Volume 76 — Kentucky Reports

Case 1 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. Prima facie, every gift of personal property or money by the ancestor is chargeable as an advancement. If this presumption is denied the burden is on the donee to show that it was given “ without any view to a portion or settlement in life.

Case 2 — PETITION EQUITY APPEAL PROM BOURBON CIRCUIT COURT. A creditor having more than one security may go on all or either ■one of them for his whole debt. (Logan, &c. v. Anderson, &c., 18 B. Mon. 114.) Contended that the principles decided in Logan, &c. v. Anderson, &c. (18 B. Mon. 114), did not apply to the facts of this case.

<p>1. IP A PERSONALTY BE CONVEYED TO A MARRIED WOMAN POR HER separate use the law intercepts the title intended to he invested in her and vests it in her husband; but the chancellor, intent on carrying into effect the intention of the grantor, seizes upon the conscience of the husband and compels him to hold the property for the benefit of the wife, by converting him into a trustee for her.</p> <p>2. If the husband sells or gives personalty to his wife — she being incapable of taking from him — the law denies effect to his intention, but equity will interpose, and, recognizing the rule of law that the husband is still the legal owner of the property, will, in order to give some effect to the transaction, treat him as holding as her trustee, and compel him to hold for her use. (Maraman v. Maraman, 4 Met. 84; Campbell, &e. v. Galbreath, 12 Bush, 459.)</p> <p>3. The legal title to personalty given by the husband to his wipe, and held by him, by implication of law, in trust for her use, vested in her at his death, and she and her second husband may maintain an action at law against his administrator to recover such property or damages resulting from its conversion by the administrator.</p> <p>The contrary doctrine laid down in Bridges v. Wood (4 Dana, 610) is disagreed to, and virtually, though not expressly, overruled.</p> <p>4. A TRUST created prom necessity or por a special purpose will cease with the necessity which gave rise to it, or upon the accomplishment of the special purpose.</p> <p>5. The cestui que trust may maintain an action at law against the trustee or a third person to recover the trust property, or for an injury to it, subject to the equitable rights of the trustee on account of claims against the trust-fund for advances, expenses, etc.</p> <p>6. When the position op parties is reversed. — A legal title, which will defeat the plaintiff, will enable the person holding it to sustain an action, if the possession of the property should be so changed as to reverse the position of the parties.</p>

<p>Case 4 — PETITION OBDINABY</p> <p>APPEAL PROM HARRISON CIRCUIT COURT.</p> <p>1. The petition of appellee is defective, and the demurrer thereto ■ should have been sustained for the following reasons:</p> <p>First. Because it (the petition) fails to state that the road was completed and in operation from Mt. Sterling to the coal-fields at the time of the making of the order extending it to Cynthiana.</p> <p>Second. Because the order of extension was not made in conformity with appellee’s charter.</p> <p>Third. Because the charter of the appellee and the order extending the road to Cynthiana {said order preceding and mahing a part of the terms of the subscription of appellant and the other subscribers in Cynthiana and vicinity) show conclusively that the subscription of appellant was for the sole purpose of building the road between Mt. Sterling and Cynthiana, when appellee states distinctly in its petition that it desires to collect the subscriptions to appropriate them in the payment of a debt incurred by it in the construction of the road east of Mt. Sterling, a purpose entirely foreign to that for which they were subscribed.</p> <p>2. That the Coal Road Company had no right, under secs. 2 and 6 of its charter, to construct a branch road until its main line from Mt. Sterling to the coal-field was completed, and therefore the subscriptions to build the branch road from Mt. Sterling to Cynthiana were null and void.</p> <p>3. That appellant’s petition was defective because it did not allege the organization of the company and the completion of the road from Mt. Sterling to the coal-field as conditions precedent to its right to construct a branch road to Cynthiana. (Fry’s ex’r v. Lexington & Big Sandy R. R. Co., 2 Met. 324.)</p> <p>1. Whether the company was duly and regularly organized or not can not be called in question in this action. (Gill’s adm’x v. The K. & C. G. & S. Mining Co., 7 Bush, 639.)</p> <p>2. Sec. 7 of the charter authorizes the company to extend its road to Paris or Cynthiana without limit or restriction.</p> <p>3. The subscription to the capital stock of the company is one thing, and the application of the funds to the completion of the road another.</p> <p>The subscription agreement does not bind the directors of the company to any appropriation of the stock subscribed, except to the furtherance of the objects contemplated by the charter.</p>

