Volume 6 — Kentucky Opinions

<p>Sheriffs and Constable — Special Act Relating to the Collection of Back Taxes — Liability on Official Bond.</p> <p>. The act of June 3, 1865, required the sheriffs of 1865 to collect taxes due for certain years in counties in which assessments had not been made. The bond was no-t executed until March, 1866, therefore the bond was void. '</p> <p>Appeals and Errors — Failure to Appear in Lower Court.</p> <p>Appellants did not waive the right to have a reversal of the four judgments of February, 1870, by reason of their failure to appear in the court below and object to the character of the proceedings against them. The court of appeals will reverse in all cases in which the petitioner does not set out a cause of action, regardless of whether or not defense was made in the court below.</p>

<p>Sheriffs and Constable — Sheriffs—Replevin Bond — Reasonable Diligence as to Surety.</p> <p>In taking a replevin bond tbe .sheriff is required in good faith to exercise reasonable diligence and discretion in ascertaining the solvency of the sureties offered. But he is not liable for a breach of his official bond in all cases in which it may turn out that the sureties taken were insufficient. '</p> <p>Sheriffs and Constable — Sheriffs—Failure to Levy Execution — Action on Bond — Sufficiency of Amended Petition.</p> <p>The amended petition specifically charges that one of the defendants in the execution, while it was in the hands of the sheriff, had in his possession a lot of mules subject to levy and sale sufficient to pay the judgment, that the sheriff knew this and negligently failed and refused to levy.</p> <p>Held, to be sufficient.</p>

<p>Executions — Levy and Sale — Quashal of Levy and Sale — Return on Execution Should Be Quashed.</p> <p>Where the levy of an execution on land and the sale thereunder has 'been quashed, the sheriff’s return on the execution should be quashed also.</p>

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

<p>Evidence — Statements No Part of Res Gestae — Impeachment.</p> <p>The statements of McPherson in the presence of Smith are not evidence against appellee, they were made after the payment of the money to Adams and were not a part of the res gestae. Smith’s testimony is important only in so far as it impairs McPherson’s credibility by showing that his sworn statements are inconsistent with others made by him out of court.</p>

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

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

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

<p>Landlord and Tenant — Tenancy From Year to Year — Tenancy at Will— Payment of Rent — Evidence.</p> <p>The fact that rent is payable by the month is not itself sufficient to show that there was an agreement, either express or implied, that appellants were to hold the leased premises at will.</p>

<p>Equity — Remedy at Law.</p> <p>No reason is given wby appellee did not file certified copies of his judgments, executions and returns in the Circuit Clerk’s office and sue out execution thereon under which he might have levied on and sold the land. His legal remedy being complete he had no right to tax appellant with the cost of a proceeding in equity.</p>

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

<p>Vendor and Purchaser — Parol Contract — Performance.</p> <p>■ A parol contract to take and. pay for a part of a tract of land to be sold by a decree of court is binding on the parties when one of them has performed his part of the contract by bidding in the land at the sale.</p> <p>Pleadings — Failure to Deny Allegations of Petition.</p> <p>Every material allegation of the petition not specifically controverted by the answer must for the purpose of the action be taken as true.</p>

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

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

<p>Pleadings — Amendment After Judgment.</p> <p>It was too late for tlie appellant after judgment liad been rendered to offer an amendment. After judgment an amendment is sometimes permitted to be made in order t» sustain it, but an amendment would not be allowed for the purpose of invalidating the judgment.</p>

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

<p>Dower — Wife Estopped to Claim — Innocent Purchaser.</p> <p>The appellant appeared in open court, at tlie term of court at which, the commissioner reported the sale of her husband’s land, and relinquished her right to dower therein.</p> <p>As a matter of law this relinquishment did not divest her of her right to dower, but it estops her from asserting such right against those who acted upon the faith of it and purchased and paid for the land, under the impression, traceable directly to her voluntary act, that it was free from such incumbrance.</p>

<p>Trespass to Try Title — Injunction to Stay Waste — Boundaries Must Be Fixed in Judgment — Writ of Possession.</p> <p>In actions in ejectment, wliere recovery is had, the plaintiff is entitled to a writ of possession and may take possession under it, hut in a suit in equity where the deeds under which both parties claim have no definite boundaries, the chancellor in determining the rights of the parties should fix and establish the boundary, so as to enable the officer who executes the writ, as well as the parties, to know the boundaries of their respective tracts of land.</p> <p>Where the title and possession of land are both brought in question by reason of the alleged unlawful entry, the result of the litigation determines the question of title.</p>

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

<p>Wills — Acceptance of Favorable Provisions — Estoppel.</p> <p>Where a devisee accepts the provisions of the will, beneficial to him, he is estopped from objecting to that part unfavorable to his interest.</p>

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

<p>Witnesses — Credibility—Contradictory Statements.</p> <p>The credibility of a witness in the contest of a will is not destroyed by tbe testimony of other witnesses that the former made statements out of court, different from those made to the jury.</p> <p>Wilis — Evidence—Testamentary Capacity.</p> <p>The evidence was held insufficient to show that the mind of testator was so far impaired at the time the will was made as to render the will invalid.</p>

<p>Pleading — Amendment, Refusal of.</p> <p>In an action on a note given for the difference in the exchange of horses, in which defendant set up breach of warranty, and- defendant filed an amended answer alleging that the contract was void as- having been made on Sunday, and thereupon plaintiff tendered an amendment of his petition, alleging that defendant converted the ¡horse which he-got from plaintiff for his own use, the amendment of the petition was properly refused.</p>

<p>Malicious Prosecution — Pleading—Proof.</p> <p>To maintain an action for malicious prosecution, it is necessary to -allege and -prove tliat tlie prosecution was instituted maliciously and without probable cause, both of which elements must concur.</p> <p>Malicious Prosecution — Probable Cause — Proof.</p> <p>Although the want of probable cause -is negative in its form and character, still it must be proved by some affirmative- evidence, unless such proof is dispensed with by the defendant by pleading the -truth of the facts involved in the prosecution.</p> <p>Malicious Prosecution — Instruction—Burden of Proof.</p> <p>If the facts -shown in an action for malicious -prosecution were not sufficient to induce the belief -on the -part of defendant that the charge was proved, and there wasi probable cause for the prosecution, the law is for the defendant, and an instruction that the burden of proof is on plaintiff to show that defendant caused the indictment to be found against plaintiff without probable cause, and must show that the material charges in the indictment (were false, and if they were false, and yet defendant (had good grounds to believe and did believe them to be true, and in good faith acted on .such belief he was not liable, is a correct statement of the law.</p> <p>Malicious Prosecution — Instruction—Probable Cause.</p> <p>In an action for malicious prosecution, it is the duty of the judge to explain to the jury, when asked by any of the parties to do so, what amounts to probable cause.</p>

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

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

<p>Intoxicating Liquors — Tippling-house—Instruction.</p> <p>Under § 1, art. 4„ ch. 99 (2 R. Stat. 411), relating to the beeping of tippling-houses, an instruction that if the jury believe from the evidence that defendant suffered or permitted his brother to sell whisky in defendant’s ¡house more than once in any quantity, which •defendant Buffered or permitted to be drunk in a house about 40 yards from the place of sale, he is guilty of keeping a tippling-house, and the jury should so find, in the absence of proof that accused was •licensed to sell by the drink, is erroneous, since the liquor was not drunk on the premises where sold or on premises adjacent thereto'.</p>

<p>Appeal — Review—Instructions.</p> <p>'The Court of Appeals can not pass on instructions which, are not ' in the record.</p> <p>Appeal — New Trial — Grounds—Waiver.</p> <p>Under Oiv. Code Prac., § 372, requiring the grounds for a new trial to he specified in writing, failure to present the admission of evidence as a ground for a new trial excludes such grounds from consideration on appeal, as it will he treated as waived.</p>

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

<p>Criminal Law — Instruction—Concealed Weapon.</p> <p>Under § 2, Act March. 10, 1854 (1 R. Stat., 414), in a prosecution for carrying a deadly weapon, the court properly refused to instruct the jury to find for defendant upon evidence sustaining the charge, but also conducing to prove that at the .time of the alleged commission of the offense defendant had prepared to go, and was about to isitart on a journey from Louisville, Kentucky, to Salem,' Indiana, in' the absence of any evidence to show that defendant on such journey would be required to travel at night.</p>

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

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

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

<p>Courts — Appellate Jurisdiction — Final Judgment.</p> <p>The Court of Appeals has no jurisdiction on appeal, where a demurrer to defendant’s answer was overruled, and on final ¡hearing after the evidence was heard the court refused to permit plaintiff to proceed further, and refused a prayer for judgment, but plaintiff’s petition was not dismissed nor final order or judgment rendered.</p>

<p>Schools and School Districts — Loss of Right to Redeem Property — Negligence.</p> <p>Appellant’s loss of right to redeem property held to have resulted from his negligence.</p>

<p>Appeal — Reversal—Conflicting Evidence,</p> <p>The Court of Appeals shall not disturb a verdict or judgment upon conflicting evidence.</p>

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

<p>Indictment and Information — Allegations of Offense — Bar.</p> <p>An indictmen/t must allege tlie offense witli such. Certainty as to enable accused to know what he is called upon to defend, and to constitute a bar to 'any subsequent prosecution for the same offense.</p> <p>Larceny — Indictment—Money—Description.</p> <p>An indictment which simply charges that a number of United States Treasury notes and National Bank notes were feloniously taken by accused, without any further description of the same, was held insufficient.</p>

<p>Municipal Corporations — Council—Journal of Proceedings.</p> <p>The common council of a city must keep a correct journal of its proceedings, and the journal should be made up by that body prior to the coming in of a new council who can not know whether the journal of prior proceedings made up. under their supervision, is correct or not.</p> <p>Municipal Corporations — Council—Journal of Proceedings,</p> <p>Where the failure of a branch of a common council to keep a correct journal of its proceedings results in the exoneration of property owners from liability for street improvements, judgment for the amount due and unpaid because of such neglect, should he rendered against the city.</p> <p>Judgment — Failure to Answer.</p> <p>A party who was served with process nearly six months before judgment was rendered, but who failed to answer and prepare his ■defense, cannot complain that judgment was rendered before his defense was heard.</p> <p>Judgment — Attack—Joinder of Parties.</p> <p>A city can not set up for the first time after a judgment against it for cost of street improvements, because of the exoneration of property owners, that it was improperly joined in the suit with the property owners, on the ground that it was a mere guarantor.</p>

<p>Homestead — Proceeds—Depositing as Surety for Debt and Costs.</p> <p>Where a debtor was arrested under Civ. Code, ch. 1, art. 8, and was released on depositing in the hands of the .sheriff as surety for the debt and costs, a sum of money in lieu of bail, under section 186 of the Code, which was the proceeds of defendant’s homestead which (had been sold under execution by the sheriff, and the proceeds were paid the defendant to purchase another homestead, an order of return of such money to ¡the defendant was erroneous.</p>

<p>Appeal — Reversal—Instructions.</p> <p>Inconsistent and irreconcilable instructions! ■which tend to confuse and mislead the jury, are cause for reversal.</p> <p>Partnership — Bound by Contracts and Acts of Partner.</p> <p>One partner may bind the partnership by his acts and contracts done in the scope of the partnership trade or business, and for the purposes thereof.</p> <p>Partnership — Objects of Business, How Determined.</p> <p>Where the partnership business is not specifically set forth in the articles of partnership, or where there are no such articles, a majority of the partners have the right in case of a diversity of opinion as to the objects of the business, to determine the question.</p> <p>Partnership — Evidence—Letter.</p> <p>A letter written to plaintiff and signed in the firm name of the partnership, was held admissible in evidence with the other facts and circumstances of the case.</p> <p>Partnership — Representation by Member of Firm.</p> <p>A representation Or misrepresentation of a fact in a partnership transaction, by one member of the firm, will bind the firm.</p> <p>Appeal — Record—Contents of.</p> <p>Failure to give credit on a judgment is not an available error on appeal, where the execution and officer’s return showing that $100 of the debt had been made by sale of the property, were copied into the record by the clerk, without having legitimately been before the court of jury.</p>

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

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

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

<p>Deeds — Pleading—Demurrer.</p> <p>A demurrer to a petition to set aside a deed to land and subject tlie land to tlie payment of plaintiff’s debts was (tield properly overruled.</p>

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

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

<p>Principal and Surety — Contribution—Insolvency of Principal.</p> <p>The evidence was held to ¡show that the principal waisi not insolvent, and that a surety was not entitled to look to his co-surety for contribution.</p>

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

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

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

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

<p>New Trial — Pleading—Newly Discovered Evidence;</p> <p>A petition for a new trial should allege that new evidence set forth as a ground for a new trial was discovered after adjournment of the term at which the trial was had.</p>

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

<p>Deeds — Stipulation as to Lane.</p> <p>An insertion in a deed, by tbe grantor, of .the words, “that there should be no lane running from the creek between us,” did not effect any right of the grantee, where the contract of purchase does not call for such lane, and it does not appear that the grantee ever enjoyed the use of the lane at such place.</p> <p>Deeds — Failure to Read Deed — Equitable Relief.</p> <p>The failure of the grantee of land to read the deed and know its contents where he had an opportunity to do so is culpable negligence against which a court of equity will not grant relief.</p>

