower — Release—Settlement.</p> <p>The release by Mrs. Rord of her potential right of dower in the land sold by her husband to R. Rord,formed a valuable consideration, sufficient to uphold a settlement on her to the extent óf the value of said potential right, even against the creditors of her husband.</p>

<p>Appeal and Error — Appeal to Circuit Court — New Defense.</p> <p>On an appeal to the Circuit Court the action should be tried anew and the defendant should be allowed to put in any sufficient defense as if the suit had been brought orginally in that court.</p> <p>Written Contract — Contradictory Parol Agreement.</p> <p>A written contract unimpeached, cannot be controlled or modified by a simultaneous and contradictory parol agreement.</p>

<p>Trover and Conversion — Robbery—Value of Currency Taken.</p> <p>A plaintiff has a right to have the highest value of his property so taken at any time between the robbery and the judgment.</p>

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

<p>APPEAL FROM UNION CIRCUIT COURT (NO. 1).</p>

<p>Bail — Recognizance—Forfeiture—Motion to Vacate Order — Time to Make.</p> <p>A motion to vacate an order forfeiting a recognizance must be made at the same term at which such order is made.</p> <p>Same — Remission—Accused Must be in Custody.</p> <p>The accused must be in the custody of the court before a remission will be made on a forfeited recognizance.</p>

<p>Crimnal Law — Instruction—Exceptions.</p> <p>Where instructions are not excepted to the action of the court in relation to them, cannot be made available as a grounds of reversal.</p> <p>Same — Reinstructing the Jury.</p> <p>It is not error to reinstruct the jury and more correctly and fully define the law to them after they had returned and was about to render a verdict not in accordance with the law.</p>

<p>APPEAL FROM M'CRACKEN CIRCUIT COURT.</p>

<p>New Trial — Misconduct of Jury — Affidavit of Jurors.</p> <p>The affidavit of jurors cannot he received to prove mishehaior in their fellow jurors for the purpose of impeaching their verdict.</p> <p>Same — Process of Arriving at Verdict.</p> <p>A judgment will not he set aside, and reversed where a jury had arrived at a verdict, hy dividing the amount that each one honestly thought the plaintiff in an action ought to recover, hy 12 after the respective amounts had heen aggregated, and making one-twelfth thereof their verdict.</p>

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

<p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p>

<p>Appeals — Wo Error in Instruction or Admission of Testimony — Judgment Affirmed.</p> <p>Where there is no error in giving or refusing instruction or in admitting or rejecting testimony the judgment will be affirmed.</p>

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

<p>Bills and Notes — Action on before Due — Parties.</p> <p>A holder of notes, none of which were due, when a cross petition was filed by him, cannot have judgment therefor, as only the allegations could be taken as confessed, and not its prayer.</p> <p>Same! — Necessary Parties.</p> <p>In the contest over the land for which said notes were given, he would be a necessary party, his interest being involved.</p>

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

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

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

<p>Instructions — Libel and Slander — Actionable Words.</p> <p>In an action for slander, where the words alleged to have been spoken, were proved by some of the witnesses, the court did not en-, in instructing the jury that if they believed from the evidence that appellant spoke the words charged in the petition of and concerning appellee, they must find for him.</p> <p>Same.</p> <p>And an instruction asked by appellee was properly refused, that sought to withdraw from the consideration of the jury the testimony of witnesses who proved the speaking of the words, and which directed the attention of the jury to the witnesses who heard the words spoken with accompanying explanations.</p>

<p>Actions — Abatement—Death of Formal Plaintiff.</p> <p>An action, prosecuted for the benefit of a wife, her husband being merely a formal plaintiff, it would not abate by his death.</p> <p>Limitation of Actions — Appeal.</p> <p>After more than three years has elapsed since a final judgment in favor of an appellee, and the statute of limitations is relied on, the bar is complete.</p> <p>Commissioners Report — Exceptions—When to be Filed.</p> <p>When complainants believe a commissioners report to be prejudicial to them, they should present their exceptions within a reasonable time, and not on the last day of the next succeeding term of court.</p> <p>Appeal and Error.</p> <p>Where from the affidavits etc. of appellants, it is not shown they were prejudicial by the' judgment below, it cannot be reversed on appeal.</p>

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

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

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

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

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

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

<p>Vendor and Purchaser — Deed Conclusive as to Land Purchase.</p> <p>Where a deed is accepted in fulfillment of a previous contract it is, in the absence of fraud or mistake, regarded as the best evidence, and conclusive of the question as to the land purchased.</p>

<p>Trial — Transfer of Causes.</p> <p>A suit for recovery of land by different claimants, one of whom claimed under a will then in litigation in the equity court should, on motion, be transferred to said court.</p> <p>Same.</p> <p>Should the will be set aside, such decree would be an end to the litigation, and an adjudication of both suits.</p>

