Volume 7 — Kentucky Opinions

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

<p>Parties — Transfer of Interest.</p> <p>Where, pending a suit, the plaintiff transferred his right to the matter in controversy, the transferee should be brought in as a party before final judgment.</p>

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

<p>Sheriffs and Constables — Failure to Take Proper Replevin Bond.</p> <p>The evidence was held insufficient to show liability on a sheriff’s bond for failure to take a proper replevin bond.</p> <p>Sheriffs and Constables — Presumption As to Sheriff’s Return.</p> <p>The presumption is that the return of a sheriff is true, and in the absence of proof to the contrary such presumption will prevail.</p>

<p>Venue — Failure to Obtain Special Judge.</p> <p>It was held that the circuit court should not change the venue of a cause until there had been a failure to' obtain sn special judge by any of the modes provided by law.</p>

<p>Attachment — -Priority of Lien.</p> <p>Attachments which were levied before a mortgage on the property was executed take precedence over the. mortgage, and a sale of the property under the mortgage will not remove the lien or place the mortgagee in any better condition.</p> <p>Attachment — Control of Property by Court.</p> <p>By a levy of attachment, the court acquires an equitable control over the property so far as is necessary -to accomplish the objects of the attachment.</p>

<p>Property — Personalty—Building Erected by Tenant.</p> <p>A building erected on land by a tenant 'with, the privilege of removing it must he regarded as personalty, and should be sold as personalty.</p> <p>Executors and Administrators — Sale of Real Estate — Parties.</p> <p>Real estate- of a decedent should not be sold without making the heirs -parties to the proceeding.</p> <p>Executors and Administrators — Settlement Suit — Parties.</p> <p>From the fact tha.t an administrator filed a petition for settlement of -the estate- it cannot he inferred that the heirs were made parties-to the action.</p>

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

<p>Fraudulent Conveyances — Subjecting Property to Payment of Debts.</p> <p>Where land is purchased and paid for hy one, hut title is taken in the name of the purchaser’s son in order to place it beyond the reach of the purchaser’s creditors,, it may be subjected to creditors’ debts.</p>

<p>Vendor and Purchaser — Sale in Gross.</p> <p>Wihere the bond for title shows that the transaction was a sale and purchase in gross, and the deficit is less -than five per cent, a court of equity will not interfere- on the ground of fraud or mistake as to the quantity of land.</p>

<p>Fraudulent Conveyances — Pleading.</p> <p>An allegation that it was the intention of the grantor to exclude other creditors is substantially a charge that the design of the grantor was to prefer the grantee to the exclusion of other creditors.</p> <p>Fraudulent Conveyances — Preference of Creditors.</p> <p>The evidence was held to show that a conveyance was made to prefer one creditor to the exclusion of other creditors, and that it was made in contemplation of insolvency.</p>

<p>Partnership — Presumption As to Ownership.</p> <p>Where a deed to one vests him with legal title, he is presumptively the owner of the land, and although paid for out of partnership funds, a trust did not result in favor of the other partner.</p> <p>Partnership — Evidence—Statements and Admissions.</p> <p>Where a partner purchased land with partnership funds and took title in his own name, and openly asserted claim thereto, and the other partner openly acquiesced therein, the recollection of witnesses as to statements or admissions made by him concerning the land having been purchased and held for -the partnership cannot be allowed to prevail.</p>

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

<p>Wills — Provision for Maintenance of Wife.</p> <p>The provision in a devise to the testator’s son that “the- lands hereby devised to my son, Craig L. Wall, is bound for- the support and maintenance of his mother during her life,” is not the devise of an estate to the wife, but only a provision for her maintenance out of the homestead.</p> <p>Wills — Renunciation by Widow.</p> <p>Where the only provision in a will for the testator’s wife is made in a devise to the son of the testator, to-wit: “the lands hereby devised to my son, Craig >L. Wall, is bound for the support and maintenance of his mother during her life,” there is no such provision for the widow as-requires a renunciation -by her.</p> <p>Dower — Will—Provision in Lieu of D'ower.</p> <p>A clause in a will providing for the support of the widow out of the estate of the testator cannot be regarded as having been made - in lieu of dower.</p> <p>Dower — Provision for Support.</p> <p>A will held not to deprive the- wife of her right to dower in the land of her deceased husband, notwithstanding provision was made in tlie will for lier support and -she was given a small part of tlie personal property of tlie estate.</p>

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

<p>Appeal — Reversal.</p> <p>The Court of Appeals will not disturb a judgment based on tbe finding of a jury where it does not appear that the finding is palpably wrong.</p> <p>Appeal — Reception of Evidence.</p> <p>Where plaintiff was allowed the greatest possible latitude in giving his testimony, he cannot object to defendant assuming the same privilege.</p> <p>Evidence — Intention.</p> <p>It was held that defendant in testifying, had the right to state facts attending the encounter, but not to state what his secret intention was, the intention being a matter of deduction from the circumstances provided.</p> <p>Assault and Battery — Pointing Pistol.</p> <p>Where one, in attempting to shoot the- husband, manifested an utter disregard of the safety of the wife, and pointed the pistol at her in shooting distance, it amounted to an assault.</p>

<p>Eminent Domain — Damages—Assessment by Jury.</p> <p>If land is taken for a public use, the damage must be ascertained by the jury, unless the right to assessment by a jury is waived by the owners agreeing to accept whatever the court máy deem just.</p> <p>Highways — Report of Viewers.</p> <p>A report of viewers should state, all the inconveniences accruing to the owners who are affected, and. to others, so that the court may determine whether the inconvenience should be suffered for the public good, and what damages may be properly assessed.</p> <p>Action — Consolidation.</p> <p>Two cases relating to a new road to and from the same point, or so adjacent to each other as- to require the opening of one road only, may be consolidated and heard together.</p>

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

<p>Vendor and Purchaser — Incumbrance—Waiver.</p> <p>Where a purchaser of land accepted a deed for the land, it was held that he did not waive his right to insist that the incumbrance on the title should be removed before he should be required to pay the purchase money, although the purchase money notes have been assigned, after the vendor -has become insolvent.</p> <p>Vendor and Purchaser — Defense—Insolvency.</p> <p>In an «action on purchase money notes, it was held that the purchaser was not deprived of his defense because he did not specifically allege that the vendor was insolvent on the date the notes fell due.</p>

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

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

<p>Notice — Manner of Executing Partnership Papers.</p> <p>Tlie fact that defendant took a newspaper in which a private agreement between the parties as to the manner of the execution of partnership papers was published, was held not sufficient notice of the partnership arrangement.</p>

<p>Infants — Plea of — Estoppel.</p> <p>A plea of infancy will not be heard by a chancellor, where the infant claimant stood by and permitted the purchase of his land by another and the payment of the purchase money without asserting cl-aim to the land, and failed to repudiate the sale for a period of ten years after h-is- arrival at age, and there is doubt as to the-validity of his claim.</p>

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

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

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

<p>Homicide — Instruction—Malice.</p> <p>An instruction as to malice- in a prosecution for homicide was held not prejudicial where defendant was convicted of manslaughter in which the element of malice was not involved.</p> <p>Homicide — Defense of Another.</p> <p>Where accused, who knew nothing of the circumstances under which his father became- involved in a difficulty with persons attempting to execute the law, acted without inquiry upon appearances', he cannot be said to have had reasonable cause to believe that his father could then have lawfully slain his antagonist and consequently could not have been in a position to- do so himself in lawful defense of his father.</p>

<p>Usury — Recovery of.</p> <p>Where a third party takes an assignment of a note in payment of a debt, without knowledge that it is tainted with usury, the amount of the demand evidenced by the note cannot be affected by any right of recovery of usury which the maker may have had against the original payee, hut the maker may recover from the assignee any usury received hy him.</p>

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

<p>Mortgages — Effect of Record — Notice.</p> <p>Where a mortgage is placed on record, it becomes evidence to all the world that the mortgagee has a claim, of some kind against the mortgagor, and if a person deals with the mortgagor without making inquiry thereof, he cannot insist that the mortgagee should suffer instead of himself.</p>

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

<p>Pleading — Construction of.</p> <p>In case of doubt as to tte meaning of the language used in the pleading, it must be construed most strictly against the pleader.</p>

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

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

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

<p>Judgment — Filing in Vacation.</p> <p>. The Court of Appeals is not disposed, to disregard a judgment filed in vacation, which finds its way into the order book afterwards and is made the judgment by being spread upon 'the record in connection with the one made at the regular term, since it thereby became a part of the record.</p> <p>Appeal — Protracted Litigation.</p> <p>Where the litigation has. been protracted) the Court of Appeals will consider only such errors as ' affect the substantial rights of the parties.</p> <p>Appeal — Partition—When Judgment Will Not Be Disturbed.</p> <p>The Court of Appeals will not disturb a judgment of partition, although one party may have received some advantage in the allotment, where the testimony as to- the value of the property is conflicting and the advantage is slight.</p> <p>Improvements — Rents.</p> <p>Where one entered upon land and improved it, he cannot be compelled to account for rents without granting him an allowance for the improvements made by him.</p> <p>Costs — Partition.</p> <p>In a suit for partition, it was held that the costs should be paid by each party in proportion to the amount of land recovered By each.</p> <p>Equity — -Practice—Waiver of Rules.</p> <p>It is unnecessary in a suit in equity, where the parties waived the rules of practice in the taking of depositions, to state -in the bill of evidence that it contains all the parol evidence.</p> <p>Landlord and Tenant — Pleading—Value of Rents.</p> <p>An allegation as to the value of rents cannot be taken as. confessed.</p>

<p>Vendor and Purchaser — Vendor’s Lien — Foreclosure.</p> <p>Where the petition in an action to foreclose a vendor’s lien did not show the sum for which the land was sold nor state that the notes sued on were purchase-money notes, it will not authorize a judgment for the sale of the land.</p>

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

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

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

<p>Railroads — Turntables.</p> <p>A railroad company was .held not negligent in locating its turntable on its property away from the traveled passway, nor in failing to enclose or lock it.</p> <p>Railroads — Turntable—Proximate Cause of Injury.</p> <p>The proximate cause of injury of a boy at a turntable was held not to be the failure of the railroad company to enclose or lock the turntable', but to be the trespass of himself and companions of the injured boy, for which trespass the railroad company is not liable.</p>

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

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

<p>Trial — Submission to Court.</p> <p>The transfer of a cause not involving any equitable issues, to the equity docket, in effect submits the law and the facts to the court.</p>

<p>Forcible Entry and Detainer — Principal and Agent.</p> <p>Where a transaction merely amounted to an agreement whereby S. was to act as G.’s agent, entry on the land by G. was not unlawful, and will not sustain an action for forcible entry and detainer.</p>

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

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

<p>Husband and Wife — Real Estate — Mortgage by Wife.</p> <p>Under Act Feb. 13, 1866, entitled “An act to amend § 17, art. 4, ch. 47, R. S.,” a wife to whose sole and separate use land has been transferred may mortgage the land by joining with her husband, and thereby render the land liable for his debts.</p>

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

<p>Depositions — Of Deceased Witness — Use on Subsequent Trial.</p> <p>The deposition of a deceased witness, which was used on the former trial may be used in the subsequent trial involving the same issues.</p> <p>Evidence — Burd'en of Proof.</p> <p>The burden is on the plaintiff to establish his claim-, and upon the defendant to establish his cross-demand or set-off against the plaintiff.</p>

<p>APPEAL ERO-M KENTON CIRCUIT COURT.</p>

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

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

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

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

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

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

<p>Pleading — Money Paid on Judgment and Costs — Particularity of Allegation.</p> <p>In a suit to recover the amount of a judgment and costs which plaintiff was justly compelled to pay, he should allege in hi® petition a sum certain as to the amount of the costs he was compelled to pay, a statement of a lump' sum not being sufficient to authorize a judgment.</p>

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

<p>Trespass — Title in Plaintiff.</p> <p>In order to mantain an action in trespass,, plaintiff must show-possession or title dn himself.</p>

<p>Deeds — Reformation—Mistake—Evidence.</p> <p>A court will not reform a deed 'upon the testimony of the- grantor alone as to a mistake, where the conveyance accomplished the object which the grantor desires, where she understands the English language sufficiently to comprehend ordinary business transactions.</p>

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

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

<p>Compromise and Settlement — Matter in Litigation.</p> <p>A matter in litigation is a proper subject of compromise.</p> <p>Judgment — Correction of.</p> <p>Where the court errs in fixing the time from which interest shall be computed, the error cannot be corrected at a subsequent term of court.</p>

