Volume 5 — Kentucky Opinions

<p>Wills — Probate—Undue Influence.</p> <p>The will was signed by the testator in the presence of the witnesses and attested by them in his presence and at his request. He was then of sound mind and memory and with mental capacity sufficient to fully comprehend what he was doing and there is no proof of undue influence.</p> <p>Wills — Son Forfeits Claim to Parental Kindness.</p> <p>Although the testator has stated that he intended to give his home place to his son, and there may be no doubt of his intention at the time, yet the had treatment of the father by the son was the sole cause of the father depriving him of any interest in the estate.</p> <p>Wills — Probate—Appeal—Court of Appeals Will Render Final Judgment on Reversal.</p> <p>Where an appeal is taken from a judgment rendered in proceeding to probate a will the court of appeals will render a final judgment on reversal of the case.</p>

<p>Writ of Possession.</p> <p>It is error to issue a writ of possession for more land than that sold under the judgment, and to that extent it may he enjoined.</p>

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

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

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

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

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

<p>Trial — Motion for Non-Suit — When to Be Made.</p> <p>A motion for non-suit is usually made immediately after the plaintiff has closed his evidence, on the grounds that the testimony fails to make out a cause of action against the defendant.</p> <p>Second Trial — Exception to Instructions.</p> <p>As the ruling of the court in giving the instructions was not excepted to by appellant, the Court of Appeals will not review them.</p>

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

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

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

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

<p>Nuisance — Public—Action for Cannot be Maintained by Private Individual.</p> <p>If a man close up a public highway, whereby it is stopped up to the use of the public, it is a nuisance, common to all, for which he may be prosecuted by the commonwealth, but a suit against him cannot be maintained by a private individual.</p> <p>Roads and Passways — Prescription—Title by.</p> <p>The right to a private passway may be acquired by continual user for 15 years under claim of right.</p>

<p>Insurance — Contract—Assessment—Notice—Penalty.</p> <p>Actual notice of assessment was all that the charter required and it appellant neglected to pay the same, he must be regarded as electing to suspend his right to collect his policy of insurance. Such suspension was an essential part of the contract.</p>

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

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

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

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

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

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

<p>Appeals and Errors — Amendments on Reversal.</p> <p>On the return of the case from the Court of Appeals, the court below has the same power to permit amended pleadings to be filed, that it had before the reversal of the judgment.</p>

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

<p>Execution — Sale of Land — Purchaser’s Bond — Money Paid to Sheriff Also.</p> <p>If the $400.00 was paid to the sheriff as alleged, he received it without right aud became liable to refund it; but that did not create any liability of the sheriff to the plaintiff who has his sale bond for all he was entitled to.</p>

<p>Infants — Proceedings to Sell Real Estate — Value of Real and Personal Estate — Annual Profit — Jurisdiction.</p> <p>In proceedings by tbe statutory guardians of infants to sell their real estate — before a court shall have jurisdiction to sell, three commissioners must be appointed and must report under oath to the court the net value of the infants’ real and personal estate, and the annual profits thereof, and whether the interest of the infant requires the sale to be made.</p>

<p>•Equity — Commissioner’s Report — Agreement In.</p> <p>The mere report of a commissioner of a verbal expression of a desire on the part of appellants could not have the effect of binding them as by an agreement of record unless the report distinctly showed the term of the agreement.</p>

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

<p>Counties — Appropriation—Sheriff Custodian — Funds Paid Out on Orders.</p> <p>Where a sheriff holds the funds of a county and is the proper custodian of same, he has no right to pay them out except upon the order of the county court.</p> <p>Same — Commissioner to Let Contract to Build Road — Duties.</p> <p>It was the duty of the commissioner to let out the work, to receive it when completed hut they had no power to order the sheriff to pay the contractor.</p>

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

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

<p>Assault and Battery — School-Teacher on Pupil.</p> <p>The authority of a teacher to hold his pupil to á strict accountability in school for disorderly behavior did not justify him in assaulting and beating the pupil on the playground.</p>

<p>Attachment — Property in Hands of Agent — Notice of Sale — Change of Possession.</p> <p>Property, in the hands of an agent who has no notice of salé made prior to the levy of the attachment, is subject to the attachment as possession did not follow the sale.</p>

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

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

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

<p>Vendor and Purchaser — Covenant of Seizin — Covenant—Warranty— Breach of Covenant. .</p> <p>The deed contains two distinct covenants; the first a covenant of seizin and the other an ordinary covenant of general warranty.</p> <p>Same — Eviction.</p> <p>To constitute a breach of the covenant of general warranty there must be an eviction of the grantee by paramount title, but the covenant of seizin is broken at once if the title conveyed is not clear, free and unencumbered.</p> <p>Same: Criterion of Recovery — Title Defective to Part of Property.</p> <p>Where the title is perfect to one-half of the property conveyed and defective as to the other the criterion of recovery is one-half of the original consideration with interest.</p> <p>Same — Rescission of Contract — Appropriate Action.</p> <p>. A rescission of the contract to sell land can not be had in an action at law. The remedy is by suit in equity.</p>

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

<p>Executors and Administrators — Time to Settle — Interest.</p> <p>An administrator lias two-years in which, to settle his accounts and during that period he has a right to retain the assets to pay debts and liabilities against the estate and is not liable to pay interest unless he has put the money at interest or has made profit on it.</p>

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

<p>Judgment — Court has no Power to Set Aside at Subsequent Term.</p> <p>No appeal was prosecuted from the judgment, and it was not within the power of Circuit Court, at a subsequent term, to set it aside, nor to refuse to permit it to be enforced according to its spirit.</p> <p>Judicial Sale — Proceeds Cannot be Diverted.</p> <p>The proceeds of a judicial sale cannot be diverted from its adjudged destination.</p> <p>Same — Failure of Purchaser to Give Bond.</p> <p>The creditor and not the debtor is the party to except to report of sale on account of the failure of the purchaser to execute a sale bond.</p>

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

<p>Landlord and Tenant — Lien for Rent — Seizure and Sale of Tenant’s Property by Stranger.</p> <p>The rights of a landlord whose lien is in full force, and who has not resorted to his legal remedies to enforce the collection of his rent, cannot be jeopardized by the seizure and sale of the tenant’s property under execution.</p>

<p>Pleadings — Cross-Petition—Prayer for Relief.</p> <p>There is no prayer in the pleadings for a specific execution of the contract of purchase, but a prayer for a rescission; and this is all the relief that can be afforded.</p>

<p>Homestead — Act Exempting Homestead — Prior Debts.</p> <p>A homestead is not exempt from execution for debts created prior - to June, 1866.</p> <p>Same — Prior Lien On Land Other than the Homestead Created by Levy of Execution.</p> <p>Where prior liens on land outside of the homestead have been created by levy of execution, there is no equitable principle by which these liens in favor of subsequent creditors can be made subordinate to antecedent debts.</p>

<p>Taxation — Land Sold for Railroad Tax — Purchaser’s Lien.</p> <p>The purchaser of land sold for railroad taxes has a perpetual lien on the property for the amount paid.</p>

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

<p>Guardian and Ward — Sale of Infants’ land — Failure of Purchaser to Execute Bond.</p> <p>If the money to which the appellant was entitled, was otherwise secured, the failure of the purchaser to execute hond does not affect the sale.</p> <p>Same.</p> <p>A sale of an infant’s land cannot he impeached in a collateral proceeding.</p>

<p>Vendor and Purchaser — Deed may be Construed to be a Mortgage — Consideration — Weight with Chancellor.</p> <p>The inadequacy of the purchase price should have a controlling influence on the Chancellor in determining whether a deed, absolute on its face, was not intended by the parties to be a mortgage.</p>

<p>Process — Summons—How Executed on Company.</p> <p>The officer’s return is — “Executed by delivering to Joel Lambert a true copy of the within summons.”</p> <p>Held, that this is not such service on the company as is required by law.</p>

<p>Attachment — Suit on Attachment Bond — Evidence—Relevancy and Competency.</p> <p>If the attachment levied on the goods had the effect to prevent a sale or to injure appellee in his business or to impair his credit, it was proper and legitimate for him to show these facts, but the mere opinion of the witness that the levy of the attachment worked this injury upon appellee, is incompetent. The witness must state facts such as that his customers have abandoned him, or his credit had been impaired by the merchants refusing to credit him, in order that the jury may form their own opinion.</p>

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

<p>Evidence — Competency of Conversation — Narartive of Past Occurrence.</p> <p>A conversation which is not concomitant with the principal act nor connected with it so as to form a part of the res gestae hut a mere narrative of past occurrences can not he received as proof of the occurrence.</p>

<p>Bills and Notes — Assignment—Action by Assignee Against Assignor— Sufficiency of Petition.</p> <p>In an action by an assignee against assignor the petition must allege that the obligor has been prosecuted to insolvency, when the execution was issued, the consideration paid for the note, that the assignor promised to be responsible if the maker proved insolvent, that the assignor represented to the assignee that the maker was solvent when the note was assigned.</p>

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

<p>Pleadings — Verification of Petition by Infant.</p> <p>Where infants are the real plaintiffs in an action and are old enough to understand the provisions of the Code, relative to the verification of pleading, they should he required to verify the petition.</p>

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

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

<p>APPEAL PROM HENDERSON CIRCUIT COURT, COMMON PLEAS DIV.</p>

<p>Principal and Agent — Speculation by Agent — Exchange of Currency.</p> <p>The appellant as agent of the appellee sold the tobacco in Europe and received in payment therefor, sterling exchange, and this was converted by him into the currency of this country, the exchange bringing a large premium.</p> <p>Held, that the appellant should account to the appellee for the profits derived by him from the sale of the exchange. It was not his money or property but that of his principal, and any speculation indulged in by him in the way of exchanging this currency for greenbacks must be accounted for.</p>

<p>Appeals and Errors — Mandate—Former Opinion of the Case.</p> <p>The Court of Appeals has not the power to revise its former decision, whether it be right or wrong. The Court of Appeals, as well as the Circuit Court, is bound to recognize it as the law of the case.</p>

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

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

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

<p>Partnership — Acts of Insolvency.</p> <p>Fitzhenry, Liversay and Mitchell were partners in running a planing-mill. Fitzhenry and Liversay. left the state, at which time the partnership property was insufficient to pay the partnership debt. Mitchell remaining in Kentucky executed a mortgage to his father for the purpose of securing a debt owing him by the firm. This mortgage was executed in the firm name and for the purpose of securing only firm liabilities.</p> <p>Held: That as the proof shows that the partnership effects were not sufficient to pay the firm's debts, the only object Mitchell had in view in making the mortgage was to secure his father in preference to other creditors.</p> <p>Partnership — Acts of Insolvency — Effect on Individual Estate.</p> <p>An act by which a partnership is declared insolvent does not necessarily effect the individual estate of the partners and can be made to apply alone to the firm and not the individual members thereof.</p> <p>Partnership — Sale of Individual Property to Satisfy Firm Debt — Other Creditors Made Equal Out of Partnership Property.</p> <p>There is no equitable principle by which appellee can assert his lien upon the individual estate of the partners and then claim benefit of the partnership effects. He must be content with what he has realized out of the individual property until the partnership creditors are made equal out of the partnership property.</p>

<p>Trial — Verdict Against Evidence — Court Will not Disturb.</p> <p>The whole facts of the case were considered by the jury and they seem to have regarded the sale as made in good faith and this court when there is evidence upon which to base a verdict will not disturb it unless it is palpably against the weight of evidence.</p>

<p>Fraud — Sale of Land.</p> <p>The appellee upon the reception of a fraudulent letter as to the value of the land proceeded to the home of the appellant and there upon the faith of this letter contracted to pay for the land ten times its value.</p> <p>Held, that no chancellor would permit such ' an inconceivable bargain brought about by such fraudulent means to remain obligatory longer than he could annul it.</p>

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

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

<p>APPEAL FROM ESTILL CIRCUIT COURT.</p> <p>Affirmed on Original and Reversed on Cross Appeal.</p>

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

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

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

<p>Executors and Administrators — Demands Against Estate — Affidavit of Complaint — Contest by Executor — Ex parte Statement not Competent.</p> <p>If a voucher against a decedent’s estate is made out and proven according to law, this does not preclude the .executor from contesting it and where an issue is formed the ex parte statements made in the form of an affidavit cannot he read without the consent of the parties.</p>

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

<p>Attorney and Client — Relation Ceases at Death of Client — Limitation.</p> <p>The relation of attorney. and client ce'ases upon the death of the latter and the statute of limitation begins to run at that time.</p> <p>Limitation of Actions — Reply not Permitted Unless Answer Contains Counterclaim or Set-off.</p> <p>A reply .to a plea of limitations is only permitted where there is a counterclaim or set-off by the defendant in his answer.</p>

<p>Trespass — Action Against Constable for Damages for Sale of Property Under Execution May be Pleaded in Bar of an Action for Recovery of Specific Property.</p> <p>The constable had sold the property under execution and appellant elected to sue in trespass for the value of the property in which he obtained judgment against the constable, He cannot now maintain this action against appellee who obtained possession by his purchase under the execution.</p>

<p>New Trial — Motion for Must be Made in Lower Court.</p> <p>It is essential that the party complaining shall make a motion for a new trial in order to have errors corrected by the court of appeals.</p>

<p>Attachments — Levy Confers no Title but Mere Equity — Interest of Creditors.</p> <p>■When an attaching creditor places his attachment in the hands of the sheriff and has it levied he acquires no legal right or title to the property. It is a mere equity and he cannot sell more than his creditor’s interest.</p> <p>Attachments — Prior Equity Not Affected by Levy — Title Bond Creates Equity.</p> <p>. If A has a bond for title to land from B and C, after the date of the bond attaches the land, the equity of A must prevail.</p>

<p>Trespass — Action for — Actual Possession — Not Necessary to Show Chain of Title to Commonwealth — Limitations.</p> <p>This being an action for trespass to real property, actual possession, at the time of the entry of appellant was sufficient to enable appellee to maintain his suit. It was not necessary that he should show a perfect chain of title back to the commonwealth, nor an actual adverse holding for the term of fifteen years preceding the alleged trespass.</p>

<p>APPEAL PROM MC CRACKEN CIRCUIT COURT.</p>

<p>Judges — Special Judge of Police Court — No Statutes Authorizing Appointment or Selection — Findings and Judgments Void — No Appeal Lies to County Court.</p> <p>There is no statute authorizing the appointment of a special' judge of a police court. The selection by the parties does not invest him with judicial functions. His finding and judgments are nothing more than an award and cannot be enforced as a judgment. No appeal lies to the county court.</p> <p>Judges — Special Judge of Police Court — Appointment of Commissioner— Compensation of Commissioner is a Part of Amount in Controversy.</p> <p>The special judge having no jurisdiction, his order appointing a commissioner was void and he was not entitled to compensation. The allowance of one hundred dollars to the commissioner does not come within the general term of cost; hence it must he considered in determining the amount in controversy on appeal.</p>