<p>Courts — County Court — Imposition and Coliéotion of Taxes.</p> <p>Under § 19, Act February 27, 1867, chartering a railroad company, the presiding Judge of the county court comprises' the court, and has authority in the matter of imposing taxes and collection of the same, was! 'derived from the legislative act and not from- any supposed delegation of power from the county court.</p> <p>Railroads — Subscription for Stock — Collection of Taxes to Pay.</p> <p>Where the Legislature in chartering a railroad hy special act, provided for an election on the question of subscribing for railroad stock, and for collection of taxes to pay for such subscription as might be made, left the collection of the taxes wholly to the county court without prescribing the manner of collection, and by whom the ■collection should be made or the time of collection, the county court hais power to levy the tax, appoint the officer or officers to collect the same, prescribe the condition of their bonds, and direct to whom and what time such officers should pay over the amount collected.</p> <p>Railroads — Action on Tax Collector's Bond — Pleading.</p> <p>In an action on a tax collector’s bond, it is not necessary to allege that the county court had ordered him to pay over, where the bond fixed the time and place of payment.</p> <p>Taxation — Tax Collector — Commission.</p> <p>A tax collector is not entitled to commission from taxes for which he failed to account.</p> <p>Taxation — Tax Collector — Liability for Interest.</p> <p>A tax collector is liable for interest on taxes collected by him and not accounted for on the first day of May of each year, where it was his duty to account on such date for all taxes collected.</p> <p>Taxation — Tax Collector — Liability for Interest.</p> <p>A tax collector can not escape liability for interest on the ground that he failed to collect the tax within the prescribed time, and without showing that he made 'an honest effort to comply with his undertaking.</p> <p>Taxation — Tax Collector — Settlement—Presumption,</p> <p>Where the county court has jurisdiction of ithe settlement of tax collectors, it can not be presumed that it did not fake the necessary steps to authorize the making of a settlement.</p>

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

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

<p>Pleading — Conclusion of Law.</p> <p>Where a cross-petition alleges certain items of indebtedness by plaintiff to defendant, plaintiff’s reply denying that be is indebted to defendant in such sum for the items specified, or in any other :sum, is a mere conclusion of law, and insufficient.</p> <p>Pleading — Insufficient Reply — Cross-petition Taken as Confessed.</p> <p>Where plaintiff’s reply to a cross-petition is- insufficient, defendant is entitled to have his cross-petition taken as confessed.</p> <p>Judgment — Improperly Taken on Cross-petition.</p> <p>Judgment on a cross-petition is1 improper, where taken at the same .term the cross-petition was filed, appellants not having been served with process and not having entered their appearance thereto.</p>

<p>Trusts — Liability of Trustees for Loss of Funds Deposited.</p> <p>Trustees appointed by a partnership' to close the partnership business and disburse the partnership funds, were held not liable for partnership funds lost on deposit in bank, no negligence on the part of the trustees being ¡shown.</p> <p>Partnership — Trustee—Negligence—Care and Skill.</p> <p>The evidence was held to show that a trustee appointed to close partnership affairs and make disbursement of the proceeds was not negligent and did not make improper application of the funds, and that he exercised proper skill in the execution of the trust.</p>

<p>APPEAL FROM MEAD® CIRCUIT COURT.</p>

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

<p>Attachment — Bounty—Attachment of.</p> <p>A bounty which was not received fey a soldier in his lifetime, is not subject to seizure in the course of transmission to the person entitled thereto.</p>

<p>Guardian and Ward — Joint Judgment Against Guardian and Her Husband.</p> <p>A joint judgment against a guardian and her husband iis erroneous, where the record discloses nothing to .sustain a personal judgment against the (husband.,</p>

<p>Ejectment — Boundary—Question for Jury.</p> <p>Whether certain, land is embraced in a boundary recited by tbe evidence of title is a question for tbe jury, and tbe court should instruct that if the patents and deeds in the chain of title down to plaintiff included the land in controversy, the finding should he for plaintiff, unless the defense of adverse possession is sustained by the proof.</p> <p>Ejectment — Defense—Adverse possession — Instruction.</p> <p>Where the defense is title by adverse possession, an instruction “that the claim of possession must be to a well-defined marked, boundary” is erroneous, as a natural boundary may exist and control in such a case.</p>

<p>Pleading — Answer—Reply—Admission—Production of Choses in Action.</p> <p>"Where plaintiff’s reply to 'defendant’s aniswer and counter-claim admits that plaintiff has in his possession choses in action to the value of ¡¡>250, which had not been accounted for, he must produce them, or the court will credit defendant with the amount, in the absence of a showing that they can not be used as a set-off.</p> <p>Equity — Recital in Decree — Proof.</p> <p>The mere recital in a decree in equity that the case was heard upon the pleadings, proof, and exhibits, is no evidence that parol testimony was introduced and heard in the case:</p>

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

<p>Mechanic’s Lien — Sufficiency of Evidence.</p> <p>The evidence was held not to sh owthat plaintiffs had a mechanic’s lien on the property in question.</p>

<p>Pleading — Partnership Accounting — Discovery.</p> <p>A petition for a partnership accounting which leaves blanks where numbers ought to be inserted, so that judgment can not be entered thereon, is insufficient, and does not entitle the plaintiff to compel defendant to make discovery as to the doings of the partnership, and upon failure of plaintiff to fill up the blanks' within a reasonable time, the petition should be dismissed.</p>

<p>Criminal Law — Reversal—Overruling Demurrer — New Trial.</p> <p>Where a judgment has been rendered in a misdemeanor case, reversal 'can not 'be had merely because a demurrer has been improperly overruled, or for error in granting or refusing a new trial. (Code of Practice, § 349, p. 659.)</p>

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

<p>Trespass — Evasive Answer.</p> <p>In an action for injury to real estate, an answer which does not controvert plaintiff’s ownership or possession of the land, but alleges want of knowledge or information as1 to whether plaintiff was the owner of the legal title and in actual possession of the land, is evasive and insufficient.</p> <p>Damages — Permanent Injury to Land.</p> <p>In order to entitle one to recovery for permanent injury to land, it is not necessary that he should hold the legal title, hut he has a right of action if he was the owner of the property and in possession of it.</p> <p>Pleading — Immaterial Issues.</p> <p>Immaterial issues should not he raised by the pleadings, but of raised they should be disregarded by the court.</p> <p>Eminent Domain — Compensation.</p> <p>Private property can not be taken for a public use until just compensation has first been made.</p> <p>Estoppel — Claim for Damages to Land.</p> <p>That plaintiff in an ¡action for damages to his real estate worked for the defendant railroad company when the alleged trespass was committed, does not estop plaintiff from asserting ¡his claim for the •damages.</p>

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

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

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

<p>Evidence — Conversion of Note — Subjecting Property — Burden of Proof.</p> <p>In a suit to subject the property of W. to the payment of creditors of G. on tbe ground that W. bad converted a note belonging to G., the burden of proof is on the plaintiff to show tbat the note in controversy was tbe property of G., and no explanatory proof is required by W. until some evidence has been adduced showing some right to it by G.</p> <p>Fraudulent Conveyances — Dealings Between Father and Son.</p> <p>The facts were held to show that the relations and dealings between a father and his son did not constitute a combination between them to place the father’s property, beyond the reach of his creditors.</p>

<p>Husband and Wife — Mortgage by Husband and Wife.</p> <p>Land being -general estate, -tbe wife bas no power, in conjunction with her husband, to bind it by mortgage to .secure a debt -of her ¡husband.</p>

<p>Alteration of Instruments — Effect of Alteration As to Surety.</p> <p>The'principal of a note and the payee thereof do not have the right to change the note without the consent of the surety, although the effect of the change might be to the interest of the surety.</p>

<p>Subrogation — Right to.</p> <p>The right of subrogation will be upheld where one at the request of the debtor pays off a lien debt, or where a surety is compelled to pay it, or where the creditor in consideration of the payment transfers the benefit of his claim to a stranger mahing the payment; but the mere fact that a stranger to the contract loans money to the debtor, knowing that he is borrowing it to satisfy a mortgage debt, will not entitle the loaner to be subrogated to the right of the mortgage creditor.</p> <p>Subrogation — Payment in Furtherance of Fraudulent Scheme.</p> <p>Where one who purchases a note at discount knows that a' portion of the money is to be applied to a debt, and if iS' not shown that the application of the money to that purpose constituted Any part of .the consideration for the purchase of the note, but it appears that the purchaser of 'the note paid the money in furtherance of a fraudulent scheme to cheat and defraud the debtor, the purchaser is not entitled to be subrogated to the rights of the creditor to a lien on the debtor’s land.</p>

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

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

<p>Appeal — Reversal—Conflicting Evidence.</p> <p>The Court of Appeals will not disturb a judgment upon conflicting evidence.</p>

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

<p>Pleading — Reply, When Not Necessary.</p> <p>Where the answer in an action relating to real estate is in effect a denial of the allegations of the petition and is made a counterclaim for the purpose of recovering for the surplus land in the event the sale is adjudged to have been by the acre, there is no necessity for any .response to it, since the facts, alleged in the answer are controverted by the petition.</p>

<p>Infants — Confirmation of Contract.</p> <p>Where an infant after becoming of age does such act of affirmance of a deed made during minority, as surrendering a bond, when taken in connection with his failure for 32 years to give notice of disaf-firmance, it amounts to a confirmanee so as to prevent ¡him from avoiding the contract.</p> <p>Adverse Possession — Under Conveyance from Infant.</p> <p>Where defendant acquired the conveyance of land by plaintiff while plaintiff was an infant, defendant’s uninterrupted possession of the land for more than 20 years before institution of suit by plaintiff to recover the land gives the defendant a good title thereto.</p>

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

<p>Contracts — Pleading—Breach of Contract to Deliver Possession.</p> <p>A petition for breach, of a contract to deliver possession of real estate purchased by plaintiff from defendant, Which alleges the purchase of the land from defendant, the occupancy of .the land by a ■tenant of defendant, the agreement of defendant to deliver possession, the refusal of defendant to surrender .possession to plaintiff - until several months after plaintiff was entitled thereto; states ■ a cause of action.</p>

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

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

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

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

<p>Records — Motion for Nunc Pro Tunc Entry.</p> <p>A motion to enter an order nunc pro tune should he overruled where the existence of the order depends upon parol proof in connection with unsigned pencil memoranda, where seven years have elapsed since the alleged failure of the clerk to enter the order of record.</p> <p>Records — Alteration.</p> <p>A public record should not he altered or its veracity questioned unless the power as well as the right to alter or amend is clearly shown.</p>

<p>Divorce — Residence of Wife.</p> <p>Where a wife leaves her husband, on the ground of cruel treatment by him, and takesi up her abode in another state, she becomes- a-resident of the latter -st-ate so as to give the chancery court jurisdiction of ¡a suit for divorce'.</p> <p>Divorce — Condonation.</p> <p>Where a wife, after acts of cruel treatment on the part of her-husband, continued to live with him for • several months prior to their separation, it did not constitute a condoning of the ■ offense, especially where his subsequent habits and conduct toward her were bad.</p>

<p>Evidence — Warranty—Parol Evidence.</p> <p>Parol testimony is- admissible to establish, a warranty.</p> <p>Bills and Notes — Breach of Warranty — Recoupment of Warranty.</p> <p>In an action on a note for the price of a mill, -defendants are entitled to ¡a recoupment of the damages resulting to them -for breach of warranty.</p>

<p>Bailment — Gratuitous Bailee.</p> <p>Tbe owner of a steamer, in .transporting freight free of charge, a package containing plaintiff’s money, was held to act as a gratuitous bailee only and was not liable for its loss, unless the loss resulted from the negligence of the owner of the steamer or his agents or servants.</p> <p>Appeal — Reversal—Judgment in Criminal Case.</p> <p>A judgment of a court in a criminal law action stands on the same footing as the verdict of a jury, and' will not be 'disturbed unless palpably against the weight of the evidence.</p>

<p>Husband and Wife — Landlord and Tenant — Rights of Wife.</p> <p>Where a husband, without opposition on the part of the wife, transferred the possession of a house and lot to another as tenant, the wife can not assert her rights in a controversy between the landlord and tenant, relating solely to the tenancy 'and in no wise affecting the title to the other part of the property.</p> <p>Forcible Entry and Detainer — Holding Over by Tenant.</p> <p>The mere holding over by a tenant 'after the expiration of his term is not a forcible detainer, and a warrant will not lie until there has been a refusal to surrender possession.</p>

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

<p>Contracts — Guaranty—Consideration.</p> <p>Where, since the assignment of a note, the assignor and his surety, without additional consideration, undertook, by a written agreement, to make good the collection of a note, the obligors can not he held responsible on such undertaking.</p>

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

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

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

<p>Frauds, Statute of — Agreement Affecting Real Estate.</p> <p>Wliere two persons as partners engaged in the erection of a house, and one desiring to withdraw from the undertaking after partly finishing the house, having surrendered his rights in the property to his partner on certain conditions, with the understanding that the title to the property «hoúld be conveyed to his partner, the contract was within the statute of frauds and can not be enforced.</p>

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

<p>Bills and Notes — Possession—Evidence of Ownership.</p> <p>Tlie possession of a bill of exchange is prima facie evidence of ■ownership of the bill, and, having been a part of the petition, no other evidence of ownership is necessary, but in the absence of other evidence of title the payee or his legal representative should be made to appear to the action.</p> <p>Bills and Notes — Bill of Exchange — Legal Title.</p> <p>Where a bill of exchange was not indorsed by the .deceased’s payee, the legal title was not in the holder of the bill, but in the legal representative of the payee, who was a necessary party to an action by the holder.</p>