<p>Malicious Prosecution — Pleading.</p> <p>■In. an action for malicious prosecution, the petition must show a final termination of the prosecution in plaintiff’s favor and .must show malice and want of probable cause.</p> <p>Criminal Law — Former Jeopardy.</p> <p>Where after all the evidence dn a criminal action for malicious prosecution was introduced, the prosecuting attorney had the jury withdrawn and the indictment dismissed, it constitutes a bar to another prosecution for the same offense.</p> <p>Malicious Prosecution — Submission to Jury.</p> <p>Where.the facts and circumstances are shown from which malice and want of probable cause may he legitimately presumed, the cause may he submitted to the jury.</p> <p>Dismissal and Non-Suit — Sufficiency of Evidence.</p> <p>A non-suit should not he granted where there is enough evidence to authorize the submission of the case to the jury.</p> <p>Malicious Prosecution — Probable Cause.</p> <p>In an action for malicious prosecution, all that the defendant is required to show is that the circumstances were such as would induce a prudent person to believe the party guilty of the offense charged and that defendant acted under such belief when he instituted the prosecution.</p> <p>Witnesses — Plaintiff in Malicious Prosecution.</p> <p>In an action for malicious prosecution, plaintiff is a competent witness in his own behalf.</p>

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

<p>Ejectment — Evidence—Books of County Assessor.</p> <p>The books of the county assessor for a certain year are not admissible in evidence, without proof by the assessor who made the assessment list, that the party giving them in swore to them, that the assessor wh.0 took them is dead or absent from the state, and in either event proof should be made of the handwriting of the assessor.</p> <p>Adverse Possession — Instruction.</p> <p>An instruction relating to adverse possession, that if the jury believe from the evidence that when O. entered the land he entered claiming to be owner of the whole tract, repudiating title in others to any part of the land, and that he and those claiming under him had been in continuous and adverse, possession of thei land for more than' fifteen years before the commencement of the action, O. acquired title by adverse possession, is a correct statement of the law.</p> <p>Adverse Possession — Instruction.</p> <p>The court properly instructed that if the jury believe from the evidence that when O. entered upon the land, he recognized the title of appellants’ vendor, but afterwards claimed the whole tract by open and notorious acts clearly indicating a holding hostile to the claim of appellants, and that of their vendor, and that O. and those under him continued to claim and hold the land as their own adverse to all others for more than fifteen years before the commencement of the action, O. acquired title by adverse possession.</p> <p>Trial — Instruction—Giving Undue Prominence to Particular Facts.</p> <p>An instruction which enumerates particular facts and gives emphasis and prominence to them, is erroneous.</p>

<p>Husband and Wife — Undertaking of Wife — Nudum Pactum.</p> <p>Where a married, woman, without consideration, undertook, under certain conditions, to pay one of plaintiff’s obligations already assumed on an injunction bond, the undertaking is a nudum pactum, and cannot be enforced.</p> <p>Husband and Wife — Indemnity Contract by Wife.</p> <p>Where a married woman, 'by writing, assumes to indemnify a surety by agreeing under certain conditions to- pay an obligation for which she is not liable, the court will not so enlarge her powers as to place her on a plane with a feme sole as to third persons.</p>

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

<p>Bills and Notes — Bill of Exchange — Enforcement of Obligation.</p> <p>A bank b^,s tbe right to look to the .parties to a bill of exchange, for payment, and can coerce it out of an indorser in preference to the examiner or drawer if it desires to do so.</p>

<p>Boundaries — Natural Objects.</p> <p>Where a water shed on a certain ridge is adopted by the grantor and the grantee as a corner of a certain survey, such natural object will 'control in the absence of a marked line, and courses and distances must give way to it.</p>

<p>APPEAL PROM McC-RACKEN CIRCUIT COURT.</p>

<p>Limitation of Actions — Release of Surety.</p> <p>Where a creditor received money from the administrator of his debtor in the mistaken belief that his debt was satisfied, and under such belief allowed the statute of limitations to run against the surety, he cannot thereafter have recourse against the surety for the debt.</p>

<p>Executors and Administrators — Liability of Administrator.</p> <p>Where an administrator has exhausted the personal estate in the payment of debts in full, and the proceeds of real estate are insufficient to give a claimant his pro rata portion of the, whole estate, the administrator must account to him, and in case of deficiency, mahe up the deficit.</p> <p>Executors and Administrators — Order of Payment of Claims.</p> <p>¡Statement of order of payment of claims against estate.</p>

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

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

<p>Highways — Dedication.</p> <p>■Where an- -owner of land fences- It with reference to a road thereon, and such road was kept in repair hy the surveyor and hands from ■time -to time appointed by the county court, and the owner of the land together with the -surveyor kept it in repair, a dedication is shown. '</p> <p>Highways — Dedication—Repair of Highway.</p> <p>The public is under no obligation to keep in repair a greater portion of a road than the necessity requires, and failure to do so- does not affect the question of dedication.</p> <p>Highways — Estoppel of Purchaser.</p> <p>The purchaser of land over which a road runs is bound by the same estoppel that would have bound the vendor had -he retained the title, and it cannot escape the effect of such estoppel because the public trespassed upon the property when it was unenclosed, nor because it was allowed to encroach upon the highway without complaint.</p>

<p>Interest — Trustee of Fund.</p> <p>A trustee of a fund to be applied to a certain purpose cannot be' allowed to .hold the trust fund for fifteen or twenty years without making the application of the fund and avoid payment of interest thereon.</p> <p>Trusts — Right to Sue Trustee.</p> <p>A person who shows himself to have an interest in a trust fund may maintain an action against the trustee for an accounting and for application of the fund.</p>

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

<p>Executors and Administrators — Death of Claimant.</p> <p>Upon the death, of one having a claim against a personal representative, the claim of the decedent passes to the personal representative of the deceased and should be asserted by the representative of the deceased.</p> <p>Descent and Distribution — Suit by Heirs.</p> <p>Heirs cannot bring suit immediately upon the death of their ancestor for a claim due him, since such right can be exercised by them only in case there is no administration of the estate.</p>

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

<p>Judgment — Process.</p> <p>Where defendant was not served with process, and did not enter his appearance or respond to the petition, he is not subject to a judgment in personam, and such a judgment cannot be the foundation of an action against him.</p>

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

<p>Corporations — Bonds—Approval.</p> <p>Corporate bonds are not void on account of their being made payable semi-annually in the city of New York instead of annually at Ashland, as prescribed by the order of its directors, providing for their execution and delivery, where such action was subsequently approved by the directors.</p> <p>Corporations — Stock Subscription — Payment.</p> <p>A mining and manufacturing company having the right to subscribe for stock in a railroad company, has the right to pay for the stock in money or negotiable obligations.</p> <p>Subscriptions — Rescission of Subscription.</p> <p>'Breach, by a railroad company of a contract to have the road completed between certain points without delay, will not entitle a subscriber to stock of the company to a rescission of the contract of subscription to the detriment of the creditors of the company.</p> <p>Cancellation of instruments — Corporate Bonds.</p> <p>A corporation was held to have the right to the cancellation of its bonds which were issued in payment for stock in a railroad company;, by payment of the accrued interest and 66' 2-3 cents on the dollar on the face value of the bonds.</p>

<p>Partnership — Partnership Liability.</p> <p>Where A., a member of a partnership composed of A. and C., receives money from B. to be applied as B. may direct, it not being loaned to the partnership or to be used for partnership purposes, but was intended to be used in compromising B.’s debts, it does, not become a partnership liability, although placed to the credit of B. on the partnership -books and paid out with other firm- moneys on partnership liabilities, but B. must look alone to A. for payment of the debt.</p>

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

<p>Evidence — Judicial Notice — Historical Fact.</p> <p>The court judicially knows, as a matter of history, that in July and August, 1864, the confederate forces occupied no portion of Kentucky, and that except a few small detachments of irregular cavalry, there were no hostile troops within her borders.</p> <p>ifailitia — Seizure ,of Private Property.</p> <p>The necessity for seizing private property in violation of -the provisions of the Constitution of the state was held not so insistent and overwhelming as to leave “no legal avoidable alternative.”</p> <p>Militia — Authority to Commit Trespass.</p> <p>Militia officers were held to have no authority to give one the right to commit a trespass upon the property of citizens.</p>

<p>Bills and Notes — Accommodation Paper — Want of Consideration.</p> <p>Where one who executed a note to enable a third person to> obtain money or property with it, and such object is accomplished by the third perspn, the maker cannot be allowed to plead want of consideration for its execution, nor set off against it, debts due him from such third person.</p> <p>Bills and Notes — Defective Petition Cured by Answer.</p> <p>A defect in a petition on a note, in failing to allege non-payment of the note, is cured by an answer which alleges its non-payment.</p>

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

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

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

<p>Corporations — Agreement of Stockholders to Donate to Company.</p> <p>An agreement by subscribers for stock in a turnpike company to pay ten per -cent, annually on tbe stock subscribed for -until the road is out of debt, isi not an agreement to take additional stock in case it should be found necessary, but is a mutual agreement between the stockholders upon sufficient consideration to donate to the company in the proportion indicated, a sum sufficient to pay the debt incurred in the construction of- the road.</p> <p>Corporations — Agreement of Stock Subscribers to Donate to the Company.</p> <p>Where the original subscriber to stock of a turnpike company bound himself to pay ten per cent, annually on the stock subscribed for until the road is out of debt, the fact that a subsequent subscriber did not enter into such obligation does not relieve the original subscriber from the obligation.'</p> <p>Corporations — Pleading—Suit on Stock Subscriber’s Agreement.</p> <p>In suing on an undertaking of subscribers to stock In a turnpike company to pay ten per cent, on the stock subscribed for until the company is out of debt, it is not necessary to allege directly that the call sued on was required to pay the debt of the company.</p>

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

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

<p>Appeal — Reversal.</p> <p>A judgment which, is substantially correct will not be reversed on appeal.</p>

<p>Guardian and Ward — Pleading.</p> <p>Where a foreign, guardian sues the domestic guardian and the sureties on his bond for money belonging to the wards, and sets out in his petition a judgment for money due the wards and failure to pay, a sufficient cause of action is shown.</p> <p>Guardian and Ward — Suit Against Domestic Guardian by Foreign Guardian.</p> <p>Under §§ 16, 17, art. 2, oh. 43 R. S'., a foreign guardian is authorized to sue a domestic guardian and his sureties on the guardian's bond for money belonging to the wards, where the domestic guardian refused to pay a judgment therefor.</p>

<p>Vendor and Purchaser — Abandonment of Lien — Renewal of Note.</p> <p>Where the holder of a purchase-money note renews the same and takes surety thereon, hut states in the renewal note that it is given for land and that a lien is retained, the renewal of the note and the taking of surety does not amount to an abandonment of the lien.</p>

<p>Account — Continuance—Discretion of Court.</p> <p>A court may, in its discretion, allow further time for preparation and to retry the question growing out of accounts between the parties to the suit.</p>

<p>Set-Off and Counterclaim — Requisites of Set-Off.</p> <p>A set-off must contain all the requisites of a petition, and an allegation by one that he has a claim against the estate of decedent is not equivalent to an allegation that the estate is indebted to him.</p> <p>Pleading — Reply, When Not Necessary.</p> <p>A reply to a claim against an estate was held not necessary, since it can he reached by exception when reported by the commissioner, or when presented to the court for allowance, in the same way that objection could have been made to any other claim.</p> <p>Executors and Administrators — Claims Paid by Administrator.</p> <p>An administrator having been brought into court, is entitled to be allowed all valid claims against the estate paid by him, including his own.</p> <p>Equity — Submission to Jury — Instructions.</p> <p>Where an issue in. a case in equity is submitted to a jury by the chancellor, it is immaterial whether the instructions given the jury were proper or not, since the chancellor has the right to disregard the verdict in rendering the judgment.</p> <p>Executors and Administrators — Claim—Allowance.</p> <p>A claim for personal services rendered a decedent in his lifetime was held properly allowed, and dismissal of the claim properly refused for want of a demand.</p>

<p>Pleading — Answer to Amended Petition.</p> <p>A defendant is not bound to answer an amended petition which does not affect plaintiff’s right of recovery against defendant.</p> <p>Attachment — Burden of Proof.</p> <p>WEere grounds of attachment are denied by defendant, the burden is on plaintiff to sustain them.</p>

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

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

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

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

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

<p>Bills and Notes — Estoppel—Statement of Articles for Which Note Was Given.</p> <p>■Where a note contains a statement of the articles sold, and for which the note was givén, to the extent that the statement is contradictory to the petition, the statement must control.</p> <p>Bills and Notes — Pleading—Variance.</p> <p>Where the allegations of a petition on a note were inconsistent - with the statement which fwas made a part of the note, it was held that a demurrer was properly sustained to the petition.</p>