<p>New Trial — Newly Discovered Evidence.</p> <p>Matters set forth as grounds for a new trial, which upon proof disclosed, all seem to relate to the issue of fact contested on the first trial, are not of that description of newly discovered evidence which would authorize the court to vacate the judgment.</p>

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

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

<p>Appeals — Time Within Which to Prosecute.</p> <p>As an appeal is required to be prosecuted within sixty days after the rendering of the judgment, and not after the day of the judgment, that day is included in the count.</p>

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

<p>Abandonment of Contract for Exchange of Personal Property.</p> <p>Henry and Eearis having traded personal property, upon demand made on Eearis, he refused to deliver, claiming a fault in the condition of the property delivered to him, and' would not deliver his property exchanged only qu a payment of $5.00. Held, that Henry rightfully regarded the trade as rescinded, and recovered possession of his mare.</p>

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

<p>Wills — Vested Remainder.</p> <p>“I give and bequeath, in trust, to Thomas D. Kennedy and George M. Southgate one-sixth part of said real estate for the use and benefit of the children of William W. Southgate, my deceased son, to be equally divided between them, subject to the following restriction ¡that said trustees will hold one-tenth of said real estate for Adeliza Arthur for life, remainder to her children. Should any of the children of William W. Southgate die without issue and unmarried, their part to go to the remaining brothers and sisters.” At the publication of this will, and at the testator’s death W. W. Southgate’s daughter, Mrs. Arthur had married the appellee with reasonable prospect of issue, and not long afterward gave birth to a son, whom she survived. After her own death her surviving husband, the appellee, as heir of his infant son, claiming the tenth part of the testator’s estate, proceeded to assert his right by this suit. Held: That the remainder was vested on the birth of the son free from any contingency of defeasance, and that, therefore, the father, as heir to that son, is entitled to the estate as claimed.</p> <p>Same — Words and Phrases.</p> <p>The phrase “unmarried and without issue,” used in a devise to children, held to mean “without lawful issue.”</p> <p>Same — Descent and Distribution — Where Wife Would Survive He¡r Issue.</p> <p>Where under the provisions of a will aforesaid, and the wife should survive her issue, and the husband should survive her, she not having died unmarried, the devise could not take effect, and the estate would pass by the law of descent and distribution.</p>

<p>Partnership — Partnership and Individual Debts — Application of Payment.</p> <p>A creditor who holds notes against a party individually, and against a firm of which he is a member, may appropriate a remitance, in the absence of directions, to apply to the firm account, to the payment of the individual indebtedness.</p>

<p>Executors and Administrators — Inventory—Laches.</p> <p>An executor will not be heard to complain because he is charged with the amount of notes on hand belonging to the testator at the time of his death. It was his duty, as executor, to have made and returned and inventory of these notes.</p>

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

<p>Pleading — Process—Agreed Interpleading of a Defendant.</p> <p>An agreement by plaintiff in an action, that a wife be permitted to interplead, on the ground of abandonment, and she was made a defendant, that her interest may be adjudged. Held not to be such service on the original defendant as to sustain a judgment in favor of the wife.</p>

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

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

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

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

<p>Appeal and Error — County Court Orders — Validity.</p> <p>Citizens of a county cannot prosecute and appeal to the Appellate Court, in the name of the county, from the orders of the county court to subscribe stock to a turnpike company.</p>

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

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

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

<p>Judicial Sale of Non-resident’s Property — Judgment Reopened — Effect on Purchaser’s Title — Equitable Proceeding.</p> <p>Although a non resident defendant, constructively served with process, may appear within five years and have the judgment opened and retried, and may then set up any legitimate defense; this new trial will have no effect on the title of the purchaser to the property sold under such judgment, but this should not bar proper proceedings making the purchaser a party in which any equitable cause for setting aside the sale may be made, still the purchaser would have a lien on the premises for -the purchase price.</p>

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

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

<p>Wills — Mistake—Parol Evidence.</p> <p>So long as an unmodified will is permitted to stand of record, its prer visions must prevail over any parol evidence, however imposing.</p>

<p>Abatement and Revivors — Code Procedure — Common Law Petition.</p> <p>The mere summary record of revivor presented by the code of practice does not abolish the sure mode by petition according to the common law.</p>

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

<p>Bonds, Replevin — Motion to Quash after Payment.</p> <p>Although a replevin bond might be quashed before satisfaction', a motion to that effect comes to late after- payment.</p>

<p>Limitation, Statutes of — New Promise.</p> <p>A new promise made within five years before the commencing of an action will take the case out of the statute of limitations.</p>