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

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

<p>APPEAL PROM B'RECKENiRID-GE CIRCUIT COURT.</p>

<p>Assignments for Benefit of Creditors — Presumption.</p> <p>Where a debtor, just prior to malting an assignment for the benefit of creditors, drew from a hank a large sum of money which was not turned over to the assignee, and wasi never accounted for, it will be presumed that the debtor is still enjoying the money.</p> <p>Attachment — Money in Hands of Receiver.</p> <p>Money in the hands of a receiver, belonging to an insolvent debtor, is subject to attachment by ihis creditors.</p>

<p>Descent and Distribution — Recovery of Land Conveyed.</p> <p>Where a husband, with the consent of his wife, conveys her in» ■heritance with a covenant of warranty, her heir®, who are also heirs of the husband, can not recover the land from the vendee of the husband, such heirs having received a greater estate from their father.</p>

<p>Damages — Speculative—Pleading.</p> <p>Where the averments of a petition do not import any certain and specific complaint that plaintiff sustained any damages which were natural and proximate to the 'breach of the contract complained of, hut was for contingent and prospective profits or speculative damages, recovery can not he had. .</p>

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

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

<p>Alteration of Instruments — Material Allegation — Interest Clause.</p> <p>The changing of a note after execution and delivery, hy inserting in the body thereof the words “to hear interest from date,” is a material alteration.</p> <p>Alteration of Instruments — Change to Conform to Agreement.</p> <p>After a note has- been executed and delivered, one party can not without the consent of the other change the note to conform to the contract between them.</p>

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

<p>Covenants — To Pay Rent Runs With Land.</p> <p>A covenant to pay rent runs with the land and is binding' on one who assumes possession ^of t)he leased premise©.</p> <p>Appeal — Judgment on Law and Facts.</p> <p>A judgment of the court on the law and the facts submitted to it is as binding as the verdict of a jury.</p> <p>Appeal — Reversal—Sufficiency of Evidence.</p> <p>A judgment of the trial court, which is not palpably against the weight of the evidence, will not he disturbed on appeal.</p>

<p>Process — Amended Petition.</p> <p>Where an amended petition is filed, claiming two installments oí rent, process must be issued on the amended petition, or judgment can not properly be rendered thereon.</p> <p>Municipal Corporations — Judgment for Unpaid Taxes — Proceeding.</p> <p>A city is not entitled to judgment for unpaid taxes upon a mere . statement of the amount claimed to he due, but it must come into court by petition the same as other suitors.</p> <p>Pleading — Amendment—New Cause of Action.</p> <p>A court will not permit parties', under the guise of amendment, to set up new causes of action and take judgment thereon by default without process, without giving defendants an opportunity .to be heard.</p>

<p>Slaves — Right of Action — Acceptance of Satisfaction.</p> <p>Where one party to a sale has a right of action against the other party, which had become perfect, the former is not required to accept in satisfaction of such right satisfaction offered by a third party.</p>

<p>Execution — Notice of Purchaser — Negligence.</p> <p>Where the purchaser of land, before execution ©ale, ¡had actual notice when he purchased that L. ¡had some claim upon the land, and the proof shows that L.’s deed to the land was of record, and that the land was in the actual possession of one claiming under L., it was gross negligence in the purchaser to buy without investigating the title.</p>

<p>Receivers — Diligence in Collecting Debt.</p> <p>Where a receiver is appointed and directed to- collect a certain debt, it is his duty to use ordinary diligence to collect it.</p> <p>Receivers — Negligence—Liability.</p> <p>Where a receiver, who is directed to collect the amount due on certain bonds, by his negligence released the surety thereon, he is responsible therefor.</p> <p>Receivers — Justification of Act — Burden of Proof.</p> <p>In a suit against a receiver by heirs for loss of a debt because of the negligence of the receiver to have an execution issued, the burden is on the receiver to show facts excusing or justifying his action.</p> <p>Receivers — Liability for Loss of Debt.</p> <p>The evidence was held to show that the receiver was liable for the loss of a debt because of his negligent failure to have an execution issued.</p> <p>Court Commissioners — Findings of Facts.</p> <p>"Where a receiver was appointed and directed to collect certain debts due the decedent’® estate, and he is sued because of his negligent loss of the debts for failure to have execution issued, the court commissioner in making his findings of the facts should show the acts of the administrator by giving the amount of each bill, and an inventory of the notes and accounts that came to his hands, showing which were solvent and which insolvent, the amount realized by the receiver, the amount of the debts paid by ¡him, and the balance due the heirs.</p> <p>Descent and Distribution — Liability for Overplus Received.</p> <p>In & suit by heirs against a receiver, in which the receiver makes the heirs parties to the cross-petition, the heirs are not liable to the receiver for an overplus received by them, unless they received it from the receiver.</p> <p>Husband and Wife — Liability of Wife for Money Borrowed by Husband.</p> <p>A wife is not liable for money borrowed by her husband, unless a case is made such as will authorize a court of equity to subject her estate to the payment of the 'husband’s debts.</p> <p>Pleading — Sufficiency of Petition When Standing Alone.</p> <p>A petition against a defendant should state facts authorizing a recovery if sustained by the proof, regardless of the statements in another petition against another defendant. .</p>

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

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

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

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

<p>Interest — Money Payable on Demand.</p> <p>Where money is payable on demand, interest runs only irom the date of the demand.</p>

<p>Set-o,ff and’Counterclaim — Subjects of.</p> <p>A defense which does not grow out of the transaction set forth in the petition, and. is not in any way connected with the subject of the action, can not be a counterclaim.</p> <p>Set-off and Counterclaim — Breach of Condition in Deed.</p> <p>The breach of a cqndition contained in a deed, which is wholly disconnected from the original sale of the land, can be used, if at all, only as a set-off.</p> <p>Set-off and Counterclaim — Liquidated Damages.</p> <p>v A claim for liquidated damages can not be the subject' of a set-off unless upon the ground that the party against whom it is asserted is a non-resident, or is insolvent.</p> <p>Evidence — Burden of Proof.</p> <p>Where defendant sets up a breach of condition in a deed as a set-off, the burden is on him to show with reasonable certainty the amount he should receive.</p>

<p>Appeal — Judgment of Court of Appeals — Mandate.</p> <p>A judgment rendered t>y the Court of Appeals affirming the judgment of the circuit court and awarding damages upon the amount of a judgment superseded, is in effect a mandate directing the court helow to award damages upon the amount of the judgment.</p> <p>Courts — ¡-Affirmance of Appeal — Effect.</p> <p>TViiere the Court of Appeals affirmed a judgment of the circuit court awarding damages, the lower court has no power to investigate the question whether the judgment is erroneous.</p>

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

<p>Pleading — Extortion—Sufficiency of Petition.</p> <p>A petition to recover back money obtained by extortion under color of legal proceedings, beld insufficient and subject to demurrer.</p>

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

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

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

<p>Appeal — Jurisdiction.</p> <p>The Court of Appeals has no jurisdiction of an appeal taken directly from the county court, in view of §§ 10, 16, 2 R. S. 407, providing for appeals to the circuit count.</p>

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

<p>Appeal — Reversal—Fraud or Mistake.</p> <p>Where by fraud or mistake the consideration expressed in a deed is much less than the purchaser is bound to pay, a judgment compelling (the purchaser to accept the deed will be reversed.</p> <p>Judicial Sales — What Property Passes.</p> <p>Where .an amended pleading asks' for the sale of land omitted from the boundary by mistake and the judgment directs the land to be sold, title to the whole tract passed to the purchaser.</p>

<p>Trusts — Purchase of Trust Property by Trustee.</p> <p>Where a trustee obtained title to the land of the cestuius que trusts who were infants, under circumstances indicating the sale to himself, and made a profit out of -the transaction, the title must be regarded as being held for the benefit of the cestuis que trusts.</p> <p>Trusts — Trustee Must Account for Profits.</p> <p>Where a trustee sold portions of the trust estate, the trustee’s esate must account to the cestius que trust for the profits made therefrom, and the trustee’s executors, devisees, and' heirs hold the legal title to the unsold portion of the trust estate for the same purpose and to the same use as the trustee.</p>

<p>APPEAR FROM OWEN CIRCUIT 'COURT.</p>

<p>Partnership — Authority of Partner After Dissolution of Partnership.</p> <p>After the .dissolution, of the partnership, one partner can not bind the other partners by execution, of a note for the partnership debts.</p>

<p>Attachment — Allegation of Non-residence.</p> <p>An allegation in a petition for rent that the defendants are nonresidents authorizes attachment for the amount due.</p> <p>Attachment — Allegation of Fraud.</p> <p>An action can not he maintained to collect rent not due, even if plaintiff is entitled to recover, without an allegation of fraud upon which -attachment can toe based.</p> <p>Landlord and Tenant — Tenant from. Year, to Year — Notice.</p> <p>A tenant from year to year can not abandon the premises on a. few days’ notice of his intention to do so, without the consent of the landlord.</p>

<p>Action — Consolidation.</p> <p>A party can not complain that his action for forcible entry and ■ detainer was consolidated with his suit to reform his patent to the land.</p>

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

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

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

<p>APPEAL PROM HARDIN -CIROUIT COURT.</p>

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

<p>District and Prosecuting Attorneys — Fees.</p> <p>To entitle the county attorney to the 15 per cent, allowed him by law, it must appear that -he prosecuted in the committing court, and assisted or offered to assist the commonwealth’s attorney in recovering judgment on the forfeited.bond or recognizance.</p>

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

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

<p>Deeds — Sufficiency.</p> <p>A deed purporting to be a sale of all the interest of the grantors in the estate of their grandfather was held to be binding on the grantors.</p>

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

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

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

<p>Wills — Election by Widow.</p> <p>A will held not to put a testator’s widow upon her election whether ishe will take under the will and waive her right to distribution under the will.</p>

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

<p>Attorney and Client — Duty of Attorney to Court.</p> <p>An attorney violates his duty as an officer of the court, in advising or instructing persons applying to him for counsel to attempt a dishonest version of ‘the law, or where the aid of a chancellor is revoked to enable appliant to perpetrate a gross and outrageous fraud.</p> <p>Attorney and Client, — Breach of Duty by Attorney — Fee.</p> <p>Where an attorney at law gives! his client advice by means of which the client’s creditors may be defrauded, the attorney is not discharging his duties as an officer of the court, but acts in direct violation thereof, and a promise by the client to pay .for such advice will not be implied nor an express promise to pay therefor, be enforced.</p>

<p>APPEAL, from: BARREN CIRCUIT COURT.</p>

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

<p>Adverse Possession — Priority of Right.</p> <p>As between persons who claim title by adverse possession, the. law favors those who have long held undisturbed possession rather than those who are asserting possession for a much shorter duration.</p>

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

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

<p>Wills — Life Estate With Contingent Remainder.</p> <p>A will held to grant to a tenant in possession of land a life estate with contingent remainder to others- dependent on their surviving the tenant.</p>

<p>Appeal — Reversal—Pleading.</p> <p>The failure to file an amended petition at the term of court succeeding the filing of the mandate of the Court of Appeals- was held not ground for reversal.</p> <p>Pleading — Amendment—Dismissal.</p> <p>When leave has been given plaintiff to amend his petition but he fails to do so, a motion should be made to dismiss the action, or a rule asked for requiring plaintiff to show cause why he had failed to prepare his cause for trial.</p> <p>Pleading — Amendment—Discretion of Court.</p> <p>It is discretionary with the -court to permit or refuse the filing of an amended petition.</p>

<p>Vendor and Purchaser — Rents and Interest — Set-off.</p> <p>Where the purchase-price of land has been paid, the court will set off rents and interest; but will not do so where the purchaser enjoys the land and holds on to the purchase-price.</p>

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

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

<p>Guardian and Ward — Manner of Making Settlement.</p> <p>Statement of manner of making settlement by a joint owner of accounts and guardian.</p> <p>Husband and Wife — Support of Step-child.</p> <p>A step-father can not charge the estate of his step-child with the cost of support of the step-child, where he voluntarily assumed the burden, unless the pecuniary condition of the step-father and of the step-child required it.</p>

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

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

<p>Attachment — Stay of Proceedings.</p> <p>'The attorney of an attachment plaintiff has power to direct a stay of the attachment proceedings.</p> <p>Attachment — Release of Levy.</p> <p>An order by the attorney of the attachment plaintiff does not operate to release the levy.</p> <p>Attachment — Surrender of Property.</p> <p>Whether there was a surrender to attachment defendant of the property attached, was held a question for the jury.</p>

<p>Husband and Wife — Agency of Wife — Action.</p> <p>In ■ an action against a husband, and' wife,' where the evidence shows that the wife merely acted as the agent of the husband, judgment can not be rendered against the wife, the husband alone being liable.</p>

<p>Equity — Useless Procedure.</p> <p>A court of equity will not compel the payment of money and a commission for collecting the sum, where the money would have to be -paid back as- soon as collected, since it would be compelling a useless thing.</p>

<p>Courts' — Jurisdiction—Ordinary Docket.</p> <p>An action founded upon- an insurance policy executed and delivered, and also upon a contract for insurance not evidenced by a policy, is cognizable in the common law court, and should be instituted and prosecuted on the ordinary docket.</p> <p>Courts — Transfer of Causes — Discretion of Court.</p> <p>Refusal of the court to transfer a cause from the equity docket to the ordinary docket where it should have been brought, is not reversible error, where the motion was not made until after answer, and after all the parties are ready for submission, no' abuse of discretion being shown.</p> <p>Insurance — Renewal Policy — Evidence.</p> <p>Where an officer of an insurance company swore that the policy in question was never renewed, a clip off the margin at the foot of the application is not sufficient to warrant the assumption that the margin was clipped to conceal the fact of the indorsement of a renewal of the policy.</p> <p>Insurance — Evidence—Statement by Agent,</p> <p>A statement by an insurance agent to a third party that plaintiff was insured and that there would be no trouble about his insurance, was held not evidence against the insurance company.</p>

