Volume 4 — Kentucky Opinions

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

<p>Courts — Reasonable Time to Comply With Mandate.</p> <p>An opinion of the Appellate Court, revising a judgment below, implies that the litigant shall have a reasonable time to comply with the man- • date, and discharge the order.</p> <p>Same — Trial.</p> <p>Ordinarily actions do not stand for trial at the term of the court at which a mandate of the Appellate Court, reversing a former judgment in the ease, is filed.</p> <p>Same — Process.</p> <p>Nor can a decree thereon, in the court below, be entered until process is served on the litigants.</p>

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

<p>Pleading — Petition Alleging Action on Supersedeas Bond.</p> <p>A petition, alleging the execution of a supersedeas bond, and all facts of its course through the Appellate Court, constitutes a good cause of action.</p> <p>Same — Demurrer.</p> <p>A demurrer to such petition should be overruled.</p>

<p>Lis Pendens — Attachment—Another Suit Pending.</p> <p>Where, in an attachment proceeding, a defendant answers, admitting owning property referred to in another suit pending against him, this is held sufficient to constitute a lis pendens under the attachment.</p> <p>Laches.</p> <p>An answer filed to an attachment suit three months after service of process, and the cause submitted in six months, held not laches.</p>

<p>Evidence — Entry on Books Made by Employee.</p> <p>Entries by an employee made on the books kept by him can be used to establish a liability for an increase in salary given him by his employer.</p> <p>Master and Servant — Employer and Employee.</p> <p>An employer is liable under a parol agreement for an increase in salary of his employee, where his books show the entry made thereon by the employee, and not objected to by him.</p> <p>Same — Due Care in Acts of Employee.</p> <p>A manager of a business, who negligently or by lack of due care, permits one of his sub-employees to overdraw his wages, is personally liable to the employer for same.</p>

<p>Indictment — Sufficiency When Taken as a Whole.</p> <p>The preamble and body of an indictment must be construed together, and if they show with certainty to a common intent that a felony was committed, it is sufficient.</p>

<p>Evidence — Facts de Hors an Entry Under a Patent.</p> <p>Where it appears upon the face of a patent that it is illegal, it may be considered null and void, but evidence of a fact de hors the patent is inadmissible in a collateral proceeding to avoid or defeat it.</p>

<p>Highways — Street Improvement, Regrading and Filling.</p> <p>Property owners cannot be held liable for a claim for regrading and filling a street, where the claim embraces work done in excess of that authorized by the original ordinance.</p> <p>Same.</p> <p>Nor under neither of the acts of February 24, 1865, and of 1867, is the owner liable, where he not only’ received no benefit from the street improvement, but is damaged thereby.</p> <p>Municipal Corporations — Ordinances—Constitutionality.</p> <p>The constitutionality of a local ordinance for street improvement depends upon the fact, that the party whose property is taken for public benefit, receives compensation in some degree in the enhancement of the value of his remaining property.</p> <p>Same — Authority of City Council by a Subsequent Ordinance.</p> <p>Property owners along a street upon which improvement is done, cannot be compelled to pay the expense therefor, by a subsequent ratification by the council of the action of the officers.</p>

<p>APPEAL PROM JEEEERSON CIRCUIT COURT, CHY. DIV.</p>

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

<p>Officers — Constable—Execution—Levy and Sale — Fi Fa Sufficient.</p> <p>Appellee as an acting constable levied an execution on some lumber and furniture owned by appellant wbo brought this action of trespass against the contsable for so doing. Held, that the fi fa which is pleaded was a sufficient justification without producing the judgment upon which it was founded.</p> <p>Recognition of Officer.</p> <p>As appellant recognized the appellees’ official character and right to levy on the property, the nonproduetion of his official bond and oath of office, is not reversable error.</p> <p>Exemptions — Personal Property.</p> <p>Lumber and materials of a cabinet maker, in his possession, are not exempt from levy under the statute.</p> <p>Misnomer — Execution—Trespass.</p> <p>The frame of a press, levied on by a constable, calling it a washstand, and sold for benefit of defendant, cannot constitute a trespass.</p>

<p>Corporations — Turnpike Company — Subscription to Capital Stock — Conditions as to Use of Money Subscribed.</p> <p>Appellee upon a return ofnulla bona on an execution against the Maxville, &c., Turnpike Company brought this suit in equity, making appellants defendants as garnishees, and calling on them to state what amount they owed on their subscription to the capital stock in the company. They answered, and denied they owed anything, as their subscription of given amounts of stock were conditioned that it was to be laid out upon that division of the road on which they lived and that the appellee was a contractor on another division, and they, denied the right to appropriate their subscription otherwise than upon the condition set out. These allegations were not denied. Held, that as the road company could not sue and receive of the garnishees the amounts of their various subscriptions to be laid out on other divisions of the road, so a contractor on such other division could not recover from them.</p>

<p>Contracts — Principal and Agent — Personal Responsibility of Agent' for Contract Made for Principal.</p> <p>Appellee as agent of McAlter & Co., purchased tobacco from appellant agreeing to retain the tobacco in his possession as security for the price due appellant, but afterwards forwarded the tobacco to McAlter & Co. And the appellant brought an action to recover against the appellee, personally. Held, that the agreement to hold the tobacco as security to the appellant imposed on the appellee a personal obligation to hold it subjct to the debt.</p>

<p>Contracts — Construction.</p> <p>Appellee sold to appellant fifteen beef cattle, to be paid for at the same rate per pound which other seven cattle owned by appellee, would bring in the Covington market and which were to be started the next day to that place. The cattle were not started on the 17th, but 20th and arrived at Covington on Saturday evening, 21st of December. The market was dull and low when appellee reached Covington, and he withdrew his cattle from the market until a more favorable time to sell. Held, that the appellee could not increase appellants responsibility, for the fifteen head by withdrawing the seven from the market to await better prices.</p>

<p>Principal and Surety — Indemnity—Attachment.</p> <p>Under the statute, a surety may bring an original suit against his principal to compel him to discharge the debt or for indemnity, and auxilliary to this he may have an attachment, notwithstanding there is an action pending against him.and his principal, seeking a common’ law judgment against them for the debt.</p>

<p>Appeal and Error — Final Orders — Exceptions to Commissioner’s Report.</p> <p>The overruling of exceptions to a commissioner’s report, rejecting the claim of the litigant, is not a final order, from which an appeal will be allowed.</p>

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

<p>APPEAL PROM PLEMING CIRCUIT OOURT.</p>

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

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

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

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

<p>Taxation — Municipal Corporation, Extending Corporate Limits.</p> <p>Wilson’s land was separated from the built-up portion of a town by a creek, over which no crossing was erected, and during several months of the year, could not be crossed on foot. Only three families lived on this side of the creek, ánd no improvements or streets were_ constructed. Held, not to be liable for city taxation under an act taxing farm lands in the corporate limits.</p> <p>Same — Municipal Corporation — 0 rd ¡nance.</p> <p>The ordinance providing for taxing farm lands within the corporate limits of a town extending for a long distance beyond the resident section, is held in violation of the spirit of the constitution, and void.</p> <p>Same — Tort—Liability of Trustees.</p> <p>The seizure' and sale of the property under such an ordinance, would not be malicious, and the owner could not recover more than its actual value, and the trustees of the town would not be liable personally.</p>

<p>Creditors Suit — Fraudulent Conveyance in Contemplation of Insolvency.</p> <p>In a suit to set aside a conveyance made by an insolvent, a creditor, who, from the nature of the conveyance, assisted in protecting himself and several other preferred creditors, by accepting the property and paying off the claims, merely substitutes himself to the rights of such creditors to the extent of his payments, with no right of priority over others in the subsequent distribution of assets.</p> <p>Equity — Sight of Co-Owner to Improvements — Substitution of Creditors.</p> <p>Equity will give a co-owner a right in a partition proceeding, to the exclusive use of valuable and lasting improvements- made thereon, and the creditors of such owner would be subrogated thereto.</p> <p>Same.</p> <p>This could not be defeated because the co-owner had used the whole interest, without payment of a rental. The other owners could only • prove their claims in the proceeding, like other creditors.</p> <p>Dower and Curtsey — Sale Before Allottment.</p> <p>Before assignment of a widow’s dower she has such an interest in her deceased husband’s estate which is the subject of bargain and sale, like any other inchoate interest in realty.</p> <p>Same — Husband and Wife.</p> <p>The. wife can pass such an interest by deed, and her creditors can have the dower -allotted and subject same to their claims.</p>

<p>Eminent Domain — Compensation to Owner.</p> <p>Just compensation to the owner for taking his property for public use without his consent, means the actual value thereof in money, without any deduction for estimated profit, or the advantages accruing to the owner for the public use.</p> <p>Same — Set-off.</p> <p>Speculative advantages or disadvantages, independent of the intrinsic value of the property from the improvements, are a matter of set-off against each other, and do not affect the dry claim for the intrinsic value of the property taken.</p> <p>Same — Just Compensation.</p> <p>As the owner of the land has the right to demand pay for Ciat taken, notwithstanding that the use to which it may be put, 'may greatly enhance the value of the remaining land, he cannot be allowed to avail himself of this enhancement' to increase the value of that for which the public is required to pay.</p> <p>Railroads — Damages for Taking Property for Right of Way — Rule.</p> <p>In an eminent domain proceeding for damages for taking property by a railroad company, no fact which does not certainly and absolutely have the effect of causing an immediate and definite depreciation of value shall be taken into consideration.</p> <p>Set-off and Counter-claim — Provisions in Charter of Railroad Company, For.</p> <p>Damages occasioned, danger of. fire, injuring of stock, inconvenience of hauling across the track, and discomfort by passing trains, are consequential, and are off-set by the provisions in the charter of a railroad company, providing, “advantages to such residue of property to be derived from the building and operating of said road by, through or near such residue •’</p>

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

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

<p>Descent and Distribution — Devise in Fee Simple.</p> <p>A devise in real and personal estate to, children in fee, is not made defeasible by the declaration “should either of my children die without children, the surviving children to inherit.” It is not a limitation of the title or a restraint on the jus disperendi.</p>

<p>Judgment by Default — Defendant’s Negligence.</p> <p>A plea that a defendant, who had not employed an attorney, • was present at a term of court and learned that all ordinary cases would go over, and had a good defense, is insufficient to set aside a default judgment.</p>

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

<p>Intoxicating Liquors — Statute Regulating, to Whom Applicable.</p> <p>The statute prohibiting the sale of intoxicating liquors, is held to apply generally to all minors under twenty-one years of age, including those who have neither father, mother nor guardian.</p>

<p>Indictment for Selling Liquors to Minor — Sufficiency.</p> <p>An indictment for unlawfully selling liquors “to James McCourt, lie the said James McCourt, Jr., then and there being a white person under the age of twenty-one years, and which said liquor so sold as aforesaid was * * * so sold by the said Closterman without either the written consent of the father, mother, or guardian of the said James MlcCourt, Jr., or either of them,” .is held sufficient for the offense charged.</p> <p>Same — Idem Sonans.</p> <p>The three names used is hel'd to mean the same “individual,” by the use of the word “the said,” preceeding same.</p> <p>Same— -Bar to a Subsequent Prosecution.</p> <p>• Such an indictment is held to be sufficient to constitute a bar to any subsequent prosecution for the same offense.</p> <p>Same.</p> <p>Nor would the plea avail, that it did not set out the father was living, or if dead, that he was under the control of his mother or guardian.</p> <p>Indictment for Sdlling Liquor to a Minor — Instruction.</p> <p>In a prosecution for selling liquor to a minor, an instruction that “the accused was required by the law to know that McCourt was a minor, and that his ignorance as to his age, or the belief that he had reached the age of twenty-one years, could neither justify nor excuse the inhibited selling,” was not erroneous. •</p> <p>Same.</p> <p>Nor an instruction that “the sale by an agent, authorized by the accused to sell to the minor, was as much a violation of the law, as though he had made the sale himself.”</p>

<p>Resulting Trust — Parol Agreement for Purchase of Land — Entry and Occupancy.</p> <p>A tract of land was entered by three patentees, but the patent was issued in the name of only one. Dudd entered on and used one-third of the land, for some forty years without interruption. Held that a trust resulted to him in one-third of the land and his entry regarded as an appropriation, with the assent and approbation of appellee.</p>

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

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

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

<p>Contracts — Mistakes Corrected.</p> <p>Relief can only be granted on tlie ground of mistake in a written instrument when the mistake is plainly and clearly proved.</p> <p>Same.</p> <p>The instrument should he treated as a full and correct expression of the intention of the parties, until the contrary is established beyond reasonable controversy.</p>

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

<p>Attachment — Instruction as to Damages.</p> <p>An instruction in an attachment proceedings, to allow the jury to assess damages for any remote injury resulting from the interruption of the regular course of the plaintiff’s business, is erroneous and misleading.</p> <p>Attachment — Damages for Wrongful Suing Out.</p> <p>Recovery for the wrongful suing out of an attachment can only be had for such damages as are natural and proximate. And does not extend to cover supposed tosses sustained by a mere derangement of the business.</p>