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

<p>Contracts — Building Turnpike — Work Incomplete — Estimate.</p> <p>When appellee gave up Ms contract the Turnpike Company agreed to pay him the contract price for the work done and the estimate was to be made by the appellant’s engineer.</p> <p>Held: That it was the duty of the company to ascertain the amount due appellee before involving him in litigation.</p>

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

<p>Principal and Surety — Depositions Taken in Another Case are Competent Evidence that Party then Claimed to be Principal and not Surety.</p> <p>The depositions taken by Allen & Dunn in their suit with Boynton are admissible as evidence in this case, to show that at that time Dunn was asserting that he and Allen were partners in the purchase of the mules.</p> <p>Principal and Surety — Statute of Limitation — Estoppel.</p> <p>The conduct of the appellant was such as to. induce appellant to believe that he was a principal in the note and not surety, therefore he is estopped to plead the statute of limitation of seven years.</p>

<p>Partnership — Payment of Individual Debts with Partnership Funds— Knowledge by Other Partner — Estoppel to Recover.</p> <p>Where one partner pays his individual debts with partnership fund, the other having knowledge of the fact, is thereby estoppel to recover of the individual creditor the amount so paid.</p>

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

<p>Principal and Surety — Agreement for Indulgence — Void Contract Does not Suspend Right to Sue Principal.</p> <p>Six months after the maturity of the note the principal paid ten dollars and the holder agreed to indulge the principal for another six months and this was continued for every six months up to some time before the institution of the suit. These partial payments were not credited on the principal of the note but was the usurious interest charged.</p> <p>Held: That the agreement for indulgence was void and could not be enforced, consequently it did not suspend appellant’s right to sue on the note, nor was the surety, thereby released from his obligation to pay the debt.</p>

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

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

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

<p>Clerks of Courts — Copying Record Fees — Record Confused.</p> <p>Where a record is much confused by the interlineation of the orders out of their proper place, and without any regard to the order in which the proceedings were had, the clerk is not entitled to charge any fee therefor.</p>

<p>Contract — Compensation for Unfinished Work.</p> <p>Where a contractor fails to complete a house his compensation therefor should he the actual value of the house to the owner in its incomplete condition.</p>

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

<p>New Trial — Presiding Judge Dies Pending Motion — New Trial Granted by Successor.</p> <p>The judge who presided over the trial having died without disposing of the motion for a new trial, his successor granted it without any knowledge of the evidence adduced on the trial, or of the rulings or instructions of the court and a verdict and judgment was rendered for the defendant on the second trial.</p> <p>Held, that reasonable and fair presumption should be indulged in, in favor of the correctness of both the finding of the jury, and the action of the court in supervising the trial; and the general rule seems to be that a new trial ought not to be granted without such knowledge or information as will enable the court to exercise a sound judicial discretion in determining the question involved; which information can be brought, to the mind of the judge by competent evidence.</p>

<p>Bail — Forfeiture—Reversal—Bond Taken Before Mandate Filed — County Judge Has no Authority to Take.</p> <p>After appellant’s case was reversed and before the mandate of the Court of Appeals was filed the county judge admitted the defendant to bail which he forfeited, and this action was instituted against his bondsman for the purpose of collecting the amount of the bond. i</p> <p>Held: That after conviction a defendant can not be admitted to bail. The county judge had no authority to admit the defendant to bail, although the judgment against him had been reversed. The mandate should have been entered and the court rendering a judgment could alone discharge the prisoner from custody. The bond taken by the county judge was unauthorized and void.</p> <p>Bail — Clerk May Take Bond.</p> <p>After the accused has been committed and there has been a term of the circuit court, the clerk of that court, in the absence of the judgefi may take bail, and where there is a commitment by the court and the amount of bail is fixed the clerk may take the bail in the absence of the judge.</p>

<p>Wills — -Construction—Directions to Executor to Sell Land in Parcels is Directory and Not Mandatory.</p> <p>“I desire that the perishable part of my estate be immediately sold after my decease and also my real estate (the farm on which I now live) but I desife it to be divided in three parts best suited for a farm in each part, and sold separately, but if this can not be done then I desire it to be sold altogether.”</p> <p>Held: That the provisions in the will to divide the land in three parts before selling was merely directory and the executor had the power to use his discretion in that regard.</p>

<p>Wills — Construction,</p> <p>This suit was brought to have a proper construction of the will of B. Spalding and to ascertain .definitely the amount the widow is entitled to under the will. The provisions of which bearing on this particular question are as follows:</p> <p>“First: My just debts must all be paid; and second, I will to my wife Elizabeth and her heirs forever, the one half of my entire estate.”</p> <p>Held: That the widow was entitled under the will to one-half of the entire estate after deducting therefrom the debts of the testator.</p>

<p>Pleadings — Answer Made no Issue — Cross-Petition.</p> <p>If no reply had been filed and a jury impaneled to inquire into the amount appellants were entitled to recover upon the counterclaim relied on, no evidence would have been admissible to show damage on account of the unscreened gravel, nor could a verdict have included liquidated damages as the answer and counter-claim did not raise the issue.</p>

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

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

<p>Indictment — Lascivious Indulgence.</p> <p>It is unnecessary to allege in an indictment for lascivious indulgence that the defendant procured evil disposed persons to meet together if she keeps a house for such purpose and permits such practices.</p>

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

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

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

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

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

<p>Judicial Sale — Restriction of Power to Sell Under Will.</p> <p>Appellant pm-chased the land at judicial sale, not for himself but as trustee for S., who was restrained from selling the land by the will of her mother.</p> <p>Held, that the judgment and confirmation of the sale, nor the purchase by appellant, will operate to remove or affect said restriction on the power of sale.</p>

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

<p>New Trial After Affirmance By Court of Appeals — Attorney’s Want of Knowledge as to Facts In Possession of Witness.</p> <p>It is not alleged that the witness did not, when his deposition was given, recollect every fact connected with the transaction, and no reason is given why such facts were not then elicited, except that appellant’s attorney did not know that he could make such'proof by the witness and, therefore, failed to examine him in reference to these facts.</p> <p>Held, that such diligence as would authorize a new trial is not presented.</p>

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

<p>Carriers — Overcharge for Freight — Suit to Recover — Necessary Allegation.</p> <p>It is not alleged that at the time the freight was demanded and paid that appellants did not know that the sums' demanded were more than hy the terms of the contract appellees were entitled to receive, consequently the payments were neither made hy mistake nor hy the deceit of appellees, hut with a full knowledge of all the facts.</p> <p>Held, that the petition does not state a cause of action.</p>

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

<p>Contract — Collateral Parol Agreement.</p> <p>A collateral parol agreement for indulgence not entirely consistent with the writing is not enforceable against the written evidence of the contract.</p>

<p>Assignment for Benefit of Creditors — Lien—Non-acceptance by Trustee— Chancellor Will Appoint.</p> <p>.Before a lien lias been acquired by a creditor a debtor may rightfully convey his property to all of his creditors, or to a trustee for their benefit and the non-acceptance of the trust, by the trustee, will not defeat the rights of the beneficiaries under the deed of assignment as the chancellor will appoint a trustee.</p>

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

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

<p>Eminent Domain — Measure of Recovery for Land Taken.</p> <p>The judgment is for more than the entire value of the land taken and the fifteen acres cut off by the road, and exceeds the entire value according to the assessment made by appellee.</p> <p>Held, that testing the measure of recovery by appellant’s heirs v. Helm’s heirs the damages allowed are unreasonable and excessive.</p>

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

<p>Continuance — Diligence—Sound Discretion of the Court.</p> <p>The court does not abuse a sound discretion in overruling a motion for continuance, where the same order had been repeatedly moved by the same party who had shown no diligence in procuring a copy of their discharge in bankruptcy, especially where there was a rule to try.</p> <p>Evidence — Records and Proceedings of United States Courts — How Procured.</p> <p>The court properly refused to allow the certificate of the discharge in bankruptcy of Hunt & Berry to be read for any purpose. Section 18, chapter 35, Revised Statutes, requires that records and proceedings of the courts of the United States shall be attested by the clerk with the seal of the court annexed, and certified by the judge of the court to be attested in due form before they shall be entitled to faith and credit in this state. This regulation must be regarded as the rule of evidence in this state.</p> <p>Limitation — Statute Becomes Bar — Subsequent Legislation Does Not Affect.</p> <p>The statutory bar had become complete before the act was passed, and it is not to be assumed that the Legislature intended to revive rights barred at the time of the enactment.</p> <p>Depositions — Bias Subsequently Removed Does Not Make Competent.</p> <p>A witness being incompetent when his deposition is taken, a subsequent verdict in his favor cannot be made to relate back to that time, so as to remove the bias under which he then labored.</p> <p>Appeals and Errors — Reversal As to One Party No Cause As to Others.</p> <p>An appellant has no right to demand a reversal of a judgment against him because of the fact that it must be reversed as to another appellant.</p> <p>New Trial — Liabilities Several and Joint.</p> <p>Where the liabilities of the parties are several as well as joint, a new trial may be granted as to one and the verdict allowed to stand as to the others. Where a defense is merely personal it cannot be made to operate in favor of another party.</p> <p>Trial — Verdict—Informality.</p> <p>When a verdict leaves no fact to he ascertained by the court, hut a mere calculation to he made, lit is not void.</p> <p>Payment — Application As Between Particular Debts.</p> <p>' When a debtor fails to direct how a payment shall be applied and ■his creditor applies it to the wrong debt, he cannot he heard to say that this mistake exonerates him from paying the debt sued on.</p>

<p>Criminal Law — Several Charges — Preliminary Hearing — Bail—Bond Including More Than One Charge — Forfeiture.</p> <p>Thomas P. Dunning was taken before an examining court, charged with four distinct offenses, and after investigation was committed on all of them. Subsequently he was admitted to bail by the county judge, who took only one bond for all of the commitments.</p> <p>Held, that the criminal code contemplates that where a party is charged with more than one public offense, and the examining court, who investigates the charges, he of the opinion that he shall be held to bail to answer said charges, and hail is offered, a separate bond in each case shall be taken.</p> <p>Robbery — Attempt to Rob — Assault With Deadly Weapon — Ordinary Pocket Knife.</p> <p>A mere attempt to rob unaccompanied with an assault with a deadly weapon, or a demand of something of value from the person of another with force and violence, with the felonious intent to commit robbery, is not an offense at common law, nor by statute. ■Neither is it a public offense to carry an ordinary pocket knife concealed, which may be a deadly weapon.</p>

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

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

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

<p>Vendor and Purchaser — Title Bond — Purchase Money — Deed—Lien.</p> <p>By the terms of the title bond, appellant was only bound to convey the land by deed of general warranty when the purchase money was all paid, which was not done when the suit was instituted. Appellee was in default and the court should have rendered judgment not only for the purchase money, but should have adjudged a lien on the land with means of enforcing it.</p>

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

<p>Contracts — Sale of Growing Crop — Completion of Bargain Fact for Jury— Peremptory Instruction.</p> <p>Whether the contract for the Sale of the corn was complete or left something to be done material to complete the bargain were facts, upon which it was the province of the jury to pass and, therefore, the court erred in giving a peremptory instruction.</p>

<p>Pleadings — Action to Recover Land — Sufficiency of Petition — Contradiction.</p> <p>The petition states that the plaintiff is the owner and entitled to the possession of the land and after describing the land it then alleges that the larger portion thereof is the property of the plaintiff, thus contradicting the previous averment that he owned all of the land.</p> <p>Held, that it cannot be determined, from the petition, what portion of the land belonged to the plaintiff.</p>

<p>Executions — Sheriff—Levy—Mistake As to Quantity of Land Levied On : — Good Faith.</p> <p>As the law does not furnish the sheriff with the power or the means to go on land upon which he may levy and make surveys thereof, he must act on the best information he can otherwise obtain, and when he has done so he cannot be made responsible for the mistake of others.</p>

<p>Trials — Instructions—Objection and Exception.</p> <p>An objection to an instruction must be made at the time the court is asked to give it, and if it is then given the ruling of the court must be excepted to.</p>

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

<p>Trial — Law and Facts Submitted to Court.</p> <p>Where the law and facts are submitted to the circuit judge, the court of appeals will not reverse unless the conclusion of the court is flagrantly against the evidence.</p>

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

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

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

<p>Pleadings — Answer Must Deny Every Material Allegation in Petition — I Plea in Avoidance.</p> <p>To constitute a good answer every material allegation of the petition must be denied in such a manner, or if facts are pleaded in avoidance, they must be so stated as to show that if true the plaintiff is not entitled to a judgment. .</p>

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

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

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

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

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

<p>Municipal Corporation — License—Suit for Restitution — Petition—Sufficiency of.</p> <p>In a suit for the restitution of license wrongfully collected, the petition is bad when it fails to allege that the general council enacted no other ordinance on the same subject, and that it failed to adopt and ratify the' action of the inspector.</p>

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

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

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

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

<p>Sheriffs and Constable — Official Bond — Defalcation—Reflection—Second Bond.</p> <p>Where a sheriff is re-elected it is the duty of the county court to require him to execute a new bond, and in the absence of proof to the contrary it will be presumed that he has done so, and when he defaults the action must be brought on the bond in force at the time of the defalcation.</p>

<p>Vendor and Purchaser — Identity of Property Sold.</p> <p>■Where a purchaser fails to make an investigation as to which of two houses he has purchased, when the facts are before him, he is culpably careless and the law can afford him no relief.</p>

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

<p>Criminal Law — Gaming on Premises — Sufficiency of Indictment</p> <p>The indictment in this case informs the appellant definitely of the offense with which he is charged and a conviction would have barred a subsequent prosecution for suffering gaming in his house, and is therefore sufficient.</p> <p>Criminal Law — Illegal Questions Propounded to Witness — Objection—Motion to Exclude Answer.</p> <p>Where an illegal question is propounded to a witness it is not enough to object in case,, he is permitted to answer. There must be a motion to exclude it from the jury.</p>

<p>Railroads — Subscription by County to Capital Stock — Mandamus.</p> <p>Where a proposition to subscribe to the capital stock of a railroad bas been authorized by an act of the legislature and a majority voted in favor of the proposition, it is imperative on the county court to subscribe for the stock, and upon failure to do so mandamus is the proper remedy.</p>