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

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

<p>Bills and Notes — Failure of Consideration.</p> <p>Where a note was given for a promised loan of money which was never realized, there is a failure of consideration.</p>

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

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

<p>Guardian and Ward — Settlement With Ward.</p> <p>A guardian cannot escape liability to the ward, in settlement by turning over to him a note on parties of a doubtful solvency, which can be collected, if at all,, only by the big-best degree of diligence, without notifying the ward of the true condition of the maker.</p>

<p>Limitation of Actions — What Law Governs.</p> <p>A plea of limitations is governed by tbe law of tbe forum, which regulates all questions pertaining- to the remedy.</p> <p>Principal and Surety — Extension of Time — Release of Surety.</p> <p>The principal on a note cannot, without the consent of the surety, make a continuing contract out of the obligation by his promise and ■acknowledgment, or partial payment, and thereby continue the liability of the surety.</p>

<p>Champerty and Maintenance — Conveyance—Title.</p> <p>Where W. purchased land and S. paid the purchase price and built a house thereon, and W. with the consent of S. sold and conveyed the property in payment of a firm debt of W., S'. & Co., the deed passed a good title to the purchaser as against S. and his creditors, • regardless of the state of the possession.</p>

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

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

<p>Wills — “Children’' and “Grandchildren.”</p> <p>The word, “children will not ordinarily include “grandchildren," and will never be construed to embrace them, except in cases where it is necessary to give that construction to the word in order to effectuate the obvious intention of the testator.</p> <p>Wills — Estoppel of Devisees.</p> <p>Where the executor and the devisees acted for several years on the theory that certain grandchildren of the testator were beneficiaries under the will, but finally some of the devisees challenged their right to participate under the will, but receded from such position, and ashed for the judgment as rendered, recognizing the rights of the grandchildren, the other devisees are estopped to question the right of the grandchildren to participate as devisees.</p>

<p>Dower — Jurisdiction.</p> <p>Under Civil Code Practice, § 549, County Courts have not only the right to assign dower, hut jurisdiction to determine the right of a petitioner for dower.</p> <p>Judgment — Collateral Proceeding.</p> <p>A judgment obtaine-d cannot be ignored in a collateral proceeding by those who were parties, to the action in which it was rendered and who petitioned for the relief granted.</p>

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

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

<p>Taxation — False and Fraudulent List.</p> <p>Under § 20, art. 6, ch. 803, R. S., incorrect lists of taxable property are not “false and fraudulent,” unless the person making them knew they were incorrect, and intentionally made them so.</p> <p>Criminal Law — Burden of Proof.</p> <p>The burden is on the Commonwealth to establish the guilt of the party accused of the -crime.</p>

<p>Injunction — Usurpation of Authority.</p> <p>Where the direction of the common council to the marshal is usurpation of power, and if carried -out, would amount to a trespass, a court of equity may enjoin the attempted exercise of such power.</p> <p>Municipal Corporations — Recovery of Possession of Property.</p> <p>If one is wrongfully in possession of property which belongs to the city, its possession can only be recovered by civil action.</p>

<p>Limitation of Actions — Fraud.</p> <p>Under § 5, art. 3, ch. 63, R. S'., an action will not be allowed for relief from a fraud committed more than ten years prior to the institution of the suit.</p>

<p>Bills and Notes — Pleading—Presentment and Notice.</p> <p>The mere allegation of “no funds” in the hands of the drawee is - is not sufficient to dispense with presentment and notice, since the averment might be true, and yet the drawee may have been under obligation to pay the bill.</p>

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

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

<p>Injunction — Liability of Sureties on Bond'.</p> <p>The sureties on an injunction bond are under no obligation to pay the balance due from one estate to the other upon a settlement of claims not involved in the issue made in .the action in which the injunction was granted.</p>

<p>Execution — On Attached Property.</p> <p>Where a sheriff has wrongfully attached part of the debtor’s property, in the levy of a subsequent execution he should proceed as if no attachment had issued.</p>

<p>Continuance — Absence of Unsubpoenaed Witness.</p> <p>Where plaintiff and defendant announced themselves ready for trial and the trial progressed until plaintiff was ready to examine a witness which had not been subpoenaed, and who had -left the town since the trial had 'begun, plaintiff was guilty of negligence- and miust suffer the consequences.</p>

<p>Vendor and Purchaser — 'Recital of Consideration.</p> <p>As between a Vendor and his vendee, where the conveyance expresses the consideration, its recital is no evidence in their behalf as against those who were attacking it as fraudulent.</p> <p>Assignments for Benefit of Creditors — Burden of Proof.</p> <p>If the deed contains recitals and fails to make an exhibit of the whole estate, the burden is on defendant to show the facts.</p> <p>Compromise and Settlement — Fraud—Burden of Proof.</p> <p>Where the theory of plaintiffs is that the defendant, by false statements, induced them to make a settlement, but that is denied by the reply to the counterclaim, the burden is on plaintiffs to establish the fraud.</p> <p>Compromise and Settlement — Binding Effect.</p> <p>The compromise of a litigation is binding on the parties, unless it was procured by fraud.</p>

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

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

<p>■Appeal — Reversal.</p> <p>The judgment was held to be against the decided preponderance of the evidence, and, on that account, should be reversed by the Court of Appeals.</p>

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

<p>Homicide — Instruction.</p> <p>In an action for homicide it was held proper to instruct the jury that if they believe from all the evidence in the case,, beyond a reasonable doubt, that accused committed the offense, describing it, as charged in the indictment, and not in his own. necessary self-defense, the verdict should be for the defendant was held proper.</p> <p>Criminal Law — Reversal—Instruction.</p> <p>If the right of self-defense in a prosecution for homicide was not presented by instruction, the Court of Appeals will not reverse the case where it does not appear that the substantial rights of the accused had been prejudiced. .</p> <p>Homicide — Self-Defense—Question for Jury.</p> <p>. Whether or not the accused acted in his necessary self-defense, is a question for the jury to determine, and not for the court.</p> <p>Homicide — Justification—Burden of Proof.</p> <p>Where in a prosecution for homicide the commonwealth has shown the killing on the part of the accused without mitigating circumstances or excuse, the burden is on the party charged to' show justification in order to entitle him to acquittal.'</p> <p>Criminal Law — Burden of Proof.</p> <p>Where the evidence on the part of the commonwealth, or that offered both by the commonwealth and accused, relates to what took place at the time the alleged offense was committed, or arises out of the circumstances attending.it, the burden is on the prosecution.</p> <p>Criminal Law — Instruction.</p> <p>An instruction in a criminal case .should be so plain as to leave no room for contention as to its meaning and should not contain any statement calculated to confuse or mislead the jury.</p> <p>Homicide — Dying Declaration.</p> <p>The fact that deceased was not advised by his physician as to his condition, and did not seek spiritual comfort, does not destroy the effect of his dying declarations, where they were made under a sense of impending death.</p> <p>Homicide — Dying Declaration — Credibility.</p> <p>If dying declarations, are admitted in evidence, their credibility is a question for the jury.</p>

<p>Vendor and Purchaser — Vendor’s Lien — Pleading.</p> <p>A complaint to enforce a vendor’s lien, wliicli fails to allege how the land was sold, whether by parol, by bond or by deed, and makes no statement from which the court can infer that a lien had been retained by the vendor, is insufficient.</p>

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

<p>Libel and Slander — Pleading.</p> <p>Allegations in a petition lor libel were held not to import, of themselves, a cause of action against a defendant.</p>

<p>Specific Performance — Parol Contract.</p> <p>A parol contract for tlie sale of land can not be enforced, where defendant who purchased .the land executed a note for the purchase price and delivered it in escrow, and plaintiff the next day tendered a deed for the land which was refused,, the vendor at the time of the sale and ever since being in possession of the land.</p>

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

<p>Taxation — Railroads—Courthouse Tax.-</p> <p>Railroad property in a county is not subject to taxation for courthouse purposes, under act of Feb. 27„ 1867, Sess. Acts 1867, vol. 2, p. 118. ' '</p> <p>Statutes — Local or Special Act — Presumption.</p> <p>A local or .special act of the Legislature will be presumed to have been intended to harmonize with the general legislation of the state, unless the contrary intention is shown.</p>

<p>Appeal — Amount in Controversy — Jurisdiction.</p> <p>Where the only question involved is that the trespass which turned upon the boundary and possession, did not involve title to the land, a judgment for $25 does not give jurisdiction to the Court of Appeals.</p>

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

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

<p>Vendor and Purchaser — Sale In Gross.</p> <p>Where a sale of land does not appear to have been by the aere, but In gross, a deficit of less than five per cent, in the amount of the land, in the absence of fraud, will not authorize the interference of a court of equity.</p>

<p>Judicial Sales — Constructive Notice.</p> <p>Only a substantial compliance with every requirement of the statute will give the court jurisdiction to sell property upon constructive service by warning order.</p> <p>Judicial Sales — Presumption of Regularity.</p> <p>¡Nothing can be presumed in favor of the regularity of a proceeding by warning order; but the record must show upon its face that the provisions of the Code have been substantially complied with.</p>

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

<p>Executors and Administrators — Pleading—Verification.</p> <p>Where the amount due from the administrator is shown by the records, it is not unreasonable to require claimants, before bringing suit against him, to verify their claims and demand payment of the administrator.</p>

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

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

<p>Principal and Surety — Equity of Surety.</p> <p>A surety on a note who has paid it has an equity in the land in which the proceeds of the note were invested, to secure his reimbursement.</p>

<p>Trusts — Note Given in Lieu of Dower.</p> <p>Where’a note is payable “to the -order of Ann M. -Daviess and the children of Thomas H. Daviess,’’ and a deed to land in which Ann M. Daviess united recites that the note is payable to Ann M. Daviess and children in consideration of her relinquishment of dower in the land, and giving her power to reinvest the proceeds of the -note in land for herself and children, the note or proceeds thereof were in trust for Ann M. Daviess and -children, the profits going to Ann M. Daviess during her life and the principal -to the children aften her ■death according to the law -of distribution.</p>

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

<p>Judgment — Admission of Vaue or Amount of Damages.</p> <p>Under § 155, Civ. Code Prac., allegations of value or amount of damages should not he taken as true, hut must he submitted to a jury.</p>

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

<p>Judicial Sales — Purchaser—Jurisdiction of Chancellor.</p> <p>■Where a purchaser under a judgment was not a party to the suit, the purchase does not subject him to the jurisdiction of the chan-cellor further than is necessary to enforce the performance of his agreement as an accepted bidder.</p> <p>Judicial Sales — Rule andi Attachment.</p> <p>One who. was not a party to the record either as a litigant, purchaser, bondsman, attorney or officer of the court, is not liable to be proceeded against by the summary proceeding of rule and attachment.</p>

<p>Accord and Satisfaction — Payment of Less Sum Thán Due.</p> <p>Where a judgment defendant- paid in. full satisfaction of the judgment, a sum less than the face of the judgment when the whole amount called for by the judgment was due, without additional consideration, such payment does not discharge the entire judgment debt.</p>

<p>Guardian and Ward — Supplemental Proceeding — Parties.</p> <p>In a supplemental proceeding- by a guardian to validate a sale of the vendor’s property, the purchaser should be made a party.</p> <p>Judgment — Confirmation—Supplemental Proceeding.</p> <p>In a supplemental proceeding by a guardian to validate a judgment and sale, the court has full power, upon proof sufficient to satisfy the court of the truth of the allegation of the supplemental petition, to render a decree confirming the original judgment and sale.</p> <p>Judicial Sales — Enetry of Record — Supplemental Proceeding.</p> <p>In a supplemental proceeding by a guardian to validate a judgment and sale, it is not necessary to have the judgment entered of record before ■ issuing a rule against the defendant to show cause why he should not complete -the purchase.</p>

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

<p>Exceptions, Bill of — Signature to.</p> <p>Where the paper copied into the transcript as a bill of exceptions is not signed by the judge nor by bystanders, it forms no part of the record.</p>

<p>Costs — Unnecessarily Encumbering Record.</p> <p>Where a party unnecessarily encumbers the record, the opposite party should not be taxed with the full cost of making out the original record nor of copies furnished by the clerk of the court.</p>