<p>Wills — Life Estate with Remainder Interest.</p> <p>A will providing “I bequeath to * * * my beloved wife * * during her life, to have and use the same to her own use, having no legitimate children,” followed by a clause “after the death of my wife, the estate she leaves, to descend to my grandaughter,” is held to create a life estate only, though the legatee provided for, died before the testator.</p> <p>Same — Devise Void.</p> <p>The devise to the grandaughter, by her death, being void, the remainder interest passed by the will to the testator’s brothers and sisters.</p>

<p>APPEAL FROM JEFFERSON CIRCUIT COURT, O. P. DIV.</p>

<p>Pleading — Petition by Surety on Guardian's Bond Insufficient — Demurrer.</p> <p>A petition by a surety, against eo-sureties on a guardian’s bond, for contribution, that' does not allege the insolvency of the principal, nor other reason why the amount could not be made out of him, does not constitute a cause of action, and is demurrable.</p>

<p>Appeal and Error — Jurisdiction of Appellate Court.</p> <p>Where the statute gives no right of appeal from the county court to the circuit court, an appeal from the latter to the appellate court, is erroneous and will be dismis-ed.</p>

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

<p>Attachment — Preference of Creditors.</p> <p>The securing of a creditor, who is not a party to any scheme by a debtor to prefer creditors, and where both parties show an honest intent, not grounds for an attachment.</p>

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

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

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

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

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

<p>APPEAL PROM’ CAMPBELL CIRCUIT COURT.</p>

<p>Vendor and Purchaser — Rescission of Contract — Failure to Have Sale Confirmed.</p> <p>Gauman purchased property at a judicial sale, subject .to confirmation, and sold the land to Dugan, who sold to King for .$250 profit. Gauman’s sale was not confirmed, but a resale ordered. Gauman died, and Dugan bought at the second sale for $2,600. In a suit to recover his loss from Gauman’s estate,held, that as he had not made actual payment on the first purchase, he could not recover damages.</p>

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

<p>Vendor and Purchaser — Parol Sale of Lands.</p> <p>A parol sale of land, must be supported by uneontradieted evidence of an absolute barter, to overcome the statute of frauds.</p>

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

<p>Pleading — Petition on Contract Between Banks.</p> <p>A petition on a contract, must show each specific item on which an alleged loss is claimed, and not a mere allegation in general as to a total loss.</p> <p>Same — Account Piled With the Pleadings.</p> <p>An account referred to in a petition and styled by “Exhibit -” in which different items, constituting different transactions are set down, to constitute a part thereof, the items alleged to constitute the obligation must be shown in the petition, at least in subsance. And if a written contract, must be filed, or its loss accounted for.</p> <p>Same.</p> <p>So much of every contract or transaction must be stated in the pleadings as to show how the plaintiff is entitled to the relief he seeks.</p>

<p>APPEAL EROM JEEEERSON CIRCUIT COURT. CHY. DIV.</p>

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

<p>Husband and Wife — Land Purchased by Husband Paid by Wife’s Inherí tances.</p> <p>Where it is shown that lands purchased by a husband, no conveyance haveing been made him, were settled by his purehose money bonds being discharged by the wife relinquishing her interest in her father’s estate, held, between her and her husband’s creditors, that the lands belonged to the wife.</p>

<p>Sheriffs and Constables — Liability of Surety — Acceptance of List of TaxPayers — Waiver.</p> <p>The acceptance of the list of tax-payers, by the sheriff, though not delivered in ten days after execution of his bond, held, to be a waiver of the time of delivery.</p> <p>Pleading — Action Against Sureties of Sheriff for Settlement.</p> <p>Where a petition alleges the list of persons chargeable with the payment of the county levy, was placed in a sheriff’s hands, this can only be negatived by way of defense to the action. It is presumed the clerk did his duty.</p> <p>Same.</p> <p>It was not necessary to allege in so many words that the levies were distrainable, nor that the sheriff had' collected them.</p>

<p>Pleading — Sufficiency of Petition on an Account.</p> <p>A petition alleges Plaintiff sold to Sheppard a barrel of whiskey, 42 gallons, for $3.25 per gallon, upon the faith of the written guarantee of the defendant, Humphrey, that it would be paid; and that he caused Humphrey within due 'and reasonable time to be notified that his offer as guarantor of payment had been accepted by the vendor. Held, sufficient to constitute a cause of action.</p> <p>Actions — Contract For Sale of Whiskey — Instructions.</p> <p>An instruction, “that the whiskey, sold in March, 1868 x x x and that defendant had notice during the spring of that year,’held, erroneous in that the time of notice to the guarantor was unreasonable, and indefinite.</p> <p>Guarantor — Notice of Acceptance — General Hule.</p> <p>A person proposing to become guarantor for another is not to enquire as to the acceptance of his proposal: the creditor who- intends to hold him liable for the debt of another, must show that he had reasonable notice of such intention.</p> <p>Notice — Acceptance of Guarantor.</p> <p>An instruction that a guarantor had notice “during the spring of 1868,” not sufficient to constitute notice to the guarantor that he would be held liable on his guarantee, in that it was too indefinite.</p>

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

<p>Equity — Anullment of Judgment in Ordinary Action.</p> <p>A proceeding in equity cannot he maintained to annul a judgment in an ordinary action, for a defense not discovered since the rendering of the judgment, hut of which the plaintiff was fully aware.</p>

<p>Attorney and Client — ‘Negligence of Attorney in Not Communicating Facts to Client.</p> <p>A client cannot claim the benefit of the negligence of his attorney in not communicating facts as to the progress of the case.</p> <p>New Trial — Facts Within the Knowledge of the Attorney.</p> <p>It is no cause for a new trial that an attorney did not communicate all the facts to them, alleged in his affidavit. What he knew, they • should have known.</p> <p>Deposition — May be Used by the Adverse Party, Though Suppressed.</p> <p>The deposition of a witness, though suppressed on exceptions, may be used by ■ the adverse party to contradict any sworn statement he may make in the cause during its progress. .</p> <p>Champerty — Contract Made After Suit in Progress.</p> <p>Where a contract, alleged to be ehampertous, is made while the suit was pending and on which one trial Was had it is not within the inhibition of the statute.</p>

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

<p>Mines and Mining — Removal of Coal Adjacent to Main Entry — Damages.</p> <p>Where the proof shows that a lead in a mine would not terminate at a point contemplated by the parties to a contract for lease of a mine, but at a point wholly impracticable to reach the coal to be mined, nominal damages for destruction thereto only could be recovered.</p> <p>Same — Defense—Plea that Better Coal Was Opened Up.</p> <p>A plea, in defense to a suit for violation of a contract, that by reason of opening up of a new passage way, and closing of the old one, in that more and better coal was thus left than was taken from the pillars supporting the portion of the entry destroyed, held not good.</p> <p>Same — Betterment to Owner of Mine — Duty of Lessee.</p> <p>It is the duty of the lessee to work a leased mine as not to render unnecessarily difficult, the mining of such coal as they might choose or be compelled to. leave at the expiration of their term.</p> <p>Same — Mistake in Lease — Exceptions Reserved — Covenant.</p> <p>A lease permitting the lessee to mine coal, but to preserve the “main entry” by leaving pillars sufficient on either side to support it, and with “this exception” to remove all coal, etc., held that the words in the form of an exception amounted to a covenant to preserve the supports and leave open the passage way as much as to preserve the entry itself.</p> <p>Pleading — Demurrer to Petition For Damages For Removing Supports to a Coal Mine.</p> <p>A petition seeking to recover damages for the removal of pillars, stipulating “to preserve the main entry by leaving pillars on either side sufficient to support it” is not demurrable, though the plaintiffs could not recover as in trover and conversion.</p> <p>Same — Mines and Mining — Criterion of Damages.</p> <p>As a criterion of damages, the difference in the value of the mines, in the condition they were restored to plaintiff on the day the lease expired, and what their value would have been in case “pillars sufficient to preserve and leave open” the main entry, had been left as stipulated.</p> <p>Same.</p> <p>The enquiry should be confined to the difference in value on the day the lease expired, and should exclude any consideration of the value of the entry as a passage-way.</p>

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

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

<p>Guardian and Ward — Purchase of Property by Guardian — Trusts.</p> <p>The purchaser of property by a guardian, in -which his wards claim an interest, is held to enure to the benefit of said wards, though the deeds be taken in the name of the guardian individually.</p>

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

<p>Injunction — Dissolution—Remedy.</p> <p>The dissolution of an injunction being only interlocutory, the remedy is an application to a judge of the Court of Appeals for reinstatement and not by appeal.</p>

<p>Garnishment — Answer of Garnishee — Oral Examination Not Required— Depositions.</p> <p>A garnishee has the right to appear in person and he examined orally or answer in writing, and if he adopts the latter mode he cannot be compelled to appear in person, after a transfer of the case to equity, to undergo an examination before the court, unless he is in contempt of court for failing to make a sufficient answer. His testimony should have been obtained by deposition.</p>

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

<p>Appeal and Error — Jurisdiction—Answer Without Objection.</p> <p>The appellant answered both the original and cross-petition of the appellee without objection to the jurisdiction of the court, but failed to answer the amended cross-petition.</p> <p>Held, that the objection taken for the first time in the Court of Appeals, that the Circuit Court had no jurisdiction to render the judgment, cannot be sustained.</p>

<p>False Imprisonment — Inviting Arrest and Courting Imprisonment — Peremptory ■ Instruction.</p> <p>In an action for false imprisonment, where the plaintiff’s own evidence shows that he invited the arrest and courted the imprisonment, it is not error to give a peremptory instruction for the defendant.</p>

<p>Judicial Sales — Definite Pleadings or Evidence of Title in Defendant.</p> <p>It is erroneous to order the sale of land without either definite pleading for that purpose or such evidence of title as was reasonably necessary to assure the purchaser and to enable the commissioner to sell and the court to convey the title.</p>

<p>Judgment by Default — Defendant Constructively Summoned — Petition—Proof of Allegations — Affidavit of Plaintiff..</p> <p>The allegations of a petition against a defendant constructively summoned, and who has failed to appear, cannot be taken as true, unless the plaintiff files,' with his petition, his own afir davit, stating that the-allegations are true and known to be so by the defendant and that they cannot be proven otherwise than by his answer.</p>

<p>Husband and Wife — Custody of Child.</p> <p>Where the husband and wife are both of a good moral character and the child is of tender age, a judgment committing it to the custody of the mother will not be disturbed on appeal.</p>

<p>APPEAL BROM ROWAN CIRCUIT OOURT.</p>

<p>APPEAL PROM JEFFERSON COUNTY COURT.</p>

<p>APPEAL EROiM CALDWELL CIROUIT COUET.</p>

<p>Clerks of Courts — Wrongful Issuance of Execution — Liability—Measure of Damages.</p> <p>The appellant as clerk issued a second execution on. a judgment, at the instance of another party, notwithstanding the first one had been returned satisfied, as shown by the records of his office, held, that where it is not shown that the clerk acted corruptly, he is only liable for the actual damages sustained by reason of his wrongful act.</p> <p>Same.</p> <p>The party who procured the execution to issue, and who received the amount collected is primarily responsible; but if he is insolvent the clerk is liable for the entire amount improperly collected.</p>

<p>Municipal Corporations — Street Improvement — Subdivision for Purpose of Assessment — Equal Burden on Abutting Property.</p> <p>The right of a city to levy a tax on property fronting on a street not being questioned, the town council has the right to sub-divide the street, being improved, by certain cross streets, so as to form the lot owners into a defined square or sub-division, or quasi community for the purpose of specific local taxation.</p>

<p>Railroads — Taxation for Local Purposes — General Laws.</p> <p>Railroads are not legitimate subjects of local taxation under the general laws of tbis state.</p>

<p>Vendor and Purchaser — Lien For Purchase Money — Eecitals in Deed.</p> <p>The recital in a deed, is that said land was sold “for the sum of $1700.00 to he paid in hand, the receipt of which will he fully acknowledged, when the ahoye amount is fully paid to the order of the first note.”</p> <p>The vendor caused his vendees to execute to Ferguron, their joint note for the sum of $1088.44, and to Denny, the appellant their joint note for $300.00. Denny brought this action on his note seeking a purchase money lien on the land. Held, that neither the letter nor the spirit of the statute, giving vendors a lien for purchase money on land sold, was complied with in the execution of the conveyance.</p>

<p>Land — Disputed Line — Adverse Possession — Compromise—Surrender of Possession.</p> <p>When two persons are claiming the possession 'of land to a line of doubtful location, upon agreement as to the true location of the line, each to surrender to the other whatever possession they may have had beyond the line so agreed upon.</p>

<p>Animals — Sheep Killed by Dogs — Action For Damages — Petition.</p> <p>In an action for damages for sheep killed by dogs the petition must allege that the owner of the dogs had received the notice required by the statute, or that his dogs had killed and wounded sheep before.</p>