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

<p>Bankruptcy — Discharge Bars Right of Recovery.</p> <p>The discharge in bankruptcy of Bennett barred Sims’ right of recovery against him, and as Sims could not recover he could not snb.iect property in the hands of the assignee.</p>

<p>Army and Navy — Soldier—Arrears of Pay — Who Entitled.</p> <p>The government having paid the arrears to the widow, it must he presumed that she brought herself within the provisions of the law, although the fact that the payment has been made to her may not be- conclusive as to -her right to retain the money as against her husband’s creditors, it at least makes out a prima facie case in her favor.</p>

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

<p>Bills and Notes — Assignment—Possession Prima Facie Evidence of Ownership — Burden of Proof.</p> <p>Filing the evidence of a debt, a note, with the petition without the assignment of the payee therein by the plaintiff, he having the possession and making the averment that he was' the owner, is prima facie evidence of his right to the debt, and puts the onus on the defendant, if he questions the right of the plaintiff, and the evidence of the debt being filed becomes a part of the record.</p>

<p>Wills — Devise to a Class — Survivorship.</p> <p>“I give to Mildred Brusaugh th.e plantation on which we now reside, until the youngest child she has had by me may arrive at twenty-one years of age, for the purpose of raising said children, and when the youngest becomes of age I then wish them to sell my land and divide the money equally between them, and I appoint Mildred Brusaugh my executrix.”</p> <p>Mildred Brusaugh qualified as executrix and undertook to execute the will of the testator.</p> <p>Four of the devisees died intestate before the youngest arrived at age, leaving three survivors, one of whom, together with the executrix, conveyed the land to appellants.</p> <p>Held, that it was the intention of the testator that the persons described as his children by Mildred Brusaugh should take the estate as a class — they were not to come into the separate enjoyment of it until the youngest arrived at the age' of twenty-one years. Until that period it was to be left for the support of the beneficiaries, and if either or even all of them except the youngest one had died before, she attained the age'of twenty-one years, still the executrix was to retain the estate to raise that child.</p> <p>The estate was intended by the testator to pass to the survivors in case of the death of any of them before that time without issue; therefore appellant took nothing under the deed except the interest of one of the devisees.</p>

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

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

<p>Judicial Sales — Pleading—Proper Allegation Must Appear in Petition.</p> <p>It is not alleged that the note sued on was given as part of the price of the land, nor is it alleged that the payees in the note had or were able to convey the title, even if it had been alleged that there was a lien on the land to secure the debt, and there is not an allegation in any of the pleadings in the suit with which this one is consolidated authorizing the judgment.</p>

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

<p>New Trial — Newly Discovered Evidence Contradictory of Proof on First Trial.</p> <p>The appellant 'proved on the first trial that Amhler, in payment for the hogs sold him, was to lift the note due to appellee. By the newly discovered testimony he seeks to establish the fact that he received the hogs in payment of the note, >and that under his authority as agent he had the right to do so.</p> <p>Held, that the most liberal practice will not authorize a new trial to enable the applicant to contradict what he has proven on the first trial.</p>

<p>Criminal Law — Obtaining Property by False Pretense — Indictment.</p> <p>The indictment in this case clearly charges that the defendant willfully and knowingly misrepresented the number and quality of the watches and chains contained in the box, and the genuineness of the note on Goodwin.</p> <p>Held, that by said misrepresentation as to the value of the property delivered he deceived Elrod as to his ability to repay the loaned money; hence the offense was sufficiently charged.</p>

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

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

<p>Executors and Administrators — Settlement—Former Administrators Should Surrender Assets — Sureties on Bond Not Liable to Administrator de Bonis Non But to Heirs and Creditors.</p> <p>In a suit by an administrator de bonis non against a former administrator tbe court should compel ¡him to surrender all the choses in action and chattels belonging to the estate in order that the former could enforce payment or make the latter liable for their value, but the sureties cannot be held liable to the administrator de bonis non, while they would be to the heirs and creditors.</p>

<p>Executions — Failure to Levy — Sheriff’s Responsibility.</p> <p>It must appear by proof that the sheriff had knowledge of property owned by the defendant subject to the execution and on which he could make the levy, or a knowledge of such facts as should cause him to make exertions to find property, before he can be held liable to the plaintiff for failure to levy.</p>

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

<p>Principal and Surety — Separate Obligation — Answer Must Show Relation —Statute of Limitation.</p> <p>One may become surety for another by an obligation separate and distinct from the one executed by the principal, but this is not made to appear either by'the note itself or the allegations of the answer, The answer must contain such allegations as will enable the court to determine that the relation of principal and surety exists by showing the liability ot the party alleged to be the principal in the debt, before a plea of limitation will avail.</p>

<p>Husband and Wife — Sale of Wife’s Real Estate for Reinvestment — Deed •to Husband — Wife to Become Owner Upon Death of Husband — Court of Equity Will Enforce Agreement.</p> <p>The appellant at the time of her marriage was the owner of real estate inherited from her father. After marriage her husband induced her to sell her land for reinvestment. The proceeds were invested in other land, to which the husband took title under an agreement that if he died first he would arrange by will or otherwise that she should become the owner of the land. The husband died suddenly without securing the property to the wife.</p> <p>Held, that if the husband was living the chancellor would not permit him to hold the property without securing the wife, and as his death prevented him from executing the agreement there is_ no reason why it should not be enforced now.</p>

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

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

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

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

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

<p>Taxation — Bank Stock — Corporation Liable For.</p> <p>Tile owner of bank stock is not required to list it with the assessor for taxation. Tlie liability is on the corporation.</p>

<p>Bail — Surrender in Open Court — No Order Necessary to Relieve Sureties From Liability on Bail Bond.</p> <p>It is true the record does mot siiow that any order was made directing the sheriff to taire charge of the prisoner; the presumption arises from the acts of the judge.</p>

<p>Landlord and Tenant — Covenant of Quiet Enjoyment — Trespass by Stranger.</p> <p>A suit cannot be maintained by a tenant against his landlord on a covenant of quiet enjoyment where a stranger has trespassed on the premises unless it is ¡alleged that he was the active agency in the wrong.</p>

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

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

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

<p>Payment — Application of Payment as Between Particular Debts — Burden of Proof to Show that Another Debt Existed.</p> <p>Where a payment has been proven, it is incumbent on the plaintiff to show by proof that he had another debt against the defendant to which it was. applied.</p>

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

<p>Partnership — Agreement to Contribute Equal Amount to Capital Stock.</p> <p>By the terms of the partnership each partner was to contribute equally to the capital stock. Appellant paid in more than any of the others. He was entitled to interest on that amount upon, settlement of the partnership.</p>

<p>Evidence — Record in Another Case not Competent.</p> <p>The record of the suit by Prior Harvey against Brewer was not competent testimony, as neither Robinson nor Brewer were parties to that suit.</p> <p>Absentees — Appeal by Non-Resident — Appearance.</p> <p>A non-resident defendant may take an appeal to the Court of Appeals and this would be an appearance to the action.</p>

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

<p>Husband and Wife — Necessaries—Writing Signed by Husband and Wife— Personal Judgment.</p> <p>The statute makes the estate of the wife liable for necessaries furnished when evidenced by a writing signed by herself and husband, but no personal judgment can be rendered against her.</p>

<p>Improvements Made by Father on Sons’ Property Subject to His Debts— Assignee in no Better Position.</p> <p>If the sons permitted their father to make valuable improvements upon their real property, with funds he should have applied to the payment of his debts, they could not complain that their father’s creditors should be allowed to subject such improvements to the payment of their claims, and their assignee, with knowledge of the facts, is in no better position than the sons.</p>

<p>Vendor and Purchaser — Purchase Pendente Lite — Defense.</p> <p>A purchaser pendente lite can avail himself of no defense other than could have been made by his vendor.</p> <p>Judicial Sales — Confirmation of Report of Sale — Appeal from Order.</p> <p>Where no appeal is tafeen from an order confirming a master commissioner’s report of sale, the Court of Appeals will not review the action of the lower court in that particular.</p>

<p>APPEAL FROM KENTO’N' CIRCUIT COURT.</p>

<p>Exceptions, Bill of — Statement that all the Evidence is Contained Therein.</p> <p>A bill of exceptions will not be 'considered on appeal, unless it contains a statement that all the evidence introduced on the trial is embodied therein.</p> <p>Continuance — Amended Petition — Surprise—Affidavit.</p> <p>It is not sufficient to authorize a continuance, where an amended petition is filed, for the party to state that he is surprised by the amendment. The facts should be presented in the form of an affidavit or in the bill of exceptions, which would show that the defendant could not be ready for trial at that time.</p>

<p>Bills and Notes — Assignment Invests Assignee with Equitable Right to Benefit of Lien — Written Transfer of Mortgage or Deed of Trust.</p> <p>The assignee of a note is invested 'with, the equitable right to avail himself of the benefits of any lien the assignor may have held to secure the payment thereof and a written transfer passes no greater interest in a mortgage or deed of trust by reason of its being mentioned in the writing, than it would have passed, if it had been omitted.</p> <p>Bills and Notes — Fraud or Deceit — Maker’s Estate Must be Prosecuted to Insolvency — Proof of insolvency — Return of Nulla Bona.</p> <p>■An action cannot be maintained against the assignee of a note, where he is free from fraud or deceit, until the estate of the maker is prosecuted to insolvency, and no proof short of that furnished by a judicial determination or a return of nulla bona will suffice.</p>

<p>APPEAL PROM CALDV/ELL CIRCUIT COURT.</p>

<p>Witnesses — Competency of Divorced Wife — Bill of Exceptions Must Show What She would Have Proven.</p> <p>Where the court reject the divorced wife as a witness against her husband, what she would have proven must appear in the bill of exceptions.</p> <p>Divorce — Alimony—Support of Infant Children — Husband not Relieved.</p> <p>The allowance of alimony to the wife is only an adjudication of her right and does not relieve the husband of the obligation to provide necessaries for his infant children, and when such necessaries are furnished by another he is bound therefor.</p>

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

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

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

<p>Insurance — Misrepresentation by Insured Vitiates Policy.</p> <p>Appellant accepted the policy of appellee with the proviso therein, “that in case the assured shall already have made other insurance, or may hereafter make other insurance on the hereby insured premises, notice of the same shall forthwith he given to this corporation. The day after appellant had effected insurance in appellee he had the same property insured in another company without giving appellee notice thereof;</p> <p>Held, that the acts of appellant forfeited the policy he held on appellee.</p> <p>Insurance — Forfeiture of Policy — Return of Premium.</p> <p>Where a policy of insurance is forfeited by the violation of its terms by the insured he cannot recover the premium paid thereon.</p> <p>New Trial — Grounds for — Witness Examined Before Trial — Issues Presented — Evidence Must Change the Result.</p> <p>Many of the witnesses where evidence is desired were examined by the appellant before the trial and those not examined were upon issues presented by the pleadings and the evidence, if in, is not of such character as would certainly change the issue.</p>

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

<p>Limitation, Statutes of — Absence from the State — Intention to Sue.</p> <p>This action was brought nearly 21 years after the cause accrued. The statute of limitation is relied on as a bar. The statute would' have been a bar if appellant had not by some act of his prevented the running. There is some proof that some years after the maturity of the note he removed from the state and remained several years, but there is no evidence tending to show that appellee had any intention of enforcing the collection of the debt by suit before the departure of appellant from the state.</p>

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

<p>Judicial Sales — Taxes—Surplus Will be Paid to Defendant.</p> <p>The Master Commissioner will not sell more property than will he sufficient to pay the debts. And if upon the coming in of his report it shall appear that the taxes are not due, the amount thereof will he paid to the appellant, if not needed to pay creditors.</p>

<p>Pleading — Amended Answer — Offer to File After Conclusion of Evidence ■ — Facts Already Stated or Known to Defendant When Original Answer is Filed.</p> <p>The court does not abuse its discretion by refusing to permit an amended answer to be filed, on tbe conclusion of tbe evidence, which sets up a defense already plead in tbe original answer, or facts known to tbe defendant when be filed bis original answer.</p>

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

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

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

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

<p>Trusts — Trustee—Good Faith — Failure of Trust Property to Bring its Value.</p> <p>Where a trustee acts in good faith, although it seems that he could have realized out of the trust property the full amount of the debt, he will be charged only with the amount actually received.</p>

<p>Pleadings — Set-Off—Failure to Deny.</p> <p>There being no denial upon the part of appellants that the set-offs were true they must be taken for confessed.</p>

<p>Evidence — Failure to Exclude Objectionable Evidence — Verdict in Accordance With the Weight of Evidence.</p> <p>The admission of objectionable evidence, is not of itself sufficient to disturb the verdict of a jury, where the verdict would have been in accordance with the weight of’ the testimony, if that had been excluded.</p>

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

<p>Salvage — Shipwreck—Compensation for Assistance — Steamboat.</p> <p>Where a steamboat bas been wrecked and set on fire by an explosion of its boilers, any person assisting in extinguishing the flames, thereby saving the property from total loss, is entitled to reasonable salvage.</p>

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

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

<p>Vendor and Purchaser — Action to Recover Purchase Money — Fraud and Misrepresentation as to Boundaries and Hostile Claims — Sufficiency of Allegations in Answer — Demurrer.</p> <p>Appellants in their answer, state that pending the treaty for the sale of the property, appellees fraudulently misrepresented to them the boundaries of the land and fraudulently concealed from them, that there was a hostile title and rival claim to fully one-third of he most valuable part of the lands, but they say they were not sufficiently advised then, to state whether the pretended or asserted claim to the land is valid'or not; that they had been informed that it was not; but that the Red River Iron Manufacturing Company makes claim to a part of said land, which is to that extent a cloud • upon their title and detrimental to them, which appellees fraudulently concealed from them and thereby induced them to make a contract, which they would not have otherwise done, and they are informed that there are large outstanding liens upon the land which is superior to that of plaintiffs. They say that if they ever accepted the deed from appellee’s it was done by mistake on their part, as to its purport and it contains exceptions that they did not fully understand.</p> <p>Held, that in such a case it is well settled by numerous authorities in this state, that unless the vendee has been deceived and induced by the fraud of the vendor to accept the title he must pay the consideration.</p> <p>Pleadings — Amended Answer Containing Matters of Defense Set up in Former Suit Between Same Parts and Involving Same Issues, is no Bar.</p> <p>The appellees alleged in their petition that in April, 1870, a suit was pending, in the court below, in which they were plaintiffs and appellants were defendants in which the sufficiency to the title to the land and the quantity contained in the tract were directly in issue and that a consent judgment was rendered by which the appellants withdrew so much of their answer as set up a defect of title and deficit in quantity and to accept the deed then tendered them and that said deed was thereupon delivered to and accepted by them and these allegations are not controverted by the answer in this suit. But they allege in their amended answer, that if the deed was accepted by them, it was done by mistake, as to its purport, on their part and that the deed contains exceptions which were not fully understood.</p> <p>Held, that the answer was insufficient and presented no bar to this action, and as the matter set up in the amended answer were being litigated between the same parties in another suit in the same court, the judge did not err in refusing to permit it to be filed.</p>