<p>Appeal and Error — Conflicting Evidence — Province of Jury.</p> <p>Where the evidence is conflicting it is the province of the jury to decide' which side has "the preponderance and the court of appeals has no power to interpose, after the court below has refused' to do so.</p>

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

<p>Actions — Pleading—Answer Evasive — Demurrer.</p> <p>Although the answer demurred to is evasive and insufficient as to some others it is good and therefore the demurrer should have been overruled.'</p>

<p>New Trial — Instructions—Exceptions.</p> <p>No objection was made to the instruction asked by appellee, nor exception taken when it was given, nor was any exception taken to the opinion of the court over-ruling the one asked by appellant, so that whether there was any error committed in giving or refusing instruction can not be considered by the court on appeal.</p>

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

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

<p>Judicial Sales — Descriptions of Land Sold — Purchaser Must have Good Title.</p> <p>The commissioner’s report of sale fails to describe the land sold so that same can be identified with legal certainty and the purchaser, therefore, being unable to get a good title was not compelled to pay the purchase money.</p>

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

<p>Dower — Consent to Judicial Sale — Acceptance of Purchase Money — Estoppel.</p> <p>A wife’s consent to a judicial sale of her husbands land and her acceptance of a part of the purchase money estopped her from asserting her contingent right of dower.</p> <p>Estoppel by Judgment.</p> <p>The appellant, as a party to this record, is concluded by this adjudged estoppel and she can never assert a right to dower hereafter.</p>

<p>Guardian and Ward — Costs of Court.</p> <p>In a suit by a guardian, to confirm a report previously made, he will not be entitled to his costs, where it is shown that his county court settlement was condemned, by the court from which the appeal is prosecuted</p> <p>Same — Attorney Fee:</p> <p>ISior will an allowance for an attorney fee to the guardian, be sustained.</p> <p>Guardian and Ward — Allowance for Maintenance.</p> <p>Where, by a will, the principal of a trust fund is not to be used, the guardian, who had the use of the wards money for two years without interest, cannot complain of a shortage for said period of expenses for board, etc.</p>

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

<p>Bond of Sheriff — Breach—Leaving State After Property Comes in His Hands.</p> <p>Property coming into a sheriff’s hands on attachment, must he preserved, and an illegal conversion of same, and leaving of the state, is a breach of his bond.</p> <p>Same — Pleading—Petition.</p> <p>A petition that charges such a breach, is substantially good.</p> <p>Same — Cause of Action — When Will Accrue.</p> <p>A cause of action thereon, would not however accruei until the attaching creditor had obtained his judgment in the attachment suit.</p> <p>Same — Statute of Limitations.</p> <p>Such judgment being rendered within seven years from the institution of an action, the statute of limitations would not discharge the sureties.</p>

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

<p>Descent and Distribution — Advancements—Note Due Estate by Legatee.</p> <p>A note, executed by a legatee to his deceased parent, providing “but not to be paid during life of X X X but after his death, to be paid out of the portion of the estate descending or devised to the undersigned,” is held, not to be an advancement by the father to the son, but a debt due the estate.</p> <p>Wills — Appointment in of Committee for Afflicted Child.</p> <p>A will, in which it provides for appointment of “a committee to take charge of my afflicted daughter, and her portion .of my estate,” held that, such appointment of guardian or trustee could only be until her arrival at twenty-one years of age, she not being an imbecile.</p> <p>Same.</p> <p>But as to the estate, the appointment of the trustee to take charge of same was absolute.</p> <p>Same — Words and Phrases.</p> <p>The word “committee” in a will, in an appointment to take charge of an afflicted legatee, and her estate, held to mean “trustee.”</p> <p>Wills — Admitted to Record Without Appeal.</p> <p>After a will has been admitted to record in the county court, and no appeal therefrom is made, it cannot be attacked by a petition in chancery, in the absence of non-residents or infant legatees thereto.</p>

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

<p>Bill of Exchange — Endorser—Consideration for — Banks and Banking.</p> <p>Where a discounting bank, requests an endorsement of other than the payee of a draft, and such endorsement is given, the payment of the amount to the payee, -is a sufficient consideration to hold the other endorser liable.</p> <p>Words and Phrases.</p> <p>“In current funds,” recited in a draft, or certificate of deposit, means lawful money in current circulation.</p>

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

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

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

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

<p>Jury — Dispersing on Account of Sickness — Objections Waived.</p> <p>Where, without objections, a jury is dispersed under charge of the court and before recalled, part of them serve in another case, neither litigant can be heard to complain.</p> <p>Oral Instructions — Must be Objected to When Given — Appeal.</p> <p>Oral instructions must be objected to when given, or a demand to have them reduced to writing, to be available on appeal.</p> <p>Peremptory Instruction — Evidence Contradictory.</p> <p>.Where the evidence is conflicting, it is peculiarly within the province of the jury, and a peremptory instruction is improper.</p>