<p>Pleading — Matters Taken as True.</p> <p>Matter alleged in a'petition, and not denied by answer must, for tbe purpose of tbe litigation, be taken as true, notwithstanding there may be testimony tending to disprove it.</p> <p>Appeal — Findings of Court.</p> <p>A finding of the court without the intervention of a jury has the force and effect of a verdict on appeal to the Court of Appeals.</p> <p>Partnership — Dissolution—Constructive Notice.</p> <p>Constructive notice of the dissolution of a partnership is not sufficient to deprive plaintiff of the right to deal with either of the partners with reference to matters coming within the usual and legitimate business of the partnership, upon the credit of the firm, where he had had former dealings with the firm.</p> <p>Partnership — Loan to — Presumption.</p> <p>One who was a customer of a partnership, and knew who composed the firm, will be presumed, in the absence of actual knowledge of the dissolution of the firm, to have- loaned the money in question to the firm upon the faith of the responsibility of all the members who composed the firm and whom he believed still composed it.</p>

<p>Champerty and Maintenance — Adverse Possession.</p> <p>A sale and. purchase of land which, at the time was in the adverse possession of .a third person is void under the act against cham-perty.</p> <p>Adverse Possession — Declaration of Adverse Holder.</p> <p>Where one claimed more land than his deed called for, and his fence extended beyond the .boundary, his mere declaration,, after his possession had ripened into title, that he would reset his fence and put it on the line, is not binding on him.</p> <p>Adverse Possession — Continuity of Possession — Evidence.</p> <p>The evidence was held insufficient to disturb a possession so ancient and acquiesced in until the natural objects called for have been removed or destroyed by the influence of time.</p>

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

<p>Weights and Measures — Power of County Court — Fees and Duties of Sealer.</p> <p>By the act regulating the fees and duties of the sealer of weights and measures in Jefferson county,, and repealing § 2 of the original act, full power was vested in the county court to regulate duties and fees of such officer.</p> <p>Weights and Measures — Fees of Sealer — Power of County Court.</p> <p>' Where a county court fixed a fee of $25 for testing “spring scales,” and it is an agreed fact that the fee of $25 was fixed for the purpose of prohibiting the use of such scales, such fee being far in excess of the fees charged for testing and sealing other scales, it is an attempt to exercise a legislative act and is void.</p>

<p>Sheriffs and Constables — Proceeding Against Constable — Disposition of Fund.</p> <p>A creditor has no right to resort to an action for damages against a constable for not disposing of a fund which was already in the court or under the court’s control, until some final action is had, since the creditor has his remedy by rule against the officer, or by excepting to his report.</p>

<p>Use and Occupation — Surrender of Premises — Rent.</p> <p>Failure of a tenant to surrender the premises in as good condition as he agreed to do does not imply a promise to continue to pay rent, nor render him liable for the use of the premises after the surrender of them.</p>

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

<p>Attachment — By Administrator — Bond—Liability on.</p> <p>Where an attachment is obtained by an administrator, and an attachment bond executed by the administrator and another, they are both individually liable on the bond, and the abjection that the party is not declared against as administrator is not available.</p>

<p>Judicial Sales — Right of Creditor.</p> <p>Where a creditor allowed another to bid in the land of the debtor at the commissioner’s sale, the creditor can not by excepting to the commissioner’s report of the sale, speculate on the purchaser's bargain, and have the land resold by offering a sum in excess of the purchaser’s bid.</p>

<p>Estoppel — Distress Warrant — Action on Bond.</p> <p>In an action on a bond under a distress warrant, it is recited that C. is tbe plaintiff in tbe distress warrant, and that the bondsmen undertools: to pay him the value of the property and ten per cent, thereon, not exceeding the amount of the rent due, it operates as an estoppel to deny that C. is not the plaintiff in the warrant.</p> <p>Landlord and Tenant — Landlord’s Lien.</p> <p>Under § 16, art. 2, ch. 56, 2 R. S., relating’ to landlord’s lien, the lien exists for fifteen days after the removal of the property, against one who is not a bona fide purchaser.</p> <p>Landlord and Tenant — Landlord’s Lien — Purchaser From Tenant.</p> <p>Persons who purchase property of a tenant do not bring themselves within the protection of the statute, § 16, art. 2, ch. 56, 2 R. S., relating to landlord’s lien, where there is no showing as to the amount of a debt constituting the consideration given 'by the purchaser for the property removed from the leased premises.</p>

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

<p>Dismissal and Non-Suit — Suit on Bond to Perform Judgment.</p> <p>A suit on a bond to perform a judgment that might be rendered in an action, was properly dismissed, where no judgment appears to have been rendered.</p>

<p>Appeal — Reversal.</p> <p>Where the petition or the evidence shows that a contract is against public policy, a judgment thereon for plaintiff will be set aside on appeal,, although defendant failed to plead.</p> <p>Attorney and Client — Fraud'—Attitude of Attorney.</p> <p>There is no material difference in the attitude of an attorney who defends an action instituted to set aside a fraudulent deed and the attitude of one who advised and assisted in the execution of the deed.</p> <p>Attorney and Client — Duty of Attorney.</p> <p>It is the duty of an attorney for defendant to insist that the right to the relief as sought by the plaintiff should be established according to the rules of judicial procedure.</p>

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

<p>Bills and Notes — Endorsers.</p> <p>Where the payee of a note was the first to indorse it, subsequent indorsement by another did not mate him a guarantor of the drawer and the payee; it operated only to bind him with the first indorser and the obligors to the holders of the note; but as between the first and second endorser, .the effect was to bind the latter as surety for the former.</p>

<p>Husband and Wife — Wife’s Land Not Subject to Husband’s Debts.</p> <p>Land received by a wife by descent from ber father is not subject to tbe payment of ber husband’s debts.</p>

<p>Wills — Undue Influence.</p> <p>The evidence was held to show that a will was procured by undue influence of the testator’s wife.</p>

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

<p>Landlord and Tenant — Lease—Record of.</p> <p>A lease recorded in ‘the bond and power of attorney book, where sales of personal property or mortgages of personal property are recorded, is not notice to a purchaser of the leased premises without actual knowledge of the lease.</p>

<p>Railroads — Death—Wilful Negligence — Recovery.</p> <p>Under § 1. Act March 10, 1854, 2 H. S. 510, if it is averred that the deceased was killed hy “wilful negligence’' of the defendant, or its servants, recovery may be had, although the proof fails to establish wilful negligence, if it appears from the petition that the deceased was not an employe of the party sued.</p> <p>Carriers — Pleading and Proof — Variance.</p> <p>Where one who sued for the death of another based her ease upon the negligence and carelessness or mismanagement of the “servants and agents in charge of the passenger trains” of the defendant, she can not recover upon proof of negligence on the part of others hut must confine herself to the issue thus made.</p> <p>Carriers — Evidence—Condition of Track.</p> <p>In an action against a railroad company for the negligent death of plaintiff’s deceased, proof of the condition of the track at the point of injury is competent to show negligence on the part of the engineer in running over the track at high speed.</p> <p>Carriers — Evidence—Issues.</p> <p>The evidence should be confined to the issues raised by the pleadings.</p> <p>Jury — Sworn to Assess Damages.</p> <p>The fact that the jury was sworn to assess damages instead of to try the issue, was held immaterial.</p> <p>Judgment — Entry Against Officers of Company.</p> <p>The entering of a judgment against the president and directors of the railroad company, instead of against the company, was held immaterial.</p>

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

<p>Trial — Instruction—Ambiguity.</p> <p>An instruction should be refused if it is difficult to understand tbe meaning of the languagei used.</p> <p>Gifts — Actual Delivery.</p> <p>To constitute a valid gift, there must be an actual delivery of tbe thing so far as it is capable of delivery.</p>

<p>Pleading — Delivery.</p> <p>A reply has a legal, technical meaning, and can not contain new matter inconsistent with the petition.</p> <p>Pleading — Reply.</p> <p>A reply can not be considered as an amended petition.</p> <p>Pleading — Reply.</p> <p>A reply which, does not contain an allegation of indebtedness together with the statement of necessary facts, was held insufficient'.</p>

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

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

<p>Witnesses — Transaction Between Witness and Deceased Person.</p> <p>Under the statute, the rule of evidence as to the competency of witnesses, a party is not prohibited from testifying in his own behalf in regard to what took place between himself and one who is dead, where the deceased could only be a witness if living.</p>

<p>New Trial — Taking Unread Depositions to Jury Room.</p> <p>Where counsel for one of the parties knew that the jury had taken to the jury room certain depositions which were not read on the trial, it is not sufficient alone to object to the irregularity, since the attention of the court should have been called to it in order to- make it a ground for a new trial.</p>

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

<p>Descent and Distribution — Action Against Heirs and Devisees — Evidence.</p> <p>In actions against heirs, devisees, or fraudulent grantees, the debt against the devisor or grantor must be established by original evidence against the party holding the property, independent of any proceeding against the personal representative of the debtor.</p>

<p>Interest — Increase of Rate on Renewal.</p> <p>Where a note, as originally executed, called for six per cent, interest, and on renewal, and before the law increasing the rate of conventional interest went into effect, the maker, in consideration of the renewal, agreed to pay ten per cent, interest, recovery can only be had for six per cent, interest.</p>

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

<p>Statutes — Title—Subject of Act.</p> <p>Where the title of an act da “An act to incorporate the Henderson Water Works Company,” the power conferred upon the city to become the owner of all the capital stock of the company is not. foreign to the subject expressed in the title of the act.</p> <p>Waters and Water Courses — All Stock Subscribed for by City.</p> <p>Where an act of the Legislature gives the city the power to subscribe for part or all of the stock of a water works company, and the-, city subscribes, for all the stock, the rights and powers of the waterworks company are the -same as if the city had subscribed for only part of the stock, and in ascertaining these rights, powers and duties, such act must be looked to and not the city charter.</p>

<p>Principal and Agent — Collecting Agent — Diligence.</p> <p>A collecting agent should not be held to a greater degree of diligence than the principal, unless the failure to collect within a reasonable time withou excuse caused the loss of the claim. ■</p> <p>Principal and Agent — Collecting Agent — Discretionary Power.</p> <p>In the exercise of the discretionary power with which a collecting agent is invested,'the agent is not compelled to institute an action against persons who are insolvent, where the only result would be to incur cost.</p> <p>Sheriffs and Constables — Fees—Ownership—Presumption.</p> <p>In the absence of a showing of any agreement to the contrary, it will be presumed that fees belong to the sheriff and • not to his deputy.</p> <p>Principal and Agent — Collecting Agent.</p> <p>A collecting agent should be allowed reasonable attorney’s fees paid by him in order to collect claims, and also costs incurred and paid where the same could not be made out of the debtor because of his insolvency.</p> <p>Court Commissioners — Report.</p> <p>A commissioner s report was held to be insufficient, and the manner of making report on the liability of a collecting agent, stated.</p>

<p>. Attorney and Client — Purchase by Attorney for Benefit of Client.</p> <p>"Where an. attorney purchased under an execution issued on the judgment obtained by him, he purchased for his -client; since- whenever an attorney makes his interest in the case conflict with his duty to his client he- violates, the confidential relation existing between them.</p> <p>Attorney and Client — Purchase by Attorney to Secure a Fee.</p> <p>Where the attorney for defendant -purchased the- property in suit at execution 'sale to secure the .fees that were due him by his client, he holds the land for the benefit of his client subject to his lien upon it. '</p>

<p>Wills — Devise In Trust.</p> <p>Where a testator placed certain real estate in the hands of his executor to be rented out for the benefit of one of his sisters, it was held not to confer a life estate on the sister, but to give an absolute title to .the executor in trust for the sister.</p>

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

<p>Mines and Minerals — Forfeiture of Stock to Lessor.</p> <p>Where, by the terms of an agreement between the lessor and the lessee, a mining company, the stock of the company is forfeited to the lessor, the latter succeeded to the rights of the company, and took the lease subject to the liens legally created before the forfeiture.</p> <p>Estoppel — Relief Prejudicial to Mortgagee and Bondholders of Company.</p> <p>One who holds a majority of the stock of a corporation and has control over the management of the corporation, is estopped to assert relief prejudicial to the rights of a mortgagee and the bondholders of the corporation.</p>

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

<p>Indemnity — Levy on and Sale of Mortgaged Property.</p> <p>■Where mortgaged property was levied' on and sold, -the remedy of the mortgagee is on the indemnifying bond executed in compliance with § 709 Civ. Code Prae.</p> <p>Trespass — Reducing Crop to Possession.</p> <p>Where a mortgaged crop of tobacco, was surrendered to the sheriff,the sheriff committed no -trespass- against the mortgagee, who never had possession of the tobacco, by .reducing the tobacco to his actual possession after it had been severed from the ground.</p>