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

<p>Wills — Testimentary Capacity,</p> <p>On account of the testator’s extreme age Ms mental faculties were considerably impaired and lie exhibited evidences of a disordered intellect. But on the day of the execution of Ms will he was sufficiently in possession of his intellectual powers to dictate the provisions of the instrument and sufficiently self’ possessed to investigate and understand its contents.</p>

<p>Attachment — Order Delivered to Sheriff — Priority of Liens.</p> <p>When an order of attachment is sued out and delivered to the sheriff a lien is thereby created on the property of the defendant, prior and superior to one subsequently issued, although the sheriff levies the last one first.</p>

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

<p>Deeds — Self-Contradicting Certificate of Acknowledgment — Construction —Surplusage.</p> <p>•The grantor being the owner of the land in fee sold the same to her grantee for a valuable and full consideration, and by a deed executed jointly with her husband conveyed the same, with covenants of general warranty, and the certificate of acknowledgment recites that she appeared before the commissioner of deeds and severally acknowledged that she executed the same as her free act and deed for the uses and purposes therein expressed. She was examined separately and apart from her husband and the contents and effect of the deed explained to her, and she freely acknowledged same, with the intention thereby to renounce, give up and quit claim her two-thirds and right of dower in the estate.</p> <p>Held, that the concluding sentence in the certificate is inconsistent and irreconciliable with the residue thereof, and is mere surplusage, as it does not apply to any estate held by the grantor, and should, therefore, be disregarded.</p>

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

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

<p>Improvements — Made on Real Property by Another Than the Owner of the Soil — Rights and Liabilities — Acquiescence.</p> <p>The appellee contributed every dollar necessary to construct the storehouse in controversy, which was built on the lands of the appellant and with his full knowledge and consent, although there was no contract between them. The appellee occupied the house for some months previous to the institution of the suit, with the acquiescence of appellant. Whilst the building was being constructed, the appellant talked with appellee about it, and spoke of the manner in which the foundation was to have been built.</p> <p>Held, that a court of equity, under such circumstances, would not give to the owner of the land this expenditure of the appellee’s money without some compensation, and that appellee’s equitable right to recover the value of the house, less the rent, is clearly established.</p>

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

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

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

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

<p>Trial— Error in Response to Inquiry of the Jury — Exceptions.</p> <p>An essential error in the response of the court to the inquiry of the jury, or the failure of the court to answer directly the questions propounded by the jury, if proper exceptions are taken, is an available error.</p>

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

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

<p>Wills — Estate in Fee — Defeasible Upon Dying Without Child.</p> <p>‘‘In the event of the death of my son John without children, then, in that event, after the death of my son John’s wife, whom I will and desire shall enjoy and have the use of said property during her life, I will all of said estate of any kind and description to my four grandchildren, share and share alike.”</p> <p>Held, that as John died leaving a son, the contingency upon which the devise over of a life estate to appellee had not happened. John took the estate in fee simple.</p>

<p>APPEAL PROM: EDMONSONi CIRCUIT COURT.</p>

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

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

<p>Fraudulent Conveyance — Recitals In Deed Not Evidence Against Stranger.</p> <p>The recitals in a deed, although evidence as between the parties thereto, are not evidence as against those who are not parties or privies.</p> <p>Principal and Surety — Indulgence—New Promise to Pay Usurious Interest.</p> <p>Where indulgence is given the principal at the instance of the . surety, a new promise upon the part of the principal debtor to pay usurious interest will not release the surety.</p> <p>Principal and Surety — Sale of Principal's Property at a Sacrifice — Duty of Surety to Make Property Bring Debt.</p> <p>Where the property of the principal is sold under execution, it is the duty of the surety to make it bring its value, if he desires to be relieved from liability.</p>

<p>Ejectment — Sufficiency of Answer — Material Allegations of Petition Must Be Specifically Denied.</p> <p>In his answer appellant denies that appellee is the owner and entitled to the possession of the land described in the petition. He further denies that he now holds possession of the land without right, or ever held the same without right. And denies that he has for years past unlawfully kept the plaintiff out of possession.</p> <p>Held, that the import of this language is not a denial of the simple fact that appellant was in possession of this land at the commencement of the action, but a denial that his possession was unlawful. Unless every allegation of the petition is specifically denied, it is taken as true for the purpose of the action, and it is not necessary to introduce proof on that point.</p> <p>Deeds as Evidence — Registration When Land Lies in Two Counties.</p> <p>• Where the land embraced in a Deed lies in two counties, it may be read as evidence, in an action of ejectment, if it has been recorded in the county where the greater part of the land lies.</p> <p>Deeds — Construction—General Recitals Must Give Way to Particular Descriptions.</p> <p>Where the actual location of the land in contest is the question involved, the general recitals in a deed should not be allowed to control the more minute description subsequently given.</p> <p>Ejectment — Exceptions in Deed — Burden on Plaintiff,</p> <p>Where a deed under which the plaintiff claims title, in an action of ejectment, contains exceptions, the burden is on him to show that the land in controversy is not within the exceptions.</p>

<p>Corporations — Subscriptions to Capital Stock Before Organization— Change of Name.</p> <p>The appellant took two shares of stock, but at the time the subscription was made no act of incorporation bad. been obtained. Shortly thereafter application was made to the legislature and an act in-corporating tlie company obtained, but under a different name from tbat set forth in the subscription paper.</p> <p>Held, tbat the legal effect of the obligation is to pay so much money to construction of a particular turnpike road, and the change of the name of the company, whether by a vote of the directors, or by an act of the legislature, does not alter appellant’s liability.</p> <p>Corporation — Subscription to Capital Stock- — Act of Incorporation — Can Not Enlarge Responsibility.</p> <p>Where the act of incorporation enlarges the legal liability of the stockholders, and assumes liabilities that, by the express terms of the subscription, were prohibited, a subscriber will be released of his obligation.</p> <p>Corporations — Subscription to Capital Stock — Consideration.</p> <p>The appellant and his neighbors undertook with each other to pay .certain specified sums of money to aid in the construction of an improvement for their mutual benefit. The subscription by one was the consideration of the subscription of the others.</p>

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

<p>Attachment — Lien Created by Garnishment — Judgment Sustaining Attachments Not Final.</p> <p>Where several creditors attach the property of their common debtor, and one of them summons a third party as garnishee, he has a prior lien on this debt, notwithstanding it was not mentioned in the judgment sustaining the attachments. The judgment for the debt at one term does not preclude the court from rendering judgment against a garnishee, summoned at a subsequent term.</p> <p>Bills and Notes — Judgment Against One Obligor at one Term Does Not Prevent Judgment Against Co-Obligor at Another Term.</p> <p>Where Joint Obligors are sued on a note, a judgment Against one of them does not prevent a judgment against the other at a subsequent term, although both were served with process at the same time.</p>

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

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

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

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

<p>Judicial Sales — Non-residents—Constructively Summoned.</p> <p>When a defendant constructively summoned has not been kept away by unavoidable accident or casualty, and no fraud or misconduct on the part of the plaintiff is shown, a judicial sale will not be set aside upon the mere ground that the property did not sell for its full value. If this should be done, it would soon become impossible to enforce judgments rendered in such cases.</p> <p>Judgments — Non-resident—Revivor—Valid Defense.</p> <p>■Actions against parties constructively summoned may be revived within five years after judgment, provided such parties have a valid defense to present.</p>

<p>Religious Societies — Methodist Church — Power of Trustees to Mortgage Church Property — Mortgage Recognition of Debt — Limitation.</p> <p>The mortgage executed by a majority of tbe trustees of the church was not only a direct recognition of the debt, but an unconditional promise to pay it. Hence, the statute of limitation can not be made available as a bar to recovery.</p> <p>Religious Societies — Power of Trustees to Convey Church Property— Notice to Preacher in Charge or Presiding Elder — Pleadings.</p> <p>It is not alleged in the petition that prior to the partial execution of the deed the trustees had given the notice to the preacher in charge, or the presiding elder, as required by the Methodist discipline. This paper could not bind the church, nor has the chancellor the right to enforce its specific execution against that organization.</p> <p>Religious Societies — Methodist Church — Advancement by Trustees — Reimbursement.</p> <p>Under the church discipline the trustees might have advanced the amount due appellee, and then mortgaged the church property to raise money to reimburse themselves, and from this expressed delegation of power it may be implied that, with the creditor’s consent, they may secure his debt by making the mortgage directly to him.</p>

<p>Bills and Notes — Assignment—Assignee May Assert Legal Rights of Assignor.</p> <p>The appellee filed tlie note with his petition, with the assignment endorsed thereon, and this was evidence sufficient to authorize the rendition of the judgment against the appellant. The assignee of Sewell was before the court and entitled to assert the legal rights of Sewell himself, so far as they applied to the note in controversy.</p>

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

<p>Principal and Surety — Surety Bound by Statement, Notwithstanding Statute of Limitation.</p> <p>A surety may be bound for tbe debt of his principal, by his statement, although the recovery against him as surety was barred by time.</p> <p>Attachment — Proof of Fraud Charged.</p> <p>Before this extraordinary remedy is resorted to, the party obtaining it should have proof upon which to base this action, and the court, in hearing and determining such a question, ought to 'be well satisfied, from the testimony, of the existence of the fraud charged.</p>

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

<p>Vendor and Purchaser — Title Bond — Specific Performance — Purchase Money Must Be Paid Before Deed Is Made.</p> <p>In equity a vendor can not be forced to convey, in conformity with bis title bond, until be is paid tbe full amount of tbe agreed purchase price for tbe real estate sold.</p> <p>Judicial Sale — Encumbered Property — Necessary Parties — Resale.</p> <p>Tbe fact that tbe property did not sell for an amount sufficient to • satisfy tbe prior lien does not prove that, upon a second sale, after tbe rights of all tbe parties shall have been adjudicated, and bidders can be assured that the title they are asked to take can never be disturbed, a larger amount may not be realized.</p> <p>It is a universal rule of equity that encumbered property shall not be sold until all the parties having claims upon the same are before the court.</p>

<p>Forcible Entry and Detainer — Forcible Detainer — Possession Obtained by Purchase — Possession Obtained as Tenant.</p> <p>The appellant entered under a contract as tenant with the privilege to purchase the land by paying the specified sum on the day named, and, failing to comply, he thereby elected to hold as tenant, and, having refused to surrender possession at the end of the year, he subjected himself to be proceeded against as a forcible detainer.</p>

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

<p>Banks and Banking — Accommodation Endorsers; — Sureties—Endorser Induced by Bank to Part with Property of Principal — Answer—Demurrer.</p> <p>Taking the allegations of the answer as true, which is done for the purpose of the demurrer, and regarding the president of the bank as acting officially and as agent of the bank, in the alleged communications by him to the appellants, to the effect that the principal debtor had in some way secured the bank whereby the endorser was induced to part with the property by which they were indemnified, they would be discharged from liability to the bank. Consequently it was error to sustain the demurrer.</p>

<p>Appeals and Errors — Second Appeal — Former Appeal — Law of the Case.</p> <p>On the second appeal the law as expounded on the first must prevail as to the questions involved.</p> <p>Municipal Corporations — Presumption as to Ordinance.</p> <p>An ordinance passed by a city council must be presumed prima facie to have been passed in accordance with the charter.</p> <p>Municipal Corporations — Improvement of Streets — Lien—Personal Judgment.</p> <p>As the statute gives to the appellee a lien on the property improved for the cost of improving it, and as that is the only relief sought, and the only remedy to which he is entitled, it was error to render a personal judgment against appellant.</p>

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

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

<p>Pleadings — Answer—Denial—Want of Knowledge or Information.</p> <p>The defendant must deny all the allegations of the petition which he intends to controvert, and in addition thereto he must deny any knowledge or information of said allegations sufficient to form a belief as to their truth. A want of knowledge or information is not sufficient.</p>

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

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

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

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

<p>Judicial Sales — Irregularities Not Effecting Substantial Right Not Sufficient to Set Aside Sale.</p> <p>Irregularities which, do not affect the substantial rights of the parties are not sufficient to set aside a sale made under a judgment where the confirmation is made without objection.</p> <p>Judicial Sales — Commissioner Trustee for Debtor — Exemptions—Partition,</p> <p>In view of the fact that the court’s commissioner was the trustee selected by the debtor to sell his estate and apply the proceeds to tile payment of his debts, it was not improper that be should be intrusted with the duty of setting apart to the heirs and distributees of the debtor such property as was exempt from execution, nor that he should be permitted to make a division of the land.</p>

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

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

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

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

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

<p>Judicial Sale — Confirmation—Re-sale—Final Judgment.</p> <p>The sale under Alford’s judgment to enforce Ms lien was an unconditional and absolute sale of land not incumbered, after tbe legal title passed to Mayfield, and consequently not embraced in tbe provisions of Section 1, Article 15, Chapter 36, 1 R. S. 488, and that sale having been confirmed and a conveyance made to Jones for the land, his title to it was thereby perfected. This suit having been dismissed as to that portion of the land at a previous term of the court, that judgment being final, the court at a subsequent term had no power over it.</p>

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

<p>Partnership — Evidence.</p> <p>The fact that Stofces was the half owner of the house in which the business was conducted and was in the habit of aiding the firm to raise money for the purpose of purchasing the tobacco, tends to prove he was a partner in the business.</p>

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

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

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

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

<p>Homestead — Bona Fide Housekeeper — Fraudulent Conveyance to Wife— Intention to Occupy Before Completion — Occupancy—Intention to Defraud Creditors.</p> <p>The bouse and lot sought to be subjected to Wingard’s debts was owned by him before any of the debts owing to appellees were contracted; that it was of less value than one thousand dollars; that he was a bona fide housekeeper, with a family, living upon rented property and owning no other real estate except this house; that he did not use the house as a residence, but that is accounted for by the fact that it had not been completed. He sold it to Newkirk, and Newkirk sold it to Wingard’s wife. No consideration passed. He manifested an intention to occupy the house when completed. Held, that according to the spirit and intention of the Homestead Act, the house and lot were exempt from sale under execution, attachment or judgment of any court; that, although the, conveyance was made without consideration, and possibly with the intention on the part of Wingard to defraud his creditors, still the property was not subject to the payment of his debts before the conveyance, and the fact that the title is now in the wife does not change its status.</p>