<p>Case 5 — MOTION IN FISCAL COURT</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>1. The bond on which this proceeding is based was executed January 22, 1874; the order of the county court purporting to accept and approve said bond purports to have been made at the January Term, 1874, but does not show on what day or days in January the term was held. A sheriff’s bond is not a good statutory bond until it has been approved by the county court.' (Commonwealth v. Davis, 9 B. Mon. 128; Calloway v. Commonwealth, 4 Bush, 383.) The county court of Barren County is required to he held “on the third Monday in every month in which no circuit court is held.” (Act of Dec. 21, 1821, 1 M. & B. p. 513). The circuit courts in said county commence the first Mondays in April and October (Gen. Stat. sec. 5, art. 5, chap. 28). The courts are required to take “judicial notice of all acts and resolutions of the General Assembly” (sec. 1, chap. 37, General Statutes); also, of the coincidence of the days of the week with the days of the month, according to the ordinary computation of time. (1 Greenleaf’s Ev. sec. 5). No circuit court was held in the county in January, 1874; the county court was therefore held on the third Monday, which was the 19th of January, 1874.</p> <p>As the order of the county court does not show on what day the hond was accepted and approved, it must be presumed (Freeman on Judgments, sec. 45, p. 40) that the order was made on the first day of the term, to-wit, January 19, 1874; therefore the bond of January 22, 1874, was never accepted and approved by the county court, and is not a good statutory bond. (Fletcher v. Leight, Barrett & Co., 4 Bush, 303.)</p> <p>2. The order of the county court stating that Basham “ took the requisite oaths, and together with . . . his sureties entered into and acknowledged bonds to the Commonwealth conditioned according to law, which was approved and accepted by the court” does not identify or show which or what bond was accepted by the court. The order shows that Basham executed bonds which was approved. There is an error in the plural bonds or in the singular was, as to which, in a summary proceeding like this, no presumption should be indulged against the defendants. (Galloway v. Commonwealth, 4 Bush, 383; Hall v. -Commonwealth, 8 Bush, 378.)</p> <p>3. The bond of January 22, 1874, is not binding on the appellants, the sureties therein, because the county court had no right at the time said bond was executed to take from Basham a bond for the collection of the revenue for the year 1874.</p> <p>It was the duty of the court, when Farris, the elected sheriff, failed to execute his bonds as required by law, to have appointed a collector of the revenue for the year 1874, and to have taken bond from him and not from Basham, who was appointed to fill the vacancy in the office of sheriff until the next succeeding August election. (General Statutes, sec. 2, art. 8, chap. 92.)</p> <p>The resignation of Farris, the elected sheriff, after his failure to execute bonds as required by law, created a vacancy in the office of sheriff of Barren County, which was filled by the appointment, by the county court, of Basham “ until the next succeeding August election, and until the successor then chosen has qualified. (Sec. 5, art. 6, chap. 33, General Statutes.)</p> <p>The General Statutes, p. 730, provide that the “sheriff by virtue of his office shall be collector of the revenueand in sec. 7, p. 732, that “the sheriff from and after the first day of June in each year shall collect the taxes due in his county,” etc.</p> <p>When the sheriff fails to give bond for the collection of the revenue the county court should appoint a collector of the revenue for that year, etc.; but all this implies that there is a sheriff in office who refuses to give bond for the collection of the revenue.</p> <p>A sheriff can not be put out of office without trial and conviction. (Stokes v. Kirkpatrick, 1 Met. 140; Lowe v. Commonwealth, 3 Met. 237; Patterson v. Miller, 2 Met. 493.)</p> <p>Bjr the acceptance of the resignation of Farris by the county court after his failure to execute the bond and before the appointment of a collector, and the appointment of Basham as sheriff to fill the vacancy, a sheriff was brought into existence who was willing and able to give the bond. The moment the vacancy was filled the incumbent had a right to say whether he would collect the revenue or not, and as long as he was willing to assume the duty and give the bond a collector was unnecessary, and the court had no power to appoint one.</p>