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

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

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

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

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

<p>Pleading — Demurrer—Sufficiency of Petition.</p> <p>A petition is not demurrable, that fully sets out a prior suit, assigning as a reason for not filing the papers, that they had been burned in the clerk’s office. Nor would the giving of each specific date of each step taken be necessary.</p>

<p>Lands — Improvements—Permissive Use — Restitution.</p> <p>Where a tract of land is permitted to be used for a considerable time, and good and lasting improvements are made by the tenant by will, his estate should not be charged rent for same, unless an equitable settlement be made for such ameliorations.</p>

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

<p>Injunction to Restrain Collection of Taxes.</p> <p>The court has authority, upon final hearing, to grant a perpetual injunction, to restrain collection of tax assessments, though no temporary injunction had been sued out in the mean time.'</p> <p>Same — Attorneys Fee not Allowed.</p> <p>No attorneys fee can be allowed for services for defending a temporary injunction, granted in such case, as the jurisdiction of the court, for final adjudication, did not depend thereon.</p> <p>Appeal Bond — Liability of Obligors — Removal of Part From the State.</p> <p>An appeal bond, to restrain the collection of taxes, covenants to pay the amount of the taxes restrained, and the fact of the amount of such taxes due by each obligor therein, could not be stated in the judgment, will not preclude its collection.</p> <p>Same.</p> <p>This could only be done by the assessment books, and the amount ascertained by the collector, as to who was liable, whether ad valorem, or poll.</p> <p>Same.</p> <p>The removal from the state of some of the obligors in the bond, would not relieve the others therein from liability for the amount of all taxes enjoined. And any loss sustained by such removal, would be adjudged against the remaining bondsmen.</p>

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

<p>Appeal and Error — Bill of Exceptions — When Signed.</p> <p>A bill of exceptions cannot be made up and signed in vacation. Time may be given till the first day of the next tenn. '</p>

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

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

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

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

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

<p>Lease — Contract of Landlord and Tenant — Improvements.</p> <p>A lease containing that the lessee should “keep $2,000 insured on the premises for the exclusive benefit of the lessor, during its continuance,” held to mean that $2,000 was the amount of improvements kept on the premises by the landlord, and the tenant, in a final settlement should account therefor.</p>

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

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

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

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

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

<p>Appeal and Error — Objections to Affidavit.</p> <p>It is too late to object to the sufficiency of an affidavit, when no objections were made on the trial to filing the reply to which it was attached, nor motion made to strike it from the files.</p> <p>Res Judicata — Plea in Bar.</p> <p>Where the records of a former suit shows that the action was dismissed for want of service, it cannot be pleaded in bar to a subsequent action in another jurisdiction.</p> <p>Foreign Administrator — Bond as Required by Act of February 28, 1834, Second Section.</p> <p>The failure of a foreign administrator to execute a covenant to the Commonwealth, as prescribed under the Acts, February 28, 18/54, second section, is a fatal error, though the objection not made in the court below.</p>

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

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

<p>APPEAL FROM MCCRACKEN COMMON PLEAS COURT.</p>

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

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

<p>Appeal and Error — Remission from Judgment to Deprive Court of Appeals-of Jurisdiction.</p> <p>The remission of $2.00 from a judgment is not sufficient to deprive the Court of Appeals of jurisdiction, although it left a balance of less than $50.</p>

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

<p>Judicial Sale — Premature Decree — Interest to Be Sold Must Be Defined — Perfect Title to Purchaser.</p> <p>A chancellor should never subject land to danger of a sacrifice by selling an uncertain interest, but should always have the interest so defined as to be able to pass to the purchaser a perfect title.</p>

<p>Limitation, Statute of — Retrospective Limitation.</p> <p>A retrospective limitation to actions, allowing reasonable time to sue, does not either impair the obligation of contracts or divest any vested right.</p>

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

<p>Landlord and Tenant — Termination of Lease — Removal from Premises — Possession Reverts.</p> <p>Upon the termination of a lease and the removal from the premises by the tenant the possession reverts to the landlord.</p> <p>Same — Contracts to Lease — Actual Entry — Action for Forcible Entry.</p> <p>A mere contract for a lease -without an entry does not vest the possession in the lessee, consequently he cannot maintain an action for forcible entry. The right of action is in the landlord.'</p>

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

<p>Adverse Possession — Squatter’s Possession.</p> <p>A mere squatter acquires no possessory right beyond his improvements.</p>