<p>Principal and Surety — Mortgage Taken by Payee on Property of Payor Does Not Increase Risk of Surety — Proceeds of Mortgage Must be Applied to Note.</p> <p>The fact that Wing, the agent for the appellant, Patterson, took from Darius Field a mortgage on the crop of tobacco then in his possession to secure the payment of the note sued on, could not have increased the risk of Mrs. Field, the surety, nor have prevented her from taking steps at any time to indemnify herself against apprehended loss. But the proceeds of the mortgage should have been applied to the judgment.</p> <p>Bills and Notes — Credit by Mistake.</p> <p>The mere fact that Wing entered a credit of $500 on the note under the erroneous belief that the tobacco, when sold, would net that amount, does not commit the appellant to the credit.</p> <p>Fraudulent Conveyance — Conveyance by Husband — Wife to Enjoy Profits.</p> <p>The conveyance to C. H. Hyness, upon its face, develops the fact that it was intended merely to invest him with the title to the land conveyed, whilst Mrs. Field and her family were to continue to enjoy its profits. Such conveyance cannot be upheld against creditors.</p>

<p>Guardian and Ward — Purchase of Land by Guardian — Purchase Money Paid Out of Funds Belonging to Ward — Resulting Trust — Notice of Trust by Mortgagee — Consent of Infant — Statute of Frauds.</p> <p>The appellant, Mattie F. Reeves, while an infant, inherited from her grandfather about $4,500 in money. She had no statutory guardian, and her father took charge of her property and bought a tract of land and paid the purchase price out of funds belonging to her. He afterwards mortgaged this land to Williams and Barnet, who had notice that it had been paid for out of the infant’s money. They made an assignment and’ their assignee brought this suit to foreclose the mortgage, and the appellants were made parties thereto. Held, that the father held the money as the natural guardian pf his daughter, and that when a guardian purchases land with the money of his ward, the ward may either take the land or consider it as security for the money; that a father’s possession of his infant child’s property as natural guardian does not subject it to his creditors, nor make a sale effectual against the child; that an infant cannot consent to the disposition of its property; that a trust resulted in favor of the infant and she is entitled to her money invested in this land.</p>

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

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

<p>Lis Pendens — How Created — Commencement of Suit.</p> <p>A lis_ pendens is created, as to specific property sought to be subjected to the payment of particular debts, by the commencement of an action for that purpose. A suit can be commenced in no other way than by filing a petition in the office of the clerk of the proper court and causing a summons to be issued thereon.</p> <p>Fraudulent Conveyance — Proper Parties — Jurisdiction.</p> <p>In an action to subject property fraudulently conveyed to tbe debts of tbe vendor, be, as well as tbe vendee, must be made parties by appropriate pleading and summons must’ issue against all of them before a court of equity will take jurisdiction.</p> <p>Bankruptcy — Discharge a Bar — Pleading.</p> <p>A discharge in bankruptcy will exonerate a bankrupt from tbe payment of all debts provable under tbe bankruptcy act, existing at tbe time be filed bis petition, if properly pleaded.</p>

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

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

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

<p>Infants — Defective Sale of Land — Legislative Power to Enact Laws Confirming Sale — Parole Sale by Father.</p> <p>The legislature has power to enact laws authorizing the courts of the county, by proper proceeding, to confirm defective sales of infants’ real estate, and that, too, in cases where the sale under the original judgment did not divest the infant of title, and the legislature can confer upon a court of equity the power to execute and consummate a parole contract as against infants, made by the father, if from the proof the court deems it beneficial to the infant.</p> <p>Fraud, Statute of — Repeal of — Parole Contract May be Enforced.</p> <p>The statute of frauds is subject to be repealed at any time by the law-making power, and a parole contract for the sale of land be enforced like any other contract. Parole contracts are valid for many purposes.</p>

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

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

<p>Vendor and Purchaser — Deficit or Surplus — Mistake or Fraud.</p> <p>It is well settled that unless there is mistake or fraud in the conveyance of land, or the deficit or surplus is so great as that if the same had been known the sale would not have been made, on the terms expressed, relief will not be granted.</p>

<p>Descent and Distribution — Suit Against Heirs or Devisees — Liability of Decedent — Demand.</p> <p>Heirs or devisees may be sued by a creditor for any liability of tbe decedent, and the failure to make a demand is not an available ground for dismissing sucb an action.</p>

<p>Bills and Notes — Parol Release of Obligor — Evidence Must be Clear.</p> <p>An obligor in a note may be released by parol, and tbe fact may be established 'by parol evidence, but such evidence should be clear, satisfactory and to tbe point, and if it does not come up to this standard it may be outweighed by tbe conduct and admissions of tbe party.</p>

<p>Trials — instructions Must be in Writing — No Particular Form — Given at Close of Evidence.</p> <p>The trial court is, on motion of either party, required to instruct the jury on the law applicable to the case, and the instructions must be in writing, and in discharging that duty the court may adopt such instructions prepared by the attorneys as he may deem applicable, or he may reject all those thus prepared and write out such as he may deem applicable to the case, and this must be done when the evidence is closed. If the instructions present the law of the case in an intelligible manner, the power of the Court of Appeals over them ceases.</p>

<p>Corporations — Personal Liability of Director Who Signs Company's Note as Such Officer — Joint and Several Liability.</p> <p>Where a note is signed by the obligors as president and directors of a corporation, and in the body of the note the parties jointly and severally agree to pay the money, and there being nothing pointing to the funds of the corporation as the source from which the obligee was to derive his money, they are jointly and severally liable. But wher.e there is no joint and several obligation to pay, and the face of the instrument shows clearly that the intention was to bind the company only, and the instrument points directly to the revenue of the corporation as the source from which the money is to be derived, there is no individual liability on the officer.</p>

<p>Vendor and Purchaser — Conveyance by Deed — Title Bond for Reconveyance — Vendee in Deed Trustee of Vendee in Bond.</p> <p>When a party executes a deed of conveyance to another and takes a title bond from him to reeonvey the property, upon the happening of a certain event, the vendee in the deed becomes the trustee of the vendee in the title bond.</p> <p>Landlord and Tenant — Estopple Lease of Land With Knowledge of Title Bond to Reconvey — Assignment of Lease.</p> <p>The court erred in adjudging to H. C. Magee the possession of the farm of Gustavus until the expiration of the lease executed by I. Rowan to Breeze. The latter was fully apprised of all the circumstances attending the conveyance of the land, and was for several years the custodian of the bond for reconveyance, and the assignee of the lease was equally apprised of these facts.</p>

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

<p>Set-off and Counter-claim — Striking Files — Agreement.</p> <p>An order striking out all claims of set-off relied on by the parties, which purport to have been done by joint consent, will be upheld on an appeal, in the absence of a motion in the lower court to set it aside.</p>

<p>Wills — Sale of Real Estate to Provide Income for Wife — Funds to be Raised Not Devised.</p> <p>Where a will directs the sale of the testator’s real estate to provide an income for the use of the widow for life, neither the principal funds to «rise from the sale nor the personal property is devised.</p>

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

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

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

<p>Execution — Priority—Levy—Sheriff’s Failure to Endorse.</p> <p>It is not essential to the validity of the levy of an executor that it shall he endorsed on the execution, and a sheriff may sell under a levy so made, to the exclusion of an execution levied at later date, notwithstanding the levy was endorsed on the latter one.</p>

<p>New Trial — Newly Discovered Evidence.</p> <p>Altbougb the affidavits of the witnesses by whom it is proposed to make proof of the newly discovered evidence conduces to show that the appellant was. not apprised of the fact that he could make such proof by them, until after the rendition of the judgment against him, yet he does not state this to be a fact in his own affidavit, nor does he state any fact showing diligence on his part.</p>

<p>Payment — Receipt—Contract—Illegal Consideration — Confederate Money —Duress.</p> <p>The admitted receipt of the defendant for one hundred dollars in Confederate money, to go as a credit on notes which the defendant held on plaintiff, imports a contract and was obligatory, unless the consideration was illegal or the execution of the receipt was procured by duress.</p>

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

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

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

<p>Bills and Notes — Co-obllgor—Use of Name — Innocent Holder.</p> <p>It is a well-settled principle that if one trusts another with his name as his surety as co-obligor, he must suffer the consequences of his confidence in him, rather than place the loss on the innocent holder of the note.</p>

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

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

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

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

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

<p>Trust — Action Against Trustee to Subject Trust Property — Necessary Allegation and Prayer — Amendment.</p> <p>If tbe original petition did not authorize the direction in the judgment, that it should be levied of trust estate in.the hands of the defendant, the amendment filed' after the judgment was rendered could not cure the defect.</p>

<p>Banks and Banking — Unauthorized Payment of Check — Acquiescence— Estoppel.</p> <p>The appellant waived his right of action against the bank by taking up the check and assenting to the charge for the payment against him, as shown by his permitting his account with the bank, including the charge, to be balanced on his passbook without objection, and especially so as he acquiesced in the transaction for three years.</p>

<p>Evidence — Receipt on Margin of Deed — Competency.</p> <p>The receipt of Johnson and Jewell, written on the margin of the deed, was as to the parties to this suit only a written statement of third parties, not verified in any form, necessary to render it competent as testimony.</p>

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

<p>Frauds, Statute of — Promise to Answer for Debt of Another.</p> <p>Appellant undertook to satisfy the debt he owed Hill by paying the amount to Speed, Hill’s creditor, which was a promise founded on sufficient consideration, and need not be in writing to make it obligatory.</p>

<p>Estoppel — Equitable Principles — Innocent Parties.</p> <p>It is not consistent with the principles of equity that appellant, after having permitted the legal title to remain in Balee for ten years without any effort to divest him of the title, should he permitted to come in and defeat the claims of Balee’s creditors and other innocent parties who trusted him on the faith that he was the owner of the land.</p>

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

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

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

<p>Municipal Corporation — Street Improvement — City Not Liable to Contractor When Made on Private Property.</p> <p>The city charter forbids that the city should be taxed with the cost of work of the character of that done by the contractor, when put upon private property, or upon a street or alley for improving which the adjacent property could have been made liable. If, therefore, there is no public alley where the work was done, the city is not liable because the charter forbids it. If, on the other hand, there is an alley, the city is not liable, but the owners of the adjacent land are.</p>

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

<p>Process — -Lost Summons — How Proven — Entry on Docket.</p> <p>The entry on the common law docket is competent evidence of the service of the summons on the defendant.</p> <p>Replevin Bond — Proof of Existence.</p> <p>The recitals in an execution that it was issued on a replevin bond is not evidence of the existence of such bond, which bond is a quasi judgment. ’</p>

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

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

<p>Executors and Administrators — Account of Sales — Appraisement—May be Adopted as Accurate.</p> <p>An administrator should keep accurate accounts of all sales of the personal property of the estate, whether made publicly or privately. If he fails to do so his liability on account of such property can only be ascertained by adopting the appraisement as correctly setting out its value.</p>

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

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

<p>Contracts — Executory—Dissolution—Defect of Title — Incumbrance.</p> <p>A chancellor will never dissolve even an executory contract at the instance of a complainant seeking a dissolution on the ground of a defect in or incumbrance on the title, if the incumbrance be removed and the title rendered perfect before the hearing, especially if there be no fraud on the part of the vendor by which injury accrues to the vendee.</p> <p>Judgment — Rescission—Finality of Determination.</p> <p>A judgment refusing to cancel a deed or to rescind a contract of purchase is a final determination of the question and may be appealed from although the judgment directs a sale of the property.</p>

<p>Execution — Sale Under — Sale Bond — Payment—Failure of Title — Creditor Not Bound to Refund to Purchaser.</p> <p>Although the title to property sold under a fieri facias he absolutely worthless, yet the right of the plaintiff to the money is not impaired thereby. The bond of the purchaser and the return of the officer that he has sold the property, and taken such bond, completely discharges the judgment and stands in lien of it, and as between the creditor and debtors is a complete discharge while it remains in force.</p>

<p>Bills and Notes — Failure of Consideration.</p> <p>If the note sued on was not given in consideration of the sale of the note on Thomas, hut only for a promised loan of the money expected to he paid hy Thomas, which was never made, there was a failure of consideration; although the defendant may have incurred a liability by laches in not collecting the note on Thomas, such negligence did not render the note of the defendant obligatory if the anticipated consideration failed.</p>

<p>Limitation — Time When Statute Begins to Run — Allegation of Petition.</p> <p>The allegation of the petition as to the date of the contract will be regarded as the correct date in considering the question of limitation.</p>

<p>Attachment — Claim by Third Person — Reference to Master — Commissioner’s Report — Judgment Not in Conformity, to Report.</p> <p>Where a third person claims the property attached and the question of ownership is referred to the master for proof and report, and the commissioner reported that some of the property attached belonged to a third party, which report was confirmed, it was error to adjudge that all the property attached be sold.</p>

<p>Bills and Notes — Payment and Discharge — Confederate Currency.</p> <p>A payment on a note in confederate currency, made and accepted ■within the military lines of the confederate states is valid.</p>

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

<p>Conversion — Personal Property — Possessions—Bight of Action.</p> <p>The bare possession of personal property, without the absolute or strict legal title confers a right of action against a mere wrong-doer having no right and not clothed with any authority from the real owner.</p>

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

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

<p>Fraudulent Conveyances — Voluntary Conveyance — Bona Fide Purchaser— Notice — Actual and Constructive.</p> <p>Constructive notice arising from the recording of a voluntary conveyance is not sufficient to effect the conscience of a bona fide purchaser. Actual notice is necessary for this purpose.</p>

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

<p>Vendor and Purchaser — Deficit—Mutual—Mistake—Sale in Gross.</p> <p>As the land sold, in gross, for 25 acres only contains fourteen acres by actual survey, the deficit is so great as to strike the mind of the chancellor, at once, that both parties were laboring under a mistake as to the number of acres contained in the tract.</p>

<p>Evidence — Competency—Exceptions Not Passed on Waived.</p> <p>Where evidence is excepted to, as incompetent, and the court below fails to pass on the question it must he regarded as waived.</p> <p>Pleadings — Amount Claimed in Original Petition — Amendment Claiming Greater Sum.</p> <p>It is not prohahle that in stating the amount due, in his original petition, the plaintiff would from mere forgetfulness, state it at less than one half of the real sum.</p>

<p>Ejectment — Proper Parties — Tenant in Possession Must be Sued — Defective Allegation.</p> <p>Tbe original petition was defective in not distinctly stating who was in possession of the land sought to be recovered, and the alternative averment in the amendment, that the property was in the actual possession of the defendant or some tenant under her. The tenant in possession must be sued.</p> <p>Ejectment — Constructive Possession — Legal Title.</p> <p>One who does not hold the legal title cannot he constructively In the possession of real estate.</p>