<p>APPEAiL FROM WOODFORD CIRCUIT COURT. '</p>

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

<p>Insolvency — Acts Of.</p> <p>The act of a debtor In procuring a creditor to bring attachment proceedings against him was held to be an act of insolvency.</p>

<p>Limitation of Action — Absence of Plaintiff in Army.</p> <p>The absence of plaintiff in the Confederate army was held not to prevent the running of a statute of limitations'.</p>

<p>Assignment for Benefit of Creditors — Pleading—Fraud.</p> <p>Where a petition in equity alleges not only actual fraud but also that conveyance was made in contemplation of insolvency, and both, actual and constructive fraud is established, the constructive fraud brings the transaction within the act of 1868, and is an assignment for the benefit of the debtor’s creditors.</p> <p>Assignments for Benefit of Creditors — Pleading—Proof.</p> <p>Although actual fraud may be proven under the allegation in a petition that the conveyance wasi in contemplation of insolvency, the equitable rights of creditors attached when the conveyance was made, and the superior lien could not thereafter be acquired by, any creditor in a proceeding at law or equity.</p> <p>Assignments for Benefit of Creditors — Notice of Assignment.</p> <p>TJnder Stat. 1856, relating to equitable assignment for the benefit of creditors, before an assignment can affect the rights of creditors in the distribution of the insolvent’s estate, the sale' or transfer must be such as in law gives the creditor notice of its existence.</p> <p>Assignments for Benefit of Creditors — Creditor a Party to a Fraud.</p> <p>If a creditor is a party to the constructive fraud by purchasing or obtaining the transfer of the debtor’s property for the purpose of securing antecedent debts, and after the commission of an act bringing the cause within the Act of 1856, makes additional payments on the purchase or transfer, or the debtor becomes otherwise indebted to the purchaser, such cause should be rejected, as in such case notice is brought directly home to the creditor.</p> <p>Assignments, for Benefit of Creditors — Creditors Who May Participate in the Estate.</p> <p>All debts contracted by a debtor between the execution of a bond to convey his land and the date of the deed should, when properly proven, be allowed to participate in the estate of the insolvent debtor.</p>

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

<p>Adverse Possession — Sufficiency of Possession.</p> <p>To .acquire title by adverse possession, tbe possession must have been such as to authorize ejectment every day of the alleged possession.</p>

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

<p>Appeal — Reversal—Instruction.</p> <p>Where the evidence does not show a right of recovery against a principal on the theory that the purchaser was an agent of .the principal, it was held reversible error to give an instruction based on such theory.</p>

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

<p>Pleading — Based on Information and Belief.</p> <p>A petition based merely upon information and belief that certain property of plaintiff had been attached and sold as the property of another, is indirect and equivocal, and insufficient.</p>

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

<p>Appeal — Reversal—Instruction. .</p> <p>It is reversible error to instruct tbe jury that they have a right to award punitive damages in the event defendant was guilty of gross negligence, where there are no facts warranting an instruction as to punitive damages.</p>

<p>Appeal from Montgomery circuit court.</p>

<p>Infants — Suit to Confirm Sale of Land.</p> <p>In a suit in equity to confirm the sale of infant’s lands it can not avail the plaintiff that no objection was made by the infants to the order declaring the sale, nor to the one affirming it.</p> <p>Infants — Sale of Infants’ Lands.</p> <p>Where S. joined in an application to -have land of infants sold, it impliedly raise® an implication on his part to bid for the land the amount which he had promised to pay for it.</p> <p>Infants — Bid for Lands.</p> <p>WHiere one, by joining in an application for the sale of infants’ lands, promised to bid them in at their full value, but refused to do so, and only bid about two-thirds the actual value, he will be required to increase his bid1 to the amount which he originally agreed to pay with interest from the time the deferred payments would have fallen due, or lose his right under hi® bid.</p>

<p>Depositions — Deposition in Another Cause — Admissibility.</p> <p>It is error to allow the deposition of the witness, taken in another cause, to be read in evidence, although the deposition was. referred to by the witness and made a part of his deposition in the pending cause, where it related to a different transaction and was calculated to confuse and mislead the jury.</p> <p>Insane Persons — Presumption—Proof.</p> <p>Insanity can not be presumed of a person who has never been judicially declared insane, but must be established by affirmative proof.</p> <p>insane Persons — Right to Sue For.</p> <p>No one has a right to institute or prosecute a suit for an insane person, until such person has been judicially declared insane or of unsound mind, and a mere suggestion of insanity and an order of the court that a certain attorney prosecute the suit as next friend of plaintiff is not sufficient.</p>

<p>Trusts — Debts Created by Trustee — Liability.</p> <p>Where a deed of trust was executed for the benefit of a widow and her infant children, empowering the trustee to continue the business of selling drugs and applying the profits to replenishing the stock and supporting the widow and children, the trustee ’can not purchase goods, convert them into trust property and then escape liability of payment for them, hut the trust property is liable for the debts, and the debtors are not .confined to the profits allowed.</p> <p>Trusts — Subjecting Trust Property to Debts — Parties.</p> <p>In a suit to subject trust property converted for the benefit of a widow and her infant children, to the payment of creditors who furnished goods in replenishing the trust property, the infant children are necessary parties.</p> <p>Trusts — Liability of Infant Beneficiaries.</p> <p>Infant beneficiaries are not subject to judgment rendered in a suit to subject a trust fund to the payment of creditors, unless they were parties to the suit and failed to respond, and not then without proof as to the nature of the liability.</p> <p>Trusts — Suit t,o Subject Trust Property to Payment of Creditors.</p> <p>In a isuit to subject trust property to the payment of creditors all the creditors should be placed on an equal footing, except where liens have been actually created, and where one creditor contributed means to aid in paying on the goods, and if the extent of his interest in the goods on hand or sold by the receiver can not be ascer-tainéd all the creditors should he placed on an equal footing.</p>

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

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

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

<p>Trusts- — Property Conveyed to Wife.</p> <p>Property conveyed to a wife decided to be -beld by ber in trust for her husband, and subject to payment of his debts.</p>

<p>APPEAL PROM WAYN'E 'CIRCUIT COURT.</p>

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

<p>Subscriptions — Payment.</p> <p>Persons who subscribe for stock in a turnpike company can not refuse to pay their subscriptions until the road has been built through their lands, in the absence of a stipulation in a subscription contract to that effect.</p>

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

<p>Carriers — Insurer of Goods.</p> <p>A common, carrier is an insurer of tlie goods transported by it, while a warehouseman is liable only for want of ordinary care.</p> <p>Judgment — Persons Included.</p> <p>A judgment against three parties, where the record only shows that two of them have any interest in the controversy, is erroneous.</p> <p>Pleading — Amendment After Reversal and Remand.</p> <p>Plaintiffs were held entitled, upon reversal and remand of the case, to amend their petition to conform to the facts established by the evidence.</p>

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

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

<p>Estoppel — Right of Way.</p> <p>Where defendant must be regarded by his defense made as having consented that plaintiff should have a right of way over defendant’s land in consideration of a sum allowed' therefor by the jury, he is estopped to claim possession as against plaintiff, and it does not matter that he had not parted with the title by conveyance, or bound himself by writing to do so.</p> <p>Estoppel — Possession—Record of Suit.</p> <p>The record of a suit concerning land held sufficient to estop defendant from questioning plaintiff’s right to possession of the land.</p> <p>Frauds, Statute of — Memorandum—Record of Suit.</p> <p>The record of a suit concerning land held sufficient to take the transaction out of the statute of frauds.</p>

<p>Executors and Administrators — Sale of Land.</p> <p>An administrator with, the will annexed held- authorized under the circumstances' to sell the land in controversy.</p>

<p>Prisons — Guards.</p> <p>If a jailor can not procure tlie services of proper guards upon the terms prescribed by law, he should report such- fact to the county judge.</p> <p>Prisons — Guards—Payment.</p> <p>■It is not the duty of a jailor to pay persons employed as jail guards.</p> <p>Prisons — Guards—Payment.</p> <p>Where a jailor voluntarily paid jail guards for their services, he ■thereby becomes purchaser of their claims against the county, and receives the amount due them as their assignee, and not in his capacity as jailor.</p> <p>Attachment — Property Subject to.</p> <p>Money received by a jailor as assignee of the claims of jail guards is attachable and subject to payment of the debts of the owner even though he be the jailor.</p>

<p>Limitation of Actions — Personal Injuries — Suspension of Statute.</p> <p>'To- suspend the operation of the statute of limitations against an action for personal injuries, plaintiff should have alleged and proven facts showing either that the defendant had prevented him from -suing, or by agreement, contract, or understanding had induced him to refrain from -bringing suit.</p> <p>Limitation of Actions- — Personal Injuries — When Statute Begins to Run.</p> <p>The statute of limitations begins to run against -an action for personal injuries on the day of the injury, and the fact that plaintiff did not discover the extent of his injuries until -several months thereafter can not relieve him from the operation of the statute.</p>

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

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

<p>Contracts — Construction—Understanding of Parties.</p> <p>Ordinarily courts will not hear oral evidence as to what parties understood to he the meaning of a written contract, but will look alone to the language used to ascertain the meaning.</p> <p>Contracts — Construction—Meaning of Words.</p> <p>Where it is clearly and unmistakably shown that both parties to a contract attached to a word or expression used a meaning different from that ordinarily applied to it, and that to refuse to allow such understanding to control would be to enforce a contract which they did not intend to make, oral evidence is admissible to show what the understanding of the parties was as to the contract.</p>

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

<p>Executors and Administrators — Assignee of Claim.</p> <p>The estate of an assignee of a claim can not be held to lose the benefit of the assignment merely because the personal representative failed to become a party to the suit in which the assignor was prosecuted, and which he might well believe would secure the rights of the estate.</p>

<p>Parties — Partners.</p> <p>One who alleges that he is a partner of a defendant, and exhibits the articles of partnership, shows sufficient interest in the result of the litigation, as to entitle him to'he made a party to the action.</p>

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

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

<p>Trial — Direction of Verdict.</p> <p>A peremptory instruction to find for defendants in an action on subscriptions to a turnpike road, was held erroneous, where there was evidence to show that the road was not put under contract before a certain amount of the stock was subscribed for, and that the road was properly located.</p>

<p>Reformation of Instruments — Vagueness ancf. Uncertainty of Instrument.!</p> <p>The evidence was held too vague and uncertain, both as to the existence of mistake of fact and the character of the obligation intended to he imposed by a resolution passed by stockholders of a turnpike company, to authorize the chancellor to reform the contract, either for the purpose of giving it a certain legal effect or of adjudging relief against it.</p>

<p>Municipal Corporations — Assessment for Street Improvement — Recovery of Money Paid.</p> <p>Where defendant in a street assessment proceeding, on the sustaining of a demurrer to his answer, paid the claim on consideration of dismissal of the action at plaintiff’s cost, defendant can not be allowed to recover back the money paid by him after the Supreme Court ha® decided tihat the acts under which the assessment was made were repugnant to the state Constitution and void.</p> <p>Municipal Corporations — Street Assessments — Payment—Mistake.</p> <p>The payment of a street assessment to avoid further litigation, can not be regarded as having been made under “a clear and palpable mistake of law,” and although the assessment was illegal the money can not be said to have been paid without cause or consideration.</p>

<p>Appeal — Dismissal.</p> <p>Where there is no bill of evidence certified to the Court of Appeals in an appeal from the county court of a road case, the appeal will be dismissed, since the case stands on the same basis as appeals from judgments of the circuit court to the Court of Appeals from a proceeding admitting or rejecting probate of wills.</p>

<p>APPEAR FROM KENTON ’CIRCUIT COURT.</p>

<p>APPEAL FROM HARRIS-ON CIRCUIT COURT.</p>

<p>Trusts — Fraudulent Claim — Property Not Subject to Trustee’s Debts.</p> <p>The evidence was- held not to -show that the claim to property was fraudulent, but that the land was- held in trust for claimant -and was not subject to the trustee’s debts.</p>

<p>Ejectment — Possession of Defendant — Recovery.</p> <p>Where plaintiff in ejectment fails to show that defendant wais in possession of any part of the land when the suit was brought, plaintiff is not entitled to any relief against defendant.</p>

<p>Arbitration apd Award — Views of Attorney for One Party — Award.</p> <p>The fact that the views of the attorney for one of the parties to an arbitration may have affected the action of the arbitrators, is not ground for disturbing the award, when the other party could have also had an attorney.</p> <p>Arbitration and Award — Common Law Arbitration.</p> <p>A common law arbitration is as binding on the parties as if it had been made in pursuance of the statute.</p> <p>Arbitration and Award — Equitable Relief.</p> <p>A party who has 'submitted the question of a boundary line to arbitration and lost, cannot resort to a -court of equity for -relief.</p> <p>Boundaries — Boundary Line — Parol Agreement.</p> <p>A parol agreement fixing a dividing line is binding on the parties.</p>

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

<p>Wills — Residuary Legatee — Inability to Take Devise.</p> <p>A will construed and held to pass to a legatee one-half the residuary personal estate, and that the real estate devised to such legatee passed toi the testator’s heirs because of the legatee’s inability to take it.</p>

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

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

<p>Deeds — Joint Tenancy of Widow and Children.</p> <p>W'bere a conveyance was made to a widow as tbe wife of tbe deceased husband, it was held that sbe took as an ordinary grantee, and not as a widow, and can claim under the deed only a© joint tenant with her children.</p>