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

<p>Same — Evidence Conflicting — Case for Jury.</p> <p>Where the evidence is conflicting and the jury has been properly instructed, their finding will not be disturbed.</p>

<p>Account — Note, Basis of Settlement.</p> <p>Where both parties show errors and their contracts are so confused as to render an accurate statement highly difficult the note executed by one to the other will be taken as a basis of settlement.</p>

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

<p>Estoppel by Record — Default.</p> <p>The appellant by his default in the action on the note, admitted the allegation that he had received, by his marriage with the principal obligor, more than the debt sued for. Consequently, he was estopped by the record from denying that fact and putting it in litigation in this case.</p>

<p>Partnership — Bailment of Partnership Property After Partnership Ceases.</p> <p>While partnership property remains unsold either partner has the right to have it stored and eared for, and the bailee should be allowed a reasonable compensation therefor, though the partnership may have previously ceased.</p>

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

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

<p>War — Taking Property by Military Officers — Power of Impressment — Peaceable non-Combatant.</p> <p>To justify the taking of property from a peaceable non-combatant citizen by a military officer, it must appear that it was done under a legitimate proceeding and exercise of the power of impressment.</p> <p>Same — Law of War and of Nations — Indiscriminate Plunder — Inferior Officers.</p> <p>Neither the law of war nor of nations sanction indiscriminate plunder, nor does the right of impressment belong to inferior officers, but must come from the commander of a post.</p> <p>Same — Justification by Inferior Officer — Criminal Intent.</p> <p>The order of a major in command of a small expedition to a subordinate officer to take horses from the citizens generally to mount his men, could be no justification in a civil suit by the owner for the value of the horse, whilst it would disrobe the case of that criminal intent necessary to establish a felony.</p>

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

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

<p>Husband and Wife — Feme Covert — Judgment by Defendant.</p> <p>It is erroneous to adjudge by default against a feme covert on an executory contract to purchase land without averring in the petition that she had separate estate or that the purchase was necessary for herself and family.</p>

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

<p>Damages — Default Judgment.</p> <p>No judgment by default can be taken for damages without proof before a jury or commissioner.</p>

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

<p>Divorce — Neither Without Fault — Allowance Reasonable — Decree Will Not Be Disturbed.</p> <p>Where neither party is shown to be without fault and the allowance for maintenance is reasonable, a decree of divorce will not be disturbed on appeal.</p>

<p>Parties to Foreclosure Proceedings — Mortgages.</p> <p>Morrow gave Berryman a mortgage, as a lien for B. becoming M.’s surety on a note to Ireland. The note was transferred to Stair. , In a suit by the administrator of Morrow to settle the estate and have the mortgage foreclosed, held, that Berryman was the only necessary party to such foreclosure proceedings.</p> <p>Same — Judicial Sale — Excepting to Commissioner’s Report.</p> <p>While the mortgagee could have had his lien asserted prior to other creditors, no exceptions having been made to the commissioner’s report at the time, a purchaser under the foreclosure proceedings cannot after-wards be ousted.</p> <p>Same.</p> <p>The mortgagee would only have the right to have the judgment of distribution of assets corrected.</p>

<p>Estoppel — Judgment—Motion to Set Aside a Sale of Land.</p> <p>After recovery of a judgment for a wrongful conversion of property, the plaintiff would not be estopped to have a sale of lands made under the original attachment, set aside, unless the amount of said judgment had been actually paid.</p> <p>Same — Equitable Settlement.</p> <p>Where more land was sold than necessary to settle the amount a defendant owed, it should be set aside on equitable principles, adjudging the purchaser a lien for the amount he actually paid therefor.</p>

<p>Contracts — Minor—Constructive Fraud.</p> <p>A purchaser of cattle from the son of plaintiff, who was under age, and known to the defendant, renders him liable for the highest market value thereof.</p>

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

<p>Estoppel — Judicial Sale — Purchase on Faith of Allegation in Petition.</p> <p>Appellant alleged in her petition that her husband gave her the property in litigation, and the appellee purchased on the faith of that allegation. Held, to estop her to allege or prove the contrary.</p>

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

<p>Criminal Law — Altering Counterfeit Notes Not Punishable.</p> <p>There is no statute in this State prescribing punishment for altering counterfeit notes on national banks.</p>

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

<p>Contract — Parol Agreement Different from Note.</p> <p>Without an allegation of mistake or fraud, a contract or agreement in parol different from that expressed in the note, cannot be relied on and proved.</p>