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

<p>Statutes — Private Acts — Notice—English Rule.</p> <p>An act Qf the legislature, although, private, technically private in its character, is notice to all the citizens in Kentucky.</p> <p>The English rule with regard to private acts of Parliament does not prevail in this state, where all the acts of the General Assembly, private as well as public, are published at the public expense.</p> <p>Public Lands — Possession at Time of Entry — Notice Junior Patentee.</p> <p>The actual possession by the appellees at the time Hensley made his entry and procured his patent, was enough to put him upon his inquiring as to the nature of their claim.</p>

<p>Bills and Notes — Notice by Surety to Sue — Waiver—Estoppel.</p> <p>In this case the surety offered to give the payee a written notice to sue the principal but be waived it saying that he did not require it and accepted a verbal notice as sufficient. This amounted to an express waiver of his statutory right to require the notice to be in writing, and he is thereby estopped from claiming that the notice there given was not legal and sufficient.</p>

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

<p>Judgment Based on Erroneous Commissioner’s Report — Failure to Except — Partnership.</p> <p>The Court of Appeals never stops to inquire whether there are exceptions to a master commissioner’s report or not. If it is erroneous, and a judgment is based on it, and such judgment is appealed from, it is the duty of the Court of Appeals to examine and reverse erroneous judgments.</p>

<p>Bills and Notes — Assignment of Note — Mistake as to Amount Due-Equity Will Relieve.</p> <p>Where a note already due, with several payments credited thereon, is assigned and by mistake or fraud in the calculation of the credits and interest the assignor is made to believe that there was only a balance of three hundred and thirty dollars due thereon, when in fact there was at the time six hundred and ninety-three dollars due, a court of equity will compel the assignee to refund to the assignor the amount in excess of the sum supposed to be due when the note was assigned.</p>

<p>Vendor and Purchaser — Suit to Enforce Purchase Money Lien — Lien Must be Alleged in Petition.</p> <p>In order to entitle the holder of a note for purchase money to a lien on the land, it must be alleged in the petition that a lien was reserved on the land for the unpaid purchase price.</p>

<p>Wills — Devise of Land Held Adversely to Devisor.</p> <p>Under tbe law of this state lands in adverse possession may be disposed of by will. By the common law a mere right of entry could not be devised, but by our statute any right or interest in real estate, that the testator may be entitled to, at the time of his death, which would otherwise descend to his heirs, may be disposed of by will.</p>

<p>Judgments — Amount Claimed in Petition — Recovery in Excess of — Must be Reversed.</p> <p>Where the judgment exceeds the amount laid in the petition- it will be reversed and remanded with directions to render judgment for the plaintiff in the court below for the amount laid in the petition, where that is the only error; but where there is ground to apprehended from irregularity on the trial that justice has not been done, the cause will be remanded for a new trial.</p> <p>Trial — All the Pleading Must be Given Jury When They Retire to Make Verdict.</p> <p>Appellant had a right to have his answer to the petitions submitted, with them, to the jury; and while it does not appear that the verdict resulted from the withholding his pleadings, still his right to have them before the jury was invaded, and injury may have resulted therefrom and a fair trial prevented.</p>

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

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

<p>Mandamus — County Court — Subscription for Capital Stock of Railroad-Election.</p> <p>The county court had the right upon its own motion to submit the question to the voters of the county. The election ordered was held in pursuance to the provisions of the act of incorporation, and cannot be treated as void by reason of the assurances or representations made to the voters by friends of the enterprise. When a majority of the voters pronounced in favor of the proposition, nothing remained to be done by the county judge except to subscribe for the stock. In doing this he acts as a ministerial and not a judicial officer and can be compelled to discharge the duty imposed on him by a writ of mandamus.</p> <p>Pleadings — Conclusions of Law — Facts Must be Stated.</p> <p>The averment, that the provisions of the constitution were not complied with by the General Assembly upon its final passage of the act of incorporation is a mere conclusion of law, set up by the pleader. The facts from which the conclusions of law are drawn, and not the conclusions themselves must be pleaded.</p>

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

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

<p>Sales — Execution of Note After Receipt of Goods — Plea of Fraud too Late.</p> <p>The plea of fraud in the sale of goods cannot be made available, where the note was executed after the goods had been received and opened, and after the purchaser had acquired a full knowledge of all the facts connected with the transaction and had received and accepted the goods.</p> <p>Libel and Slander — Pleadings—Answer—Counter-Claim—False Representation.</p> <p>Special damages in a case like this can be recovered only where the false representations are made maliciously and with intent to injure, and it must appear that actual injury was thereby done. It is not enough to charge that a creditor is induced to sue and attach by reason of false and malicious representations, it must be alleged that the attachment was discharged on the hearing of the case.</p>

<p>Descent and Distribution — Unconditional Conveyance by Intestate to Husband Not an Advancement to Wife.</p> <p>Although the grandfather of appellant saw proper to charge her as an advancement, with the tract of land he conveyed to her husband, yet inasmuch as the conveyance to the husband is unconditional upon its face and there being no agreement on the part of the husband to hold the land for the benefit of his wife, the advancement can not be charged to her.</p> <p>Husband and Wife — Waiver of Right to Wife’s Property — Trustee for Wife.</p> <p>The husband has the right to make himself the absolute owner of his wife’s property by reducing it to possession, but if he agrees to take and hold the same as trustee for his wife, he thereby waives that right.</p> <p>Limitation — -Express Trust — Trustee.</p> <p>Neither the trustee nor his representative, can plead the statue of limitation as against the cestui que trust in cases of express trusts and more especially against the wife, when she has been all the while a feme covert, and the trustee her husband-.</p>

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

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

<p>Trial — 'Motion to Dismiss Without Prejudice After Submission — Discretion of the Court.</p> <p>In tbe exercise of a sound discretion a court may sustain a motion to dismiss without prejudice, but after tbe cause bas been regularly beard and submitted to tbe court for its decision on tbe merits, the plaintiff cannot, as a matter of right, avoid the result of the trial by dismissing the cause without prejudice to another suit.</p>

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

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

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

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

<p>Landlord and Tenant — Lease—Assignment—Responsibility of Assignor.</p> <p>In the absence of a contract on the part of the assignor of a lease to be responsible for the title of the lessor, or to keep the assignee in possession of the premises during the continuance of the lease, no obligation on his part can be implied from the assignment of the lease. The only undertaking which the law will imply from the assignment of the lease is that the assignor will be responsible for the ability of the lessor and his representatives to respond in damage provided there is an eviction.</p>

<p>Municipal Corporations — Ordinances Must be Authorized by Charter— Specific Tax.</p> <p>In the imposition of a specific tax the city authorities must pursue, strictly, the grant of power under which they act, and as uniformity and equality of taxation, whether it be general or local, is one of the fundamental principles of our system of government, that rule in no case should be disregarded.</p>

<p>Appearance — Filing Affidavit — Effect of.</p> <p>The filing of the affidavit controverting the grounds of attachment had the legal effect of entering the appearance of the defendant for all purposes.</p> <p>Judgments — Rendering of Before Cause Stands for Trial — Clerical Misprision.</p> <p>It is a clerical misprison to render judgment before the cause stands for trial, but where no motion has been made in the lower court to correct the error, the Court of Appeals cannot reverse.</p>

<p>Specfic Performance — Purchase by Executory Contract — Marriage of Vendor and Vendee.</p> <p>The vendee purchased a tract of land by executory contract and thereafter united in marriage with the vendor, whereupon he instituted this suit to compel specific performance of the contract of sale.</p> <p>Held, that appellant is entitled to a specific execution of his contract of purchase of the land.</p> <p>Executors and Administrators — Power of Executrix Ceases Upon Marriage.</p> <p>Upon the marriage of an executrix her power over the entire estate ceases. Being under the legal control of her husband, she in legal contemplation has no discretion or power independent of him.</p>

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

<p>Highways — Special Interest — Common Interest — Nuisance—Who May Sue.</p> <p>One having a common interest in a public highway, which belongs equally to all and in which the party suing has no special or peculiar property, he cannot maintain a suit. An obstruction would he a nuisance common to all.</p> <p>Highways — Special Damages.</p> <p>Where a party sustains special damages on account of the obstruction of a highway, the party thus injured may sue in his own name.</p>

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

<p>Bills and Notes — Position of Name on Bill.</p> <p>With tbe evidence equipoised tbe fact that Holbrook is tbe payee and bis name is just where it would be on the bill, first endorser, becomes important and must assert an influence in determining tbe liability of tbe parties.</p>

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

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

<p>War — Confiscation of Property — Order of Superior Officer — Pressing Necessity.</p> <p>Where property is taken, under orders of a superior officer it must he valued hy disinterested persons and the evidence of the taking, for the public service, with the evidence of its value must be given to the owner, so as to enable him to hold the government responsible for its value and there must be evidence of the pressing necessity for the taking.</p>

<p>War — Confiscation of Property — Taking for Public Use — Owner Retains Title Until Compensation is Made.</p> <p>If personal property be taken by tbe government and be applied to public use, until just compensation be made, tbe owner, though deprived of tbe possession, against bis will, yet retains tbe title, and tbe incidental right of recaption as a security for payment, unless in a reasonable time tbe value shall have been legally fixed and paid or offered, but tbe danger must be imminent and impending before tbe taking can be authorized.</p>

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

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

<p>Partnership — Denial of Existence — Reference to Master for Settlement.</p> <p>In as much as the existence of the partnership was denied by appellant and his contention sustained by the court, there was no reason why the cause should have been referred to the master for a settlement of the accounts between the parties.</p>

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

<p>Trial — Two Verdicts Against Appellant — Court of Appeals Will Not Reverse Unless for Errors of-Law.</p> <p>This cause having been twice tried by a jury and in each instance the verdict was adverse to the appellant; such being the facts the Court of Appeals will not reverse the judgment, except for errors of law oecuring on the trial in the court below.</p> <p>Witness — Personal Attendance of — Demand for Personal Attendance— Other Party May Take Deposition.</p> <p>The fact that one party demands the personal attendance of a witness does not prevent the other from taking the deposition of such witness and reading it on the trial of the cause, provided the party demanding the presence of the witness goes to trial without it.</p>

<p>Pleading Construed Against Pleader — Demurrer.</p> <p>Construing the petition most strongly against the pleader, it is clear that upon the statement of facts as to the mortgage, judgment and decretal sale under which appellee acquired possession, the appellant are not entitled to the relief sought and the demurrer was property sustained.</p>

<p>Tria! — Verdict—Evidence, Preponderance of.</p> <p>If the finding of a jury is not palpably wrong, a reversal cannot be had upon the sole ground that the evidence preponderates against the verdict.</p>

<p>Landlord and Tenant — Attornment—Forcible Detainer.</p> <p>Tke appellant having entered and held the land, in dispute, as the appellee’s tenant in' 1869, and during that year verbally negotiated for a renewal of his lease for 1870, but on the first day of that year refused to execute the new contract, and openly disclaimed to hold under the appellee and asserted claim to the possession exclusively as the tenant of another, refusing to make restitution of the premises to appellee, he was liable to the proceedings by warrant for forcibly detaining the possession.</p>

<p>Process — Service on Agent — Burden on Plaintiff.</p> <p>The burden is on tbe plaintiff to show tbat tbe facts exists, to make tbe service of a summons on a person other than tbe defendant, sufficient under tbe provisions of tbe code.</p>

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

<p>Continuance — Affidavit Read as Evidence.</p> <p>It is not error to refuse a continuance where by agreement of the parties the affidavit filed in support of a motion for a continuance is permitted to be read as evidence in the cause.</p> <p>Attorney and Client — Jury to Fix Value of Service.</p> <p>Where the employment of an attorney is fully proven and that he was to have a reasonable fee is well established, it is for the jury alone to determine what the services were worth.</p>

<p>Actions — Suit Should be Against Corporation and Not Against Stockholder.</p> <p>This action should have been brought against the Licking River Lumber and Mining Co. in its corporate capacity, and not against the stock holders.</p> <p>Appeals and Errors, Who May Appeal.</p> <p>The stockholders of a corporation have no right to prosecute an appeal from a judgment against the company in its corporate capacity.</p>

<p>Roads and Passways — Private Passway — Dedication—Prescription—Land of Vendor Surrounding Land of Vendee.</p> <p>A private passway can not be created by dedication; it must be granted, and this grant must be proven, either by a writing, or by a continued use and enjoyment, under a claim of right, for the term of fifteen years.</p> <p>Such a right might be implied in a case in which the vendor owned lands entirely surrounding those sold to his vendee.</p>

<p>Jurisdiction — Credit Must Be Applied to Accrued Interest.</p> <p>The payment of the fifty dollars on the debt should first be applied to the discharge of the accrued interest; this being done, the balance remaining when credited on the principal did not reduce the amount due to fifty dollars.</p>

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

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

<p>Executors and Administrators — Contract for Board of Family Revoked by Death of Intestate — Widow Responsible for Board After Death of Husband.</p> <p>The intestate made a contract with appellee to board his wife and child, during the time he should remain in the army, from September, 1861, the time he left, until he died in December, 1862. His estate was bound for reasonable price for the board of his wife and child until his death, but the contract ended then and his widow was responsible out of her own estate for the board of herself and child thereafter, and she might charge the estate of her infant son with a reasonable sum for his board.</p> <p>Executors and Administrators — Settlement of Different Estates Should be Made Separately.</p> <p>The estate of Seth T. Parrish should be first settled, and then the estate of Susan A. Parrish should be settled, and then the administrator’s accounts as guardian for John W. Parish should be settled separately.</p>

<p>Gifts — Causa Mortis — By Delivery — Consideration—Mere Promise Cannot be Enforced.</p> <p>An individual can mate a gift by delivery but his mere promise to mate a gift can not be enforced, although in writing, unless there is a consideration for the promise. The fact that one named a child for another, where there is no relationship existing, is not sufficient to uphold a promise.</p>

<p>Wills — Legacy to Revert to Testator’s Estate Upon the Death of Any of the Legatees.</p> <p>All the estate loaned to testator’s wife, except the land already-disposed of, shall be divided into six equal parts, giving to the grandsons one equal part with the testator’s children, and if either one of the six shall be dead (that is ,at the death of the wife), leaving no child or children, then his or her part, so dying, is to revert back to the testator’s estate and be equally divided among his surviving children and the children of such as may be dead.”</p> <p>Held, that the devisor intended that if either of his .children or grandchildren died without issue, that his or her part should revert back to the survivors.</p>