<p>“With the privilege oe breeding back again next season, should the mare not prove with foal. The money (price of the season) due at the time of the service, or before the mare is removed.” Under the foregoing stipulations in the published terms upon which a stallion was to make a season, the customer had the right to reput his mare the next season provided she did not prove in foal the first one, and provided the horse and mare both lived till the next season. The owner of a mare not proving with foal is liable for the price of the season, although he is deprived of the privilege of breeding back the next season by the death of the horse.</p>

<p>1. An ACTION TO RECOVER POSSESSION OF LAND CAN NOT BE DEFEATED by the defendant by showing that the plaintiff had executed a mortgage on the land to secure a debt which had not been paid.</p> <p>■2. A mortgagee merely holds the title as a security for a specific purpose, and the mortgagor remains the owner, and prima fade entitled to possession until foreclosure and sale.</p> <p>-8. When a third party enters without right, the trespass is a pecuniary injury to the mortgagor, and in an action to eject the wrongdoer the mortgagor is the real party in interest, and the mortgagee can not be regarded as a necessary party.</p> <p>•4. The rule that a plaintiff in ejectment can not recover premises, the title to which is in a third person, does not apply where the outstanding title is a mortgage, and the mortgagor may maintain ejectment against ' one who claims by a conveyance in fee-simple absolute from the mortgagee. (1 Hilliard on Mort., 4th ed., p. 165.)</p> <p>■5. A defendant, without color of right in himself, can not defeat a recovery of real property by a plaintiff who has made out a case of ownership and immediate right to the possession by showing the legal title to be outstanding in anothek, who holds in trust for the plaintiff.</p>

<p>1. A PARTITION MADE BY COMMISSIONERS SHOULD NOT BE DISTURBED, it appearing that they made an actual examination of. each piece of realty, and were guided in their investigations by the title papers and not hy erroneous memoranda filed with the pleadings.</p> <p>2. A GIPT TO A DEVISEE BY THE TESTATOR APTER MAKING HIS WILL disposing of his entire estate — it not appearing hy parol or other evidence that the gift was intended as a satisfaction, in whole or in part, of the devise — is not chargeable against the devisee as an advancement or ademption or satisfaction, in whole or in part, of the devise.</p> <p>3. The first clame of sec. 17, chap. 106, Revised Statutes, Title Wills, was intended to place devisees or legatees, to whom the testator does not stand in the relation of parent, upon the same footing with children or grandchildren, and to change the common law to that extent.</p> <p>The latter clause further changes the common law so as to apply certain gifts to the satisfaction of devises or legacies, whether specific or general, and whether for a fixed or an uncertain sum. But this provision does not control, unless it can be made to appear, from parol or other evidence, that the testator intended at the time it was made it should be deemed a satisfaction, partial or entire, of the devise or bequest contained in the provisions of the will.</p>

<p>1. A COUNTY COURT CLERK IS NOT ENTITLED TO CHARGE THE COUNTY court for entering orders for winch, fees are not expressly allowed by law and directed to be paid by the county court.</p> <p>See in opinion a list of fees properly rejected by the county court.</p> <p>2. "No fee-bill shall be made out, or compensation allowed hereafter, for any ex-officio services rendered or to be rendered by any officer.” (See. 5, art. 18, chap. 41, G. S.)</p> <p>3. When the state requires services to be performed by its officers, for which no remuneration is allowed by law, they must be regarded as ex-officio services, for which no charge can be made.</p> <p>4. State and county governments never become debtors, by implication, to any of their agents.</p> <p>In order to show that the state or county is responsible for a claim, the claimant must show a legal obligation on the part of the state or county to pay it.</p>

<p>Case 10 — PETITION EQUITY</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>A party can not institute suit before bis cause of action bas matured, and tben avail bimself of its maturity, pending tbe action, by amended or supplemental petition. Tbe right of action is to be tested by tbe facts existing at tbe time tbe suit is brought, not by those existing at tbe trial.</p> <p>If a new cause of action is set up in an amended petition, process must be issued thereon.</p> <p>Tbe statute does not give a party tbe right to sue before tbe maturity of bis claim, in order to save bis mechanic’s lien.</p> <p>Tbe statement was filed in tbe clerk’s office within tbe sixty days, and tbe suit was commenced within tbe six months required by the statute. This was necessary, although tbe debt was not due, to preserve tbe lien under tbe statute.</p> <p>By extending tbe credit beyond six months, tbe mechanic’s lien was not lost, but it was necessary to bring tbe suit within tbe six months to preserve it, although no judgment could be rendered foreclosing tbe lien until after tbe maturity of the debt. (General Statutes, chap. 70.)</p>

Case 11 — PETITION EQUITY APPEAL PROM PENDLETON CHANCERY COURT. 1. The appellant is not bound by the deed to the Hunts, because it was not acknowledged by her as required by law. 2. A husband can not sell and convey all the real estate he has, and deprive his wife and children of the possession against her consent. The object of the homestead exemption is for the benefit of the family —the wife and children.