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

<p>Vendor and Purchaser — Fraudulent Eepresentation as to Quantity — Deficit.</p> <p>Appellant’s deed, under 'which he claimed, contained only 206 acres, and he represented the tract to appellees as containing 250 acres,, which representation may be inferred from the fact that in his deed he conveyed it as containing 250 acres, more or less. Held, that the appellant had reasons to believe that there were not 250 acres in the tract, and he should, therefore, be made responsible for the deficit, at the price, pro rata, at which he sold it.</p> <p>Pleadings — Averment and Prayer not Sufficient.</p> <p>Where the averments and prayer are not sufficient, no judgment can be rendered thereon.</p>

<p>Executors and Administrators — Account Against Decedent — Sufficiency of Affidavit.</p> <p>The affidavit of appellee that the account, sued on, against decedent was just and fair and included no usury, nor was there any just set-offs, and the affidavit of a disinterested witness that it was just, substantially conformed to the requirement of the statuee.</p>

<p>Boundaries — Surveyor’s Field Notes.</p> <p>The field notes of the original surveyor are competent evidence to establish a boundary line.</p>

<p>Contracts — Rescission—Equitable Settlement — Rent Set-off Against Interest.</p> <p>Where a contract for the purchase of a mil'l has been rescinded, the rents will be set-off against the interest on the purchase price, in the absence of fraud.</p>

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

<p>Judicial Sales — Right of Dower in Land Sold.</p> <p>The husband’s title to land sold under decree niay be acquired, but this does not divest the wife of her right of dower therein.</p>

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

<p>Executions — Sale Under Different Executions — Motion to Quash — Necessary-Parties.</p> <p>Where a sale is made under different executions, all the parties to be affected by a motion to quash the sale should be notified of the motion and the irregularity of restricting the notice to the parties to the separate executions is not cured by an order of consolidation, as the purchaser of the equity of redemption was a necessary party.</p>

<p>Forcible Entry and Detainer — Traverse—Adverse Possession — Deed of Partition Competent Evidence to Establish Boundary and Possession.</p> <p>On a traverse of the finding of a jury in the country, a commissioner’s deed of partition, by which the premises in contest were assigned to traverse, may be admitted as evidence to establish boundary and elucidate possession.</p> <p>Same — Instruction Explained.</p> <p>The instruction of the court that the jury must find for Dowton, “unless they shall believe from the evidence in the whole case that McLaughlin took the possession originally as the tenant of J. H. Yelton,” was simply? tantamount to saying that though this was proven by one witness, yet upon the whole evidence in the case, “you believe this is not the fact, you will find for Dowton.”</p>

<p>Principal and Surety — Money Borrowed Used to Discharge Obligation of Surety —Statute of Limitation,</p> <p>Appellant and Winston were partners and upon the dissolution of the partnership Winston assumed the debts of the firm. Afterward Winston borrowed money from the appellee, with appellant as his surety, a part of which he used to discharge one of the partnership debts. The appellee sued appellant on the note executed to him as Winston’s surety, to which action the appellant pleaded and relied on statute of limitation as a bar. Held, that the payment of the partnership debt by Winston out of a part of the money borrowed from appellee did not change the true condition of appellant on the note.</p>

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

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

<p>Action Against Administrator — Proper Demand — Affidavits.</p> <p>A creditor’s petition against an administrator may be dismissed upon a rule to show proper demand, but this would not be a bar to another suit after such proper demand.</p>

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

<p>Appeal and Error — Judgment Perpetuating Injunction Final — Statute of Limitation.</p> <p>A judgment perpetuating an injunction is final, and limitation on appeal from that judgment begins to run upon its entry of same.</p>

<p>Colleges . and Universities — Endowment—Removal—Construction of Act toi Consolidate — Return of Subscription.</p> <p>This action was brought by appellees, citizens of Mercer county, holders by assignment of a certificate of stock for the permanent (endowment of Bacon College, against appellant to compel the payment of the attached coupons. Certificates of stock, for subscriptions to said Bacon College, were isued to citizens of Mercer county, and afterwards by an act of the Legislature, said college was consolidated and removed to Eayette county, and providing a refund to the citizens of Mercer county the nominal value of unpaid coupons, and all scholarships subscribed. Held that as the certificates are transferable on their face; the citizens of Mercer county holding same, were entitled to collect same in .money instead of tuition benefits.</p> <p>Same.</p> <p>The same right conferred upon the donor to collect the subscription, would be conferred on their assignee, a resident of Mercer county.</p>

<p>Wills — Dower—Words and Phrases.</p> <p>By the word “dower” is meant the widows legal portion in both kinds of an estate, real and personal.</p>

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

<p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p>

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

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

<p>Attorney and Client — Compensation and Lien of Attorney.</p> <p>An attorney has a statutory lien on the fund in litigation and an order for paying his allowance out of that fund is not erroneous.</p>