<p>Trespass — Municipal Corporation Responsible for Tort if Commanded or Sanctioned.</p> <p>A municipal corporation is responsible for damages for a trespass or other tort, if it commands it to be done or sanctions or approves the act when committed.</p>

<p>Statutes — Legislative Acts — Constitutionality Presumed — Facts Not Appearing Must be Distinctly Charged — Facts Proven by Journal.</p> <p>Everything is to be presumed in favor of the constitutionality of an act of the legislature, and the party attacking it must aver and ■prove every fact necessary to establish the position he assumes.</p> <p>The courts will take notice of the contents of the legislative journals for the purpose of determining the truth or falsity of any allegation of fact, but they will not examine the journals for the purpose of ascertaining facts, to rebut the presumption of the constitutionality of an act, unless the party complaining alleges the existence of such fact.</p>

<p>Trial — False Statement of Witness — Instructions on — Argument of Counsel Upon Facts Not Appearing in the Record.</p> <p>Appellant asked for an instruction to the effect that, if any witness for appellee had sworn to a material fact on the trial, knowing at the time that the statement was false, the jury had the right to disregard his whole testimony. This instruction the court below refused to give.</p> <p>Held, that the instruction should have been given and that the defendant’s case was prejudiced by the argument of counsel for appellee.</p>

<p>Vendor and Purchaser — Consideration—Part Cash and Remainder for Support of Vendor for Life — Vendee’s Lien — Attaching Creditor’s Lien on Cash Payment.</p> <p>The appellants had their attachment levied on the tract of land to which Andrew Lewis had the legal title. Andrew obtained a deed for the land in controversy from his father for the consideration of six hundred dollars in hand paid and the further consideration that he would support his father, on the land, during his natural life. The father had the deed cancelled upon the allegation that the consideration had failed. The appellants had obtained a lien on the land previous to the filing of the petition for cancellation, by the levy of their attachment.</p> <p>Held, that the only lien the father has upon the land is for his support during his life. This lien should have been enforced by the chancellor instead of canceling the deed, and he should be permitted to live upon the premises during his life, and the land should be subjected in a proper proceeding to the debts of the attaching creditors.</p>

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

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

<p>Accession — Specification—Rights Acquired By.</p> <p>Nunan acquired the right to the stone in the quarry and Gallagher and Holdman entered, raised and dressed the stone for the purpose of putting it into the abutments of the bridge, which they had undertaken to erect for Nunan, so that if they had acquired a right to the stone it was either by accession or by specification.</p> <p>The right by accession is acquired by adding other material to that of another individual taken innocently and by skill and labor. The material must be so changed as to be incapable of. being restored to the owner in its original form.</p> <p>The right by specification can only be acquired when without the accession of any other material that of another person, which has been used by the operator innocently, has been converted by him into something specifically different in the inherent and characteristic qualities which identified it.</p> <p>Held, that the material operated on by the mechanics has not been changed, the same inherent and characteristic qualities exist, now, that composed the material when it was removed from its bed, and being such, the property remained in Nunan.</p>

<p>Exceptions — Bill of, Sufficiency of.</p> <p>The hill of exceptions contains the names of the witnesses and a statement of what each proved on the trial, and after which it is said, “And here the proof closed.” “The court then on motion of the Commonwealth’s Attorney instructed the jury as follows:” Here instructions followed, at the close of which is added, “to which instructions the defendant excepted.”</p> <p>This language certainly imparts that the evidence contained in the bill, of exceptions was all that was given and that the instructions therein copied, are all that were given and refused by the court.</p> <p>Criminal Law — Evidence—Statements and Confession Made by Prisoner— Instructions.</p> <p>A material part of the evidence against appellant consisted of statements or confessions made to one of the witnesses for the commonwealth. Such evidence has always been regarded as weak, if not the most unreliable made competent by law, because it is easily misunderstood, may be recollected only in part, or perverted and misrepresented by design, and when made alone to the witness who details it, it is difficult to disprove, therefore, the court erred in overruling instruction No. 3.</p>

<p>Accounts, Action On — Promissory Notes, Prima Facie Evidence of Settlement.</p> <p>Appellant, in his answer, pleads as a set-off against the demands of the appellee, three several notes executed by the latter to the former, subsequent to the transactions involved in this litigation, which are prima facie evidence that all antecedent indebtedness on either side, except the amount of the note first executed, was thereby closed up.</p> <p>Accounts, Action On — Evidence—Book Accounts.</p> <p>The entries in an account book kept by a party to the action are competent against him as admissions, and though in writing, still like oral admissions, the whole of the entries in the same book relating to the same subject must be taken together, as well as those made by the party against himself as those for himself.</p>

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

<p>Property — Stock in Railroad Is Realty — Descent and Distribution.</p> <p>The capital stock in a railroad corporation is realty and descends to the heirs at law of the original owner, and they are entitled to hold same and enjoy the profits, in the way of dividends, arising from such estate as against the personal representatives.</p>

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

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

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

<p>.Reformation of Instruments — Correction of Deed — Warranty,</p> <p>Where land is sold at public auction and it is announced by the auctioneer that it is sold subject to a dower interest, the purchaser has no right to have the deed reformed so as to contain a warranty of title, in order that he may recover thereon.</p>

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

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

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

<p>Appeals and Errors — Rule to Pay Money Into Court Made Absolute— Final Order.</p> <p>Where a rule against a party to pay money into court is made absolute and an attachment issued thereon, is a final order in the case and may be appealed from.</p>

<p>Judgment — Interlocutory Judgment May Be Disregarded by Court.</p> <p>A judgment can not be final merely because it decides some question of law or fact relating even to final relief, not merely because it decides wbat are the rights of the parties as to such relief. An interlocutory judgment may be- entirely disregarded by tlhe cóurt when the final judgment is rendered.</p>

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

<p>New Trial — Action For — Grounds of Defense Must Be Stated.</p> <p>The petition in an action for a new trial must state the grounds of defense so that it may he determined from the pleading whether or not the newly discovered evidence is material.</p>

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

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

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

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

<p>Forcible Entry and Detainer — Warrant—Sufficiency of — Proper Party.</p> <p>The objection to the warrant is that the proper party is not suing as plaintiff, that the warrant was in the name of Lucy Garrett, when Sanford Garrett should have been the plaintiff.</p> <p>The traversee bond was executed to Sanford Garrett, trustee of Lucy Garrett as plaintiff, and if he was not the plaintiff appellee had no case in court, as the bond must be given to the traversee. The appellant selected his adversary and to him he gave the bond and he is thereby estopped to deny that the finding was for appellant, in the country.</p> <p>Estoppel — Sureties on Sheriffs Bonds, Forthcoming Bonds and Obligors in Notes.</p> <p>In a suit on a sheriff’s bond the defendants are estopped by their own acknowledgment in the bond, from denying that the person described therein was sheriff at the date of the bond. In a suit upon a forthcoming bond for goods attached, the obligors are estopped from denying admissions in the bond, as controverting their existence.</p>

<p>Attorney and Client — Lien for Fee — Compromise.</p> <p>An attorney lias a lien on chases in action or other claims or demands put in his hands for collection which cannot be defeated by a compromise between the parties, and a purchaser takes the property subject to the attorney’s lien for á reasonable fee.</p> <p>Cost — Officer’s Fees — Lien.</p> <p>The officers of a court are not entitled to a lien of the subject matter in litigation for their fees. Their fees are against the parties and are merely personal in their nature.</p>

<p>Bills and Notes — Execution of Note — Presumption as to Previous Indebtedness.</p> <p>Upon the execution of a note the law presumes all previous outstanding indebtedness was settled by that transaction.</p> <p>Trial — Instruction—Want of Evidence.</p> <p>An. instruction should never be given where there is no evidence upon which to base it.</p>

<p>Injunction — Action to Enjoin Judgment — Sufficiency of Petition.</p> <p>It does not appear from the petition that the judgment was rendered hy mistake, hut was the judicial determination of the court; and whether it was right or wrong could only appear from the proceedings as reproduced in the subsequent suit; and unless that preliminary object was effected, with at least reasonable certainty neither the circuit court nor the court of appeals should disturb the judgment.</p>

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

<p>Divorce; — How Judgment for may be Vacated.</p> <p>There is no mode of annulling a judgment for divorce except as prescribed by the Code of Practice, in which either party may file a petition for that purpose and the case is heard as other equitable actions. Such a judgment may be annulled or revoked by the court granting it at any time as prescribed by the statutes, but this can only be done by the petition of the parties as prescribed by the Code.</p> <p>Divorce — What is a Final Judgment.</p> <p>A judgment a mensa et thoro and an allowance to the wife is such a final judgment as may be appealed from.</p>

<p>.Judgment — Possession of Land Under Judgment Reversed — Rule for Restitution.</p> <p>Tlie proceedings by rule or motion for restitution of money or property obtained under tbe direct operation of a judgment which, has been reversed is well known to courts of law and is equally allowable in courts of equity. Tbe chancellor has the power to remedy the injustice which may have been done under his own orders when vacated by an appellate tribunal. The order for restitution cannot be resisted on the grounds of any equity thus disposed of by the dismissal of the bill.</p>

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

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

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

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

<p>Vendor, and Purchaser — Title Bond — Assignment—Responsibility of Assignor.</p> <p>The assignment of a title bond by the vendee therein does not impose on him the responsibility of the vendor, but only that of an ordinary assignor.</p> <p>Judgment — Rescinding Contract of Assignment.</p> <p>A judgment rescinding a contract of assignment of a title bond ■without litigation between the assignor and the maker is erroneous.</p>

<p>Wills — Construction—Life Estate or In Trust.</p> <p>The devise is, of the estate to her “her lifetime or as long as she remains unmarried, for the support of my children.”</p> <p>Held, that the devise was to the wife in trust for the testator’s children.</p>

<p>Vendor and Purchaser — Parol Contracts — Delivery of Possession.</p> <p>The contract between the parties was by parol and not binding on either. The delivery of the key to the dwelling house was only constructive possession which did not deprive the appellants of the actual possession.</p>

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

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

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

<p>Sale — Cumbersome Property — Place of Delivery.</p> <p>As a general rule applicable to tbe sale of cumbersome property, the seller’s ordinary place of sale, production or manufacture is the place of delivery.</p>

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

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

<p>Vendor and Purchaser — Sale of Land — Suit to Enforce Speeiflc Performance — Necessary Allegation — Tender of Deed.</p> <p>A vendor seeking a specific execution of a contract of sale must allege a readiness 'and an ability to execute on Ms part and tender a deed with the petition.</p>

<p>Husband and Wife — Marriage of Debtor with Creditor — Debt Released in Law — Equity Changes the Rule.</p> <p>The marriage of a creditor with her debtor releases the debt in law, on the principle that husband and wife are one person, but equity so far qualified this rule as to permit a feme sole to hold and enjoy her property.</p>

<p>Evidence — Commissioner’s Report as Evidence — Exceptions.</p> <p>The commissioner’s report was offered to he read as evidence on the trial, which was objected to and overruled, and the court refused to dispose of the exceptions to the report, to which no exceptions were taken, thereby the objections to the ruling of the court, permitting the report to be read, were waived. As the whole matter was referred to the jury, the evidence upon which the report was based as well as the report itself, it was the province of the jury to give such weight to the whole as they deemed it merited.</p>

<p>Executions — Sale of Land — Transfer by Purchaser.</p> <p>By the sheriff’s sale, the equity of the intestate in the land passed and by the transfer to Banister of Moore’s purchase he acquired the equity and when Mrs. Goode paid Banister for it she in equity was substituted to all his rights.</p> <p>Vendor and Purchaser — Parol Sale of Land — Objection.</p> <p>The parol evidence of the sale of the land was not objected to and if it had been the judgment and execution under which the sale was made would have been produced. The objection to the evidence comes too late, when it is made for the first time in the court of appeals.</p>

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

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

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

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

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

<p>Wills — Power of Executor to Sell and Convey — May Complete Sale by Testator.</p> <p>Where an executor has power under the will to sell and convey real estate, he may complete by conveyance any sale made by the testator and his deed will vest the purchaser with a perfect title to the land.</p>

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

<p>Ferries — Motion to Establish — Conflicting Claims.</p> <p>Both, parties assumed that a legal ferry already existed at or near the point proposed, and the ground of controversy is as to which of them owns the privilege. Such a question as this cannot be settled in a proceeding commenced in the county court upon a motion to establish a new ferry.</p>

<p>Ejectment — Notice to Quit — Proof of.</p> <p>The petition alleges that possession had been frequently demanded and refused, and it appears that appellant disowned his tenancy and claims against the appellees before the institution of this suit. This hostile claim upon his part exonerated the appellees from the necessity of giving him notice.</p>

<p>Executions — Failure to Indemnify Sheriff — Return No Property Found— Truth of Return. '</p> <p>The right to require a bond of indemnity is based on the fact that the officer doubts whether or not the property is subject to the levy and sale, and the failure of the plaintiff in the execution to give the indemnity does not lead to the conclusion that the return is false. The creditor’s right to resort to equity does not depend on the truth of the return of the officer, but upon the fact that the execution has been returned, “No property found.” Such return is conclusive between the parties and its verity cannot be enquired into without mating the officer a party.</p> <p>Fraudulent Conveyance — Property Sufficient to Satisfy Both Debts— Equity of Redemption.</p> <p>In an action to set aside a conveyance as fraudulent, if the petition shows that the mortgaged property is sufficient to pay both debts, the equity of redemption, only, will be adjudged to be sold to satisfy plaintiffs debt.</p> <p>Judicial Sales — Equity of Redemption — Purchaser’s Bond.</p> <p>The judgment upon which the equity of redemption in mortgaged property is directed to be sold should require the purchaser to execute a bond, to the effect that the property shall not be removed out of the county, and shall be preserved and forthcoming to answer the incumbrance cited by the mortgage, as in sales of such property under execution.</p> <p>Liens — Mortgage Lien — Attachment Lien — Mortgagee Must Foreclose.</p> <p>As the mortgagee’s debt is due, she should be required to foreclose her mortgage and if she fails to do so, her lien of the mortgaged property should be disregarded and the property sold to satisfy appellee’s judgment.</p>

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

<p>Husband and Wife — Separate Estate — Power to Dispose of By Will.</p> <p>A wife may dispose of her separate estate secured to her by an antenuptial contract when she reserves the right so to do.</p> <p>Reports — Unreported Opinions as Authority.</p> <p>The case of Bryan vs. Bohannon is regarded as authority, although it was not published in the reports of the decisions of. the court of appeals.</p>