<p>APPEAL PROM WASHING-TON CIRCUIT COURT.</p>

<p>Guardian and Ward — New Bond Releases Surety in Existing Bond — Accumulative Surety.</p> <p>Where a guardian is allowed upon his own motion in the county court to execute a new bond for the express purpose of releasing from liability his surety upon his original bond, and the new bond is executed, approved and accepted by the court, the former surety of all liability whatever, and the new bond is not accumulative surety.</p>

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

<p>Partnership — Services Voluntarily Rendered by Partner — Compensation—. General Rule — Exception.</p> <p>When there is no agreement between the parties, what either of them are to receive as compensation for their services, it is a general rule, that in such cases neither partner will he entitled to any such compensation. for services voluntarily rendered by him in the partnership business, that there are exceptions to this general rule is true, but to bring a ease within any such exceptions, there must be some very special and particular state of facts.</p>

<p>Negligence — Action For Damages — Street Railway — Compromise—Notes For Damages — Power to Issue — Ratification by Stockholders.</p> <p>The appellee brought an action against the appellant for injuries sustained on its street railway. The agent and superintendent compromised the suit and issued the company’s notes for the amount of damages agreed upon. The stock-holders of appellant ratified the acts of the superintendent in settling the suit and issuing notes to appellee ' for the amount of damages agreed upon.</p> <p>In this action on the notes the appellant contends that there is no consideration for the notes and that they were issued without the authority of the company.</p> <p>Held, that the settlement of the damage suit is a good consideration for the notes and the ratification of the superintendent’s acts in the premises, though informal, was sufficient to bind the company.</p> <p>Incompetent Evidence — Failure to Object.</p> <p>Whether the evidence to prove the issue was competent is a question not before us as it was admitted without objection.</p>

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

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

<p>Husband and Wife — Action for Necessaries Furnished at Wife’s Instance— Answer.</p> <p>The denial that the alleged necessaries were furnished at the wife’s instance, were or on her credit, is sufficient to bar the action for 'subjecting her estate, even if she authorized the signature of her name to the note..</p> <p>Same — Non est Factum.</p> <p>The answer imports a plea of non est factum, the averment that her name was signed by the husband in her absence impliedly negatives his authority.</p>

<p>APPEAL EROM GRAVES CIRCUIT COURT. C. P. DIV.</p>

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

<p>Trusts — Fiduciaries Entitled to Compensation.</p> <p>Where a fiduciary faithfully performs the duties of a trust, and there is no want of zeal or ability, he is entitled to a reasonable compensation for the purchase and preservation of an estate of infants.</p> <p>Attorney and Client — Attorney Acting in Fiducial Capacity — Fees.</p> <p>An attorney, acting as a fiduciary, is entitled to a reasonable compensation for defending suits against the estate.</p> <p>Same — Fiduciaries not Bound to Provide Funds to Protect the Estate.</p> <p>Where a sale of infants’ lands are ordered, their trustee is not bound to individually provide funds with which to better protect their interest, a selection by him of their father to purchase the estate on time, is a sufficient compliance.</p> <p>Infants — Guardian ad Litem not Appointed — Waiver.</p> <p>Under a sale of infants’ lands, as legatees, to coerce a debt due by their ancestor, after they have come into court by a guardian of their own selection, he being their father, a natural guardian, and making defense to the action, they cannot complain of the lack of appointment by the court of a guardian ad Litem.</p>

<p>Accounts and Accounting — Payment After Acceptance Given — Application of Payments.</p> <p>A was working for B, and an agreed settlement was made up to a certain date, which was closed by acceptances given by B. Afterwards A continued to work for B and payments were made Mm from time to time. Held, that B would not have the right to ask that the payments should be applied to the acceptances first.</p>

<p>Judgment — Erroneous—Long Acquiescence.</p> <p>An erroneous judgment which has never been reversed and which has been recognized for nearly twenty years will be upheld.</p>

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

<p>APPEAL PROM BULLITT CIRCUIT OOURT.</p>

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

<p>APPEAL PROM JEEEERSON CIRCUIT OOURT. C. P. DXV.</p>

<p>APPEAL EEOM LOUISYILLE CHAN OBEY OOUET.</p>

<p>Partnership — Settlement—Conclusive as to Anterior Transactions.</p> <p>In the absence of fraud or mistake in a settlement made by partners themselves, and not waived or abandoned by them, a court of equity will commence with it, in proceeding to state an account between them, and regard it as conclusive of all antecedent transactions appearing to have been embraced therein.</p>

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

<p>APPEAL EROM GRANT OIROUIT COURT.</p>

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

<p>Evidence of Accounts Between Litigants not Supporting Verdiot.</p> <p>Where the evidence shows a confusion of accounts, a verdict predicated thereon will he reversed.</p>

<p>APPEAL PROM ESTILL CIRCUIT .OOURT.</p>

<p>Pleading — Allegation of Failure to Put in Machinery in Partnership.</p> <p>Though a partner, who had agreed to put in certain machinery into a partnership, failed to comply, hut disposed of it and bought other machinery of less value, he cannot be held liable in the absence of an allegation in the petition that the specific machinery alluded to was to be put in, nor from which such fact could be inferred.</p> <p>Partnership — Failure of One Partner to Comply with Terms.</p> <p>One of a firm, who agrees to furnish certain machinery, but who sold same and bought other machinery of an inferior kind and quality, will be held liable for the loss thereby sustained.</p> <p>Evidence Must Illustrate Issue.</p> <p>Evidence, unless it illustrate some issue made by the pleadings, is not allowable in judicial proceedings.</p> <p>Same — Allegations—Proof.</p> <p>Without allegations of a breach of agreement, the most positive and direct proof is unavailing.</p>

<p>Sheriffs — Official) Bond — Failure of Commissioner to Settle — Risk of Sureties Increased by Order of Court.</p> <p>A mere omission of the court of officers whose duty it is to require collectors of public dues to make regular settlements and to account promptly for the public moneys in their hands, will not of itself discharge the sureties of the collector from liability, but the sureties do not agree to be responsible for the funds retained in the hands of their principal under orders of the court.</p> <p>Same — Laches—Sureties Released.</p> <p>Where, by the action of a county court, in deferring a settlement with the sheriff, the appointment of commissioners to adjust a balance due by the sheriff some four months after the last day required by law, and said settlement deferred for a year, such laches will release the sureties on the sheriffs bond an account of whatever balance remains in 'the' sheriff’s hands after the January return day.</p>

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

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

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

<p>APPAEL EROAf AfLEAN CIRCUIT COURT.</p>

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

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

<p>Executors and Administrators — Decedents Estate — Settlement—Preferred Claims — Loss of Security.</p> <p>The decedent had pledged fifty hogsheads of tobacco to secure a debt of $6000.00. The tobacco was worth a much larger sum than that for which t’ was pledged, and the executrix being desirous to redeem it, and to ship it to a foreign market, drew a sterling bill of exchange on Gilliott & Co. Consignees in the city of London, for over $8000.00 which she sold to appellant and with a part of the proceeds redeemed the tobacco.</p> <p>The tobacco was destroyed by fire in transit, and became a total loss to decedents estate. The bill was • protested for non-payment. In the suit to settle decedents estate the appellant claimed that its debt constituted a part of the necessary expenses of administration'.</p> <p>Held, that a debt thus created, and apparently secured, should not be treated as a preferred debt after the loss of the security, to the injury of other creditors. It cannot be considered as a debt created in the administration of the estate. •</p>

<p>Contracts — Actions on — Reply—Conditions Precedent.</p> <p>The appellant brought this action on a contract for the purchase of a 'lot of mules from appellee for which he agreed to execute his note without alleging that he had performed his part of the contract.</p> <p>Held, that the court should have instructed the jury to find for the defendant as the pleadings authorized a judgment in his favor.</p>

<p>Removal of Causes — Petition for Removal Filed — Proceedings in State Court to Cease — Failure to File Copy of Record in United States Court.</p> <p>After the filing of a petition, for removal to the United. States Court, properly verified, further proceedings in the State Court should cease and not be resumed until a certificate, from the Federal Court stating that the petitioner has failed to file a copy of the record in that Court, is produced.</p>

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

<p>Vendor and Purchaser — Purchase Money Lien — Failure to Comply With His Part of Contract — Rescission.</p> <p>Appellants sold, to appellees a distillery on which there was a purchase money lien which had to be discharged to operate the distillery. Appellants discharged half of this lien and appellees owed them enougn to pay the balance. Held, that appellees had no right to a rescission of the contract of purchase as they could have applied the amount they owed to the discharge of the balance ot the lien.</p>

<p>Non-Resident — Summons—Constructive Service — Bond—Judgment.</p> <p>It is erroneous to render judgment against a non-resident, defendant, constructively summoned, until the plaintiff has executed the bond required by section 441, Civil Code.</p> <p>Same — Appeal—Appearance.</p> <p>An absent defendant enters his appearance to the suit by an appeal from a judgment rendered against him.</p>

<p>Appeal and Error — Jurisdiction—Amount in Controversy — Judgment Reduced by Set-Off or Counter-claim.</p> <p>The 16th section of the Civil Code of Practice, regulating the jurisdiction of the Court of Appeals, limits the right of a defendant, to an appeal from a judgment against him for money or personal property, to cases in which the judgment amounts to $50.00 or more, except in cases in which the judgment is reduced below $50.00 by a set-off or counter-claim.</p>

<p>Adverse Possession — Estate in Hands of Executor Pending Litigation Over Will.</p> <p>An estate in the hands of an executor will not he held adversely to the heirs or devisees of testator, hut for the benefit of those who prove successful in the pending litigation over the will.</p> <p>Same — Assignment of Interest in Estate — Legitimate Subject of Bargain and Sale.</p> <p>The claim of Amos Wool to a portion of Katy Wool’s estate which he was seeking to establish by impeaching her will, was a legitimate subject of bargain and sale.</p>

<p>Officers — Clerk—Official Act — Contradiction After Expiration of Term of Office —Exparte Affidavit.</p> <p>The official acts of an offiber can only be contradicted or avoided in a pi’oeeeding to which he is made a party, and in which fraud or mistake is directly charged.</p>

<p>Trespass — Original Trespasser — Conversion by Another — Damages — Joint Liability.</p> <p>The party who receives property wrongfully taken by another and converts same to his own use is not a joint trespasser, and is therefore not responsible, for damages, as an original trespasser.</p>

<p>Fraudulent Conveyances.</p> <p>In this suit to set aside a conveyance as fraudulent, the following facts appear: Franceway was greatly embarrassed and conveyed a house and lot to his brother-in-law, Nesbit. The payment was witnessed at Franceway’s request by two nephews and no one else than relatives were present. Franoeway’s wife was Nesbit’s sister. Nesbit was not present when the deed was prepared and executed and it was lodged for record by the grantor, and he retained the possession of the premises and listed same for taxation, and in this proceeding he employed and paid counsel to defend. Held, that these facts warrant the conclusion that the whole transaction was nothing more than a family arrangement intended to secure to Franceway and his wife the continued enjoyment of property and a fraud upon, creditors.</p>

<p>Railroads — Injury to Cattle — Special Contract.</p> <p>There can be no binding special agreement by which a railroad can avoid its responsibility for the negligent injury to cattle by its trainmen.</p> <p>Instructions May be Construed Together.</p> <p>Instructions to a jury may be construed together so as to give the proper effect to all.</p>

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

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

<p>Judgment by Default — Petition Insufficient — Husband and Wife — Wife’s Separate Estate.</p> <p>It is alleged in tbe petition that the debt was created for lumber used in building a house on the land of the wife, and although it- is alleged that she has a separate estate, it is not alleged that the house was built on land held' by her as he:q separate estate, nor is ‘it alleged whether her separate estate is real or personal, or where it is located. Held, that these allegations were too vague and uncertain to support a. default judgment.</p>

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

<p>Judicial Sales — .Purchaser—Interest on Void Sale — Sheriff’s Costs and Commission.</p> <p>A purchaser at a void judicial sale has no right to interest on his purchase. The sheriff cannot collect cost or commission on such sale.</p> <p>Judgments — Modification.</p> <p>The Court of Appeals cannot modify a judgment at a subsequent term of the court.</p> <p>Rents — Improvements and Taxes.</p> <p>A purchaser at a void judicial sale who has obtained the possession of the land, should be credited by all sums paid out for taxes, repairs and improvements, and charged with a fair rental value of the property looking to its condition at the time taken, and not its enhanced value-by reason of the improvements.</p>

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

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

<p>.Executors — Administrators—Distributee—Overpayment—Motion.</p> <p>Where an administrator overpays a distributee, pendente lite, a rule for restitution is the proper remedy.</p>