<p>Guardian and Ward — Suit by Foreign Guardian — Parties.</p> <p>In a suit by a foreign guardian against tiie domestic guardian the ward need not- be made a party thereto.</p> <p>Guardian and Ward — Presumption of Infancy.</p> <p>In a suit by a foreign guardian against a resident guardian, it will be presumed that the ward is still an infant, especially where the defendant failed to controvert the fact.</p> <p>Guardian and Ward — Suit by Foreign Guardian — Prima Facie Evidence.</p> <p>In a suit by a foreign guardian against a resident guardian, a copy of the probate proceedings showing the subsequent appointment of plaintiff as guardian on removal of the'ward to the other state, is prima facie evidence of plaintiff’s- right to relief, and it -devolves on the defendant to show the contrary.</p>

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

<p>Equity — Coming into Equity with Clean Hands.</p> <p>A court of equity will not grant relief to one wiio does not come into equity witlh. clean hands.</p>

<p>Replevin — Bond—Instruction.</p> <p>An instruction in an action for replevin “that if the jury believe from the evidence that an indemnifying bond was taken by the defendant, sheriff, prior to the institution of the action and before the sale of the honsie levied on, and that the surety on the bond was good, they will find for the defendants,” limits the inquiry to the mere question of whether there was a bond executed, and withdraws' from the consideration of the jury the question whether the title to .the horse was in plaintiff, and whether he was subject to a distress warrant.</p>

<p>Forcible Entry and Detainer — Possession Without Claim of Right.</p> <p>The mere fact of possession of land without the claim of right will ■not make the entry of the tenant a forcible entry.</p> <p>Forcible Entry and Detainer — Right to Retake Possession.</p> <p>An owner of land may -take possession of premises where he has been dispossessed by a mere trespasser who sets up no claim to the land. '</p>

<p>Schools and School Districts — Mulatto Children.</p> <p>Mere rumor that children are mulattos is not sufficient to establish such fact, especially where their grandmother, who is alleged to be the child of a negro man, attended the public schools, and the children appear to be white children.</p> <p>Schools and School Districts — Mulatto Children — Evidence.</p> <p>Mere rumor that a negro was the father of a woman who had attended the public schools as a white child, is not admissible to show that .she was a mulatto.</p>

<p>Municipal Corporations — Ordinance—Adoption.</p> <p>The adoption, of -an ordinance for -a street improvement on the first reading, under -suspension of the rule, by a two-thirds vote of the council, is a substantial compliance with § 11, art. 3, charter -of 1851. ■</p> <p>Appeal — Presumption as to Adoption of -Ordinance Under Suspension of Rule.</p> <p>The Court of Appeals must presume that an emergency existed for the suspension -of a rule and adoption of an improvement ordinance on the first reading, and that the proposition to suspend the rule received the -requisite number of votes, in the absence of a contrary showing.</p> <p>Municipal Corporations — Suspension of rule — Approval of Mayor.</p> <p>■ Section -5 of art. 4, charter of 1851, did not require a vote to suspend the operation of § 11 of isiuch charter to be approved by the mayor.</p> <p>Municipal Corporations — Presumption as to Letting of Improvement Contract.</p> <p>Where a contract embraces work to be done on several squares at the same rate per front foot, it will be presumed that the work was let in accordance with the provisions of the ordinance.</p>

<p>Brokers — Commission.</p> <p>A realestate broker is entitled to a commission, where it appears that the owner did not in good faith withdraw the .property from the market, but in a few days after the pretended withdrawal, sold the land to persons whom the agent had in effect procured.</p>

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

<p>Sales — Payment In Commodity — Priority of Claimants.</p> <p>One who sold another -hogs to he paid for in com at a certain price per barrel has no claim on com grown in a particular field by the purchaser, as against an execution creditor, of the purchaser, where the com -has not been identified and set apart for the debt before the execution was levied thereon.</p>

<p>Bills and Notes — Construction.</p> <p>Where the court construes a note most favorably to the maker the latter ought not to complain.</p>

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

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

<p>Husband and Wife — Husband's Death — Liability of Wife’s Property.</p> <p>The court will not interfere after the death, of both, husband and wife to apply the proceeds' of property belonging to the wife to the payment of the husband’s debts.</p> <p>Husband and Wife, — Notes—Burden of Proof.</p> <p>■ The burden is on one who seeks to apply notes executed to the wife to the payment of the huistband’s 'debts, to- show that the notes were executed for property or money belonging to the estate of the husband.</p>

<p>APPEAL, FROM McORAOKEN CIRCUIT 'COURT.</p>

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

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

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

<p>Vendor and Purchaser — Purchase Money.</p> <p>Where E. purchases land for his brother P., and the deed to P. shows that the whole amount of the purchase money is unpaid, and a lien is retained, it is immaterial whether the money is due from B. or P., unless the vendee of P. was misled thereby.</p> <p>Vendor and Purchaser — Purchase Money Lien — Abandonment.</p> <p>Where E. purchased land for his brother P., and gave his note therefor, and afterwards the land was conveyed to P., and the requirements for retaining a lien for the purchase were complied with, the lien can not be said to have been abandoned.</p>

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

<p>Judges — Appointment—Presumption.</p> <p>In the absence of a showing to the contrary, the Court of Appeals will presume that the provisions of the law as to the appointment of judges pro tempore were substantially complied with.</p> <p>New Trial — Discretion of Court.</p> <p>In penal prosecutions motions for new trials are addressed to the sound discretion of the trial court,</p>

<p>Replevin — Judgment for Return of Property.</p> <p>Wiiere defendant in replevin objects to the setting aside of a judgment for return of the property and the submission of the question of the value of the property and the 'damages, to- its detention, he was not prejudiced by the judgment for return of the property.</p>

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

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

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

<p>Ejectment — Title of Plaintiff.</p> <p>To entitle plaintiff in ejectment to recover be must connect himself with t)be commonwealth by an unbroken chain of paper title, or show title by adverse possession.</p> <p>Ejectment — Title—Evidence.</p> <p>Tbe evidence was 'held not to show title in plaintiff.</p>

<p>Vendor and Purchaser — Failure of Consideration — Recovery of Purchase Price.</p> <p>Where there has .been a total failure of consideration as to the purchaser of land who has paid the purchase price, he is entitled to recover the purchase price with interest and all legal costs incurred by him, in resisting eviction or .right of recovery by adverse claimants.</p> <p>Vendor and Purchaser — Breach of Covenant — Damages.</p> <p>A purchaser suing for breach of covenant is not entitled to recover speculative damages, but can recover only the purchase price paid ■by him together with interest, and money paid by him in resisting eviction or right of recovery by adverse claimants.</p> <p>Pleading — Lost Answers.</p> <p>If answers have been lost, defendants should be allowed to file another substitute answer.</p>

<p>Arbitration and Award — Judgment on Award.</p> <p>Under § 6, subsec. 3, cb. 3, R. S., relating to awards by arbitrators, judgment can not be rendered on an award, unless tbe provisions1 of tbe statute have been complied with.</p> <p>Judgment — By Confession.</p> <p>Where the parties to an action consented to. submission of the controversy to arbitrators without an answer by defendant, the failure to answer did not entitle plaintiffs to a judgment by confession.</p> <p>Arbitration and Award — Failure to Answer — Overruling Exceptions to Award.</p> <p>Where the parties to a suit submitted the controversy to arbitrators without answer by defendant, an answer could avail defendant nothing, where his exceptions to the award are overruled, unless'he attempted to impeach the award on some equitable ground.</p>

<p>Improvements' — Removal of Building.</p> <p>One who has erected a building on the land of another by mistake must within a reasonable time remove the building, or abandon the improvements to the owner of the land.</p>

<p>Attachment — Priority of Equities.</p> <p>Where a ‘debtor assign® a chose in action prior to attachment ■by a creditor, the equity of the assignee is superior to that of the attaching creditor, but where the attaching creditor obtain® a judgment he obtains a legal right to the attached property which is superior to the prior equity of the assignee.</p>

<p>Highways — Report of Viewers — What Should Show.</p> <p>Viewers, in making their report, should show the convenience and inconvenience which, will result to individuals as well as to the public in the opening, discontinuance or altering of a public road.</p> <p>Highways — Report of Viewers — What Should Show.</p> <p>Where viewers, in their report, show that the closing of the road would be of some disadvantage to a named person, they should show in their report whether or not the discontinuance of the road would cut him off from a public highway, or increase the distance he would have to travel to reach a highway, or state the facts upon which they based their opinion that he would be subjected to inconvenience by the closing of the road.</p>

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

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

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

<p>Rewards — Offer Made on Sunday — Renewal.</p> <p>Where defendant after offering a reward on Sunday for the recovery of defendant’s- mule, met plaintiff on the next day -in another place, where plaintiff had gone in search of the mule, and defendant knew that plaintiff was searching for the mule but did not inform him that the offer of reward was withdrawn, it amounted to a renewal of the offer of reward.</p>

<p>Pleading — Prima Facie Case — Recovery.</p> <p>Where plaintiff makes out a prima facie ease, recovery on the merits of the action can only be prevented by answer or other pleading necessary to an issue of fact, and this is the rule even where plaintiff is -compelled .by a court of equity to come into an action for a settlement of a trust estate, as where the suit is in ordinary.</p> <p>Evidence — Burden of Proof.</p> <p>Where, if exceptions to' a master’s report be treated as an answer, ■they do not deny the -purchase or appropriation of the property in question, but set up matter in avoidance, the burden is on defendant to establish some one of his grounds of defense.</p> <p>Evidence — Presumption.</p> <p>' The fact that plaintiff did not take the deposition of his.manager with regard to the acts of plaintiff raises no presumption unfavorable to plaintiff.</p> <p>War — Claim for Property Taken.</p> <p>Where from the proof it is doubtful whether R. had permission from the proper authority to purchase cotton in Louisiana, and also whether the cotton when it came into his hands was in a section of the country “occupied and controlled by officers of the United States,” such doubts ought to be resolved in favor of the party seeking pay for his goods, rather than one seeking to. take advantage of his wrongful conduct.</p> <p>War — Transaction Against Public Policy.</p> <p>The defense that a transaction contravenes public policy is not allowed for the defendant’s advantage, but for the public good, and should only be upheld where the evidence satisfactorily shows that the party seeking relief has violated -some public law.</p>

<p>Evidence — Documentary Evidence.</p> <p>It was held error to permit plaintiff to read to the jury a petition and account filed therewith in another case against defendant, and to reject the -rest of the pleading.</p>

<p>Contracts — Necessity of Parties.</p> <p>An instrument which does not name an obligor, as well as an obligee, is invalid and unenforceable.</p> <p>Sheriffs and Constables — Bond—Obligee.</p> <p>An instrument purporting to be a bond for a deputy sheriff, which does not name one as obligee is invalid.</p>

<p>War — Property Taken — Promise Without Consideration.</p> <p>Where a soldier at the command of -defendant took plaintiff’s mare when -defendant was- not present, the promise of defendant to isend the mare back or pay for her, being made without consideration, is unenforceable.</p> <p>War — Taking Property — Liability.</p> <p>The mere fact that the mare in question was taken by a soldier at defendant’s command, when defendant was not present, does not make him responsible for the trespass, and defendant’s failure to compel the soldier to surrender the mare when the colonel of his •regiment was present and in command can not be regarded as a ratification of the tort.</p>

<p>Guardian and Ward — Presumption of Fraud' — Wedding Apparel.</p> <p>Where the evidence does not show that a father, at the time he purchased wedding apparel for his daughter, was insolvent, fraud will not be presumed by reason of such gift to his daughter.</p>

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

<p>Insolvency — Debtor’s Property in Possession of Creditor — Right to.</p> <p>Although, as a general rule, a creditor who has property of an insolvent debtor in his possession will not be compelled to pay for it until his debt is satisfied, yet the creditor may, by his conduct, preclude himself from the benefit of such rule.</p>

<p>Deeds — Cancel lation.</p> <p>"Where a contractor for tbe sale of land reserves to tbe vendors the coal, oil, and mining privileges, but the deed executed does not contain such reservation, the deed should be canceled and a new deed executed containing the proper reservation.</p>

<p>Frauds, Statute of — Undertaking to Answer for Debt of Another.</p> <p>A transaction was held to be within the Statute of Frauds as an undertaking to answer for the debt of another, and unenforceable because not in writing.</p>

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

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

<p>Vendor and Purchaser — Rescission of Contract of Sale Restoring Possession.</p> <p>¡Where one enters land under a contract of purchase, he is -hound to restore possession to the vendor upon rescission of the contract of sale, before he will be allowed to dispute the title -of the vendor.</p> <p>Assignments — Warranty of Title.</p> <p>'The assignment of a title bond does not carry with it a warranty of title.</p> <p>Vendor and Purchaser — Fraud of Purchaser.</p> <p>Where one in the purchase of land practices a fraud on his ignorant and illiterate vendor he will not he permitted to take advantage of -the fraud.</p>

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

<p>Ferries — Duties of Ferryman — Remedy of Persons Injured.</p> <p>In the absence of an order of the county court permitting plaintiff as relator to sue the defendant ferryman, plaintiff must disclose some interest in himself, showing that his rights have been affected In some way because of the failure of defendant to conduct and keep. ihis ferry as required by law, plaintiff’s remedy for mere injury to •himself being by acting on the ferryman’s 'bond, and not the revocation of the license.</p> <p>Ferries — Violation of Duties — General Charge.</p> <p>Where, in a proceeding against a ferryman for failure to comply with the law, the charge is a general one that defendant has failed to comply with the law, it is too general and indefinite to support ■the proceeding.</p>