<p>Executors and Administrators — Time to Pay Debts — Presumption as to Use of Money.</p> <p>At the expb-ation of two years from the date of the qualification of an administrator, the law presumes be will have bad time to have paid the debts and be ready to make distribution, and from that time will be presumed to have used the money.</p> <p>Dower — Improvements After Contract to Purchase Annulled — Pending of Suit to Settle Estate.</p> <p>It was erroneous to allow a credit for improvements, as this suit was not only then pending, but the contract for the purchase of the dower interest in the land bad been rescinded. Appellee made the improvement after this suit was pending and the contract annulled. Held, that be has no right to compensation therefor.</p>

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

<p>Appeal and Error — A Defendant Cannot Maintain an Appeal Against a Co-defendant.</p> <p>The appellants, Goddard and others, neither attacked the mortgage nor, by impleading, litigated with the appellee, N. D. Moore, the question of priority, nor claimed any judgment against him. Held, that as co-defendants with him, they cannot maintain an appeal against him.</p> <p>Indemnity — Mortgage—Surety of Replevin Bond — Priority.</p> <p>Held, that where the mortgagee’s suretyship on a replevin bond was simultaneous with the mortgage for his indemnity, his claim on account of the replevin bond had priority over all others.</p>

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

<p>Attachments — Burden of Proof.</p> <p>The grounds of attachment having been controverted by the answer, the burden of proving it thus devolved on the plaintiff.</p>

<p>Descent and Distribution — Administrator and Heirs — Ancestors’ Covenant of Warranty.</p> <p>Appellant sued Raymond’s administrator and heirs for a breach of a covenant of warranty binding the vendor and his heirs. The administrator, after answer, was permitted to withdraw it and move a dismission of the petition, because the sufficient demand had not been made of the administrator. And the court accordingly dismissed the petition without prejudice. Held, that before full preparation such an answer may be withdrawn and a dismission ordered, although the heirs could not require such statutory demand.</p>

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

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

<p>Debtor and Creditor — Off-Set.</p> <p>A fund, conmg into the hands of a commissioner, appointed by the court, is subject to the orders of the court, and unless, upon dissolving the commission, the plaintiff move for an order of payment over to him, the relation of creditor and debtor will govern.</p> <p>Same.</p> <p>Any off-set the debtor thus had, could be used in settlement of accounts between the parties.</p>

<p>Accord and Satisfaction — Debt Must be Actually Settled.</p> <p>A proposition, and promise by letter to transfer property in satisfaction of a debt, and an acceptance thereof, cannot have the effect of an accord and satisfaction, until'there was an actual transfer of something of value, and the creditor placed in condition to get possession of the property.</p>

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

<p>Accounts — Do not Draw Interest Unless Specified.</p> <p>An account was made with, a defendant, of “$600.00 on deposit which I am to pay on demand”. Held, that without demand or failure to pay, or special contract, this would not bear interest, the writing evidencing a mere deposit and not a loan.</p>

<p>Banks and Banking — Checks only Prima Facie Evidence of Payment.</p> <p>A bank cheek reciting “in full of all demands to date”, is held to be but prima facie evidence of payment, and may be, explained or corrected by proof aliunde.</p>

<p>Descent and Distribution — Sale by court of Interest of Minors.</p> <p>A sale by order of court, for the interest of minors, though the widow of the testator had given her a life interest, held not to be in contravention of the expressed provisions of the will, as it was no more than what would have been allowable if descended according to law.</p>

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

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

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

<p>Rent — Recovery for by Administrator from Heirs.</p> <p>Where the evidence preponderates in favor of voluntary surrender of rent notes by a testator, and giving them the use of the land another year ■without taking notes therefor, they cannot be held liable for rent in a suit by the administrator against them as heirs.</p>

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

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

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

<p>Wills — Incapacity to Make — Unadue Influence.</p> <p>A father, enfeebled in body, and mind, so as not to be able to care for himself, giving a deed to his -whole estate to a son whom theretofore he had always been astranged from, no considerations except his support for life, that after making the deed he tried to sell some of the land, saying he had only conveyed it during life to his son, held to constitute incapacity, and undue influence.</p>

<p>Fraud — Debtor and Creditor — Recovery of Goods by Creditor.</p> <p>A creditor has the right to recover his goods, as against other attachment creditors, where shown that the debtor ordered them in the name of a fictions firm, the goods, never talien from the depot, and the debtor being insolvent at the time.</p>

<p>Vendor and Purchaser — Deeds—Reservation of Lien.</p> <p>Where the deed is made to the assigned of a title bond of the vendor, and no reservation of the purchase money is made in the deed, the ven dors lien is thereby waived, though the title bond may have specified the reservation terms.</p>