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

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

<p>Husband and Wife — Coverture—Conveyance of Wife’s Land Must be Executed in Compliance WIith the Statute — Acquiescence in Act of HusbandEstoppel — Fraud—Equity.</p> <p>The appellants were both feme covert when the sale of their land took place. .Neither their execution of the power of attorney, nor their mere acquiescence in the acts of their husbands can have the effect of estopping them from asserting title as. against their husband’s vendees. Feme coverts can only divest themselves of their title to real estate in the mode prescribed by law, and to make informal or imperfect conveyances operate against them as estoppels would break down all the safe guards by which the law surrounds, them. Held, that whilst married Women cannot be allowed, to take advantage of their coverture to commit frauds, they can even in a court of equity, avoid a conveyance not made and executed in substantial compliance with the statute.</p> <p>Vendor and Purchaser — Defective Conveyance — Acquiescence—Adverse Possession — Limitation.</p> <p>When land is sold under a defective power of attorney, and the vendor aequieseés in the transaction for more than fifteen years, during all of which time the vendee has had the actual possession, the Statute of Limitation presents a complete bar.</p>

<p>Bills and Notes — Verbal Assignment — Warranty—Petition—Demurrer.</p> <p>A petition contained no averment of any agreement, or undertaking in writing or parol, by the defendant that he would warrant the solvency of Mallory's estate, the alleged “Verbal Assignment” importing no more than a mere sale and delivery of the note, without assigning it. Held, that a verbal assignment of a note devolves no responsibility on the seller, for the solvency of the obligor in the debt.</p> <p>Same.</p> <p>The petition must allege facts showing diligence in'the prosecuting of the claim against the maker, as a pre-requisite to a 'suit against the assignor.</p>

<p>New Trial — Credits Allowed by Decree of Court — Injunction.</p> <p>Credits, pretermitted in a first, and allowed in a second decree, sufficient to sustain a petition for re-hearing, and an injunction, until such credits had been adjudged and ordered by the court.</p> <p>Costs.</p> <p>Such proceeding, entitles the appellant to his costs, on a supplemental proceeding.</p> <p>Judicial Sales.</p> <p>The first sale, under order of court, must be set aside, before a second sale is ordered.</p>

<p>Wills — Antipathy Toward Children hy Testator.</p> <p>A petition attacking a will, charged that the mind of the testator was not self-poised and deliberate, but warped, biased and misled by an insane antipathy as to one of his children; but contained no allegation that the testator was so far insane as to render him incapable of transacting his usual business. Held, in the absence of conflicting evidence, not to be sufficient to overcome the validity of the will.</p>

<p>Appeal and Error — Estoppel.</p> <p>The errors, if any exist, in the judgment in favor of the appellant against White, which is not appealed from, do not result from anything in the pleadings or preparation of the case, which could operate to estop the appellant from seeking a reversal of the judgment, so far as it directs the payment of the claim of Wiggleworth against the appellant.</p> <p>Vendor and Purchaser — Title Bond — Payment—Warranty Deed.</p> <p>The vendor must present a good and sufficient deed in compliance with his title bond before he can enforce the payment of the purchase money.</p>

<p>Damages — Wharfage Regulations — Instructions.</p> <p>It is error to submit to the. jury, by instructions, in an action for damages, whether a boat of the plaintiff was moored to defendants wharf “under the wharfage regulations established by the defendant,” without informing the jury what those regulations were.</p>

<p>Railroads — Killing Stock — Burden of Proof.</p> <p>While the onus was on the appellant, it offered no evidence to show how the mule was killed or why. The jury had the right to- infer from the facts proven by appellee, that ordinary care might have avoided the accident.</p>

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

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

<p>Pleadings — Judgment for Amount Claimed Only — Variance Between Amount Claimed, and Proof.</p> <p>Where there is a variance between the amount claimed in a petition to have been paid, and the actual amount proved to have been paid, the amount in the petition being less than the amount proved, the petition alone will govern.</p>

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

<p>Bills and Notes — Assignment—Payment Before Notice — Instructions.</p> <p>An instruction, that, “If the payments were made by appellant before the notes were in fact transferred or assigned or before notice of the transfer and assignment; he is entitled to credit for such payments,” held, proper.</p>

<p>Contract — Parol Agreement Binding.</p> <p>W. a remote assignee of Wade, made a parol agreement that if a sale hond, taken by a sheriff in satisfaction of a judgment of Wade, was quashed, and Wjade was compelled to refund any part of same, that he (W.) would pay the same without suit to avoid costs and further litigation. Held, that the promise was founded upon a sufficient consideration, and binding upon W.</p>

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

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

<p>APPEAL EROM DAVIESS ■ CIRCUIT COURT.</p>

<p>Depositions — Exceptions—Retaking.</p> <p>Where a light to retake depositions is granted, the former having been suppressed on the ground of having been taken before the time allowed by law, exceptions sustained thereto, held to be a mere irregularity, winch- was cured1 by the retaking of the depositions.</p> <p>Husband and Wife — Married Woman’s Estate Not Liable for Necessities.</p> <p>Under the statute (2 R. S., p. 8), to bind a married woman’s estate for necessities, it is essential that the credit originally should- be given to her, and not to- heir husband alone.</p> <p>Pleading — Petition—-Allegations to Affect Married Woman’s Estate for Necessities.</p> <p>In an action to subject a married woman’s estate for necessities, it is necessary to allege in the petition- that the credit was originally given to her, for herself or family.</p> <p>Same.</p> <p>An allegation that she signed a note with the object' and intent to charge her -estate with the payment of the debt, or “was borrowed for necessaries, and used by the defendants-,” held insufficient to authorize the deduction that the wife borrowed the money for her own use, or for her family.</p> <p>Same — Proof—Action on Joint Note of Husband and Wife.</p> <p>In an action on the joint note of a husband and wife, it devolves- on the party seeking to charge the wife’s estate therewith, to repel the presumption that the debt is that of the husband alone, by a direct averment of the necessary statutory facts to bind the wife.</p>

<p>Adverse Possession — Instructions—Quieting Title — Ejectment.</p> <p>In an action for possession of land, an instruction that if the jury believed from the evidence that the. appellants and those under whom they claimed, had been in the continuous possession since 1819, of the land embraced in the deed to S., claiming to the boundary of said land, and that the land in controversy was included by said boundary the law1 was for appellant, held erroneous, in that the converse of the proposition -would be that if the possession had not been continuous since 1819, the law was not for appellants, and was misleading.</p> <p>Same.</p> <p>The jury should have been instructed that fifteen years uninterrupted adverse possession of land gave a perfect right of entry and would prevail in ejectment against an outstanding elder patent.</p>

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

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

<p>Vendor and Purchaser — Lien in Deed — Non-Production of Notes.</p> <p>Though a lien be reserved in a deed for unpaid purchase money, the non-production of notes, or showing as to their existence, for more than 20 years, held sufficient to authorize cancellation of lien.</p>

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

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

<p>Wills — Legacy—Distribution.</p> <p>Heirs and! distributees have a right to demand distribution of an estate on the happenings of a contingency contemplated by the testator, and such payment would be a liquidation of the Executor’s liability on account of assets.</p> <p>Descent and Distribution — Legatees’ Disability.</p> <p>Executors, having the control of the funds necessary to educate a testator’s children, are the sole judges of whether any of them, by habits of dissipation, would not be entitled to a distribution of assets.</p>

<p>Mortgages — Foreclosure—Notice of Prior Conveyance — Record.</p> <p>In the absence of record notice, a mortgagee of an undivided interest, in lands is held to be entitled to a foreclosure, as against an unrecorded, bond for title executed prior to the mortgage.</p>

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

<p>Gifts — Acquisition by Donee.</p> <p>A deed of gift, duly recorded, held to be a binding contract of conveyance, in the absence of undue influence or improper constraint.</p> <p>Wills — Undue Influence.</p> <p>A contract of conveyance, held to be valid, where the donor was not improperly influenced, but acted from motive of kindness and attention from the donee, before death of donor.</p>

<p>Attachment — Dismissal—Interlocutory Decree — Ré-instatement.</p> <p>The discharge of an attachment, pendente lite;, is an interlocutory order, from which no appeal lies. It. can only be re-instated by application to and before a Judge of the Appellate Court.</p>

<p>Deeds — Execution—Acceptance.</p> <p>Where a deed is duly and legally executed, the law presumes that th* beneficiary therein will accept it.</p>

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

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

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

<p>•Sale — Personal Property — Possession Retained — Attachment.</p> <p>A sale of lumber, and possession retained by the vendor, is not a valid sale so as to defeat the attachment of a subsequent creditor.</p>

<p>Husband and . Wife — Husband's Assignment — Wife’s Agent — Separate Property.</p> <p>After tbe assignment, those living in the immediate vicinity, who had an apportunity of being informed on the subject, saw no change in the manner of conducting the business, and the corn raised on the farm was sold by Elkins as bis own property; it was not claimed by the wife, nor did he aver his agency when he sold it.</p> <p>Held, that the corn sold by Z. Elkins was his own property.</p>

<p>APPEAL EBOM BULLITT CIRCUIT COUET.</p>

<p>Cancellation of Instruments — Inadequate Consideration — Weak Mental Condition.</p> <p>Evidence showed a .sale of 26 acres of land, worth $20.00 per acre, subject only to the widow’s dower, and sale of a life estate of considerable value, in consideration of a horse, diseased, and which shortly died. Held, that in view of the grossly inadequate consideration, the grantor’s advanced age, distressed and weak mental condition, and being overreached' by the grantee, the transaction cannot be upheld by a Court of Equity.</p>

<p>APPEAL PROM BATH CIRCUIT OOURT.</p>

<p>APPEAL PROM BRACKEN CIRCUIT OOURT.</p>

<p>Judicial Saltes — Consideration—Sale Bonds — Cost of Defending and Prosecuting Suit by Purchaser.</p> <p>The costs and expenses of .defending and prosecuting suits after the appellant purchased the land had no connection with the consideration of the sale bonds.</p>

<p>Claimants' Bond — Sufficiency-—Judgment On.</p> <p>A claimant's: bond, providing that the parties -will perform the judgment of the court, or have the- property bonded, forthcoming- to satisfy same, does not authorize the assessment against same of- the 10 per centum damages- in ease the claim be unfounded.</p> <p>Courts — Rule Against Sureties in Bond — Appeal.</p> <p>A rule to show cause why sureties -should not return property bonded by them, was responded to- by sureties that a supersedeas had been executed: the rule was made absolute. Held, that ,as no- judgment had been rendered against the sureties, the order making the rule absolute is not subject to -adjudication on appeal.</p> <p>Evidence — Abatement—Another Suit Pending.</p> <p>Evidence, in the form of a record1 of another suit pending in a different. State, between the litigants, cannot he offered, where no allegations of same are set out in the pleadings.</p>

<p>Principal and Surety — Contribution on Guardian’s Bond.</p> <p>A ward obtained judgment against sureties, who were! solvent, and severally as well as jointly liable upon a bond that was a nullity: Held, that without objection below, they cannot complain of the error in the bond.</p> <p>Same — Judgment a Bar — Parties.</p> <p>In a suit by a surety who paid the liability, for contribution, the judgment is no bar, because it was not rendered between the sureties.</p> <p>Bonds — Guardian and Ward — Order Releasing Surety.</p> <p>An order of the County Court, releasing the surety in a Guardian’s Bond, from past'and future responsibility, without taking another bond, is void.</p> <p>Same — Blank Signatures,</p> <p>upon or papers, purporting to he bonds, is held to be no official bond.</p>

<p>Wills — Determinadle Life Estate.</p> <p>A will provided that B. should have an estate for life in the lands devised, determinable at the pleasure of B., and that N. was to have a home with B., on the land thus devised, as long as B. retained possession, and further directs that if B. should wish at any time to give up the premises, said lands should he sold, and the proceeds divided among the beneficiaries named. Held, to constitute a determinable estate by the voluntary surrender of same by B., but annexed no forfeiture by a refusal on her part to permit 1ST. to reside with her.</p> <p>Same.</p> <p>Upon application by hi. for a residence with B. and a refusal by B. to permit such residence, an action by N. could be maintained.</p> <p>Same — Pleading.</p> <p>To sustain a petition therein it must allege a demand by the plaintiff to enter upon the premises and a refusal by the defendant to permit same.</p>

<p>Partnership — Settlement—Laches.</p> <p>Where a partner failed to demand a settlement of a-partnership for six years after it had been closed, though could have done so any day, and failure to exhibit the books upon warning by the Court, is guilty of gross laches, and his action will be dismissed.</p>

<p>Descent and Distribution — Heirs—Actions Against Administrator.</p> <p>Under provisions of sec. 10, cb. 40, Bev. St., an action cannot be maintained against tbe beirs of a decedent, upon a decree rendered against tbe administrator alone, but must be based upon tbe original liability of tbe decedent.</p> <p>Pleading — Demurrer—Amended Petition — Insufficiency.</p> <p>A defect in a petition, on a judgment against an administrator, that does not set up tbe original liability of tbe decedent, is not waived by a failure to demur to same. Tbe petition not stating these facts is a valid ground of reversal, whether objected to in tbe Court below or not.</p> <p>Same — Sufficiency of Amended Petition — Descent and Distribution — Action.</p> <p>A petition on a judgment against an administrator, in an equitable action against tbe beirs, set out the fact that an execution bad been issued upon tbe judgment against tbe administrator, and bad been returned nulla bona, and that said judgment remained wholly unpaid, but made no reference to the nature of the original liability of the intestate.' Held, insufficient to constitute a cause of action.</p> <p>Same — Right of Contest.</p> <p>The heirs of the decedent, not being concluded by the judgment against the administrator nor bound thereby, have the right to controvert the justice of the claim against their ancestor, and to enable them to do this, the same must be made the foundation of the action.</p>