Case 12 — PETITION EQUITY APPEAL PROM LYON CIRCUIT COURT. 1. One member of a mining or other non-trading partnership has no 'implied power to pledge the credit of the other partners by drawing bills of exchange in the firm name.

Case 13 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT. 1. That there was no vacancy when Scott was appointed administrator, with the will annexed, of William M. Brand, dec’d, and hence the order appointing him was void ab initio. (Ewing v. Sneed, 5 J. J. Mar. 459, and cases there cited.) 2. That Warfield, as surety on the bond of Scott as administrator, is only bound by its express covenants and for acts performed by Scott virtute officii.

Case 14 — PETITION EQUITY APPEAL EROM DAVIESS CIRCUIT COURT. 1. Held: in the absence of actual notice, to inquire into the fulfillment of all the formal prerequisites to the issue. (33 Miss. 440; 45111. 139; 3 Wall., jr., 367; 43 Penn.

Case 15 — PETITIONS EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1.

<p>Case 16 — PETITION ORDINARY</p> <p>APPEAL PROM CALDWELL CIRCUIT COURT.</p> <p>The forfeiture denounced by the conventional interest act of 1871 applies to the facts of this case. (1 Sess. Acts, 1871, p. 62.)</p>

Case 17 — PETITION ORDINARY APPEAL FROM BOURBON CIROUIT COURT. 1. The court below erred in not postponing the trial on the affidavits filed. 2. Held: that by the common law, if the husband was an alien, and had never resided in the country, the wife might be sued as a feme sole, as in Kay v. Duchess of Pienne, 3 Camp. 123; and Shelton v. Busnach, 4 Moo. & Scott, 678.

Case 18 — PETITION ORDINARY APPEAL PROM CAMPBELL CIRCUIT COURT. 1. The act of March 15,1870 (under which this action is prosecuted), requires suit to be brought by equitable proceedings, and not in a court of law as this was. 2.

Case 19 — PETITION EQUITY APPEAL FROM KENTON CHANCERY COURT. 1. One who has permitted judgment to go at law on a debt embracing usury can not, until after he has paid the debt, sue to recover the usury. (Stone v. McConnell, &e., 1 Duvall, 55; Ross v. Ross, 3 Met. 276.) A bill taken in payment of a prior bill or for an antecedent debt is to be regarded as mercantile paper.

Case 20—INDICTMENT APPEAL FROM BOURBON CIRCUIT COURT. Henry B. Tully, the appellant, was indicted in the Scott Circuit Court, March Term, 1874, as accessory, after the fact, to the murder of Jerry Burns by Ben Osborn, in Scott County, in August, 1873. At the September Term, 1874, Tully was tried, found guilty, and adjudged to pay a fine of $10,000, and to be confined one hour in the county jail.

Case 21 — INDICTMENT APPEAL PROM BOYD CRIMINAL COURT. 1. The open possession and sale of the iron by appellant were sufficient to rebut the presumption of felonious intention. (1 Starkie on Evidence, p. 606.) 2. The divorced wife of appellant was a competent witness in his behalf to prove facts which came to her knowledge during coverture, but not by reason of her confidential relations with her husband.

Case 22. — MOTION TO REVIVE JUDGMENT. APPEAL PROM CALDWELL CIRCUIT COURT. 1. The mortgage and certificate of acknowledgment of the grantors, husband and wife, were in due form and valid as to the homestead.

Case 23 — PROBATING WILL APPEAL EROM BULLITT CIRCUIT COURT. 1. The first evidence of capacity to make a will to be considered, and that to which great weight should be given, is the will itself. (Reed’p Will, 2 B. Mon. 80; McMeeldn v. McMeekin, 2 Bush, 80.) 2. As to what influences may induce or control the making of a will without invalidating it, see 4 Met. 174; and Broaddus v. Broaddus, 10 Bush, 304.) 3.