<p>Fraudulent Conveyances — Insolvency of Vendor.</p> <p>Where a son-in-law sold and conveyed land to his father-in-law for the price of about one-fourth its actual value, and the son-in-law was at the time insolvent, and the only consideration actually paid by the father-in-law was the discharge of some debts of the son-in-law, and the property was afterwards conveyed to the wife of the son-in-law for the consideration expressed in the deed to the father-in-law, the conveyance was fraudulent as to the son-in-law’s creditors.</p> <p>Fraudulent Conveyances — Sale for Nominal Price.</p> <p>The transfer and assignment of a debtor of his right to a chose in action to his son for a consideration of $200, and claim for several thousand dollars, out of which the son recovered $10,000, was held to be in fraud of the father’s creditors.</p>

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

<p>Mortgages — Judgment—Burden of Proof.</p> <p>Where one, by payment of the purchase-price of land as surety, became substituted to the rights of the mortgagee, in a suit to en-. force his rights under the mortgage, he has a prima facie right to a judgment upon the pleadings, and the burden is on the defendant to mate out his defense.</p>

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

<p>Bail — Breach óf Bond.</p> <p>The mere failure of the defendant to be present in court at the time the prosecution against him terminated does not constitute a breach of.the bond.</p>

<p>Bills and Notes — Interest—Presumption.</p> <p>A court can not presume that the parties, in the renewal of a note, erred in the calculation of the interest due.</p>

<p>Landlord and Tenant — Lien—Distress Warrant.</p> <p>Section 14, art. 2, ch. 56 R. S., restricting the lien acquired by a landlord under a distress warrant, does not apply to § 5, relating to attachment for rent due.</p> <p>Frauds, Statute of — Defense—Pleading.</p> <p>If defendant relies on the statute of frauds, such statute must be pleaded in order to constitute a defense.</p> <p>Set-Off and Counterclaim — Alleging Blank Amount Due.</p> <p>A counterclaim for improvements alleging a - amount due is insufficient, although reference to an account filed is made, since an averment as to the amount is necessary.</p>

<p>Process — Service in Another State — Jurisdiction.</p> <p>Another state can not acquire jurisdiction of the person of a citizen of Kentucky by the service of summons on him within the territorial limits of the state of Kentucky.</p> <p>Judgment — Summons by Foreign Court.</p> <p>A judgment rendered in another state against a citizen of this state upon a summons served within the territorial limits of this state, without appearance by defendant, is void and can not be the basis of an action in this state.</p> <p>Judgment — Jurisdiction—Summons by Foreign Court.</p> <p>Before a judgment im personam rendered by a court of another state can be treated as prima facie evidence of the existence of a debt or legal liability, it must appear, not only that the. defendant has been afforded, an opportunity to make defense, but in • case he fails to appear and make defense, that the court had jurisdiction; notwithstanding his failure to proceed to judgment without such appearance.</p> <p>Limitation of Actions — When not Raised by Demurrer.</p> <p>In an action on a judgment rendered in another state, the statute of limitations can not be made available upon demurrer, unless the petition shows not only sufficient lapse of time, but also the nonexistence of any ground of avoidance.</p>

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

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

<p>Frauds, Statute of — Undertaking to Answer for Default of Another.</p> <p>Where after M. had become bound as surety of O., W. knowing of -the situation of the parties, signed a note to secure M. as surety, W.’s undertaking was within the statute of frauds.</p>

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

<p>Wills — Construction.</p> <p>The provisions of a will held to- be so plain and unequivocal as not to- require construction.</p>

<p>Lis Pendens — Vendor’s Lien — Dismissal of Action.</p> <p>The dismissal of an action to enforce a vendor’s lien, because of •want of prosecution, can not be regarded as a lis pendens, unless it contains facts affecting the rights of other parties, and in that event notice must be brought directly home to the party to be affected by it.</p>

<p>Judgment — Filing Away With. Leave to Re-docket.</p> <p>Where a cause -with the judgment and sale under It and the confirmation of the sale have been filed away with leave to re-docket,' the court has no longer any power over the judgment, and the only means of annulling or modifying it after the expiration of the term at which it was rendered, is by appeal or petition in the nature •of a bill of review.</p> <p>Judgment — Setting Aside — Consent.</p> <p>Where defendants in an original petition did not consent that the sale under the judgment should be set aside, their failure to answer the amended petition did not constitute such consent.</p> <p>Pleading — Defects Cured by Amended Petition.</p> <p>If an original petition is still in court without judgment, an amended petition may cure defects therein, but cannot do so after judgment has. been rendered upon it.</p>

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

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

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

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

<p>Receiving Stolen Goods — When Offense Complete.</p> <p>The offense of receiving stolen goods is complete when the accused, with unlawful intent, receives from the thief goods which accused knows were .stolen, and the asportation of the goods by the person so receiving them, does not constitute an element of the offense.</p> <p>Receiving Stolen Goods — Instruction.</p> <p>In a prosecution for receiving stolen goods, an instruction that although the jury might believe that the goods were received in M. county, if accused voluntarily brought them into H. county, accused may be tried in the latter county, was held to be erroneous.</p>

<p>Limitation of Actions — Recovery of Usurious Interest.</p> <p>Wliere a note was satisfied and cancelled by acceptance of other notes payable by different parties, the right of action to recover usurious interest on the first note accrued, and limitation began to run from the date of satisfaction of the first note.</p>

<p>Partnership — Dissolution—Employment of Accountant.</p> <p>■Where partners concluded to dissolve the partnership and settle the partnership accounts, the employment by 'the firm of an accountant to balance the partnership boohs and correct errors therein will not authorize the making of new books and the expenditure of money in re-stating every item of account for nine years over the protest of one of the partners, and at the instance of the other, and the protesting partner can not be held liable for the cost of such extra work.</p>

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

<p>Accord and Satisfaction — Paying Less Than Amount Due.</p> <p>Where from all the facts it appears that defendant was hound to pay plaintiff a certain sum past due and that plaintiff was entitled to receive that amount, an agreement to take a less sum is without consideration, and is not a har to an action for the remainder, there being no circumstances to serve as a consideration for the agreement.</p>

<p>Sales — Warranty.</p> <p>The fact that the purchaser of mules paid their full value, is a circumstance from which the jury may conclude that the seller warranted their soundness.</p>

<p>Insurance — Enlargement of Objects of Company — Liability of Stockholders.</p> <p>Where the objects of an insurance company have been enlarged by a majority vote of the directors and stockholders, the non-consenting ■ .stockholders cannot he held to the increased liability under the enlarged objects and operation of the company.</p> <p>Corporations — Amendment or Repeal of Charter.</p> <p>The right reserved by the law making power to' amend or repeal a charter, is for the protection of the interests of the state, enabling the Legislature to place such restrictions upon the company as to prevent injury to the public, and if necessary, to repeal the act itself; but where new franchises are created by amendment, and additional and increased obligations are created it is a virtual dissolution of the original -contract, so far as it affects those who are not consenting and who have never ratified it.</p> <p>Insurance — Liability of Stockholders.</p> <p>A stockholder of an insurance company is not released from liability on his stock for claims of creditors of the company which accrued prior to the change in the object and name of the company by a vote of the majority of the directors and stockholders.</p>

<p>Executors and Administrators — Pleading—Averment of Blank Amount.</p> <p>An amended petition in a settlement suit is insufficient wliere it alleges overpayment to certain of the distributees, but leaves tbe amounts in blank, since no relief could be granted tbereon if tbe amended petition .should be taken as confessed.</p>

<p>Wills — Bequest—Discretionary Power.</p> <p>A 'bequest by one to bis former slave and faithful servant was held to vest discretionary power in the testator’s wife as to its payment.</p>

<p>Judicial Sales — Insufficient Description.</p> <p>A description of property in the petition and mortgage attached thereto as an exhibit in a proceeding to sell, as being property situated on Main Street dn a named town, is not sufficient to support a judgment.</p>

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

<p>Appeal — Jurisdiction—Amount in Controversy.</p> <p>The amount claimed hy appellant and the set-off claimed by appellee cannot be added together in order to give the Court of Appeals jurisdiction.</p>

<p>Judicial Sales — Description of Land.</p> <p>Tire petition, in a proceeding to sell land should set forth the land sought to he sold, and the description given in the judgment should be such as to enable the commissioner to' identify the land without resorting to extraneous evidence.</p>

<p>Landlord and Tenant — Purchase From Tenant — Inquiry.</p> <p>One who purchases property of a tenant on the leased premises is hound to make inquiry as to whether the tenant is indebted to the landlord, and as to whether the landlord has an exclusive lien on the property.</p> <p>Landlord and Tenant — Attachment for Rent.</p> <p>■Where property of a tenant on the leased premises has been attached, it was held that it was proper for the court to order the surrender of a horse, to he sold in case the remaining property does not sell for a sum sufficient to Satisfy the landlord’s claim for rent, and if the horse cannot be surrendered, the remedy is by suit on the attachment bond.</p>

<p>Vendor and Purchaser — Rescission of Sale — Interest on Purchase Price.</p> <p>On rescission of a .sale of land, interest on the purchase price should he set off against the use of the land by the purchaser.</p>

<p>Elections — Indictment for Illegal Voting.</p> <p>An indictment for illegal voting -which, charges the holding of an election, the 'precinct in which accused voted, the candidate for whom he voted and that accused was not a resident of the state, was held sufficient.</p>

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

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

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

<p>Vendor and Purchaser — Defense to Action on Purchase-Money Note.</p> <p>Where at the time one purchased land, a third person was in possession of part of it, and had title thereto' by adverse possession, such fact is not a defense to an action on a purchase-money note where the purchaser had possession, and the person who held the title by adverse possession testifies that he would never have sued for the land if he had not been invited to do so by the purchaser.</p>

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

<p>Wills — Payment of Debts and Legacies.</p> <p>Debts and legacies of a testator should be made out of the personal estate of the testator, unless the will, in express terms, makes them a charge upon real estate, or it appears from the will that the personal estate was to be exempt therefrom.</p> <p>Wills — Devise to Use of Wife.</p> <p>Where a- will provides that the testator’s wife should have all his real estate to do with as she pleases during her life, the remainder at her death to be sold and the proceeds divided equally among his .brothers and sister, it relates to what remains after the sale of so much as is necessary to pay a certain legacy which is made a charge thereon, and not to a sale for the wife’s own use.</p> <p>Wills — Construction—Transposition of Clauses.</p> <p>. In order to arrive at the intention of the testator, the clauses of a will may sometimes be transposed.</p> <p>Wills — .Bequest to Wife.</p> <p>A will was held to give all of the testator’s personal estate to his wife without restriction or encumbrance.</p> <p>Wills — Payment of Bequest.</p> <p>A legacy which was made a charge on the property of the testator was held not payable out of the personal property of the testator, which was bequeathed absolutely to his wife.</p>

<p>Municipal Corporations — Confiscation of ■ Property.</p> <p>A town, does not have the power, toy ordinance, to cause the confiscation of property of a citizen until his guilt or innocence has first been determined by a judicial tribunal.</p> <p>Municipal Corporations — Confiscation of Property — Liability of Marshal.</p> <p>In an action against a town marshal for seizing and confiscating property of a citizen under a city ordinance, the marshal should be allowed to show that the trustees passed the ordinance and that he was acting under the ordinance with the belief -that it was legal, so as to rebut the presumption of malice.</p> <p>Appeal — Insufficiency of Pleading.</p> <p>Where plaintiff s petition does not show jurisdiction in the circuit court, he cannot be allowed, in the Court of Appeals, to take- advantage of the insufficiency of the plea on which the defense is based.</p> <p>Pleading — Allegation of Blank Amount of Damages.</p> <p>Where a petition for unlawful seizure of hogs, by a town marshal, alleges that the hogs were worth. $16, and that ¡by their seizure and sale plaintiffs were damaged in the sum of $ — —, the prayer for damages does not cure the defect arising from the failure to fill the blank with a sufficient sum to give the court jurisdiction.</p>

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

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

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

<p>Exemption — Sale of Exempt Property.</p> <p>Where a creditor sells property of the debtor which is exempt from sale, the creditor may be required to account for the value of the property thus sold.</p>

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

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

<p>Municipal Corporations — Pleading—Wrongful Removal of Ground From Alley.</p> <p>In an' action by an abutting owner against one for entering upon and removing ground from a public alley, the statement that such entry was without “right or authority,” is insufficient without a further allegation that defendant did so without the consent of the city.</p> <p>Municipal Corporations — Right to Grade Alleys.</p> <p>A city has the right to grade alleys and to remove so much of the ground as may be necessary for that purpose, and an abutting owner must submit to the inconvenience, and can only recover upon a showing of special damages.</p>

<p>Husband and Wife — Purchase by Wife — Consideration—Burden of Proof.</p> <p>In an action on a note purchased by a married woman, the burden is on plaintiff to show what the consideration for the note was, that it was a necessity for the defendant’s family, and that it was sold hy him.</p>