<p>Infants — New Promise — Estoppel.</p> <p>A ntew promise by an infant, to pay a note, in the absence of false statements relative to the note, or the age of the promissor, does not constitute an estoppel by anythig..said or done, from making a defense on the ground of infancy.</p> <p>Same — Statute of Frauds. ,</p> <p>A promise, after becoming of age, not in writing, to pay off the note, is not enforeible under the Statute of Frauds.</p> <p>Same — Sale of Property — Pleadings.</p> <p>Where an infant sells property, for which he had given his note, and in an action to enforce the note, he pleads infancy, and the pleadings fail to show that the property or its proceeds were, in the possession of the obligor, after he attained lawful age, he was not bound to make restoration before relying on the plea of infancy.</p>

<p>Fraudulent Conveyances — Advanced by Third Party — Preferred Lien.</p> <p>A advanced to B money to redeem lands sold under execution, with right of redemption, and took a deed from B to- A, in consideration therefor. In a subsequent execution by creditors to. subject the land to other liens; held, that B’s conveyance to A is a mortgage creating a prior lien on the land.</p> <p>Same — Personalty Mortgaged.</p> <p>When personal property was included in the deed of conveyance, A would be required! to exhaust same, before subjecting his preferred lien on the real property.</p>

<p>APPEAL PROM BOURBON OIROUIT COUBT.</p>

<p>Judicial Sale — Absence of Unfairness or Fraud.</p> <p>A sale by a commissioner of land, substantially conformable to the law, in the absence of unfairness or fraud, and for a fair price, will not be set aside.</p>

<p>APPEAL EBOM BOUBBON OIEOUIT OOUET.</p>

<p>Work and Labor — Instructions—Right of Recovery.</p> <p>An instruction, in an action for work performed, restricting the plaintiff’s right to recover, to the question whether there was an express agreement to pay for all the work, and excluding the right of recovery on an implied liability to pay for extra work which the defendant permitted to be done without objection, and accepted, is erroneous.</p> <p>Work and Labor — Acceptance of Work Done — Implied Agreement.</p> <p>Where extra work has been done by a plaintiff, which was permitted by the defendant without objection, and accepted as done in accordance with his wishes, he will be held liable therefor, though not provided for in the contract between the parties.</p>

<p>Vendor and Purchaser — Courts—Correction of Error in Deeds.</p> <p>After title to land sold, has been corrected by court proceedings, it is not error to require the vendor to convey the land, acknowledge the deed, and deposit same for record, instead of first producing it to the court for inspection.</p>

<p>Husband and Wife — Married Women Alienation of Separate Estate.</p> <p>Under see. 17, art. 4, ch. 47, Rev. Stat., a married woman cannot alienate her separate estate acquired by devise or conveyance, etc. Held, that as she cannot transfer such estate under those restrictions, she could not change its status by contracting debts.</p>

<p>Corporations — Stock Subscriptions — How Payable.</p> <p>Articles of incorporation provided) that stock subscribed for and closed up before the first election of directors and officers, could be paid for in any species of property, personal or real. Said payment to be ratified afterwards by the officers of the company. Held, that unless the provisions as to the requisite amount of stock to be subscribed was fully performed, no officers could be elected, anl any transfer of real estate for stock would be subject to rescission by the vendor.</p> <p>Same — Purchaser with Notice.</p> <p>A purchaser of such property, from the company, with notice of the status of the vendor and the company, and the want of consideration, is estopped from setting up claim to the property, as against the original vendor.</p> <p>■Corporations — Stock Subscriptions — When Corporation Organized.</p> <p>A corporation charter provided that when 2,000 shares of $10.00 each were subscribed for, the stockkholders were authorized to meet and elect a Board of Directors, and officers. Held, that no corporate acts could be performed until the requisite amount of stock had been, in good faith, provided for.</p>

<p>A TREAT, BROM HARRISON CIROUIT COURT.</p>

<p>Pleading — Petition—Sufficiency—Executors and Administrators.</p> <p>A petition against an administrator, charging a sufficiency of assets in his hands belonging to the “estate, "to satisfy their claim, presents a cause of action, and is good on demurrer.</p> <p>New Trial — Reversal for Error in Granting.</p> <p>Where all the papers in a case shows no error against a plaintiff, but that all evidence objected to by him was rejected, all instructions asked for, given, it is error for the trial court to set aside the verdict of the jury, and grant a new trial.</p>

<p>Vendor and Purchaser — Mortgage Lien — Notice.</p> <p>The purchaser of lands, being advised that other parties held a mortgage on the property, made enquiry of them regarding same, and was informed that the mortgage had been settled by an arrangement between them and the mortgagor: Held, to operate as an estoppel of • the mortgagees to foreclose their liens as against the purchaser.</p> <p>Same — Pleading.</p> <p>The failure of the purchaser of the land to rely 'upon this defense in his original answer to the foreclosure proceedings, held not to be a concession, by the purchaser of the rights of the mortgagees to foreclose their lien.</p>

<p>APPEAL FROM HAREIS ON CIRCUIT COURT.</p>

<p>Estates Tail — Devise—Mutual Exchange.</p> <p>A devise of lands was made, in trust for the devisees and their, children during their lives, with power of sale by the trustee for reinvestment, etc.: Held, to authorize a mutual exchange of the separate interests between the devisees.</p> <p>Same — Re-Investment,</p> <p>A re-investment of a surplus for one of the devisees, through her husband as trustee, held not improper. -,</p>

<p>Contractors — Breach of Contract — Damages—Criterion.</p> <p>In ascertaining the damages the owner of a dwelling is entitled to by the refusal of a contractor to complete the work on same, the criterion is to ascertain what it would cost to finish the house above the contract price, and if larger, the contractor would be responsible, but if no more, or less, the owner would be entitled to only nominal damages.</p>

<p>Injunction — Dissolution—Dismissal of Petition.</p> <p>When, on the dissolution of an injunction hy the lower court, the petition is dismissed, a Judge of the Appellate Court has no. power to re-instate the injunction.</p> <p>Principal and! Surety — Limitation—Assignment of Judgment.</p> <p>The assignment of a judgment on.a note will not operate to arrest the running of the statute of limitations in favor of a surety, though the assignee may not have known that the creditor w<as not the principal in the note, hut only a surety.</p>

<p>Legacy — Sale—Unfair Advantage.</p> <p>"When a legatee sought out and induced, through her agent, the sale of her legacy, though for a grossly inadequate amount, such sale will not he disturbed in the absence of fraud.</p>

<p>Equity — Judgment—Enforcement.</p> <p>In an equitable action to enforce a judgment, the action becomes a binding obligation against the. defendants from the date of their answer admitting liability.</p> <p>Same — Payment to Third Party.</p> <p>Such answer becoming the nature of a garnishment proceeding, a payment by the defendant to any other than the petitioner, outside of court, will not affect the right of the petitioner to recover the amount against the defendant.</p> <p>Same — Notice,</p> <p>Such proceeding would be notice of the claim of the petition, as against subsequent creditors.</p> <p>Bills and Notes — Principal and Surety — Pelease of Surety — Limitations.</p> <p>The limitations of seven years in favor of a surety will not apply where an execution against the surety alone, was issued within the statutory period.</p>

<p>Pleadings — Petition—Parties to an Action Respecting Title.</p> <p>Where a petition charges a fraudulent transfer of lands to A, held, that A must be made a party to the suit.</p>

<p>Bills and Notes — Note by Corporation — When Individual Note of Obligors.</p> <p>A note signed by a corporation, by A and B, as officers, but in the body of same using the word “we,” held, to convey an individual liability of the officers signing same.</p> <p>Same — Consideration.</p> <p>A purchase of a right-of-way for a corporation, held, to be sufficient consideration to uphold a note given by the individual directors of the corporation.</p>

<p>Vendor and Purchaser — Notice of Deraignment of Title.</p> <p>The purchaser of property, with notice of the deraignment of title, assumes the risk subsequent thereto.</p> <p>Same — Payment of Purchase Money.</p> <p>Nor can he escape the payment of purchase money notes therefor, especially when he refuses a rescission of the contract, and seeks to stand on a warranty of title.</p>

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

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

<p>Principal and Surety — Release of Surety — Notice to Judgment Creditor to Proceed.</p> <p>After notice given a judgment creditor, under see. 10, ch. 97, R. S., unless proceedings by execution be issued within ten days after such notice, the surety will be released.</p> <p>Same.</p> <p>The notice must state that the giver of same was a surety, co-surety op co-obligor.</p>

<p>Lien Bond — Assignment—Lien for Unpaid Purchase Money.</p> <p>The assignor of a title bond must not, in the absence of any express stipulation to the contrary, be regarded as having reserved his right to retain a lien, unless it be stated in the assignment what part of the consideration remains unpaid in express terms.</p> <p>Same.</p> <p>It not appearing that the assignment of a bond, contained an express stipulation for reserving a lien for! the note', nor even that a purchaser thereunder had notice, held, that no lien would attach thereon.</p>

<p>Principal and Surety — Assignment to Surety of Debt Paid.</p> <p>The assignment by a judgment creditor of the debt to a surety paying ■same, does not preclude the surety from prosecuting an action thereon, on the ground that he cannot be the assignee of "a debt against himself, and a payment of the judgment by the surety extinguished the debt. Sec. 8, ch. 97, Rev. St. 2, vol. 398.</p> <p>Same — Co-Surety in Supersedeas — Right to Contribution.</p> <p>A surety in a suppersedeas bond, to stay execution on a judgment against a principal and sureties on a note, who had taken indemnity from the principal, is held to have executed the supersedeas as the principal above, and could not, by paying the debt, acquire any right of remuneration from the original sureties.</p> <p>Same — Rights of Original Sureties — Liability of Sureties in Supersereas Bond.</p> <p>A supersedeas bond for a principal debtor was executed, thereby causing delay in the collection of the debt. Pending the action, the debtor disposed of his property, and the original sureties on the note were compelled to pay the debt. Held, that the sureties in the supersedeas bond were liable to the original sureties for the total amount of the debt paid by them.</p>

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

<p>APPEAL EROM JEEEERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p>

<p>Pleadings — Guardians and Ward — Eight to Bring Action.</p> <p>A petition by a ward to ascertain how funds were being held by a guardian, what disposition had been made of the same, the amount due each ward, and to enforce payment, held, sufficient allegations to authority bringing the action, and uphold a judgment for the true amount when ascertained, against the guardian and his. sureties.</p>

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

<p>Alternative Pleading — Recovery On.</p> <p>An allegation in a petition “that ‘A’ had subscribed and paid for, or bought, etc.,” held, to be an alternative pleading, one showing no cause of action, a judgment on the petition is erroneous.</p>

<p>Infants — Avoiding Deed — Estoppel.</p> <p>Infants who executed a deed1 of conveyance before they became 21 years of age, are not estopped from avoiding some after they become of age.</p>

<p>Fraudulent Conveyance — Parent and Child — No Consideration.</p> <p>A conveyance by a father to his son of a large amount of property without a visible change of possession, and at a time when the father was heavily involved, and in the absence of proof that the son had paid any of the purchase price, or was able to do, held to be fraudulent as to creditors of the father.</p>

<p>Lien — Interest! Note — Release Of.</p> <p>The giving of a note for the interest on a lien, is not a new debt, but the legal inurement of the lien debt, and an endorsed credit, nor taking of personal security without other evidence of actual acceptance as partial payment, cannot be considered as a release of the lien, pro tanto.</p>

<p>Discovery — Undisclosed Payments — Continuance—Pleading.</p> <p>Where an answer to a petition to. foreclose a mortgage shows undisclosed payments, and a charge of usury, the defendant would he entitled to time for preparation, and an order of discovery.</p>

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

<p>Jurisdiction — iCircuit, Quarterly Courts — Amount in Controversy.</p> <p>In an action for $50.00 actual damages, and $50.00 punitive damages, the amount as a whole is sufficient to give the Circuit Court original jurisdiction, under secs. 18, 24 and" 29, Civ. Code.</p>

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

<p>Bonds — Supplying New Bond, for Former One Burnt — Court’s Discretion.</p> <p>When the burnt record of a will and the probate thereof, is supplied in the county court by oral testimony, the same court has jurisdiction either to supply, in the same way, the executorial bond, executed at the time of the probate, or take a new bond, with the same or other sureties.</p> <p>Same — Principal and Surety.</p> <p>The new bond thus taken, binds its sureties, to pay all legacies; and it is therefore immaterial whether the amount of the legacy was collected since or before the date of the new bond.</p> <p>Principal and Surety — Contribution From Old Sureties — Parties.</p> <p>To entitle the sureties in a new bond, to contribution from the sureties in the former bond, they must be brought before the court, in the action in which they are defendants. It is not the auty of the plaintiff in the action to do this for them.</p>