Case 24 — PETITION EQUITY APPEAL PROM CARTER CIRCUIT COURT. 1. The contract between the principal and surety in the bail bond, whereby the latter agreed that the former might leave the state in consideration of the conveyance of the land, etc., to him, was illegal and against public policy, and having been fully executed, a court of equity will not aid either party, but will leave them where they placed themselves.

Case 25 — PETITION EQUITY APPEAL PROM BOONE CIRCUIT COURT. 3. It was not necessary to present the account to the administrator before bringing suit against the other defendants. (1 Met. 26; 2 Duvall, 123.) 2. Less than five years having elapsed after the ward attained the age of twenty-one years, the action was not barred under secs. 1 and 7, art. 3, chap. 63, or sec. 13, chap. 97, Revised Statutes.

Case 26 — PROBATE OF WILL APPEAL PROM SPENCER CIRCUIT COURT. 1.

<p>1. Parties interested should be brought before the court.</p> <p>In an action by the Commonwealth, first, to prohibit the individuals who claim to own privileges and rights as purchasers from the managers of the Frankfort Lottery, from the further exercise of such rights; and, second, to cancel the contracts between the parties and the managers, and to adjudge that the grant has been wholly exhausted, the court could not assume to cancel the contracts, nor to dissolve the quad corporation without having before it the trustees or holders of the legal title as wéll as the cestuis que trust.</p> <p>2. Persons claiming to own and exercise lottery franchises have no right to demand that parties, through whom they claim, shall be made parties to the proceeding by the Commonwealth against them, under secs. 529, 534 of the Civil Code, to prevent them from exercising or usurping such lottery franchises.</p> <p>3. A franchise is a particular privilege conferred by grant from government and vested in individuals. (3 Kent, 458; Bouvier’s Law Die., “Franchise;” The People v. Utica Ins. Co., 15 Johnson’s Rep. 387.)</p> <p>4. An information would lie at the common law to prevent the usurpation of a private franchise. (Commonwealth v. Arreson, &c., 15 Serg. & Rawle, 130; Angelí & Ames on Corp., sec. 736; Chambers v. The Baptist Educational Society, 1 B. Mon. 215; Commonwealth v. Lexington & Harrodsburg Turnpike Road Co., 6 B. Mon. 397.)</p> <p>5. An action to prevent the exercising or usurpation op lottery privileges may be instituted by the attorney-general in the name of the Commonwealth, under secs. 529, 534 of the Civil Code, and if the defendants fail to plead to the merits, judgment should be rendered against them by default.</p> <p>6. The Frankfort Lottery privileges are presumed to be exhausted. — The purchasers of the lottery privileges, granted by act of February 1,1838, and amendments thereto, to Taylor and others, and their associates and successors, to raise any sum not exceeding $100,000 for the use and benefit of the schools, etc., of the city of Frankfort, took no greater immunities and privileges than were taken and could be enjoyed by the grantees themselves. And—</p> <p>When the net profits reached $100,000 the grant was completely exhausted. The length of time the privileges have been enjoyed, and other facts appearing in the case, authorize the presumption that the full sum of $100,000 has long since been realized, and that the grant has been exhausted, and it is incumbent on the purchasers to rebut this presumption.</p>

Case 28 — PETITION ORDINARY APPEAL PROM JEPPERSON COMMON PLEAS COURT. The bond taken by the sheriff, not being authorized by law, was void. (General Statutes, see. 14, chap. 100-; Lex. & Dan. R. R. Go. v. Barbee, 1 Met. 384; Civil Code, sec. 163.) The covenant “that he will perform the judgment of the court,” etc., inserted in the bond was mere surplusage, and did not render the bond invalid.

Case 29 — PETITION EQUITY APPEAL PROM WARREN CIRCUIT COURT. 1. Appellant having paid the note, without any knowledge that it had been altered without his knowledge or consent, after he signed it as surety, by adding to it the words “interest to be paid semiannually,” was in equity entitled to recover the money so paid by him.

Case 30 — JUDICIAL SALE APPEAL FROM LOUISVILLE CHANCERY COURT. After having accepted the purchaser’s surety and bond the marshal could not reject the bond. The court might rule the purchaser to give additional surety, but it can not say that no surety has been given when the marshal states that surety has been given. The marshal found upon investigation that the surety was not 'sufficient, and therefore he had a right to reject the bond.