<p>Principal and Surety — Right to Fund as Against Sureties.</p> <p>Where T„ as principal, with M. and R. as sureties, executed a note to a hank to raise money to pay a debt to C., but as O. did not at the time need the money, the note was not discounted by the bank, but it was arranged between T. and C. and the cashier of the bank that the note should be held by the bank as- the property of C„ and C. afterwards sued on the note in the name of the bank and recovered judgment thereon, and used the proceeds of the note in the payment of his debts, C. did not violate any principle of equity or good morals^ and is entitled to retain the money received as against the claim of the sureties that the judgment was obtained through fraud.</p>

<p>Public Lands — Notice to Person in Possession.</p> <p>The enclosure of land to which the commonwealth has title, will not, ipso facto, make a patent covering it void; hut if it was so held at th.e time the patentee surveys and enters it, the statute requires that he shall give the party in possession notice of his intention to appropriate it, and the party in possession, may within the time prescribed by statute perfect his title.</p> <p>Public Lands — Patent—Presumption.</p> <p>After a patent has been issued for land the law will presume that it was properly issued, in the absence of any evidence to the contrary.</p> <p>Ejectment — Instruction.</p> <p>An instruction that any outstanding title superior to the title of plaintiffs, without regard to the holder thereof, is sufficient to defeat recovery, is erroneous, as the jury are not told what constitutes a superior title, and are not Confined to the evidence in determining whether a superior title exists.</p> <p>Ejectment — Instruction.</p> <p>An instruction that “If the land in contest was the property of the defendant, R. K. Dick, prior to and at the time of the survey and grant of the eighty-eight acre patent, to plaintiffs, the jury ought to find for the defendant,” given without qualification, is erroneous.</p> <p>Estoppel — To Deny Title to Land.</p> <p>Where plaintiffs had execution levied on the land in controversy in their favor and had it sold as the property of the defendants or either of them and received the proceeds of the sale, or if the sale was made with plaintiff’s knowledge, and they got the proceeds of the sale, they are estopped to deny the title of the defendants to the land.</p> <p>Adverse Possession — Ouster.</p> <p>Where a party lives on land and holds under an older and superior grant, claiming the whole of the land, he is constructively possessed ■to the extent of his boundary, and can not be ousted of any part thereof except by actual entry and inclosure within his boundary, but where a party lives on land claiming under a junior patent, he may be ousted by one holding under the older grant, without the actual enclosure.</p> <p>Boundaries — Natural Objects — Courses and Distances.</p> <p>In locating land natural objects called for in the patent must govern, but if they have been destroyed and can not ¡be located, then the courses and distances given must be resorted to; :but there can Be no reason why courses should prevail over distances called for.</p>

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

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

<p>Railroads — Loss by Fire From Locomotives.</p> <p>A railroad company is not liable for every possible loss that might arise an consequence of the use of fire, in its locomotives, but it must ■ exercise the highest degree of care in running its locomotives to secure the safety of the property of others.</p>

<p>Bills and Notes — Notice of Protest.</p> <p>Where a notary, upon diligent inquiry, obtained the information that the indorser of a bill lived without the city limits, the depositing of notice of protest in the post office, which was post-paid and addressed to the surety, on the evening of the day the bill was protested, shows sufficient diligence on the part of the notary in giving the notice.</p>

<p>Fraudulent Conveyances — Disposal of Property With Fraudulent Intent.</p> <p>The evidence was held to show that at about the time of the attachment of defendant’s property, he was about to dispose of his property with the intention to defraud his creditors, and delay them in the collection of their debts.</p>

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

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

<p>Municipal Corporations — Injury from Excavation in Sidewalk — Liability.</p> <p>One who was injured by an excavation in a sidewalk may join as defendant in an action therefor, both the person who made the excavation and the town, since they were joint wrong-doers.</p> <p>Set-Off and Counterclaim — Excavation in Sidewalk — Personal Injury— Cross-Petition by City.</p> <p>In an action against a town and one who made an excavation in a sidewalk, for damages sustained by one who fell into the excavation, the city can not set up a cross-petition against its co-defendant for contribution in case judgment for damages is rendered against them.</p> <p>Damages — Compensatory Dlamages.</p> <p>In an action for personal injuries, compensatory damages consists of the cost of cure, loss of time, fair compensation for mental and physical suffering, and for any permanent reduction of the plaintiff’s earning power.</p> <p>Damages — Instruction—Future Suffering.</p> <p>In an action for personal injury, it was held improper to instruct the jury that they should consider future pain in fixing the amount of damages, where the evidence shows that plaintiff had then recovered from the injury.</p> <p>Damages — Instruction—Prospective Damages.</p> <p>In an action for .personal injuries, it was held improper in instructing the jury to call their special attention to future deprivation or loss of health, since future pain and deprivation of health are necessarily included in the permanent reduction in plaintiff’s earning power, and to thus .single them out, gives undue importance to them.</p> <p>Damages — Instruction—Size of Plaintiff’s Family.</p> <p>In an action for compensatory damages for personal injuries, the size of the plaintiff’s family or his poverty is not competent to go to the jury.</p> <p>Municipal Corporation — Excavation in Sidewalk — Personal Injury — Evidence.</p> <p>. In an action for personal injuries by falling into an excavation in a sidewalk, evidence showing that other persons fell into the excavation is inadmissible in the absence of a showing that the defendants knew of such accidents.</p>

<p>Account — Answer.</p> <p>In an action on account, an answer denying that defendants ever agreed to pay a certain item of account, and that such bill was never presented to them for payment, is insufficient, as the defense does not go to the entire claim.</p> <p>Appeal — Reversal.</p> <p>A judgment will not be reversed for an error .of only $3 in allowance by a commissioner.</p> <p>Court Commissioners — Waiver of Submission to Jury.</p> <p>The submission of a cause to a commissioner who was given the power to audit and settle the accounts between the parties, to send for persons and papers and take proof of the claims, was in effect, la waiver by the parties of the right to have the cause tried by a jury.</p>

<p>APPEAL FROM O'WE'N CIRCUIT COURT.</p>

<p>Pledges — Bank Stock — Statutory Lien — Release or Waiver.</p> <p>Where a bank has a statutory lien on shares of stock, before another bank to' which the stock is pledged can subject the stock to its debts, it must prove the release or waiver of the statutory lien .by the other bank.</p> <p>Principal and Surety — Subrogation of Surety.</p> <p>Where sureties are compelled to pay their principal’s debts, the sureties are entitled to have the claims and liens, held by the creditor transferred to them.</p>

<p>Exceptions, Bill of — Tender of.</p> <p>Where time was given until the second day of -the next term of the court in which to file a bill of exceptions, a tender of the bill of exceptions on the -second day of the next term is a sufficient compliance with the order of the court and with the Code.</p> <p>Appeal — Bill of Exceptions — Tender of.</p> <p>Where the court refused -to permit the filing of a bill of exceptions for the reason that it was not offered at the proper time, counsel should have tendered his bill of evidence and excepted to the ruling of the court in refusing the filing, and made the bill of evidence thus offered and his last exception a part of the record.</p>

<p>Judgment — Place of Payment.</p> <p>The fact that the payment in satisfaction of a judgment was made in.another county from that in which the judgment was rendered, cannot alter the effect of the payment, since an execution might have been sent to any county in the state.</p>

<p>Sheriffs and Constables — Validity of Bond.</p> <p>Until there has been a judgment of a court of competent jurisdiction forfeiting a party’s right to the office of sheriff or vacating the office, the person assuming to act as sheriff has the right to execute a bond which will be binding on him and his sureties.</p>

<p>Husband and Wife — Ante-nuptial Contract.</p> <p>'Wiiere an ante-nuptial contract provides, among other things, that the property of the wife shall remain as if the marriage had never taken place, it leaves no room.for construction, and excludes the husband from participating therein.</p>

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

<p>Damages — Instruction—Compensatory Damages.</p> <p>In. actions for personal injuries, the jury should have been instructed as to what elements or circumstances go to make up the compensation to be allowed the injured party.</p>

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

<p>Executors and Administrators — Sufficiency of Petition.</p> <p>An allegation in a petition that the estate of the decedent was indebted to the plaintiff in the sum of $-does not state a cause of action, since if the petition be taken as confessed, a judgment for $-would be no judgment at all.</p> <p>Executors and Administrators — Pleading—Description of Land.</p> <p>A petition to subject land of a decedent to the payment of his debts, which alleges that the deceased owned a tract of land in said county containing - acres, is wholly insufficient for lack of description of the land.</p>

<p>Infants — Suing by Next Friend.</p> <p>An infant may sue by his next friend, but a stranger cannot sue for an infant merely by describing himself as next friend of the infant.</p> <p>Sales — Agreement to Pay in Services.</p> <p>Where a doctor purchased a horse, and it was agreed between the seller and the purchasér that the purchaser should pay for it in medical services to the seller, recovery cannot be had for the value of the horse until it is shown that the purchaser was given an opportunity to render the services and refused to do so.</p> <p>Limitation of Actions — Action on Account.</p> <p>Where ten years have elapsed since the sale of a horse and the institution of an action to recover the purchase-price, a plea of limitation is a bar to the action.</p>

<p>Husband and Wife — Rlight of Wife to Sue or Defend in Husband’s Name.</p> <p>Under Civ. Code, Section 51, where a husband and father has deserted his wife and children, the wife may prosecute or defend in his name any action which he might have prosecuted or defended, and she will have the same rights therein as he would have had.</p> <p>Frauds, Statute of — Agreement to Pay for Board and Care of Imbecile Brother.</p> <p>An agreement by one to pay for the board and care of his imbecile brother is not a contract to answer for the debt or default of another.</p>

<p>Vendor and Purchaser — Scope of Purchaser’s Possession.</p> <p>Where one purchases land adjoining land on which he resides, the purchaser’s possession is, by operation of law, extended so as to embrace the land purchased by him.</p>

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

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

<p>Fraudulent Conveyances — Preference of Creditors.</p> <p>Where an insolvent debtor had no property, except a house and lot, that could be reached by his creditors, and he conveyed that to a favored creditor, making no provisions for any one else, the transaction comes within the statute against fraudulent conveyances.</p>

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

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

<p>Judicial Sales — Exhibit of Title — Warranty.</p> <p>A petition for the sale of land under Ch. 86, It. S., relating to the sale of real estate of an infant married woman, must mate an exhibit of the title, a clause in the commissioner’s deed of the land warranting the title being unauthorized and ineffectual.</p>

<p>Vendor and Purchaser — Action on Purchase-Money Note — Receiver.</p> <p>Where in a suit on purchase-money notes for real estate, the parties agree that the receiver might be appointed to take charge of the property and rent it and take a bond therefor payable to the receiver, and apply the rents on the indebtedness, the defendants should not he allowed to assert an equity as against assignees of the bond so as to prevent recovery by them, o</p>

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

<p>Intoxicating Liquors — County Court Authorizing Sale by Tavern Keeper.</p> <p>A judge of a county court may authorize a tavern keeper to retail spirituous liquors when he shall deem it expedient to do so, and such action is subject to review only for abuse of discretion.</p>

<p>Deeds — Registration—Acceptance—Presumption—Burden of Proof.</p> <p>The registration, of a deed is presumptive evidence of its acceptance by the grantee, and the burden of proof is on the party denying acceptance.</p> <p>Appeal — Renewal—Failure to Describe Land.</p> <p>A judgment which gives no description of the land attached to be sold, but requires' the commissioner making the sale to look to ’ the petition or other pleading for that purpose, must be reversed.</p>

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

<p>Vendor and Purchaser — Improvements by Vendee — Vendor's Lien.</p> <p>Where a Vendor of land reserves a lien on an undivided one-third thereof to secure unpaid purchase money, and after that the vendee made improvement® on the land and changed the character of the buildings thereon, it. does not enlarge or dimmish the rights of the vendor.</p> <p>Appeal — Record—Facts in Issue.</p> <p>Where a question, if before the court at all, must have been submitted by agreement of the parties, the record should exhibit the state of facts authorizing the court to try and determine the issue.</p>

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

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

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

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

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

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

<p>Guardian and Ward — Improvement on .Ward’s Land — Lien.</p> <p>Although persons under 'contract with a guardian have made improvements on the land of the ward, under the belief that the creditor had the authority to contract with them for such purpose, yet they cannot, toy erecting a building on the infant’s land, create a lien thereon whereby the infant can be deprived of his title.</p> <p>Improvements — On Ward's Land Under Contract with Guardian.</p> <p>Where persons have built a house on the land of the ward and made improvements thereon, under the mistaken belief that the guardian had authority to contract therefor, the chancellor should permit them to remove the materials placed thereon within á reasonable time, leaving the land in as good condition as when they began to make the improvements; or permit the ward to pay for the improvements to the extent that they have enhanced the value of the land.</p>