<p>Executors and Administrators — Bond.</p> <p>It is not necessary that the record of the county court with reference to the qualification of an administrator and the execution of his bond, should contain the words “approved toy the court” in order to make it a valid statutory bond.</p> <p>Executors and Administrators — Bond—Approval of.</p> <p>The fact that a party appeared in court and on his motion was appointed administrator de bonis non, and executed bond with certain persons as sureties thereon, amounts to- a sufficient approval of -the court -of the bond, and makes it binding on the parties.</p> <p>Executors and Administrators — Action on Bond — Pleading.</p> <p>In an action on an administrator’® bond, the mere allegation in substance that the administrator executed the bond for the performance -of his duties according to law, is -a conclusion of law and insufficient, since it should appear from the petition what the stipulations of the bond are, so that the court may know whether liability exists. '</p>

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

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

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

<p>Court Commissioners — Special Commissioner — Compensation.</p> <p>After a special commissioner has been appointed without objection by either of the parties or the regular commissioner,, after his labors ■have been performed, acted upon and accepted, it is too late to object to his remuneration.</p>

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

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

<p>appeal, prom McCracken circuit ¡court.</p>

<p>Fraud — Burden of Proof.</p> <p>The burden, of proof to establish fraud rests upon the party charging it.</p> <p>Fraud — Pleading—Fraudulent Intent.</p> <p>The allegation that the mortgage in question was made in good faith to secure a pre-existing liability is not objectionable as> an ■affirmative denial of fraudulent intent.</p>

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

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

<p>Insolvency — Preference of Creditor.</p> <p>A sale of property by an insolvent son to 'his' father in -discharge of a debt owing the father was held to- be in fraud of other creditors of the son.</p>

<p>Appeal — Reversal—Premature Hearing.</p> <p>The fact that a case was heard and determined before it stood for trial is not alone ground for reversal, it not appearing that plaintiff’s substantial rights were prejudiced by the obtaining of t)he relief sought sooner than he had the right to demand.</p>

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

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

<p>Abatement and Revival — Plea in Abatement.</p> <p>Where defendant avers 'that he was sued in equity on the notes upon which the present action is founded, but fails to allege that the suit was pending when his answer was filed, it is not sufficient to bar the action.</p> <p>Payment — Promise Without Consideration.</p> <p>Where a debtor made part payment on the debt on the promise of the creditor not to sue for the residue at the approaching term of court, the promise not to sue was without consideration.</p> <p>Appeal — Bill of Exceptions.</p> <p>Where the court refused to allow an amended answer to be filed, and defendant desires to have the legality of the ruling tested on appeal, he should bring the question to the Court of Appeals by bill of exceptions.</p> <p>Pleading — Answer in Bar — Sufficiency.</p> <p>An amended answer purporting to set up a defense in bar of the action, should he rejected, where it contains only matter in abatement.</p>

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

<p>. Courts — Jurisdiction—Transfer of Case.</p> <p>Where the trial of exceptions to reports of settlements of the accounts of executors was transferred from the county court to the circuit court by direction of the parties, the circuit court had only the jurisdiction of the county court over the subject-matter.</p> <p>-Executors and Administrators — Personal Judgment.</p> <p>Where the Court of Appeals reversed a judgment and remanded the case for correction of settlements of executors, so as to hold 'the executors liable for the price of a slave, it was held that such- decision did not authorize a personal judgment against the executors;</p>

<p>Replevin — Value of Property — Forceable Taking,.</p> <p>Where plaintiff’s property was taken from him by torce, the jury had the right to find more than its actual value.</p>

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

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

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

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

<p>Fixtures — Question of fact.</p> <p>Whether structures and machinery attached to land mortgaged or sold, are real or chattel fixtures, is a question of fact.</p>

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

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

<p>■pleading — Amendment—Proof of original consideration.</p> <p>Although the • filing of an amended petition amounts to an abandonment of the original cause of action, it does not preclude the ■plaintiff from showing the Original consideration, since it must constitute a ground of the new promise or acknowledgment of it.</p>

<p>Appeal — Amount in controversy — Jurisdiction.</p> <p>The Court of Appeals bas no jurisdiction on appeal where the only question presented is the power of the trial court to subject under attachment a debt of $17.</p>

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

<p>Homestead — Land Subject to.</p> <p>The homestead exemption law applies to land upon which the debtor lives and owns at the time of rendition of judgment, if he is a bona fide householder with a family.</p> <p>Homestead — Sale by Husband and Wife.</p> <p>A husband and wife may sell and convey the homestead, since it being exempt the husband’s creditors can not be injured by such action.</p>

<p>Executors andl Administrators — Claim of Administrator.</p> <p>At common law an administrator has the right to retain in his hands the amount due him hy the deceased, where there are no other creditors, and no statute deprives him of such right.</p>

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

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

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

<p>Partition — Setting Off Several Interests Together.</p> <p>Although, an order of the court in a suit to partition land among heirs, directed the land to b© divided into six equal parts, yet where five of the adult heirs desired their interests .to he set off together, it was not error for th.e court and the commissioner to comply with their requests.</p> <p>Partition — Agreement of Parties.</p> <p>An agreement in partition of land will be upheld where the parties were competent to contract, and there is an absence of fraud and overreaching.</p>

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

<p>Contracts — Conflict of Laws.</p> <p>Whether a contract was executed in Kentucky or Ohio can not matter where the laws of each state touching the question in dispute are substantially the same.</p> <p>Guaranty — Action—Foundation of.</p> <p>In an action on a guaranty contract, it is essential that the guaranty be made the foundation of the action, and recovery must be based on such contract.</p> <p>Guaranty — Conclusions of Pleader.</p> <p>In an action on a guaranty, the conclusions of the pleader as to the purpose for which the bills were indorsed, and the legal obligation incurred by the indorsers, are of no avail.</p> <p>Guaranty — Writing Contract of Guaranty Over Guarantor’s, Signature.</p> <p>Where plaintiff sued defendant as a guarantor of a bill, on the back of which defendant’s name was indorsed .without a contract of guaranty being written above it, and plaintiff sets out the hill a® a part of the complaint, he can not complain of the refusal of the court, after the case is ready for trial, to permit him to write out a contract of-guaranty over the defendant’s signature.</p>

<p>Descent and Distribution — Heirs Privies to Contract of Decedent.</p> <p>Heirs occupy the relation of privies to the contract of their father, and can not hold on to the estate received from him and repudiate his warranty by claiming through their mother.</p>

<p>Constitutional Law — Taking Property Without Compensation.</p> <p>Where money was collected by a sheriff under a void subscription of stock of a turnpike company by a county, court, the Legislature can not, by legalizing the subscription, authorize the payment of the money thus collected and held by the sheriff to the discharge of such subscription, since such action would be violative of the Bill of Bights ' providing, “that no man’s property shall be taken or applied to a public use without the consent of his, heirs and without just compensation.”</p>

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

<p>Taxation — Payment to Sinking Fund Commissioners — Order of Court.</p> <p>Until the order of the court, as provided by § 8 of the act of 1868, ordering the sheriff to pay over to the sinking fund commissioners the amount directed to be added -to the principal of the sinking fund, such commissioners have no riight to proceed against the sheriff to compel him to pay over any portion of the tax, or to receive and receipt for it in their corporate or official capacity.</p> <p>Taxation — Money Set Apart for Sinking Fund. '</p> <p>Until the (tax iis collected and a portion of it dedicated -and set apart to the sinking fund hy order of the county court, the sheriff holds it as custodian of that court and is liable to suit by such court for any breach of his official duty.</p> <p>Taxation — Sinking Fund — Supervision of Taxes Collected For.</p> <p>Under § 8, Acts 1868, relating to collection of taxes and sinking fund, the county court should have supervision of the collection and management of the taxes collected until a portion of it is set apart and dedicated to the sinking fund by appropriate orders, and that the sinking fund commissioners have the right to demand and receive it.</p> <p>Counties — Ord'er of County Court — Collection by Jury Commissioners.</p> <p>An order of the county court which goes no further than to order the jury commissioners to collect the money loaned out, and to apply the .same and other money in their hands and raised for that purpose to the payment of court house bonds, so far as it applies to money raised, or to be raised, and not within the commissioners’ hands, means that they were to so- use it when received.</p>

<p>Execution — Proceeding by Claimant of Property.</p> <p>A proceeding by a claimant of property in the bands of a constable to prevent the sale of the property should be by notice and motion on the bond as provided by § 716, Civ. Code.</p> <p>Justices' of the Peace — Judgment.</p> <p>Under § 719, Giv. Code, providing that the bond of the claimant should be returned to the justices of the peace if the execution issued from such a court, the justices can only give judgment for the amount of each execution and 10 per cent interest thereon, and it is the amount of the execution that gives them jurisdiction and not the value of the property.</p>

<p>Appeal — Reversal—Judicial Sale — Holder of Purchase-Money Note.</p> <p>Where a holder of a purchase-money note was made a party defendant to a suit, hut was not served with .process, and the judgment of sale of the land made no provision for protecting her rights, the irregularity and omission amounted to reversible error.</p>

<p>Attorney ancj Client — Negligence of Attorney — Liability to Client.</p> <p>Attorneys who took a note for collection, brought suit on the note and obtained judgment thereon, had execution issued, and the amount of the judgment collected by the deputy sheriff, were held liable to judgment plaintiffs, where the attorneys failed and neglected to collect the money from the sheriff or his deputy, and it was lost to the judgment creditors.</p>

<p>Executors and Administrators — Dismissal of Action.</p> <p>Under § 437 of the Civ. Code, an action to revive a judgment against a personal representative of a deceased judgment debtor is an action contemplated by such section, and where the necessary affidavit and demand has not been made before suit was instituted, the petition may be dismissed.</p> <p>Executors and Administrators — Insufficiency of Assets.</p> <p>If the assets of a decedent’s estate are insufficient to pay decedent’s debts, the administrator must resort to his equitable action authorized by Civ. Code,, R. S., ch. 40, § 10.</p>

<p>Appeal — Unsigned Brief.</p> <p>A brief not signed by a party or bis regular licensed attorney, can not avail anything.</p>

<p>Appeal — Findings of Court.</p> <p>The finding of the court in an ordinary action submitted to the court without a jury is entitled to the same consideration as the verdict of a jury.</p>

<p>Dower — Alienation of.</p> <p>A married woman may alienate her potential right of dower, but can only do so by record.</p>

<p>Wills — Construction—Estate Granted.</p> <p>Where a will devised to the testator’s wife and son all of his property, “to have and to hold to themselves, subject to such provisions and limitations as are therein annexed,” a further provision that the-devise to the wife should, on her death, pass to the son, and that after the death of the wife the son should pay certain of the testator’s grandchildren legacies amounting to $5,000, the whole estate passed to the son charged with the support of the wife and the payment of the legacies to the grandchildren.</p>

<p>Husband and Wife — Liability for Goods Purchased.</p> <p>The fact that goods purchased by the Wife were, without her knowledge and consent, charged to her instead of her husband, will not make her a debtor instead of the husband.</p>

<p>Attachment — Reply, When Not Necessary.</p> <p>Where one comes into suit in attachment for the sole ¡purpose of asserting his claim to the property, a reply to his answer is not necessary.</p> <p>Courts — Transfer of Cause.</p> <p>Where the circuit court has the right to entertain jurisdiction of the subject-matter of the litigation, the parties may by agreement before judgment transfer the cause from the quarterly to the circuit court.</p>

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

<p>Appeal — Bill of Exceptions, when not Part of Record.</p> <p>A bill of exceptions which was not filed within the time allowed by the court, or within the authorized extension of time, is not a part of the record on appeal.</p>

<p>Municipal Corporations — Street Improvements — Stipulation of Contractor.</p> <p>A stipulation in a contract for street improvements, that the contractor .should keep the street in repair, was held not to have the effect of imposing on the property holders a double tax, but amounts to a mere requirement that the contractor guarantee the character of his work.</p> <p>Signatures — Of Wife by Husband.</p> <p>The signature of a wife attached to a petition for street improvement, by her husband with her consent, is a sufficient Signing on her part.</p>

<p>APPEAL from; JEFFERSON CIRCUIT COURT.</p>

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

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

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

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

<p>Set-off and Counterclaim — Defense.</p> <p>A defense founded upon an alleged payment is. not in the nature of a set-off or counterclaim, and after judgment, previous payment cannot be made the foundation of an original action.</p>

<p>Executors and Administrators — Action on Bond — Pleading.</p> <p>Where neither the terms nor the substance of an administrator’s bond are set out in the petition, the filing of a copy of the bond with the petition does not dispense with the necessity of setting out the undertaking as entered in the pleading itself.</p>

<p>Judgment — Set-Off Against Judgment.</p> <p>Where the judgment plaintiffs are admittedly insolvent, the chancellor has authority to set off against their judgment so much of their indebtedness to defendant as was not litigated in the action resulting in the judgment.</p>

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

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

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

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

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

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

<p>APPEAL, FROM -McCRACKEN CIRCUIT 'COURT.</p>

<p>Vendor and Purchaser — Purchase-money Notes — Foreclosure of Lien.</p> <p>Where one is the holder and owner of three purchase-money notes secured by a lien retained in the deed, the court should, on decreing a sale of the land, direct the sale of so much of it as. may he necessary to satisfy the judgment then rendered, leaving the deferred installment to have its lien on the remaining land.</p>

<p>Bills and Notes — Amount of Recovery.</p> <p>In an action on a note, the amount of recovery, after deducting certain set-offs and credits, stated.</p>