<p>APPEAL EROM MC LEAN CIRCUIT COURT.</p>

<p>New Trial — Submission to Jury.</p> <p>It is error for the court to grant a new trial, where the case was submitted to the jury on the evidence, with instructions asked for by both litigants to which no exceptions were taken, and the jury found in accordance therewith.</p> <p>Same — Jury.</p> <p>On a conflicting deposition given by a witness, in two different trials, it is within the power of the jury to conclude that witness was mistaken in one.</p>

<p>Husband and Wife — Sale of Property — Vendor and Purchaser.</p> <p>A husband cannot divest his wife of her interest in lands, by transferring • a note given her for the purchase price thereof; in' exchange for another .note, the latter of which became worthless by reason of the bankruptcy of the maker of the last note. .</p> <p>Same.</p> <p>The husband cannot, without the consent of his wife, evidenced as prescribed by law, pass her title to realty, nor destroy her fight of' retainer she holds upon the legal title to her land, to secure the payment of the purchase price.</p>

<p>Principal and Agent — Authority of Agent to Bind Principal — Special Agent.</p> <p>An agent can bind his principal on a note by filling in blanks, after the note had been sent him, though the name filled in was not the person to whom the principal intended the note made payable.</p> <p>Same — Special Agent — Plea of Non Est Factum.</p> <p>A plea of non est factum to a note, the blanks of which had been filled in by the agent, of the payors, can only be sustained when the person so acting, was a special agent so far as the particular note was concerned, and that his authority was limited to fill in a particular name.</p>

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

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

<p>APPEAL EROM TAYLOR OIROUIT COURT.</p>

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

<p>Vendor and Purchaser — Rescission—Rents and Profits.</p> <p>After a conveyance had been ordered cancelled by the court, by reason of undue influence in the procurement thereof, the original vendor voluntarily surrendered the use of the land to the vendee during the time of the litigation: Held,, that he must be considered as acquiescing in the transaction, and cannot be allowed to claim rents, up to the time of bringing the action to rescind the deed.</p>

<p>Partnership — Purchase of Property — Use and Occupation.</p> <p>A. and B. made a purchase of a parcel of land, one day before a partnership was formed, and the purchase price went in as part of their subscription to the paprtnership. No deed of transfer was made to the firm. The partnership company exercised control over and erected a mill on the property. The original purchasers made one or two attempts, to sell the property as individuals. Held, that in a contest over the sale of the property at a loss, it should be borne by the firm, and. not by the individuals.</p>

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

<p>Trusts — Implied—Creation of by Act of Holder.</p> <p>An implied trust, of funds coming into a persons hands, may be made, by his acts in using the funds on his own volition, to improve property of his wards.</p>

<p>Dower — Right of — Husband and Wife.</p> <p>Where the wife' has given a relinquishment of her right of dower, though the commissoiner, when -selling the land, proclaimed that the wife had a potential right of dower in it, this would not have the effect of restoring her right.</p>

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

<p>Conversion — Moneys Deposited With Trustee.</p> <p>Where currency is placed in an envelope, and delivered to a party to keep, it is not a conversion, for that party to place several hundred dollars of his own money in same.</p> <p>Same — ^identification—Sufficiency—Proof.</p> <p>It is a sufficient identification of money placed in an envelope 'to keep, that certain money was found in said envelope, corresponding in amount. The onus was not on the claimants to establish that the notes found are the identical notes delivered. Those denying, must establish that they are not.</p>

<p>APPEAL PROM &REENUP CIRCUIT COURT.</p>

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

<p>APPEAL EROM JEEEERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p>

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

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

<p>Fraudulent Conveyance — Assignment of Note.</p> <p>Where a person procures the assignment of a note to himself, though it he not understood- by the assignor, it being as security for advances made by the assignee, no fraud can be charged in the transaction.</p> <p>Deed — Conveyances—Lien—Laches.</p> <p>In a deed by a grantor and his wife, no mention was made to the vended of a lien retained in the prior deed conveying to the grantor said land. Held that the purchaser was guilty of laches in not ascertaining the existence of the prior lien retained in the former deed.</p>

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

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

<p>Trial — Duties of the Court — Jury.</p> <p>Sec. 34 of the Civil Code makes the jury the triers of questions of fact, but it does not take away from the Judge the right to determine whether or not any fact conducing to establish the cause of action, or the grounds of defense, has been proved. This should be determined by his instructions.</p> <p>Bills and Notes — Charge of fraud — Not sustained by facts.</p>

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

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

<p>Eminent Domain — Criterion of Damages.</p> <p>K. assessed his land at about $20.00 per acre. The railroad company took three acres and cut off about fifteen from the main land. Held, that a judgment in damages for $464.00 is excessive.</p>

<p>Pleading — Amended Answer — Newly Discovered Evidence.</p> <p>Amended answer examined, and held not to disclose facts sufficient to authorize a new trial, nor defects in pleading made good by new proof offered, a lack of diligence being shown by one of the defendants.</p>

<p>Judicial Sales — Void.</p> <p>A sale of land, under a judgment, in which the defendant, a feme covert, was not joined by her husband, in an amended petition, held void.</p> <p>Pleading — Amended Petition, after Void Judgment — Parties.</p> <p>After a judgment had been entered’ on a petition, Mrs. A. not being a party, an amended petition was filed against Mrs. A. only, and judgment rendered by default, and sale made. Held, to be void, as when the amended petition was filed, the former judgment being void, the original case was not in court, the husband of Mirs. A. not being made a defendant.</p>

<p>Husband and Wife — Dower—Contingent Holding.</p> <p>A wife is not endowed of lands purchased and paid for by her husband, but which he held merely a title bond for, and which the husband had conveyed to creditors by deed of assignment, although at the sale of all lands under the assignment, the officer proclaimed “subject to the right of dower of -.”</p> <p>Same.</p> <p>At the sale of said lands, the officer proclaimed that the wife’s dower interest was reserved, and this fact was reported to the court by the commissioner in his report of the sale to appellant. Held, that this would not impart any enlargement of her right of dower which she actually had, nor bind the purchaser to yield to her a greater interest, in the form of dower, than she might have enforced against the creditors as vendees of her husband.</p>

<p>Vendor and Purchaser — Sale in Gross — What Constitute.</p> <p>A .sale of land for $10,000.00, of which $7,000.00 was paid cash, and notes given for the balance, was made, the quantity not being stated in the deed, nor a description given by metes and bounds, but only designated by name, and reference to the title papers under which it was held. This sufficiently identified the land. Held, to be a sale in gross, and not by the acre, though the vendee claimed it was represented to contain 800 acres.</p> <p>Same.</p> <p>Evidence showed that while the parties were negotiating the deal, the vendor expressed the belief that the land contained over 800 acres; stating at the same time his reasons for so believing which do not appear to have been of a very convincing or assuring character, nor such as may have led him to misapprehend the real quantity of the land. Held, not to constitute fraud' or mistake, where it is shown the land contained only 587 acres; this, as to a matter of opinion and fact, being open to enquiries by both parties, and in respect to which neither party can well be presumed to have been misled.</p>

<p>Estates — County Court Settlement.</p> <p>In the absence of proof, surcharging a county court settlement of an estate, it is prima facie evidence of its own correctness, and the party assailing it must overcome by proof this presumption in its favor.</p> <p>Same — Division Among Heirs — Acceptance.</p> <p>Where there has been a division among heirs of an estate left by the testator, and each party took and enjoyed his pro rata, a subsequent action to set same aside by one of them, with no offer to refund the money received, or beneficial interest derived by virtue of the agreement of division, cannot be maintained.</p>

<p>APPEAL PROM JEPPERSON CIRCUIT COURT, COMMON PLEAS DIVISION.'</p>

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

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

<p>Judicial Sale — Estoppel—Act of Claimant.</p> <p>Though á sherifl at a judicial sale, by reason of failure to enter proper credit of full payment made by judgment debtor, sold more land than necessary, the debtor, not using ordinary diligence for more than a year to discover this fact, induced defendant to purchase the land so sold from the assignee of the- execution purchaser. Held, to estop plaintiff from asserting claim with or against such purchaser.</p>

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

<p>Trial — Assault and Battery — Concluding Argument by Attorney — Burden of Proof.</p> <p>An answer to an action for assault admitted the same, but justified it upon the ground) that it was done in defense of his son, who had been assaulted by plaintiff. Held, that as the defendant had the burden of proof, he was entitled to the concluding argument to the jury.</p>

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

<p>Bills and Notes — Consideration Parol Evidence.</p> <p>The consideration- in a note not being expressed, it is permissible to allege and prove by parol that it was executed and delivered for no good and valuable consideration.</p>

<p>Covenant — Seizure—Warranty—Deeds.</p> <p>A deed reading, “covenanting with the grantee, his heirs and assigns, ' that the title so conveyed is clear, free and unincumbered,” and “that he will warrant and defend the same against all legal claims whatsoever,” held, to mean first, a covenant of seizure, and the second, a covenant of general warranty.</p> <p>Same — Breach of Covenant of Seizen — Damages.</p> <p>An allegation and proof that one half the land so conveyed belonged to a third party, and that this title was not in the vendor at the date of the conveyance, was at once a breach of the covenant of seizen, and damages for that part could be recovered.</p> <p>Same — Criterion of Damages.</p> <p>The criterion .of damages would be the one-half of the amount paid for the lot, with interest, the taxes paid on the property, and expenses of recording.</p> <p>Same — Equity—Rescission.</p> <p>A rescission under such a deed could only be asked for in an equitable action, and not in a suit at law for damages.</p>

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

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

<p>Guardian and Ward — Settlement—Dereliction of Duty — Costs.</p> <p>A father was appointed guardian for his daughter. After a long period of time, during which only one settlement was made, the guardian filed ■suit to settle the account, for the reason that his ward refused to settle with him. Held, not to justify the entering of costs as against the ward, by reason of the dereliction of the guardiam</p> <p>Same — Necessaries Furnished — Duties of Parents.</p> <p>A parent, who is guardian of his only child, cannot be allowed to charge large sums out of the estate of his ward for her clothing, schooling, etc., so as to practically liquidate the estate in his. hands.</p>

<p>Pleading — Answer to Make Specific Denial.</p> <p>A petition alleges that A. paid to B. on-, $500.00 i.o he credited on a note, which the holder agreed and promised to enter1 on said note, hut had failed to do so. The answer states that after the agreed settlement, on -, etc., no payments were made hy the payor to the payee. Held, not to he a denial of the specific charge in the petition.</p>

<p>Deeds — Trusts Created.</p> <p>A recital in a deed, which is in fee simple, that the consideration of $1,700.00 of the money for the land was an advancement, held not evidence sufficient to create a trust in the land, or the money, for the benefit of the wife of the vendee.</p>

<p>APPEAL RRO-M BRECKINRIDGE CIRCUIT COURT.</p>

<p>Fraud — Collateral Attack — Former Judgment.</p> <p>Though fraud and collusion in a petition be admitted as true, a defendant cannot attack collaterally a judgment rendered 26 years before, especially as she did not avail herself of the provisions of Civil Code, Sec. 421, and Sec. 579, Sub. 8.</p>

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

<p>Attachment — Acts Constituting Valid One.</p> <p>In an action against a corporation, by injunction, an attachment of all choses in action, franchises, money on hand, served on the President and Treasurer of said corporation, a prior lien is obtained over a fund, owing by a third party, not made a party 'to the suit, but whom the defendant admitted was indebted to them, this amount by the answer of the debtor was paid in by a verbal order five days before the suit was filed. Such an attachment would be prior to a creditor who subsequently attached the fund, by serving the debtor with due process.</p> <p>Same:</p> <p>An allegation in the answer of the creditor that he is advised and believes that no valid or effectual attachment had been levied on the debt in controversy, not sufficient to overthrow the lis pendens by a prior suit, being a seizure of all the assets, choses in action, moneys, etc.</p>

<p>Wills — Discretion of Executors.</p> <p>A will gives executors a power, “All the bequests, devises, legacies, etc., are not to be paid until X X arrive at the respective ages of 30 years.” Held, that the executors could hot withhold all the payment, at their discretion, until the 30 year age had been reached by the devisees.</p>

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

<p>Equitable Lien — Notice.</p> <p>Where one holds an equitable lien on property, no notice is necessary of same, to a purchaser of a subsequent and subordinate equity.</p>

<p>Parol Evidence, to Contradict Writing.</p> <p>Where an answer denies that the writing sued on,' had any legal or, binding force, and such defense is relied on, parol evidence as to the terms, etc., of the writing are admissible.</p>

<p>Judicial Sales — Commissioner—Judgment of Court.</p> <p>Where a judgment excepts from a sale, of lands, “except the share of B., one of the heirs above,” etc., the commissioner has no power to sell all the land, but must first set apart the portion coming to the heir.</p>