<p>Appeal and Error — Judgment Reversed.</p> <p>Where on the appeal, the facts show that justice does not appear to have been done acording to the evidence, the judgment will be reversed.</p>

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

<p>Principal and Surety — Release of Surety by Negligence.</p> <p>A judgment creditor, who neglects to use due diligence in making the amount of his judgment while the debtor was solvent but allowing it to run for years, until the debtor moved from the state, is held to thus release the bondsmen of the debtor.</p> <p>Pleading — Transfer of Right of Action.</p> <p>Merely filing a transfer of a debt, and by order of court the assignee’s are made plaintiffs, and judgment rendered against the defendant, held erroneous. After answer, there must be notice as amended or supplimental pleadings, before they can be taken for confessed.</p>

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

<p>APPEAL FROM WEBSTER COMMON PLEAS COURT.</p>

<p>Duress — Signing of Note — Testimony Conflicting.</p> <p>Where the testimony shows that a plaintiff was not in actual clanger of violence or made an assignment of a note through intimidatio” or fear, he cannot recover property so given in settlement of a suit.</p>

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

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

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

<p>Contracts — Rescission—Rents Off-set Interest on Amount Paid.</p> <p>Upon a rescission of a contract of purchase for lands, the interest on the purchase money paid in, is held to off-set rents of the property, whether it be a private sale, or by order of court to settle an estate.</p>

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

<p>Criminal Law — Misdemeanor—Sufficiency of Evidence to Constitute.</p> <p>In order to convict for a misdemeanor, it is not necessary for the offender to have been the actual perpetrator of the wounding; it was only necessary that ha was present, aiding and abetting the act, to make him a principal in the second degree.</p> <p>Same — Instructions.</p> <p>An instruction “that the defendant, in a sudden affray, without previous malice and not in self defense did shoot and Wound,” etc., held erroneous in that the jury were told that he could not be found guilty unless he fired the fatal shot.</p>

<p>Vendor and Purchaser — Rights of Purchaser on Eviction, to Improvements.</p> <p>Ordinarily a purchaser by a parol contract, turned out of possession by his vendor, is entitled to be paid for his improvements, and if the owner of land induce another to enchanee its value by improving it with a verbal assurance that he will be compensated by having the use of the property for a term of years, he will be allowed the vaue of his improvements, with a lien on the land, if the owner requires restitution of the possession in violation of his agreement.</p> <p>Same.</p> <p>This equitable principle will apply where the defendant had improved land, under the belief induced by his mother, that she would not reclaim the possession, but would ultimately, convey the land to him, hut where he was afterwards ousted by the administrator of her estate.</p>

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

<p>Contracts — Consideration—Wife’s Use of Part, for Necessaries.</p> <p>A contract, providing for the sale of tobacco to reimburse a surety, with a provision for a return of $200.00 to a wife who signed same, held that the refund of the $200,000 to the wife was a sufficient consideration to uphold the contract.</p>

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

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

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

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

<p>Trusts — Payment by Agent of Balance Due on an Estate.</p> <p>A payment by a father,- of the balance due on land purchases made by his deceased son, and taking the deeds thereto in his own name, will vest him with the equitable title only, in trust for the heirs.</p> <p>Same — Devise.</p> <p>A devisee of the father would not be invested with any other rights, than those devised, by said deceased father.</p> <p>Partnership — Eight of Silent Partner — Power by Sale — Revoked by Death of Partner.</p> <p>Taylor and Humphreys bought for speculation a large tract of land, and Taylor had parol instructions to sell same for a profit. Held that upon the death if Humphreys, Taylors right to sell was revoked.</p> <p>Same — Principal and Agent.</p> <p>Nor would such contingent right of sale in the agent or trustee, convert the land into money, nor impress on it the quality of personalty, chough Humphreys had purchased it on speculation.</p> <p>Descent and Distribution — Advances by Parent to Save the Estate of Son.</p> <p>A bequest of all advances made by a father to protect a heavily involved estate of his son, will take them out of a contingent right of the widow and devolve on hen the settlement of all debts thus made, out of her interest as devisee.</p> <p>Same — Right of Devisee to be Reimbursed for Legacy Lost in Litigation. •'</p> <p>Where grandsons take by devise, and not as heirs, such part of the devise 'as is lost to them by reason of defective title of lands must be made up from other undevised assets of the testator, before a prorata contribution can be demanded from the other legatees.</p> <p>Same.</p> <p>If such assets be insufficient, then for the deficit, a pro rata contribution from the other legatees will be enforced.</p> <p>Wills — Descent and Distribution — Renouncing of Terms by Widow.</p> <p>Upon renouncing of the provisions, of a will, a bequest' of rents and profits of one third of certain lands, for life, will revert back and become a part of the 'undisposed of estate of the testator.</p>