Case 31 — ACTION FOR PENALTY APPEAL PROM BOURBON CIRCUIT COURT. The “Act for the benefit of the Bourbon County Agricultural Society,” approved January 22, 1874 (Acts 1873-4, p. 142) is not a “ clear .and palpable violation” of the constitution. (McReynolds v. Small-house, 8 Bush, 455 ;• Walker v. Tipton, 3 Dana, 4; State v. Milwaukee Gas Light Co., 9 Am.

Case 32 — ON MOTION APPEAL PROM TAYLOR CRIMINAL COURT. The act of March 20, 1876, to amend the act to establish a criminal court for the sixth district and Hardin County (vol. 1, Acts 1876, p. 27) is unconstitutional in so far as it authorizes the commonwealth’s attorney to prosecute the pleas of the commonwealth in the Taylor Criminal Court, Taylor County being in the seventh district.

Case 33 — PETITION ORDINARY appeal prom jepperson common pleas court. 1. After evidence, by both appellee and appellant, was given to the jury, the court instructed the jury to find for the appellee, as in case of a non-suit. In this the court erred, as it was then bound to instruct the jury upon the law, and submit the evidence to the jury.

Case 34 — PETITION ORDINARY APPEAL FROM JEFFERSON COMMON PLEAS COURT. 1. For all natural and proximate consequences of negligence of the fire department the city is liable. (Patch v. Covington, 17 B. Mon. 722.) 2.

Case 35 — INDICTMENT APPEAL PROM PENDLETON CRIMINAL COURT. The court below erred in refusing to instruct the jury touching the capacity of an infant under fourteen years of age to commit crime. (1 Bishop’s Criminal Law, secs. 368, 370, 371, 372, and authorities cited.)

Case 36 — ATTACHMENT FOR RENT APPEAL PROM JEFFERSON COMMON PLEAS COURT. Whenever a tenant, whose term expires at a certain time, holds over, by remaining on the premises with the consent or acquiescence of the landlord, he becomes a tenant for another term — he can not be held as a trespasser or tenant at sufferance so long as it can not be shown that he has remained against the consent of the landlord.

<p>1. The accused is entitled to a change op venue, as a matter of right, from the county in which the crime is alleged to have been committed, to an adjoining county, upon his petition, verified by his affidavit, and the affidavits of two credible persons who are acquainted with the state of public opinion, to the effect that he can not have a fair trial in the county where the prosecution is pending. (General Statutes, sec. 1, art. 4, ch. 12.)</p> <p>But where objection is made to the county where the court proposes to send the case the objection must be a valid one, and the court may hear proof on this point, both upon the part of the accused and the Commonwealth.</p>

Case 38 — MOTION IN COUNTY COURT APPEAL PROM NELSON CIRCUIT COURT. 1. The county judge, without the justices acting with him, had no authority to make an order employing appellee, and thereby create a charge against the county for $1,500. If he had authority to create the charge he had authority to mate an allowance to pay it. He had no such authority, because he can not appropriate to one object more than $50.00.

<p>Case 39 — MOTION TO DISMISS APPEAL.</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>Referred the court to sub-sec. 4 of sec. 737 of the Code.</p>

Case 40 — INDICTMENT APPEAL PROM BOONE CRIMINAL COURT. 1. This appeal is a proceeding commenced “ after the first day of January, 1877,” and is therefore regulated by the New Code of Practice in Criminal Cases (Crim. Code of 1877, secs. 1 and 2), and by this Code, sec. 840, it is provided that “a judgment of conviction shall be reversed for any error of law, to the defendant’s prejudice, appearing on the face of the record.” 2.

<p>I. Persons jointly indicted are competent witnesses por each other, unless the indictment charges a conspiracy between them. (Criminal Code of 1877, sec. 284.)</p> <p>When the indictment was found before and trial had after January 1,1877, the defendants were competent witnesses for each other, although not competent when the indictment was found.</p>

Case 2 — INDICTMENT FOR LARCENY APPEAL PROM GREENUP CRIMINAL COURT. First. Testing the indictment by the rule that the allegata and probata must agree, there was a fatal failure of proof, and no legal conviction can be maintained. (Clark v. Commonwealth, 16 B. Mon. 206.) Second. When the Commonwealth charges a conspiracy it must prove it in order to deprive the accused of the benefit of the evidence of those jointly indicted with him. (Criminal Code, sec. 234.) Third.