<p>Vendor and Purchaser — Contract Between Father and Son.</p> <p>The evidence was held insufficient to show the existence of a contract between a father and son so as to divest third parties of their title to the land in question.</p>

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

<p>Homestead — Sale—Estoppel of Purchaser.</p> <p>In an execution sale of land, the vendor knows what he is selling and the purchaser knows what he is buying, so the debtor cannot Be estopped to assert a homestead right where he did not consent to the sale or induce .the purchaser to buy.</p>

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

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

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

<p>Criminal Law — Instruction—Province of Jury.</p> <p>An instruction that it is: the province of the jury to pass upon the credibility of each witness, and that if a witness swears falsely in relation to one particular fact, the jury may disregard every other fact testified to by him, is a correct statement of the law.</p> <p>Criminal Law — Instruction—Reasonable Doubt.</p> <p>An instruction that, in order to convict, the jury should be convinced from the evidence of the guilt of the accused and that such conclusion should be so clear and strong as to exclude from their minds all measurable doubt as to the correctness of tbeir conclusion, was held to be a correct statement of the law.</p>

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

<p>Specific Performance — Burden of Proof.</p> <p>Where, in an action for specific performance of a contract for the sale of land, a vendor alleges that the land sold consists of a certain patent obtained by him from the government, which allegation is not admitted by defendant, the burden is on the plaintiff to establish such fact.</p>

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

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

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

<p>Ejectment — Title of Plaintiff.</p> <p>In order to recover in ejectment the plaintiff must rely on his own title to the land, and not the want of title in defendant.</p>

<p>Trial — Defective Verdict.</p> <p>Where the complaint is, for recovery of a single- tract of land containing 335 acres, described by boundaries, and the verdict is for four different tracts containing 43, 24, 11 and 37 acres, respectively, which are described by name only, and the sheriff is unable to locate them from the description given, the verdict is fa-tally defective.</p> <p>Vendor and Purchaser — Survey by Purchaser — Notice.</p> <p>A survey of land by the purchaser, although unlawfully made, is notice to the world, and especially to the vendor, as to the extent of the purchaser’s claim.</p> <p>Courts — Transfer of Case.</p> <p>A case involving a claim to a boundary of land, which originated in ordinary, should -be transferred to the equity docket.</p>

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

<p>Appeal — Objection as to Parties.</p> <p>Objection that a certain person was. not made a party to an action cannot be made for the first time in the Court of Appeals.</p>

<p>Conversion — Amount of Recovery.</p> <p>Where the owner of property might have treated a sale of the property as a nullity, hut, instead of doing so, elects to treat it as a conversion, he is not entitled to more than the value of the property at the time and place of conversion.</p>

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

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

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

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

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

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

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

<p>Abatement and' Revival — Action Prosecuted in Name of State — Death of Relator.</p> <p>Where a 'citizen is prosecuting an action in the name of the state for a change in a public road, the action will abate on his death, unless some other citizen voluntarily comes into court and asks to be allowed to take his place, and will not pass to his representatives and heirs.</p>

<p>Execution — Sale—Presumption as to Knowledge of Purchaser.</p> <p>Where plaintiffs in a suit were the purchasers at execution sale, they will be presumed to know of the release of a surety on a re-plevin bond executed by defendant.</p> <p>Estoppel — Sale Under Void Execution.</p> <p>The doctrine of estoppel does not apply where one’s property is sold under a void execution and purchased by the party who is himself in the wrong and who must have known when he purchased that the party was no longer bound.</p>

<p>Appeal — Reversal—Findings of Court.</p> <p>Where a case is submitted to the court without the intervention of a jury, the finding of the court, which is not flagrantly wrong, will not he disturbed on' appeal.</p>

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

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

<p>APPEAL FROM BAT.H CIRCUIT COURT.</p>

<p>Appeal — Record of Mandate.</p> <p>It is the imperative duty of the trial court to enter'of record a mandate of the Court of Appeals.</p>

<p>Fraudulent Conveyances — Taking Title in Name of Son.</p> <p>The evidence was held insufficient to show that a father purchased land, paid therefor and had the land conveyed to his son for the purpose of cheating and hindering the father’s creditors in the collection of their debts.</p>

<p>Judgment — Rendering Pursuant to Mandate.</p> <p>•A judgment rendered by a trial court in pursuance to a mandate, of the Court of Appeals stands in tbe trial court as all other final judgments over which the court has no control after the expiration of the term at which it was rendered, unless to vacate or modify ft in the manner prescribed by law.</p> <p>Judgment — Collateral Attack.</p> <p>Judgments are binding between the parties and their privies until reversed, vacated, annulled ,na d modified in the .manner prescribed by law, and will be upheld as against collateral attack.</p> <p>Reformation of Instruments — Sufficiency of Evidence.</p> <p>An alleged mistake in the execution of a deed for land should not be corrected upon the testirhony of the plaintiff alone.</p>

<p>Parties — Petition to Be Madte Party After Final Judgment.</p> <p>Under Section 257, Civil Code Practice, one was held entitled to be made a party to an action, although a final judgment has been rendered between the original parties to the action at the previous term of court.</p>

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

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

<p>Appearance — Presence in Court — Waiver of Notice.</p> <p>Where, at the time complainant filed her petition, defendants were in -court and waived notice, it had the effect of bringing defendants before the court for all the purposes of the petition.</p> <p>New Trial — Undisputed Evidence of Plaintiff.</p> <p>Where the evidence of plaintiff in petition for a new trial is undisputed, it was held sufficient to authorize the granting of a new trial.</p>

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

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

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

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

<p>Cancellation of Instruments — Petition.</p> <p>The petition in an action to set aside a contract for the conveyance of land and sale of railroad stock, made toy the husband in behalf of his infant wife, was held to state a cause of action.</p> <p>Appeal — Record—Judicial Notice.</p> <p>The Court of Appeals can not take notice of any paper which does not constitute a part of the record before it.</p>

<p>Injunction — Recovery on Bond.</p> <p>'In an action on an injunction bond, plaintiffs can recover only to the extent that they show they have been injured, and in order to recover plaintiffs must allege facts under which such proof may be admitted.</p>

<p>Contracts — Payment of Another’s Debts.</p> <p>Where, under an arrangement between a debtor and a third person, the latter undertook to pay off the former’s indebtedness, the ■fact that the third person paid off some debts created after the agreement, does not charge him with the payment of other debts created since the agreement,</p>

<p>T r espass — Pleading.</p> <p>A petition for .trespass to plaintiffs’ land, alleging that plaintiffs have sued to recover $1,500 damages’ for wrongful entry upon the land, and that they believe they will recover said sum, was held insufficient.</p>

<p>Trusts — Management of Farm for Old and Decrepit Woman.</p> <p>"Where an old and infirm woman who was unable to manage and supervise her farm, entrusted the matter to another, he assumed the position of quasi trustee.</p> <p>Account — Manner of Accounting.</p> <p>Where one undertook the management óf a farm of an old and infirm woman, consisting of four hundred acres of land, slaves, stock, farming implements, and crops, but kept no accounts of his transactions, thereby rendering it Impossible to make a correct settlement, the proper procedure is, either to charge him with such funds as ought to have been realized from the farm by a prudent and industrious man, or treat him as having purchased the stock, crops, farming implements and supplies when he took possession, and as having rented the farm and hired the slaves.</p>

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

<p>Wills — Right of Survivorship Between Devisees.</p> <p>Under a provision in a will “that if any of my children shall die without children the land, etc., shall be divided among my remaining children and heirs,” on the death of one of the testator’s children without issue, her interest in the land passes to the surviving children, there being no other heirs.</p>

<p>Appeal — Reversal—Surplusage.</p> <p>Refusal to strike out certain words as surplusage is not cause for reversal, where the ruling could not have prejudiced the rights of appellant.</p> <p>Gaming — Construction of Statute.</p> <p>■Section 5, ch. 42, R. S., relating to betting or wagering, comprehends any betting or wagering, whether upon a “game, sport, pastime,” or an election.</p>

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

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

<p>Husband and Wife — Suit for Wife’s Debt — Pleading.</p> <p>Where a husband in suing to recover a debt contracted by defendant with plaintiff’s wife prior to the plaintiff’s marriage with her, fails to allege that any property came to his possession by virtue of the marriage, the petition does not state a cause of action.</p> <p>• Pleading — Defect in Petition Cured by Answer.</p> <p>A petition by a husband to recover a debt owing to his wife, contracted prior to their marriage, which is defective for failure to show that any of the wife’s property came into his possession, is cured by an answer which admits the indebtedness and sets up a set-off and asks a judgment for the overplus.</p> <p>Attachment — Fraudulent Combination to Defeat Creditors.</p> <p>The evidence was held to establish a fraudulent combination between a defendant and third persons for the purpose of holding the property of defendant as against the claims of his creditors, and to be sufficient to sustain an order of attachment.</p>

<p>Judgment — For Sale of Property — Description.</p> <p>A judgment directing the sale of property should be ^o specific in its directions as to enable the commissioner to execute the mandate without reference to any other paper in the case.</p> <p>Judicial Sales — Sale Subject to Purchase-Money Note.</p> <p>In the sale of the equitable interest of a debtor in land, in which there is no defect of title, the land should be made subject to the payment of the purchase-money.</p>

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

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

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

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

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

<p>Infants — Service of Process On.</p> <p>Service of process on infants, all of whom are under fourteen years of age, without service on their parent, guardian, or white person having the care or .control of them, or with whom they lived, is not a compliance with ’Sec. 81, Civ. Code, and will not support a judgment.</p>

<p>Railroads — Personal Injury — Recovery.</p> <p>Where it is alleged that plaintiff’s deceased was not an employe of the defendant railroad company when he received the injuries complained of, recovery may he had under either section of the statute.</p>

<p>Homicide — Instruction.</p> <p>An instruction that if the jury believe from, the evidence that W. was killed as charged, and that the accused was voluntarily present and “approved” of the killing of W., such voluntary presence and approval render him equally guilty with the actual perpetrator of the homicide, without stating what acts would constitute aiding, abetting or other participation in the' crime, was held erroneous.</p>

<p>Fraudulent Conveyances — Conveyance by Husband to Wife — Lien to Wife.</p> <p>Where an insolvent husband conveys land of his wife in fraud of his creditors, the creditors may subject the land to the payment of their debts, reserving to the wife a lien on the land to secure the proceeds of the wife’s land which the husband had paid to the creditors.</p> <p>Homestead — Subjecting Land by Creditors.</p> <p>In subjecting land conveyed by the husband and his wife to payment of the husband’s creditors, the homestead should be expressly excepted.</p> <p>Dower — In Land Subjected by Creditors.</p> <p>In an action by creditors to subject land to the payment of their debts, which had been conveyed to the wife by the husband, the wife can not assert her claim to dower.</p>

<p>Torts — Entry by Owner Upon Right of Way.</p> <p>Although, the relinquishment of a right of way of a turnpike road does not pass the absolute title, an entry by the owner in fee upon the possession of the company, and destroying or injuring tie easement, constitutes a tort.</p>

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

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

<p>Fraudulent Conveyances — Conveyance to Defeat Creditors.</p> <p>The sale by a debtor of all his property subject to execution, just prior to being sued by a creditor, was held to be a sham device to defeat the' grantor’s creditors.</p> <p>Fraudulent Conveyances — Prima Facie Case of Fraud.</p> <p>Where it is shown that a debtor, just prior to being sued by a creditor, conveyed all his property which was subject to execution, but retained possession and control of the premises, it mates out a prima facie case of fraudulent combination.</p>

<p>Assignments — Obligee’s Liability to Assignee.</p> <p>An obligee who has notice, oral or written, of the assignment of a claim, can not escape liability to the assignee, by payment of the amount of the claim to the assignor, or by purchasing debts against the assignor as set-offs against the claim.</p> <p>Trial — Issues—Instruction.</p> <p>An issue of fact not raised by the pleadings should not be submitted to the jury by instruction.</p>

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

<p>Estoppel — Agreement as to Boundary Line — Failure to Give Notice.</p> <p>Where a devisee ¿greed with his brothers "and sisters as to a boundary line of the land devised to them by their father, whereby he was to have all the land east of such line, and he stood by and permitted the land west of the line to be sold without giving any warning or notice of claim thereto by him, he is estopped to assert a claim to any portion of the land .west of such line.</p> <p>Trial — Instructions—Waiver.</p> <p>Error in refusing to give or in qualifying instructions given, is waived by failure to object and except to such action of the court.</p>