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

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

<p>Appeal — Trial de Novo.</p> <p>An appeal to the circuit court from an election contest board must be tried de novo, and it is not required that the appeal be taken to the circuit court by bill of evidence and bill of exceptions, as no such method of appeal from suck a board is prescribed by law.</p>

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

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

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

<p>APPEAL, prom: WARREN CIRCUIT COURT.</p>

<p>Guardian and Ward — Confirmation of Sale.</p> <p>The court cannot at the instance of a guardian have a void sale by the guardian confirmed, -in a suit to which the wards were not parties, upon the ground that it would he to the interest of the wards, where the purchaser at the judicial sale is resisting confirmation.</p>

<p>Insolvency — Right- of Creditor to Follow Debtor’s Money.</p> <p>Where a debtor invests money for the -benefit of his. wife and children, which ought -to' -have been applied in the discharge of his debt, the creditor hasi the .right to follow the money, notwithstanding several sales and re-inve-stments.</p>

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

<p>Landlord and Tenant — Oral Agreement as to Rent.</p> <p>Where a written lease does not fix the rent, it is competent for the lessor and the lessee to orally agree upon and fix the rent.</p> <p>Landlord and Tenant — Rental—Valuation of Property.</p> <p>Where the lessee is sued for rent, he may show satisfaction of the claim hy proving that he paid the rent as agreed upon, hy arriving at the value of the property in a different manner from that adopted in the written lease.</p>

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

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

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

<p>Taxation — Tax Collector — Liability on Bond.</p> <p>In an action on a sheriff’s bond as tax collector, the surety can not be held liable for defalcation of the sheriff, where a copy, of the bond is filed, but it is not set out in terms or substance in the petition, it -being alleged only that it was the duty of the sheriff as tax collector to account for and pay over the taxes collected, without alleging whether that duty is imposed by law or by covenant undertaken by the sheriff and his sureties.</p> <p>Taxation — Suit on Tax Collector's Bond — Defect in Pleading.</p> <p>A defect in a petition on the bond of a sheriff as tax collector, in failing to set out the conditions of the covenant and the breach on which the action is based, was not cured by an answer filed by defendants alleging that at the time the tax book went into the hands of the tax -collector there was no law -allowing damages for failure on the part of the tax collector to account for the taxes.</p>

<p>Municipal Corporations — Improvement Contract — Manner of Execution.</p> <p>The law will not imply an obligation on the part of tbe city to pay for work procured to be done by tbe city’s officers, unless tbe contract has been executed and approved as provided by tbe charter and tbe general ordinance regulating tbe manner in which such contracts shall be made.</p> <p>Municipal Corporations — Approval of Engineer’s Report — Liability of City.</p> <p>The approval of the report of the city engineer and the issual of a warrant for the value of work done, does not commit the city to payment therefor, unless the work was undertaken as provided by the city charter and the general ordinance regulating the manner in which such contracts shall be made.</p>

<p>Attachment — Money Due School Teacher from State.</p> <p>Money due a teacher in the common schools from a state can not he attached in the hands of the school commissioners.</p>

<p>Judgment — Validity of Process.</p> <p>In an action in Kentucky on judgments rendered in the state oí Pennsylvania, where there is no evidence showing the manner of -service of process required by the law of Pennsylvania, the court must adjudge that the judgments sued on are void, the service not being sufficient under the law of Kentucky.</p> <p>Process — Return of Summons — Judgment.</p> <p>The return of a sheriff indorsed on the summons implies that he has done his duty, and is sufficient to authorize a judgment.</p> <p>Judgment — Validity—Execution of Summons — Return.</p> <p>In an action in Kentucky on judgments rendered in Pennsylvania, the court will not hold a judgment invalid because of the sheriff’s failure to state how he executed the summons.</p>

<p>Account Stated — Answer—Defense.</p> <p>An answer that there is a mistake in a settlement, to plaintiff’s prejudice of $150, without an allegation showing whether the mistake was by omission to include items, or in some other way, constitutes no defense.</p>

<p>Fraudulent Conveyances — Recitals of Deed.</p> <p>Where there is no charge of fraud, the conveyance, as between strangers, will be sustained; but if fraud is charged the recitals in the deed can not alone be relied upon to sustain its validity as against third persons.</p> <p>Pleading — General Traverse — Admission.</p> <p>Where a cross-petition alleges that defendant failed to take possession of the property or list it for taxation, a general traverse of such allegations, without any affirmative statements, is equivalent to admission of the truth of the statements made in the petition.</p>

<p>Insolvency — Satisfaction of Pre-existing Liabilities.</p> <p>“Where the claim -of plaintiff for $2,000 of the $5,000 alleged to be owing him originated after the act of insolvency was committed and the writing evidencing dt recorded, all pre-existing liabilities must ■first be satisfied.</p>

<p>APPEAL PR'OM LIVINGSTON CIRCUIT 'COURT.</p>

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

<p>Judicial Sales — Confirmation—Relief of Purchaser.</p> <p>Where a purchaser of land at a judicial sale made no objection to the order of confirmance until nearly a year thereafter, and in response to a rule fails to suggest the specific defects which render his. title imperfect, he occupies the position of one seeking to rescind an executed contract; and he should disclose the facts en-entitling him to relief.</p>

<p>Judicial Sales — When Purchaser Takes Subject to Lien.</p> <p>Where land which was held in trust for a widow and her children was sold without making provision for the children, her lien on the land still subsiste, and the purchaser takes subject thereto.</p>

<p>Executors and Administrators — Sale of Land — Bond by Administrator.</p> <p>An administrator was held to be tb© proper custodian of money due bis intestate’s estate, and where by agreement 'between tb© widow, a life tenant, and tb© remainderman, the land was sold, it was the duty of the administrator to tender tb© widow a bond with good security, and to receive and bold the portion of the money due the estate.</p>

<p>Appeal — Absence of Bill of Exceptions — Presumption.</p> <p>In the absence of a bill of exceptions, tbe Court of Appeals must presume that tbe ruling of tbe court below in refusing to quash the-deposition was correct.</p> <p>Tquity — Taking Testimony — Failure to Give Notice.</p> <p>Where a party bad opportunity to cross-examine the witnesses before a master in chancery, and to introduce any witness whom he desired to examine, he can not be held to have been prejudiced ‘by failure- to give him notice -of the taking of the testimony in the first instance.</p>

<p>Deeds — Covenants—Defect of Title.</p> <p>The acceptance of a deed requires the grantee to look to its covenant in case of a defect of title.</p>

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

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

<p>Pleading — Answer—Demurrer.</p> <p>The answer was held sufficient on demurrer, where it presented a good ground for abating the action, the same claim having been set up in another suit which was still pending, and plaintiff’s remedy ’ seems to be complete in the pending suit.'</p>

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

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

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

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

<p>.Attachment — Bond.</p> <p>Under § 268 of the Code, the court has power to permit the execution of a bond, upon the terms therein prescribed, upon the execution of which the property attached .should be released.</p> <p>Attachment — Bondi—Enforcement by Rule.</p> <p>The provisions of the Code must be complied with before the Court of Appeals will permit attachment plaintiff to resort to the harsh and summary method of enforcing the bond by rule.</p> <p>Attachment — Bond—Liability of Surety.</p> <p>By executing the statutory attachment 'bond, a surety places himself in a condition that when called on for the money he is not allowed the right to replevy, but must respond with either the money or the property.</p> <p>Attachment — Bond—By Whom Taken.</p> <p>A sheriff is required to take the attachment bond for the reason that he must know the solvency of the sureties and that they have executed the undertaking.</p> <p>Attachment — Bond—Estoppel of Sureties.</p> <p>The sureties on an attachment bond may be estopped from denying their liability on the bond, but they are not estopped from denying that the plaintiff has adopted the proper remedy of charging them with liability.</p> <p>Attachment — Bond—Manner of Execution.</p> <p>An attachment bond, to be a valid statutory bond, must have been executed in the manner provided by statute, and where the statute requires the bond to be executed in the presence of the sheriff, it can not be taken by the clerk or other officer and thereby make it a statutory obligation.</p> <p>Attachment — Bond—Enforcement by Rule.</p> <p>In enforcing an attachment bond by rule, it is not necessary that the surety in response to the rule should urge that it was not a statutory bond where such fact is made to appear from the record.</p>

<p>Municipal Corporations — Council—Journals of — How Kept.</p> <p>Where a legislative body, such as the common council, is required to keep a journal of its proceedings, the correctness of the journal can be passed upon only hy the council or legislative body of whose proceedings the journal is kept, and not hy the clerk or president thereof.</p> <p>Municipal Corporations — Ordinance—Evidence of Passage of.</p> <p>A journal record of the proceedings of the common council of a city can not he received as sufficient evidence of ¡the passage and acceptance of an ordinance where the correctness of the journal has not been passed upon hy the council, hut only hy the clerk or president.</p>

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

<p>Municipal Corporations — Certifying to Contents of Journals of Common Council.</p> <p>The clerk of the hoard of aldermen not being shown to he the keeper of the journals of the hoard of common council, has no authority to certify as to what' appears in those journals.</p> <p>Municipal Corporations — Improvements—Encroaching on Private Property.</p> <p>Where a contractor, in making a street improvement, encroaches on the private property of an abutting owner, the contractor can not recover against the owner of such, property for the costs of the improvement.</p>

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

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

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

<p>Guardian and Ward — Negligence of Guardian.</p> <p>Where a guardian loaned money in April 1859 on a note due the following December, but suit on the note was not instituted until March, 1864, and then against the sureties only, the principal having become insolvent in 1862, and a return of no property found was made as to the surety, and all the parties lived in the same town, and all the facts were known to the guardian, he was held negligent in failing to institute proceedings for collection of the ward’s money, and was liable, for its loss.</p>

<p>Notice — Illegality of Consideration — Bill of Exchange.</p> <p>Where the directors of one company were also directors in another company from which the bill of exchange was purchased, their knowledge as officers of the company from which the bill was purchased is sufficient to give actual notice of the illegal consideration of part of the bill to the company for whom they acted in making the purchase.</p> <p>Usury — Bill of Exchange — Purchased by Savings Association.</p> <p>The purchase of a bill of exchange by a savings institution was held to be merely, for the purpose of disguising loans, of money at a greater rate of interest than is allowed by R. S'., oh. 53, .§ 8.</p> <p>Assignments — Void Contract.</p> <p>One can not take a vested right as an assignee'of a void contract.</p>

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

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

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

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

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

<p>Insurance — Payment of premium — Waiver.</p> <p>The evidence was held not to show that a note given by the applicant for life insurance premium was accepted by the agent of the insurance company in satisfaction of payment of the first premium, such payment being a condition precedent to the delivery of the policy; and held also that there was not sufficient evidence of a waiver of the cash payment of the first premium.</p>

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

<p>Appeal — 'Review—Right to.</p> <p>Tie right to review on appeal is not dependent >on a bill of exceptions or a motion, for a new trial, where the law and facts were submitted to the chancellor for decision.</p> <p>Appeal — Review—Finding of Chancellor.</p> <p>Where the parties voluntarily submitted their case to the chancellor, his judgment will be taken as a verdict and will not be refused on account of the evidence in the case for any reason that would not authorize the Court of Appeals to set aside the finding of the jury.</p> <p>Insurance — Failure to Produce Books.</p> <p>The insured’s right of recovery is not affected by its failure to produce its books, where it is shown that the books were destroyed.</p> <p>Insurance — Proof of Loss — Waiver.</p> <p>Where proof of loss was not made out in exact accordance with the policy, but the insurer did not call upon the insured to correct it, and the insurer retained-the proof of loss for three months without objection the insured had' the right to conclude that mere formal objection would" not be insisted upon.</p>

<p>Equity — Duties of Commissioner.</p> <p>Tlie duties of the commissioner -and -receiver of the Louisville Chancery Court are somewhat different from that of similar officers throughout the state, by reason of the rules and regulations of that court adopted in accordance with the provisions ,of the Code of Practice.</p> <p>Deposits in Court — Payment Into Court.</p> <p>Where without an order from the Louisville Chancery -Court, the commissioner and receiver of that court received money due on notes executed at a decretal sale and deposited the same in the depository of the court, the money was in effect paid into the court, since where the money was placed in the court’s depository to the credit of the court the court alone had jurisdiction over it.</p> <p>Deposits in Court — Deposits to Credit of Court.</p> <p>Where the commissioner and receiver of the Louisville Chancery Court received money due under decretal sale without order of the court and placed the money in the depository of the court to the court’s credit, it became the money -of the -court.</p> <p>Equity — Liability of Sureties on Commissioner’s Bond.</p> <p>Where by the negligence of the commissioner and receiver of the Louisville Chancery Court, the court without knowledge of a deposit and of the cas-ei to which the money belonged, improperly paid it out •to other creditors of the court fund, the sureties on the commissioner’s bond are liable for the loss.</p>

<p>Mines and Minerals — Restoration of Leased Property — Condition of Property.</p> <p>The lessees in. a mining lease were held to have restored the mine to the lessor in a more valuable condition than they were obliged to do under the terms of the lease.</p> <p>Appeal — Reversal—Substantially Correct Judgement.</p> <p>The Court of Appeals will not reverse a judgment which is substantially correct, for the purpose of giving the appellant nominal damages and taxing the appellee'with the cost of the litigation.</p>

<p>Mortgages — Foreclosure—Parties—Sale.</p> <p>Wliere in a foreclosure suit the mortgagor and the person in possession of the mortgaged land are made parties defendant, hut the mortgagor was not served with process and failed to appear, the land of the person in possession can not be sold to pay -the mortgagor’s debt.</p> <p>Witnesses — Mortgagor—Foreclosure Proceeding.</p> <p>In a foreclosure proceeding the mortgagor is a competent witness to show that the mortgagee consented that the land might be sold and the proceeds applied tO' the benefit of the mortgagee.</p>