Case 3 — INDICTMENT FOR FORGERY APPEAL FROM OWEN CRIMINAL COURT. The Criminal Code of 1877, sub - sec. 2 of sec. 122, requires that the indictment shall contain “a statement of the acts constituting the offense,” etc. The indictment is insufficient in this case, because it does not allege whose name was forged, by whom it was forged, or how it was forged, or to whom the alleged forged paper was uttered, or who was the victim of the alleged fraudulent act of the defendant.

Case SUMMONS AGAINST TAX-PAYER. APPEAL EKOM LARUE CIRCUIT COURT. . First. The summons in this case was unauthorized, because the defendant had not been returned a delinquent by the assessor. (Vance v. Commonwealth, 3 Bush, 468; 1 Bibb, 515; 7 Dana, 314.) Second. An appeal was authorized from the county to the circuit court by the Code (secs. 14 to 30). Third.

Case 5 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. The measure of damages in favor of a vendor against a vendee, in the absence of fraud, is the difference in the value of the land at the making of the contract and the time when conveyance should have been accepted.

Case 6. — INDICTMENT. APPEAL PROM HENRY CRIMINAL COURT. “ The offense consists in obtaining the money, and not in the means .used to obtain it.” The representation that he owned the property unencumbered was an existing fact if true; but it was false, and the pretense by which the money was obtained.

Case 7 — PETITION EQUITY APPEAL PROM M’CRACKEN COMMON PLEAS COURT.

Case 8 — PETITION EQUITY APPEAL FROM GARRARD CIRCUIT COURT. First. R. M. Robinson collected the money in controversy from the United States Government after he made his deed of trust for the benefit of his creditors, and transferred the same, without consideration, to his wife, to the prejudice of the rights of his creditors. If the money so transferred is recovered from her the creditors, the appellants suing therefor, and not the trustee, will be entitled thereto.

<p>1. An indictment against a distiller por selling ardent spirits at his residence, in quantities of a quart and less, without a license, is held to be insufficient as an indictment for keeping a tippling-house, in that, in attempting to state the acts constituting the offense, it did not allege that the defendant sold the ardent spirits in a house, to be drunk therein, or on or adjacent to the premises where sold, or that the liquor was sold and drunk in a house, or on or adjacent to the premises where sold; and also, insufficient as an indictment against a tavern-keeper or merchant, in that, it recited that the defendant sold the liquor “while engaged in the distillation and merchandising of spirituous liquors,” and did not charge that he was a tavern-keeper or merchant when he sold the liquor named therein.</p> <p>■ The indictment in this case is as follows — to wit:</p> <p>“The Grand Jury of Jessamine County, in the name and by the authority of the Commonwealth of Kentucky, accuse O. C. Herine of the offense of selling spirituous liquors, without license, committed as follows, to wit: The said C. C. Herine, on the 20th of August, 1875, in the county aforesaid, while engaged in the distillation and merchandising of spirituous liquors, did sell such liquors— to wit, whisky and brandy — in quantities of a quart and less, to one W. B. Gibney, at a point other than his distillery, namely, at his-residence, against the peace and dignity of the Commonwealth of Kentucky.”</p>

<p>Case 10 — PETITION ORDINARY</p> <p>APPEAL FROM HENDERSON COMMON PLEAS COURT.</p>

<p>Case 11 — PETITION ORDINARY</p> <p>APPEAL EROM ERANKLIN CIRCUIT COURT.</p> <p>First. The adequacy of the consideration for a promise or agreement will not be inquired into by the courts. The law having no means of deciding upon this matter, leaves all parties competent to contract to the free exercise of their judgment. (Chitty on Contracts, 25, 26; Story on Contracts, p. 435, sec. 431; Smith on Contracts, 175 to 180.)</p> <p>Whether the services of the appellant were worth to the appellee in actual value the sum of $5,000 is a question with which neither the court nor the jury had any thing to do. If the appellant had rendered the appellee services which he considered worth $5,000, and for which he promised to pay that sum, it was not in the province of either the court or jury to re-estimate the value of services, and say that appellant should not be" allowed to recover the contract price, but only what the jury might think the actual value of the services.</p> <p>Second. The paper purporting to be the will of the wife of the appellee, although invalid as a will, was competent to show the amount agreed upon as the value of the services of the appellant. For this purpose it was competent, just as an unstamped note could be used as evidence in England, to show the amount of the debt, although no suit could be maintained upon the note. (2 Starkie on Evidence, 771, 772.)</p> <p>First. The agreement or contract sued on is wholly unsustained by the evidence, and therefore the court properly refused the instructions asked by counsel for appellant.</p> <p>Second. If any promise was made by appellee, it was to his wife, and not to appellant. The extent of this promise can not be construed to mean any thing more than that he would pay appellant the value of her services.</p> <p>Third. The alleged promise of appellee to carry out his wife’s will was without consideration, and not enforceable.</p>