<p>PETITION TO MODIFY OPINION.</p> <p>APPEAL FROM MADISON CIRCUIT COURT.</p>

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

<p>Gaming — Discovery.</p> <p>Section 3, cb. 42, R. S., enables persons suing under S'ec. 2 to bave discovery, not only as to the amount of money lost at gambling, but as to tbe persons interested in tbe game at wbicb tbe money was lost.</p>

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

<p>Deeds — Mental Capacity to Convey.</p> <p>Tlie finding of a jury impaneled to inquire into tlie sanity of the grantor of land in the year 1869, that the grantor had sufiicient mental capacity to execute the conveyance, is entitled to great weight in determining his mental condition in the year 1868.</p>

<p>Municipal Corporations — Improvement Contract — Approval.</p> <p>A copy of the record of approval of a contract, certified by the officer who has charge of the journals of the common council, can not be affected by the testimony of any number of witnesses who have failed to discover the record of such approval.</p>

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

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

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

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

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

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

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

<p>Interest — Use of Money Under.Order of Court.</p> <p>Where by a consent order a party was permitted to withdraw money paid into court and use it, he must account for interest thereon.</p>

<p>Insane Persons — Furnishing Support to Idiot — Compensation.</p> <p>One who contributes- to the support of an idiot without any contract or arrangement with the committee therefor, can not recover for the aid furnished, especially where the person so furnishing the aid was fully compensated by the use of the ward’s property.</p>

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

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

<p>Husband and Wife — Property of Wife — Possession.</p> <p>Where a husband had possession of his wife’s money, either as a loan or for the purpose of paying it on the purchase-price of land ■bought by him, and it was used in partnership business in which the husband was interested, and the wife’s conduct was free from fraud, and she got possession of the money by as meritorious means as did the partnership, a court of equity will not disturb her possession thereof.</p>

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

<p>Partnership — Personal Property.</p> <p>Where a temporary partnership was formed for the purpose of speculating in a hotel property hy purchasing and reselling it, the chancellor properly refused to treat the property as personalty,</p>

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

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

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

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

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

<p>Husband and Wife — Ante-Nuptial Debts — Liability of Husband.</p> <p>Under § 3, art. 3, ek. 47 R. S„ a husband is liable for tke ante-nuptial debts, of kis wife to the extent of her property received by him, exclusive of real estate and slaves.</p> <p>Husband and Wife — Wife’s Ante-Nuptial Debts — Judgment Against Husband.</p> <p>In a suit against a husband for ante-nuptial debts of the wife, judgment should not be rendered against him to- be levied on the property in his hands received by or through the wife, since all the property of the husband subject to execution is liable within the limits fixed by the statute.</p>

<p>Vendor and Purchaser — Knowledge by Purchaser of Claim of Infant.</p> <p>Where a purchaser of land knew of the claim of an infant thereto, and a deduction was made from the purchase price on account thereof, but the purchaser failed to exercise diligence to ascertain the nature of the infant’s claim, he can not complain.</p>

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

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

<p>Executors and Administrators — Action by Administrator to Settle Estate —Answer.</p> <p>In an action by an administrator to settle the estate, sell land to pay debts, divide the land among the heirs, and to obtain an allowance for claims for which he was not given credit in a former settlement, an answer surcharging the former settlement and alleging plaintiff’s indebtedness to the heirs as >a set-off against the claims, presents a good defense.</p> <p>Executors and Administrators — Claims by Administrator.</p> <p>Where claims of an administrator have been passed upon by a court of competent jurisdiction and pronounced valid, they should not be rejected in a suit to surcharge the settlement because of defects- in affidavits attached thereto.</p> <p>Executors and Administrators — Claims by Administrator — Set-Off.</p> <p>As against a claim asserted by an administrator in. a settlement suit, the heirs may set off rent for the land.</p> <p>Executors and Administrators — Settlement Suit — Attorney’s Fees.</p> <p>In a settlement suit by an administrator, if he is allowed a claim against the estate, he is entitled to a judgment for attorney’s fees.</p>

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

<p>Insurance — Valued Policy — Amount of Recovery.</p> <p>In an action on a fire policy which is not a valued policy, the insurer is only hound to make good the amount of the loss, and it was error to instruct the jury that if the property was totally destroyed and the finding is for the insured the verdict should be for the full amount of the policy.</p> <p>Insurance — Valued Policy — Definition.</p> <p>A valued policy is one in which the value of the property insured has been agreed upon by the parties, and the agreement inserted therein, such valuation being in the nature of liquidated demands, and in case of total loss, no proof of actual damages is admissible.</p> <p>Insurance — Valued Policy — Presumption.</p> <p>The presumption can not be indulged from the fact that the applicant has inserted an estimated value of the property, that the policy is a valued policy, thus closing all investigation as to the amount of the loss, since a valued policy must he a matter of contract.</p>

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

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

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

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

<p>Sales — False Representations by Purchaser.</p> <p>Where one purchased goods, upon the false representation that he was a member of a certain firm, and the goods were sold to the firm upon such representation, the purchaser can not escape personal liability by showing that his representations were false.</p> <p>Sales — Pleading—False Representations.</p> <p>Where one purchased goods and obtained credit on false- representation that he was a member of a certain firm, it is not necessary in a suit against him on the debt to rely in the petition on such false representation, but it is sufficient to show that he obtained the credit and that he was a party to the transaction when the goods were sold,- and claimed to be a member of the firm.</p>

<p>Insurance — Premium Note — Venue.</p> <p>Where an insurance company which had not complied with the law of Kentucky, executed a policy to a citizen of Kentucky, took her premium note therefor and delivered the policy to her in the state of Ohio, recovery may be had on such policy either in the state of Ohio or in Kentucky.</p>

<p>Municipal Corporations — Street Improvements — Liability For.</p> <p>Under a city charter, where there were no squares lying north of the improved street; the lots lying on the south side of the street adjacent to the improvement may be held liable for the entire cost of the improvement, and the owners of such lots can not complain where they have been relieved from payment of half of the cost of the improvement by assessments on other property not within the square, which assessment is not resisted.</p>

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

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

<p>Master and Servant — Inexperienced Employe — Duty to Instruct — Personal Injury.</p> <p>Where an employer knew of the danger incident to the repairing of machinery and the employe was inexperienced and did not know of the danger, it was the duty of the employer to inform the employe of the danger and to give him proper instruction.</p> <p>Master and Servant — Assumption of Risk — Question for Jury.</p> <p>Whether the employe had knowledge of the risk he was assuming, or by the exercise of ordinary prudence and caution, could have avoided the danger, were questions for the jury under proper instructions.</p> <p>Master and Servant — Dangerous Machinery — Duty of Master.</p> <p>Where an employe’s position in repairing machinery was dangerous because of the absence of a belt shift, and the employe because of his inexperience was not aware of the danger, it was the duty of the employer to instruct him as to the danger and provide against it.</p>

<p>Continuance — Affidavit For — irrelevant Matter.</p> <p>One can not, by improperly incorporating irrelevant matter in an affidavit for continuance, because of the absence of a witness, get it before the jury.</p> <p>Damages — Double Damages — Instruction.</p> <p>An instruction that “If the jury 'find for the plaintiff, they may find not only an amount sufficient to compensate her for the actual injuries sustained by her, but may take into consideration the expense incurred by plaintiff by reason of the -injuries, the loss of timé to her occasioned by the injuries, her suffering, both mental and physical, and the character, extent and duration of the injuries, and find such amount as in their opinion all the facts and circumstances connected in the case justify, not exceeding the amount claimed in the petition,” was held erroneous as authorizing doubje damages.</p> <p>Damages — Measure of Damages — Instruction.</p> <p>In an action for personal injuries tiie jury should be instructed to base their verdict upon, the expense of cure, the value of time lost, fair compensation for physical and mental suffering, and for permanent reduction of the plaintiff’s earning power.</p>

<p>Deeds — Contingent Remainder.</p> <p>Where a wife conveyed her land to B. for the stated consideration ' of $2,000, and B. for the same recited consideration conveyed the land to the wife’s husband for life, with remainder to her son and daughter, with the condition that if said son and daughter should die without heirs prior to the death of their father, then the estate should go to R’s, the wife’s children -by her former husband, the estate did not pass to P.’s, the daughter of the wife by the second husband having died leaving her father as her heir, and the father • having died leaving his son as heir.</p>

<p>Partnership — Paying Partnership Money on Individual Debt — Remedy.</p> <p>Where one partner, without the consent of his co-partner, paid his individual debt with partnership money, with knowledge on the part of the payee that the money belonged to the partnership, the other partner has his remedy against the person who received the money.</p>

<p>Set-Off and Counterclaim — What Constitutes Counterclaim.</p> <p>An answer which, does not ask for a judgment, but claims a credit, and is directly connected with the transaction forming the basis of the petition, must he regarded as a counterclaim.</p> <p>Contracts — Obligations Payable in Gold or Its Equivalent.</p> <p>Where an obligation undertaken at a time when there was a difference payable in the value of gold and paper currency, provided for payment in gold, the obligee may,enforce payment in gold or its equivalent in value of paper currency.</p>

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

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

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

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

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

<p>Joint Tenancy — Entry by Joint Tenant* — Presumption.</p> <p>The presumption of fact, that where one joint tenant enters upon the premises his entry is for his co-tenants as well as himself, may be rebutted by evidence.</p>

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

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

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

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

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

<p>Bills and Notes — Inland and Foreign Bills of Exchange.</p> <p>A clause contained In the charter of a savings bank: “This corporation shall have the rights and privileges of the chartered savings institution of the State,” does not confer upon the bank the power of buying and dealing in inland bills of exchange and promissory notes, nor place them upon the footing of foreign bills of exchange.</p>

<p>Appeal — Reversal.</p> <p>Error In a judgment against a sheriff, charging him five per cent, of the taxes due and owing hy the tax payers and uncollected by the sheriff, is cause for reversal.</p>

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

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

<p>Intoxicating Liquors — Indictment for Keeping Tippling House.</p> <p>An indictment for keeping a tippling house held sufficient whether drawn under the Revised Statutes or under the Act of March 21, 1871.</p>

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

<p>Criminal Law — Reversal—Overruling Demurrer.</p> <p>Under § 349, Criminal Code, tbe Court of Appeals bas no power to reverse a judgment for a misdemeanor because of error in overruling a demurrer to tbe indictment.</p> <p>Arrest — Statutory and Common Law Remedies.</p> <p>Art. 18, cb. 28, Revised Statutes, relating to arrest and trial of persons guilty of riot, rout, fraud, etc., is merely cumulative of tbe common law remedy and does not abrogate tbe common law on tbe subject.</p>

<p>Gaming— Instruction.</p> <p>■ An instruction, that in order to convict, the jury must believe that accused acted, not only as “lookout,” but that as such he assisted in the game, was held not to be erroneous.</p>

<p>Judicial Sales — Sale in Court Room — Setting Aside Judgment.</p> <p>Where a judgment requires that the sale of land be made at the court house dóor, and sale Is made within the court room with closed doors, at which the property did not tiring more than half its value, the sale will be set aside.</p>

<p>Receiving Stolen Goods — .Indictment—Felonious Intent.</p> <p>An indictment for receiving stolen goods should allege that the goods were received with felonious intent.</p>

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

<p>Husband and Wife — Wife’s Liability for Medical Attention to Daughter.</p> <p>Where a feme covert procured medical attention for her daughter, and the services were rendered on the credit of the mother and she induced the doctor to continue his services for the daughter after the mother had become discovert, the mother may be held liable for the services rendered.</p>

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

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

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

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

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

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

<p>Appeal — Transcript of Record.</p> <p>Before the Court of Appeals can. revise the -judgment of a trial court, one of the parties must, within the prescribed time, file in the cleric’s office an authenticated copy of the record.</p>

<p>Partnership—Evidence.</p> <p>The evidence was held not to show that one was a member of a certain firm.</p> <p>Partnership—Estoppel—'Burden of Proof.</p> <p>Where one seeks to estop another from showing that he was a member of a certain firm, the burden of establishing the estoppel is on the former.</p>

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

<p>Compromise and Settlement — Good Faith.</p> <p>In. the compromise and settlement of a claim for a less amount than is due, the utmost good faith must characterize the transaction and such good faith is not to be inferred in favor of the debtor.</p>

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

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

<p>Appeal — Record—Affirmance.</p> <p>Where the record on appeal does not contain an amended reply, the instructions, nor a deposition alleged to have been improperly -read -to the jury, and from the evidence before the court it can not ■be said that the findings of the jury are not in accordance with the preponderance of the evidence, the judgment will -be affirmed.</p>