<p>-Limitation of Actions — Prescriptive Right to Passway.</p> <p>The evidence was held to show a prescriptive right to a passway over lands to a public highway, by the use of the passway for more than 30 years by persons on the adjoining farms.</p>

<p>APPEAL PROM JEFFERSON CIRCUIT COURT,</p>

<p>Master and servant — Assumption of risk — Instruction.</p> <p>An instruction on assumed'-risk by a servant, that ordinary risks of service means isucb risks as were known to the servant at the time he entered upon the service, although erroneous, was. held not to mislead the jury, in view of other instructions given.</p> <p>Master and servant — Safety of place and Appliances.</p> <p>A servant has the right to expect that the master will exercise all prudent means to avoid danger- to him in the course of his employment.</p> <p>Master and servant — Care of master — Question for Jury.</p> <p>Whether an 'employer exercised reasonable care to avoid injury to his servant, is a question for the jury.. .</p>

<p>APPEAL, FROM! SCOTT 'CIRCUIT COURT.</p>

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

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

<p>Boundaries — Designation of Lines — Proof.</p> <p>Boundary lines of land may be designated by physical or natural objects set up for that purpose, 'by the owners, or fixed and established by the surveyor in the presence of witnesses, or both means, and in such cases the exact location of a given line must be proven by witnesses.</p> <p>Boundaries — Locating Patent — Ambiguity—Question for Court.</p> <p>The manner of locating a patent, when there is ambiguity in the calls, is a question of law to be determined by the court, and can not be submitted to a jury.</p>

<p>Trusts — Death or Resignation of Trustee.</p> <p>If a trustee resigns or dies, a court of equity has the .power to appoint another as trustee in his place, since the trust will not he allowed to lapse for want of a trustee.</p> <p>Trusts — Authority of Trustee.</p> <p>A trustee appointed by a will can' only do what the will authorizes him to do, but a trustee appointed by the court derives his power from the court and must execute the trust only as- authorized by the court.</p> <p>Trusts — Unlawful sal© by Trustee.</p> <p>Where a trustee unlawfully sells a note belonging to the trust fund, and the contract can be rescinded without loss, the sale will be set aside.</p>

<p>APPEAL, PROM MoCRACKEN CIRCUIT COURT.</p>

<p>Injunction — To stay Collection of Judgment — Prior levy.</p> <p>Where at the time an injunction was issued to stay proceedings on a judgment, the execution was in the hands of the sheriff and he levied on personal property, the injunction does not operate to discharge the levy, hut -the levy remained in force at the time -of dissolution of the injunction.</p> <p>Injunction — Proceeding on Injunction Bond.</p> <p>Under § 308 Civ. Code Prac., as amended by Act of Feb. 15, 1866, the right of a party to proceed upon an injunction bond given under such amended section depends upon whether he has been damaged by the injunction.</p> <p>Injunction — Action on Bond — Damages.</p> <p>The liability on an injunction bond in a proceeding to stay the collection of a judgment, extends only to the damages sustained up to the time of the dissolution of the injunction, but this liability does not extend to the full amount of the judgment enjoined,, unless the defendant was thereby prevented from collecting his judgment, and resulted in total loss.</p>

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

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

<p>Contracts — Failure to Cancel Revenue Stamp.</p> <p>The mere failure to cancel a stamp (placed on a written contract does not invalidate it.</p> <p>Contracts — Impairment by Act of Congress.</p> <p>Congress has no power to control contracts, or to impair the obligations thereof,' which were made in the state according to its laws and which derived their obligations from and are amenable only to such laws.</p>

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

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

<p>Recognizances — Enforcement of Obligation.</p> <p>Sections 20, 27, 52 and 80, Civ. Code Prac., were enacted for the purpose of enabling the court to enforce obligations on recognizance bonds, although they may not be executed in strict conformity with the statute.</p>

<p>Intoxicating Liquors — Tavern License — Discretion of Court.</p> <p>The county court has a large discretion in the granting iof a license for'the keeping of a tavern, and such discretion will not be inter-v fered with by the Court of Appeals, in the absence of a is'howin'g of abuse of discretion.</p>

<p>Trade-marks and Trade-names — Unfair Competition.</p> <p>Where D. used the trade-mark “Kentucky Bells” on bells manufactured by him, the use of tbe words “Kentucky Stock Bells” on bells manufactured by M. constitutes unfair competition, and M. may ■be enjoined.</p> <p>Trade-marks and Trade-names — Pleading.</p> <p>Where plaintiff sued to- enjoin defendant from committing apprehended injury by unfair competition, it is not necessary to allege and prove actual injury as a prerequisite to recovery.</p>

<p>Intoxicating, Liquors — License—Place of Business.</p> <p>Under a license to keep a tavern, the licensee does not have the right to keep a barroom at ¡his storehouse detached and forty feet • distance from the tavern where a separate business is conducted.</p>

<p>Recognizances — Bond—Time for ^Appearance.'</p> <p>Where a recognizance bond does not show that accused was charged with a public offense and that he was discharged from custody by reason- -of the giving of the bond, and does not stipulate that accused should appear before the court for trial of the charge, such omissions are fatal to the bond.</p>

<p>Guardian and Ward — Undue Influence — Presumption.</p> <p>As to transactions between a guardian and ward, the presumption of undue influence will be indulged in favor of the ward, where the ■result was beneficial to the guardian, or intended to be so.</p> <p>Guardian and Ward — Transaction Between Guardian and Ward — Burden of Proof.</p> <p>Where, in malting settlements with his ward, the grantor gave the ward notes on third persons, the burden of proof is on the guardian to show the utmost fairness on his part, and that the ward fully-understood hi® legal rights and was fully advised as to the solvency ■of the payors of the notes.</p> <p>Guardian and Ward — Loaning and Collecting Ward’s Money — Diligence.</p> <p>A guardian, in loaning out money of the ward and in collecting money due the estate should exercise a high degree of diligenc for the protection of the ward’s estate. , ,</p> <p>Guardian and Ward — Settlement with Ward — Duty of Guardian.</p> <p>Where a guardian, in making settlement with his ward assigned 'him certain notes, it was the duty of the guardian to advise the ward as ito the solvency of the payors ’ of the notes, and to advise the ward that unless he sued on the notes at the first term of court the guardian’s liability as surety for the payors would be lost.</p> <p>Guardian and Ward — Settlement with Ward.</p> <p>A guardian in making settlement with his ward, by assigning notes of third persons, can not hold the ward to "the strict rules of law regulating contracts of assignment.</p> <p>Guardian and Ward — Settlement with Ward.</p> <p>'The fact that an attorney represented the ward in a' settlement with his guardian does not authorize the guardian to treat the ward “as a person at arm’s length.”</p>

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

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

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

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

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

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

<p>Larceny — Continuous or Separate Offenses.</p> <p>Where deiendant was charged with carrying away one lot of wheat, the fact that the carrying away occurred on three different days does not require the commonwealth to treat the acts committed on each day as a separate and distinct defense, since the acts may he treated as a continuous offense.</p>

<p>Judicial Sales — Confirmation of Sale.</p> <p>Although a purchaser at the sale of the commissioner of a court of equity is only a preferred bidder until the sale is consummated by the chancellor, yet the chancellor can not arbitrarily refuse to confirm the .sale, but must act under his authority as regulated by the fixed rules of equity.</p> <p>Equity — Purchaser at Commissioner's Sale.</p> <p>The purchaser of property at the sale of a commissioner of a chancery court is the equitable owner' of the property, and an order of confirmation is a determination by the chancellor that purchaser’s right had existed from the date’ of the sale.</p> <p>Taxation — Purchaser at Commissioner’s Sale.</p> <p>A purchaser of land at the sale of a commissioner of a chancery court is required to list the same for taxation, although: the isale may not have been confirmed by the chancellor.</p> <p>Taxation — Land Sold at Commissioner’s Sale.</p> <p>Where the purchaser of land at the sale of a commissioner of a chancery court, failed to list the land for taxation, prior to confirmation of the sale, and the land was taxed to the person who owned it prior to the sale, the purchaser of the land can not treat the payment of the tax by the prior owner as a mere gratuity, it having been paid by the prior owner for the .benefit of the purchaser to escape a distress warrant.</p>

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

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

<p>APPEAL FROM S'OOTT CIRCUIT COURT.</p>

<p>Wills — Provision for Support of slaves.</p> <p>Where a testator provided in his will for a comfortable support of two of his isiaves the provision- for the benefit of the slaves -should be.upheld, it being the duty of the court to set apart a sum sufficient for their comfortable support.</p> <p>Wills — Slaves as Devisees.</p> <p>Where, prior to the adoption of the 13th amendment to the Federal Constitution, a testator made provisions in his will for the support of , two of his slaves, and the testator died after the adoption of the 13th amendment, the devisees had the legal capacity to sue in their own names, since the will spoke from the time of the testator’s death.</p>

<p>Husband' and Wife — Individual Liability of Wife on Note.</p> <p>A note executed, by a feme covert for the purchase-money of land bought by her can .not be enforced.</p> <p>Principal and Surety — Liability of Surety on Note.</p> <p>Where the consideration for a purchase-money note for land executed by a feme covert fails, the sureties on the note can not be held liable.</p> <p>Contracts — Executory Contract of Married Woman.</p> <p>A mere executory contract executed by a married woman for th'e purchase of land can not be enforced against her -or her -sureties on •the purchase-money notes.</p>

<p>Trusts — Discretion of Trustee — Sale and! Re-Investment.</p> <p>Where a trust deed, authorizes a trustee to dispose of the land and invest the proceeds in other land in a manner to promote the interest of the cestuis que trustent, the trustee was invested with, such discretion as to the welfare of the cestuis que trustent as authorizes a •re-investment of the proceeds of the sale in other land in trust for the beneficiaries.</p> <p>.Execution — Title to Property.</p> <p>Where at the time a creditor subjected land to the payment of his debt, the legal title was not in the debtor, the sale passed no title to the purchaser, since a sale under execution was not the proper . means of subjecting the land.</p>

<p>Frauds, Statute of — Sufficiency of Memorandum.</p> <p>Where a memorandum relied on gives no description of the iprop-erty alleged to have been leased, and the parties were not in possession of the property when the memorandum was made, and did not afterwards take possession of .it and the property could only be located by extrinsic evidence, it is not sufficient to take the transaction out of the 'statute of frauds.</p> <p>Vendor and Purchaser — Recovery for Improvements by Vendor.</p> <p>Where no enforceable contract of sale has been made, a vendor can not recover for improvements placed upon the land by him at the instance of the vendees-.</p>

<p>APPEAL, PROM JESSAMINE1 CIRCUIT 'COURT.</p>

<p>APPEAL FROM JESSAMINE1 CIRCUIT COURT.</p>

<p>New Trial — Time of Action for.</p> <p>Under § 373, Civ. Code, -an action for a new -trial must be. brought within three years afiter the rendition -of -the judgment .sought to be ¡set aside.</p> <p>New Trial — Pleading—Diligence.</p> <p>"Where plaintiff, in a petition for a new ¡trial ¡because of newly discovered evidence, fails to allege that he made any effort to -discover the evidence in question, but it appeared that he accidentally found the evidence when not looking for it, but could have found it before the trial if he had looked for it, the petition i» demurrable.</p>

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

<p>Courts — Jurisdiction—Appeal.</p> <p>Appeals from the judgment of a county court refusing to grant a ¡tavern license should he .prosecuted to the 'Court of Appeals.</p>

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

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

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

<p>Sheriffs and Constables — Pleading—Action on Bond.</p> <p>Where defendant, by a demurrer to plaintiff’s petition, admits that •defendant was elected sheriff of the county and executed bond with the other defendants as sureties, and had collected the county revenue to the ©urn of $-, and failed to pay it over, failure to allege that the bond was approved or accepted, or that the levy was made by the county court is not a ground of demurrer.</p> <p>Sheriffs and Constables — Pleading—Demand1.</p> <p>In an action on a sheriff’s bond as collector of taxes, failure to allege that a demand was made on ¡the sheriff or his sureties for the fund due. on settlement, by one authorized to receive it, renders the petition fatally defective.</p> <p>Sheriffs and Constables — Payment of Money — Order of Court.</p> <p>A sheriff has no right to pay money over to any of the officers of the court, unless ordered by the court to do so.</p> <p>Sheriffs and Constables — Demand—Action on Bond.</p> <p>In an action on a sheriff’s bond, in his capacity as revenue collector, it must appear from the petition that the money due was demanded by some one authorized to receive it.</p>

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

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

<p>Appeal — Objections and Exceptions — Waiver.</p> <p>In the absence of objection to evidence, or in the absence of exceptions to instructions, any errors contained therein will be deemed to have -been waived.</p> <p>Appeal — Reversal—Misdemeanor.</p> <p>The Court of Appeals can only reverse a judgment in a misdemeanor case for errors of law appearing in -the record and prejudicial to defendant.</p>

<p>Statutes — Construction.</p> <p>The courts will not so construe apparently repugnant provisions of an act of the Legislature as to make it defeat the object which it was attempted to accomplish', unless its provisions are so utterly inconsistent that it is impossible to harmonize them.</p>

<p>Appeal — Reversal.</p> <p>A judgment in an action against an administrator was reversed and tiie cause remanded witli directions to allow certain claims against the estate, and to iset off the same against the demands of the administrator against the claimant.</p>

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