<p>Creditors’ Suit — Priorities.</p> <p>Where a petition is filed in a creditors’ suit, thought after the six months limitation, and reference is made in same, to the other suits then pending for the same relief, their rights- can not be defeated by the other creditors dismissing so much of their petition as sought relief under the insolvent creditors act.</p>

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

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

<p>Infants — Parent and Child — Necessaries Furnished Child — Payment for — Notice of Non-payment for Other Articles Furnished.</p>

<p>Conversion — Husband and Wife—</p> <p>An action for conversion will not lie, by a wife against purchaser of personal property from her husband, where the records show she acquiesced therein in writing, though the instrument was defective.</p> <p>Same — Election of Causes.</p> <p>Nor, where she afterwards accepted an assignment of the pending suit, brought originally in the name of her husband, can she sue the purchasers, because she had failed to receive from the attorney of her husband, a part of the purchase money paid to him through order of court, on the account.</p>

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

<p>APPEAL ER,OM BATH CIRCUIT COURT;</p>

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

<p>Parties — Defect of — Special Demurrer.</p> <p>Under Civil Code, section 121, where a defect of parties is not assigned as a cause of demurrer, such defect can not be reached by a general demurrer.</p>

<p>Judgment — Collateral Attack.</p> <p>A judgment, properly rendered, is not subject to a collateral attack, and relief from same can only be granted on the grounds as provided in section 373 and 579, Civil Code.</p>

<p>Adverse Possession — Statutory Bar of Action — Mistake in Boundary.</p> <p>One, who had actual possession of the land in controversy, openly using and claiming it as his own for the requisite time to make the statute of limitation a bar, as in ordinary cases of continuous, adverse possession, the fact that he placed his enclosure beyond the true line, by mistake, could not affect his right, to rely on the statutory bar.</p>

<p>Covenant — Damages—When Action for Eviction Accrues.</p> <p>A judgment, against a vendor, in an action to recover the land, is sufficient evidence of eviction, to authorize a right of action immediately for damages for breach of covenant.</p>

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

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

<p>APPEAL FROM HENDERSON CIRCUIT COURT. O. P. DIV.</p>

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

<p>APPEAL PROM 'PULTON CIRCUIT COURT.</p>

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

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

<p>Assignment for Benefit of Creditors — Deed of Vendor.</p> <p>A deed is attacked as fraudulent, and is sought to be made an assignment for the benefit of creditors; the vendor was not made a party, but the vendee only. Held, on a claim that as the the legal grantor not being before the court, there was no such action for subjecting the property as contemplated by statute, that the deed vested nothing in the vendee and was merely a preference.</p> <p>Same — Parties.</p> <p>The vendee could be brought before the court for the purpose of passing the legal title at any time.</p>

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

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

<p>Vendor and Purchaser — Purchase at Sheriff’s Sale.</p> <p>Under a contract for the sale of land, the vendee took possession, and held same about two years, the residue of the purchase money being unpaid. There was then levied on the land an execution against the vendor, the land sold, the equity of redemption levied on and sold, all of which w¡as bought by the original vendee. Held, in an action on the original notes, the vendee could not claim under the purchase at the sheriff’s sale, and defeat the lien notes. All that was taken by the sheriff’s sale was the right to have the money so paid, refeunded by crediting the notes with the amount.</p>

<p>Executions — Levy—Priority."</p> <p>Two execution creditors levied on,and sold the same property of defendant Bourne. Appellant creditor, filed suit, charging improper motives, etc., of the other execution creditor. On motion of defendant, the sale under execution of appellant was set aside, April 6, 1869, and the sale under the execution of the other creditor was set aside April 14, 1869. Appellants filed an amended petition alleging that by virtue of their said levy, they acquired a lien on the property. . The other creditor, Bourne, denying this lien by answer, set forth claim by virtue of levy of execution on same property at a different time, for another and different debt. Held under, volume 1, Sess. Acts 1867-8, p. 18, amending section 1, art. 16, eh. 36, Rev. St., appellant’s lien, acquired by his levy, was not affected by the quashal of the sale thereunder.</p>

<p>Appeals — Rule—New Pleading.</p> <p>In the lower court, appellant treated the rule of the chancery court as a petition. No objection to this character of proceeding was made, but filed an answer going to the merits of the case. Held that under the fifth section of Act March 21, 1870, a litigant who had actually appeared in court, and by Ms conduct induced the chancellor and- the opposite party to believe that he intended to waive all formal defects, or omissions, can not be allowed, after he is defeated upon the merits of the controversy, to take advantage of the technical objections for the first time in the appellate court.</p>

<p>APPEAL EROM JEEEEÉSON CIRCUIT COURT, CHANCERY BRANCH.</p>

<p>Assault and Battery — Evdence—Witnesses—Proper Question.</p> <p>In an action for assault, the following question was submitted in justi fication: “Was there any agreement between your mother and plaintiff, when she consented to send you to school to plaintiff, as to whether he. was to whip you or not.” Held not competent evidence, as it is not stated the alleged promise was made at the time the contract was made to send the daughter to school, or that it constituted any part of the contract. . •</p> <p>Same — Instructions.</p> <p>An instruction, “That if the assault made by appellant, arose from the heat of blood caused by the whipping of his child in violation of the agreement made between the parties 'when said child was sent to school, etc.,” and qualified by “provided the jury believed that there was not time enough between the hour at which defendant was informed of the whipping of his child, and the time the assault was committed to enable-defendant’s blood to cool,” and by omitting the wards “In violation of the agreement made,” etc., held properly refused as the fact that the whipping was done in violation of the' agreement is there to be assumed by the court, and taken from the consideration of the jury.</p>

<p>Administrator De Bonis Non — Wjho to Sue.</p> <p>An action for devastavit against an administrator can only be brought by the distributees, and not by the administrator de bonis non.</p>

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

<p>appeal erom eleming circuit court.</p>

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

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

<p>Work and Labor — Inconsistency of Pleading.</p> <p>New trial’ should be granted on, when shown.</p>

<p>Contracts — Payment in Fluctuating Commodity.</p> <p>Entering into contract freely and voluntarily can not avoid same.</p>

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

<p>Fraudulent Conveyance — Parent to Child.</p> <p>Deed to daughter held fraudulent.</p>

<p>Judgment — Final—Appeal—When Court Retains Control of Case, Before Final Adjudication — Power to Complete Settlement of Estate, After Master’s Report Filed.</p>

<p>Appeal from County Court in all Proceedings for Division of Lands^ — Does not Lie to Court of Appeals.</p>

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

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

<p>Quieting Title — Vendor and Purchaser — Accountable for Rents.</p> <p>If improvements are made by a party in possession of lands, under the belief that he was the owner, by reason of a valid, legal or equitable claim, the foundation of which was of public record, he is entitled, on eviction, to his improvements, measured by the increase in the vendible value of the land, when recovered, arising from the improvements; but in no event to exceed the consequent enhancement of the value, beyond the rent, waste and deterioration.</p> <p>Same.</p> <p>An exhibition of a claimant, of a deed, never recorded, and the consideration not appearing to have been paid, does not invest him with title nor to impress the belief to that effect, does not entitle him to claim improvements, under the statute.</p>

<p>Municipalities — Street—Improvements.</p> <p>Where an. owner of property, has stood by, and saw a city council act on a declaration of a greater number of owners, for street improvement, by doing the work and improving the property, he can not be permitted to refuse payment therefor.</p>

<p>Divorce — Duty of Wife.</p> <p>A wife is not entitled arbitrarily to insist on a husband selecting as a borne, one that is distasteful to him, and a refusal of a husband to so select, and live with the wife, is not grounds for a divorce.</p>

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

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

<p>Bailment — Sale.</p> <p>Where money is .to be paid, and the identical thing in an altered form is not to be restored but merely pledged as a security for the money, such a contract is a sale, and not a bailment.</p> <p>Same — Lien for Advancement.</p> <p>A .contract, “To put to M.’s credit with a transfer thereof, a quantity of the whiskey produced therefrom, free from taxes, etc., an amount of whiskey ample to pay and reimburse said M. for said grant, and he to have a lien upon the whiskey so produced, etc.,” held to convey merely a lien upon the whiskey to secure the payment of the agreed price of the grain furnished. ,</p> <p>Same — Notice of Lien.</p> <p>Without notice of this lien, purchasers of this whiskey would not be ‘affected by any claims of M.</p>

<p>Attachment — Garnishment—Appearance—Jurisdiction.</p> <p>The mere presence of an officer of a foreign corporation in this State, casually, does not give a plaintiff a right of action, that a garnishment served on said officer for a debt due in Indiana, would be sufficient to give the court jurisdiction.</p>

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

<p>Evidence — Burden of Proof — Action on Note.</p> <p>Onus on one charging fraud, to establish same.</p> <p>Creditors — Securing Claim.</p> <p>When diligence in securing debt, not fraudulent as to ther creditors.</p>

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

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

<p>Ejectment — Foreclosure—Instructions as to Costs.</p> <p>Under a prayer of a petition for a judgment for land, and for $300.00 for being kept out of land, an instruction;, “If the jury find for the plaintiff they may also find for him in damages the reasonable rent of the land and extra costs of prosecuting this suit not exceeding $300.00.” Held to be improper, as no extra costs can be allowed, the only costs allowable being that incidental to the suit.</p>

<p>AKPEAL KROM SIMPSON CIRCUIT COURT.</p>

<p>Husband and Wife — Tenants of Entirety.</p> <p>Sight of survivor to take, and convey.</p>

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

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

<p>Elections — Proof of Vote.</p> <p>Upon identification of one, who voted at a certain precinct, it is proper to permit the poll books to be read as evidence to the jury to show that his vote was recorded and counted.</p> <p>Same — Residence.</p> <p>The statute on “residence,” of one claiming the right to vote, is the place where the family of a married man resides, unless such residence is for a temporary purpose only. If the family is permanently at one place, and he transacts business at another, the former shall be his residence.</p>

<p>Dower — Wills.</p> <p>Allowance to widow ‘in lieu of property required by statute, except as to that which is exempt.</p>

<p>Wills — Undue Influence — Improper Relations — Revocation of Former Will.</p>

<p>War — Military Authority.</p> <p>One taking property, without compensation to the owner, acting under a superior offiteer, can not excuse himself on the ground that he was acting in obedience to orders actual or constructive, unless it was under coercion.</p>

<p>Res Judicata — Judgment.</p> <p>Rormer judgment a bar to relief sought. Injunction properly dissolved.</p>

<p>Judgment — Appeal—Stare Decisis.</p> <p>Debt payable out of general fund, not a preferred debt.</p>

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

<p>Deeds.</p> <p>Execution, delivery and acknowledgment by officer of bank. Adverse possession sufficiently established.</p>

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

<p>Judicial Sales — Sale Bonds.</p> <p>A conveyance executed in obedience to an order of court is a sufficient confirmation of tbe sale.</p>

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

<p>APPEAL EROM LOUISVILLE CHANCERY.</p>

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

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

<p>Judicial Sales1 — Bond of Purchasers — Remedy of Co-Vendee — Action by Rule— Costs for Defending Another Suit.</p>

<p>Judgment — Verdict not Sustained by the Weight of Evidence — Instructions as to Loss.</p>

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

<p>Pleadings — Allegations in Petition and Answer, Justifying Verdict — Denials in Reply — Sufficiency.</p>

<p>APPEAL EROM ROCKCASTLE CIRCUIT COURT1..</p>

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

<p>APPEAL erom shelry circuit court.</p>

<p>Homestead Exemptions.</p> <p>Debts created before law went into effect.</p>

<p>Mortgages — Prior Lien — Pro Rata Distribution Among Creditors — Fraudulent Conveyances.</p>

<p>C ontract — B oundary.</p> <p>Failure of consideration, where amount of land comes up short.</p>

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

<p>Appeal — Error in Refusing a Continuance.</p> <p>The appellate court, under section 334, Criminal Code, has no power to reverse a judgment of conviction in a prosecution for felony, because of error by the court below in refusing a continuance.</p> <p>Same — Instructions—Reasonable Doubt.</p> <p>An instruction by the court on reasonable doubt, which calls the attention of the jury to the consequences resulting from acquittal upon mere light and technical doubts, not growing out of the evidence, does not in itself authorize a reversal.</p>

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

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

<p>Removal of Cause in State Court.</p> <p>Motion to remand, must be made or objection is waived.</p> <p>Injunction — Error in Judgment.</p> <p>An Injunction will not lie to restrain collection of a judgment, in which there is an error, the proper proceeding being by appeal and supersedeas.</p>

<p>Pleading — Limitations..</p> <p>Plea in bar, when court suspended by military authority.</p> <p>States.</p> <p>The Legislature may, at its will change, modify or repeal the Statutes of Limitation, so that it does not change or injuriously affect vested rights.</p>

<p>Husband and 'Wife.</p> <p>Conveyance for wife a joint one for berself and husband.</p> <p>Restitution of purchase money.</p>