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

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

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

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

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

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

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

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

<p>Estoppel — Sale of Interest In Land — Long Acquiescence.</p> <p>, Whether or not our statutes converting fee tail into fee simple made appellee’s estate in the land a fee simple, she and her voluntary devisee are estopped by the sale to the mother of the appellants by her children. When covert and discovert she persistently and notoriously claimed only a life estate, conceding to her children the remainder, promoted the sale of that remainder for a valuable consideration, was present when it was conveyed and neither then nor ever since until about the time of the institution of this suit, intimated a claim to the remainder.</p>

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

<p>Fraud — Defense—Pleading—Answer.</p> <p>Inasmuch, as the original answer failed to state that the discovery that the representations were false and fraudulent, was not made until after the execution of the note, it was not sufficient, even when tested by the principals in the case of Pitt v. Shannon, Hardin’s Rept. 58.</p>

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

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

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

<p>Bills and Notes — Payment in Treasury Notes — Legal Tender Act — Subsequent Judicial Decisions — Effect.</p> <p>When the legal tender notes were paid in satisfaction of appellee’s judgment, the opinion of the Supreme Court of the United States in the case of Hepburn v. Griswald was regarded as settling the right of creditors to demand the payment of debts, in coin, created before the passage of the legal tender act. Appellant voluntarily paid off the judgment against him in treasury notes at their negotiáble value as compared with gold. The payment so made completely extinguished the relation of debtor and creditor between him and appellee. The Supreme Court afterwards overruled the case of Hepburn v. Griswald and held that treasury notes should be regarded as a legal tender for all debts, but this ruling cannot have the effect of reopening transactions fully and finally settled while the law was differently construed by the same court.</p>

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

<p>New Trial — Diligence.</p> <p>The statements In the affidavits of those who were in and about the mill, if true, might have produced a different result, but there is no sufficient reason given why these persons were not examined as witnesses on the trial of the case.</p>

<p>Judgments — Entry After Term of Judge had Expired — Merger—Subsequent Act of the Legislature.</p> <p>A judgment entered of record after the expiration of the judge’s term of office is a nullity and the subsequent action of the Legislature can not revive a judgment that has been abandoned or merged into another.</p>

<p>Attachment — Action on Bond — Necessary Allegations.</p> <p>The petition fails to allege that the order of attachment under which appellant’s property was seized had been discharged or in anyway finally disposed of. No cause of action is set out.</p>

<p>Appeals and Errors — Failure to Supersede Judgment — Involuntary Payment — Recovery at Reversal.</p> <p>The appellant was not bound to supersede tbe judgment, and tbe payment thereof cannot be regarded as voluntary on his part because an execution had already issued from the quarterly court and his property had been actually seized before the dissolution of his injunction.</p>

<p>Vendor and Purchaser — Parol Contracts — Partition—Rescission.</p> <p>The contract was nothing more than a parol agreement for the conveyance of real estate which the courts will not and cannot enforce. The oral contract under which appellees and their vendees hold should be rescinded on equitable terms.</p>

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

<p>Judicial Sale — Sale With Confirmation of Partition — Acquiescence of Defendant — Better Bid to the Court.</p> <p>The court had directed the defendant’s land sold and he was not presumed to know whether the chancellor would approve the sale or not, and this placed him in such a position that he could do nothing but endeavor to obtain as much for his land as it was reasonably worth, and a purchaser could well doubt the validity of his title obtained under a purchase where the defendant’s right to the land depended upon the future action of the court in rejecting or confirming the division.</p> <p>Held, that under such circumstances the chancellor should have ordered a resale, as he had a bid of 25 cents per acre in advance of the price brought at the first sale.</p>

<p>Wills — Devise of Land for Life — Remainder to Children and Their Issue— Sale for Reinvestment — Necessary Parties — Equity—Jurisdiction.</p> <p>Where all persons interested, including all the great-grandchildren of the testator, in esse, are before the court, the proceeding is within the letter of the statute, and the possibility of the birth of other great-grandchildren who may take under the will does not take away from the Chancellor the power to act in the premises.</p> <p>Statutes in Derogation of Power of Courts of Chancery-^-Construction.</p> <p>Statutes in derogation of the general powers of courts of chancery ought to be so construed as not to abridge the prerogative of such courts further than their language manifests.</p> <p>Judicial Sales — Reinvestment—Improvement on Part Not Sold.</p> <p>The erection of improvements of a permanent nature upon the real estate not sold is a reinvestment of the proceeds of that which is sold, in other property and such improvements when made will be held for the same uses and trusts and in the same manner in all respects as the land sold.</p>

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

<p>Wills — Devise of Choses in Action — No Title Passes Until Will is Probated.</p> <p>Although, the testator may have written a codicil to his will devising the note in question to the wife of appellant, it passes no title to it until the will is properly probated.</p>

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

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

<p>Bilis and Notes — Assignment and Transfer are Synonymous Terms — Without Recourse — Presumption.</p> <p>The note was not formally assigned by a written endorsement upon the back but the bond for title recites that it was transferred to appellant. The terms assignment and transfer, when applied to contracts of sale of promissory notes, are used synonymously by the general public and also, in some instances, by the courts. The failure to assign in 'writing raises the presumption that the sale was made without recourse.</p>

<p>Actions — Cross-Petitions—Summons on Before Judgment.</p> <p>No judgment can be rendered on a cross-petition until service of summons on the defendants therein, either actually or constructively.</p>

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

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

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

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

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

<p>Principal and Surety — Indulgence—Release of Surety.</p> <p>If the creditor and principal debtor make a contract, founded on a valuable consideration and such a one as can be enforced, for indulgence without the assent of the surety it will operate as a release of the surety.</p>

<p>Attachment — Garnishment Purchase Money — Title Must be Perfected Before Payment Can be Enforced.</p> <p>The pleadings show that appellant’s indebtedness to Innes was for a tract of land for title to which he held the bond of the latter. By this bond Innes covenanted to malte appellant a general warranty deed to the land. The appellant, who occupies the position of garnishee, should be allowed to avail himself of every defense he could have made had suit been brought against him by Innes. The court, in its judgment, does not attempt to invest appellant with the title to the land for which he is adjudged to pay.</p>

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

<p>Pleadings — Imperfect Petition — Commissioner’s Report Will Not Help.</p> <p>A commissioner’s report will not be allowed to help an imperfect and defective petition. A judgment must be based as well upon the petition as the proof, and testimony which tends to establish some fact not alleged in the petition is irrelevant and incompetent.</p>

<p>Attachments — Garnishee—Personal Judgment — Rule to Show Cause— Final Judgment — Receiver,</p> <p>The appellees took a rule against appellant to show cause why it had not made payment into court of the sum admitted to he due as garnishee. Appellant responded that it did not have the money, thereupon the court made an order placing the company in the hands of a receiver, which was a final order.</p> <p>Held, that as the appellant was only a garnishee, it was error to render a personal judgment against it or place its property in the hands of a receiver.</p>

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

<p>New Trial — Failure to Attend Original Trial — Inexcusable Negligence.</p> <p>No reason is offered why the answer was not sworn to when it was written. If appellant had read the summons he would have learned in what month the court would sit, hut he was so inattentive to the business that he entirely forgot it. The want of diligence is so palpable and culpable on the part of appellant in failing to prepare his defense, according to his own statement, as to wholly preclude him from the relief sought.</p>

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

<p>Patents — Fraudulent Procurement — Collateral Attack.</p> <p>Even fraud, which, vitiates the most solemn proceedings, such as judgments or patents, cannot be relied upon or proved to impeach either collaterally, but same can only be vitiated or annulled by a direct proceeding, affording as high a grade of evidence as that of their creation.</p>

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

<p>Evidence — Proof of Declaration Not Addressed to Witness.</p> <p>The mere declaration of a party made on but the one occasion, in a conversation not addressed to either of the witnesses who, years after are called upon to prove them, made in the hearing of no others, and in the treasuring up of which they could have no interest, they being strangers to the speaker, is at most but weak and unsatisfactory evidence.</p>

<p>Action on Writing — Petition Must Set Forth Writing.</p> <p>The petition on its face shall contain a statement of the facts ■constituting a cause of action and the writing, which is the foundation of the action, is required to be filed with the petition, but that does not obviate the necessity of setting forth in the petition so much of the writing as will show by reason of the alleged acts, or omission on the part of the defendant, that the plaintiff is entitled to relief.</p>

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

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

<p>Deeds — Acknowledgment—Certificate of — County Judge’s Seal.</p> <p>.•The certificate of the acknowledgment of the deed does not show that the judge himself affixed to it the seal of his court, nor that he caused it to be done by the clerk thereof. The clerk verifies his own certificate by his official seal and not by the seal of the county court. The two seals may be one and the same, but it is necessary under the law that it shall in some way affirmatively appear that the certificate of the judge is made under the seal of his court.</p>

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

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

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

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

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

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

<p>Bills and Notes — Warranty of Horse — Damages—Set-Off.</p> <p>The facts set up in the answer amounts to a warranty that the stallion was capable of performing services which render horses of that hind valuable. Damages for a breach of this warranty could be lawfully set off against the note sued on, even in the hands of the assignee.</p>

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

<p>Trust — Action Against Trustee — Venue.</p> <p>The appellant might, by a rule in the 'Woodford Circuit Court, have been forced to settle his accounts as trustee, being an appointee of that court — still the venue was not local to that court and appellees might bring their suit in the county where the summons could be served on appellant.</p>

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

<p>Infants — Sale of Real Estate — Judgment Voidable — Appeal is the Remedy Where Error Appears on Face of Record — Limitation.</p> <p>All the alleged errors complained of by the appellants appear upon the record of the suit in which the judgment was rendered, as well as the fact that the appellants were then infants.</p> <p>The construction given to section 579 of the Civil Code is that when the error complained of appears in the record and also the fact that the defendant is an infant or lunatic, etc., the remedy is by an appeal and not by petition to vacate the judgment.</p> <p>Appeals and Errors — Judgments Against Infants — Limitation.</p> <p>If the party defendant is an infant, married woman, or person of unsound mind at the time the judgment is rendered, then an appeal may be taken within one year after the disability is removed.</p> <p>Infants — Action to Sell Land of — Failure of Guardian ad Litem to Answer —Judgment Voidable.</p> <p>The failure of a guardian ad litem to file an answer for an infant in a proceeding to sell his land does not render the judgment void, although it is a cause for reversing it.</p> <p>Executors and Administrators — Suit to Settle Estate — Creditor Need Not File Answer.</p> <p>In an action by an administrator to settle the estate of the deceased a creditor does not have to set up his claim against the estate by answer or other pleading, but he may present his side to the commissioner by vouchers as required by statute.</p>

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

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

<p>New Trial — Reversal—Appellant May Make a Better Case.</p> <p>Where a case is remanded for a new trial, the appellant has a right to make a better case if he can and have judgment in the event he should show himself entitled to it, otherwise a new trial would be a mere farce.</p> <p>Attachment — Discharge—Reinstatement—Presumptions.</p> <p>Where an attachment has been discharged by the circuit judge and reinstated by a judge of the Court of Appeals, it will be assumed that the discharge and reinstatement were made on the merits of the case, and such presumption is entitled to a controlling influence.</p>

<p>Appeals and Errors — Administrator de Bonis Non May Appeal from Judgments Rendered Against Predecessor.</p> <p>The judgment dismissing the petition of Hill’s administratrix at her cost was not a judgment against her personally, but in her fiducial character. Her right to prosecute an appeal therefrom was not a personal but a fiducial right, existing so long as she continued to act as administratrix. Her marriage divested her of the right longer to act in that capacity, but did not deprive Hill’s estate or its representative of the right to appeal.</p> <p>Parties — Misjoinder—Motion to Strike Out.</p> <p>A misjoinder of plaintiffs in the lower court or of appellants in the Court of Appeals must be taken advantage of by motion to strike out the name of the party improperly joined.</p>

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

<p>Criminal Law — Indictment for Murder — Instruction on the Law of Manslaughter — Right of Jury to Pass on Facts.</p> <p>The refusal of the court to instruct as to the law of manslaughter left the jury no alternative except to acquit the accused upon the grounds of self-defense or find him guilty of murder. The court ought not, by refusing to instruct, deprive the jury of the right to deduce from the facts proven the conclusion that the offense committed, if any, is of a lower grade than that charged in the indictment. By refusing to instruct as to the law of manslaughter the court judiciously determined that the evidence did not authorize the jury even to entertain a reasonable doubt as to the grade of the offense committed.</p> <p>Criminal Law — Instructions—Undue Prominence of Facts.</p> <p>It is attempted by Instruction No. 4 to group together certain facts, i. e., threats, previous encounters and the character of the deceased and to give them undue prominence by making the question of guilt depend upon their existence or non-existence. It was for the jury and not the court to determine whether or not, when considered in connection with all the evidence in the case, they justified the conclusion that the accused at the time of the killing believed and had reasonable grounds to believe that he was then in imminent danger of losing his life or suffering great bodily harm at the hands of the deceased.</p>

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

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

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

<p>Homicide — Opinion of Witnesses — Competency.</p> <p>Tbe rejected statements of the witnesses were their own deductions merely, from the facts to which they were called to testify, which it was not their province, but that of the jury, to do.</p> <p>Homicide — Involuntary Manslaughter — instructions.</p> <p>The court instructed the jury that unless they are satisüed from all the evidence beyond a reasonable, doubt that the prisoner purposely and intentionally shot Holder they must find him not guilty, which was more favorable to appellant than he was entitled to.</p>

<p>Injunction — Action on Bond — 'Petition—Demurrer.</p> <p>The petition alleges the execution of the injunction bond, the dissolution and the dismissal of the action. It also recites the amount of the judgment enjoined and the failure of the appellants to pay. The demurrer therefore was properly overruled.</p>

<p>Libel and Slander — Answer, Sufficiency of.</p> <p>The first sentence of the third paragraph of the answer is as follows: “In answer to the third paragraph he says he did not speak of and concerning the plaintiff the defamatory words alleged to have been spoken, in manner and form as he has alleged.”</p> <p>Held, that the answer sufficiently and aptly pleaded not guilty to the charge.</p>

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

<p>Boundaries — Immovable and Natural Objects — Course and Distance ' Yield — Corner Trees Corresponding with Patent.</p> <p>Where the lines and comers objects as fixed by the survey, the course and distances must and on the contrary when the lines and courses have been efcourses in the patent must govern. Corner trees being proven correspond with the calls of the patent is prima facie evidence the survey was so located.</p>

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

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

<p>Indictment and Information — Requisites and@ Sufficiency of Accusation: First, An indictment is sufficient if it can be understood' therefrom:</p> <p>That it was found by a grand jury of a county or city impaneled in a court having authority to receive it.</p> <p>Second, That the offense was committed within the jurisdiction1 of the court and at some time prior to the finding of the indictment.</p> <p>Third, That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction.</p>

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