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

<p>Judgments.</p> <p>Proceeding in lower court, after mandate returned.</p>

<p>Actions — Defense.</p> <p>One guilty of laches in a defense, depending on a third party to look after his interest, cannot complain of a judgment against him.</p>

<p>Criminal Law — Instructions—Misdemeanors.</p> <p>In- prosecutions for misdemeanors, as well as felonies, the accused should not be convicted on a preponderance of testimony if the jury have a reasonable doubt of the guilt of the accused.</p> <p>Indictment — Law—Question for Court.</p> <p>It is not necessary to allege in an indictment the existence of the law under which it is made; that is a question for the court.</p>

<p>Indictment — Allegation of Time.</p> <p>An indictment for a misdemeanor is sufficient if it alleges that the offense was committed in a certain month, without giving the day of the month.</p>

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

<p>Indictment — Filing Away, Not Dismissal.</p> <p>Tlie mere filing away of an indictment is not a dismissal of the prosecution.</p> <p>Arrest — Bondsman May Make. '</p> <p>After an indictment is filed away the bondman of of the defendant may cause his arrest and delivery to the jailer.</p>

<p>New Trial — Weight of Evidence — Newly Discovered Evidence.</p> <p>The verdict of a jury will not be set aside unless it is palpably against the weight of the evidence. Newly discovered evidence, which is merely cumulative, is not sufficient.</p>

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

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

<p>Homicide — Murder—Plea of Self-defense — Evidence—Instructions.</p> <p>When the accused relies on a plea of self-defense and if there is any testimony tending to establish his plea, however slight, the court should give an instruction covering the law of self-defense.</p> <p>Reasonable Doubt — Jury Must Wot Weigh the Evidence.</p> <p>The jury have no right to weigh the evidence in a criminal ease, and they have no right to weigh the testimony of any single witness. If they have a doubt as to, the credibility of a witness this doubt must be resolved in favor of the accused.</p>

<p>APPEAL EROM PENDLETON- CRIMINAL COURT.</p>

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

<p>Election — Officers—Rejection of Vote — Error—Not Responsible — Construction of Law.</p> <p>The constitutionality of a law enacted by the Legislature is a judicial question to be determined by the courts, and the judges of an election are not called upon to decide the question.</p>

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

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

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

<p>Judicial Sales — Failure to Make Proper Application of Proceeds — Remedy.</p> <p>Where the proceeds of a judicial sale are improperly applied, the remedy is to apply to the court for a proper application and not by excepting to the sale.</p>

<p>Criminal Law — Appeal—Amount of Fine — Jurisdiction.</p> <p>The court of appeals has no jurisdiction in cases where the penalty is a fine of fifty dollars or less and no other punishment.</p>

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

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

<p>Judgment — Suit to Review — Petition—Demurrer.</p> <p>Tlie petition was clearly defective, as it failed to allege the discovery, of any of the facts set forth as a cause for reviewing the judgment already rendered, after its rendition, nor attempts to account in any way for failure to except to the commissioner’s report in the original suit.</p>

<p>Deeds — Error in Description — Differs from Patent — Mistake—Possession.</p> <p>The boundary of land described in the deed differs essentially from those described in the patent, but the size of the tract, the water course upon which it lies, the land it adjoins and the further fact that it is described as the same land covered by the patent, tends to establish the conclusion that the intention was to convey all the land embraced in the patent. (</p>

<p>Executions — Senior and Junior — Levy Priority — Application of Proceeds of Sale — Apportionment—Sheriff Responsible for Error.</p> <p>The law requires the sheriffs shall first satisfy the scire facias which comes first to his hands, and when two or more executions come to his hands at the same time he shall apportion the sum made among the several executions according to the amount realized.</p> <p>Same.</p> <p>If a sheriff undertakes to make what in his judgment is an equitable apportionment between execution creditors he is liable on his'official bond for error.</p> <p>Same — Over-Payment of Creditor — Sheriff Responsible.</p> <p>Where a sheriff over-pays one of several execution creditors and the money realized from the sale is not sufficient to satisfy all the executions he is responsible to the other creditors in proportion to the amount over-paid. .</p>

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

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

<p>Depositions — Exceptions—When to he Made.</p> <p>Exceptions to depositions must he noted and filed before the commencement of the trial.</p> <p>Same.</p> <p>Exceptions made before the examiner will not he considered, except so so far as it may affect the competency of the witness, and such exceptions may he made by motion at the trial.</p>

<p>Criminal Law — Evidence—(Confession—Competency — Admissibility — Instructions.</p> <p>It is not error to refuse to instruct the jury that confessions made alone to one witness constitutes the weakest evidence admissible in law. The proof of confessions so made is evidence which should be carefully scannedj but the confessions themselves, if freely made, and satisfactorily proved, are entitled to the greatest weight.</p> <p>Arrest of Judgment.</p> <p>A judgment of conviction in a criminal ease can be arrested only because the indictment does not charge facts constituting a public offense within the jurisdiction of the court.</p>

<p>Judgment — For Sale of Land — Setting Aside — Subsequent Term — Second Judgment for Sale — Suit to Set Aside.</p> <p>A final judgment can not be set aside at a subsequent term of the court unless for some of tbe grounds prescribed in the Code. When the order purporting to set aside the first judgment, no sale of the land had been made by the first judgment, the whole of the land was to be sold to pay the debts without regard to the claim of the widow for dower, and it is not proved that the land brought less when sold than it would have brought if it had been sold under the first judgment. Held, That the order setting aside the first judgment may be treated as a nulity and it may be regarded as in full force, the second judgment for the sale of the same land for the payment of the same debts is not necessarily erroneous.</p>

<p>APPEAL PROM: LOUISVILLE CITY COURT.</p>

<p>Indictment — Selling Lottery Tickets — Certainty.</p> <p>The charge in the indictment is that the defendant “did unlawfully sell. . a lottery ticket, a writing purporting to entitle the holder to a prize to he drawn in a 'lotery in the State of Kentucky.” Held, That the allegations are too general and wholly fails to give the defendant notice with ■sufficient certainty of the particular offense, for which he was to he tried, so as to enable him to prepare his defense, nor would a judgment in the case he a bar to a future prosecution for the same offense.</p>

<p>Descent and Distribution — Death—Subsequent Legislation.</p> <p>The right of the widow and heirs in and to the estate of the decedent vested in them, at his death, and no subsequent legislation can divest them of the interest they acquired.</p> <p>Dower — Failure of Heirs to Allot Cost.</p> <p>It is the duty of heirs to have the widow’s dower alloted her and upon their failure to do so, it was right and proper for her to institute proceedings against them, for that purpose, and the cost of such a proceeding must be paid by the heirs.</p>

<p>Exceptions, Bill of — Order Piling Omited — Nunc Pro Tunc Order.</p> <p>The bill of exceptions was signed by the judge at the term during which the judgment was rendered and the motion for a new trial overruled. It was then made part of the record, but the clerk omitted to make an order filing it. Held, That it was proper for the appellant at the next term, upon notice to the adverse party, by motion to have an order Nunc Pro Tunc entered noting the filing.</p> <p>Judgment — Replevied—Merger.</p> <p>The execution of a replevin bond is a merger of the judgment and releases all the judgment defendants who fail to sign replevin bond.</p>

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

<p>License — Federal Government — Transacting Business Witjhout — Contract Not Enforceable.</p> <p>Contracts made by broker carrying on business -without a license from the Federal government can not be enforced.</p>

<p>APPEAL RROM RRANKLIN CIRCUIT COURT.</p>

<p>Landlord and Tenant — Lease—Sub-letting—Rent.</p> <p>Appellants sub-rented the premises and agreed to pay the rent to the landlord. Held, That while the promise does not appear to have been made directly to appellee, still he must be regarded as having affirmed the contract, and there is no reason why he should not recover the rent from appellants.</p>

<p>Wills — Construction.</p> <p>The fact that the testator devised to James five dollars as his share of the estate, does does not argue that he no longer recognized-him as á child, nor that he did not intend him- to share equally with his other children in such balance as might remain of the special provision made for the wife.</p>

<p>Wills — Executor Demands Payment in Gold — Legal Tender — Aid of Chancellor —Construing Will.</p> <p>The question as to the right of the executor to demand of the devisees payment in gold has been settled, and he has no right to demand payment, in anything else than legal tender.</p> <p>Same — Usual Payments.</p> <p>The executor insists that the words “with usual payments” mean such payments as were usual at the time of the death of the testator. The devisees contend that these payments are to be regulated by the sale of land at the date of the bill. Held, That the intention of the devisor will control the decision of the question.</p> <p>Same — Time at Which Will Takes Effect.</p> <p>A will shall he construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. ' •</p> <p>Same — Interest.</p> <p>When payments are given upon property, either by will or deed, the ordinary meaning attached to such language would be, that the payments were to bear no interest.</p> <p>Same — Election Between Devisees.</p> <p>Where devises are made in the 'alternative in a will, and it appears that the party to whom the devise is made, must accept the one or the other but not enjoy both, then an election can be made.</p> <p>Same — Rejection of Will.</p> <p>The devisee in a will may reject its provisions, but when he does so, his rights under it are gone.</p>

<p>Wills — Construction—Intention—Dying Without Issue.</p> <p>“I give and bequeath to my son, Thomas Hunter, under the reserves contained in this will, and after the death of my beloved wife, the plantation whereon I now live, at the death of his said mother, to him and his heirs forever. It is also my will and desire that if either of my children die without lawfully begotten heirs of their own body, that then in that case, that part of my estate devised to them to be divided between the surviving children and their heirs forever.” Held, That the will vested in the appellant an indefeasible title to the land.</p>

<p>Judicial Sales — Purchase by- One for Another a Trust Results.</p> <p>When a party purchases land at a judicial sale with the understanding that he is to hold it for another, he holds the land in trust for the benefit of the other.</p>

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

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

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

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

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

<p>Fraudulent Conveyances — Limitation of Action.</p> <p>Appellee was the owner of a tract of land in Harrison county in his own right. He exchanged this land for other land, and caused a deed to be made to his wife at a time when he was insolvent and after the creation of appellant’s debt. The deed to 'Mrs. Bradley was recorded in the Harrison county court more than five years before the institution of this suit. Held, That the appellant knew of the existence of this fraud more than five years before he brought his suit, and the statute of limitation relied on by appellee is a bar to his recovery.</p>

<p>Trial — Transfer from Common Law to Equity Docket — Chancellor Takes Place of Jury.</p> <p>Where a cause is transferred from the common law to the equity docket, the party making the motion must he held to have consented . that the chancellor shall take the place of a jury.</p>

<p>Execution — Levy on Personal Property — Negligence in Leaving Property in Hands of Defendant. •</p> <p>If a sheriff permits the defendant to retain personal property on which an execution has been levied and the same is thereby lost, he is re sponsible to plaintiff for the value of the property.</p>

<p>Forcible Entry and Detainer — Finding of the Jury Not Sustained by Proof— Actual Possession.</p> <p>None but those who are in actual possession when a forcible entry is made, can maintain the warrant of forcible entry under the statutes.</p>

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

<p>Judgments — Actions to Enforce Collection — Second Judgment in Personam.</p> <p>In an action to enforce the collection of a judgment, the circuit court has no authority to render a second: judgent in personam.</p>

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

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

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

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

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

<p>Evidence — Statement of Wife Wot Competent Against Husband.</p> <p>The wife is not- competent to testify against her husband, and her admissions or statements will not be admitted as evidence against him.</p>

<p>APPEAL ER.OM HENRY .CIRCUIT COURT.</p>

<p>Bills and Notes — Action Against Assignor — Answer—Demurrer.</p> <p>The answer states that the appellant received no consideration for the assignment, but made it at the request of the parties. That Smith knew the land, for which the note was executed, belonged to Crider; that Crider was to perform the covenant in the deed in regard to. fence. Held, That the answer is not sufficient because the law implies a liability on the part of the assignor to pay the consideration received by himself or third person, in the event that the note, when assigned, was paid off, or not collectable by reason of an equitable set-off.</p>

<p>Contracts — Delivery of Personal Property — Possession Passes With Title — Resumption of Possession — Tortious.</p> <p>The possession was to pass with the title, and that when the tobacco was received and weighed by January & Son, the right of Newcomb to control it ceased. Held, That in such a state of case, the resumption of the possession of tobacco was a tortious seizure by Newcomb, and the value of the same at the time of the seizure constituted the amount of the set-off against the .contract price.</p> <p>Same — Violation of Contract.</p> <p>In as much as .Newcomb was the first to violate the contract, he ought not to be allowed to recover damages against Bartlett & Co., because they afterwards declined to carry it out.</p>

<p>Set-off and Counter-Claim — Dismissál of Action — Effect on Set-off.</p> <p>As appellant had dismissed his action on a note to which appellee had pleaded a set-off, there was then no suit pending between the parties, the appellee could not proceed with the trial as to her set-off.</p> <p>Bills and Notes — Necessary Parties.</p> <p>The assignor of a note must he before the court before a judgment can be rendered against the assignee.</p>