Case 12 — INDICTMENT APPEAL FROM HENRY CRIMINAL COURT. First. The appellant had a license to sell liquor granted to him by the proper authority, under the charter of the town (Acts 1869-70, vol. 2, p. 657), and had paid both the state and town tax, as required by sec. 11, art. 2, chap. 92, Gen. Stat., and therefore was not guilty of keeping a tippling-house, as defined by sec. 8, art. 85, chap. 29, Gen. Stat. Second.

<p>Case 13 — PETITION EQUITY</p> <p>APPEAL FROM TAYLOR CIRCUIT COURT.</p> <p>A turnpike road company, whose charter gives it a summary remedy for collecting its tolls by stopping the traveler, can not allow him to pass without opposition or demand and then sue for the tolls.</p> <p>The right to charge and collect tolls is not a common-law right, and there is no common-law remedy; but the right and remedy are derived solely from the charter, and if the demand is not made and enforced by stopping the traveler, the right to demand is gone. (Turnpike Co. v. Brown, 2 Penn. 462; Chestnut Hill Turnpike Co. v. Martin, 2 Jones; Redfield on Railways, p..337; Beeler v. Turnpike, 2 Harris, 164; Dorman v. Turnpike Co., 3 Watts, 128; Almy v. Harris, 5 Johns. Oh. 175; Smith v. Drew, 5 Mass. 514; Center Turnpike Co. v. Vandusen, 10 Vermont, 197; Lexington Turnpike R. Co. v. Redd, 2 B. Mon. 30; Green’s Brice’s Ultra Vires, 75 note; 16 Johns. Ch. 281; 2 Burr. 545; sub-sec. 2 of sec. 3, ch. 110, General Statutes.)</p> <p>The briefs of most of the counsel for appellants are withdrawn from the record.</p> <p>First. In no event can appellants avoid payment for tolls over the bridges at Rolling Fork and Russell’s Creek. (Sec. 8, act of Feb, 25, 1854, and secs. 2, 3, act of Feb. 18, 1867.)</p> <p>Second. Section 24, of act of 1848, incorporating the Lebanon, New Market and Springfield Turnpike.Road Company, in so far as it extended the jurisdiction of justices of the peace beyond the limits of the counties in which they qualified, is unconstitutional. (Sec. 34, art. 4, Con.)</p> <p>Third. Section 5 of charter of 1854 declares that “the company may erect a toll-gate and charge and receive tolls.” It does not restrict the company to collections at the gates. Even without this express declaration of the charter it would have the right. (Frankfort Bridge Co. v. City of Frankfort, 18 B. Mon. 47.)</p> <p>Fourth. The tolls sued for accrued after the repeal of sections 24, 25 of the act of 1848, and the plea of payment, being an affirmative plea, admits an indebtedness and assumes the burden of sharing its payment.</p> <p>Fifth. It can not be shown in defense that the plaintiffs have forfeited their corporate rights by misuser or nonuser. (Angelí & Ames on Corporations, 636; Hughes v. Bank of Somerset, 5 Litt. 45.)</p>

<p>Case 14 — PETITION ORDINARY</p> <p>APPEAL FROM SCOTT CIRCUIT COURT.</p> <p>First. The occupation of the property, as stated in the face of the policy, was a warranty as to the use and occupation of the property at the time of the issuing of the policy, and if such, if it was untrue, it must void the policy. (Flanders on Fire Insurance, 2d ed., p. 288; Ibid. 283, 284; Wall v. The East River Mu. Ins. Co., .7 New York, p. 370; Wood v. Hartford Ins. Co., 13 Conn. 533; Witherell v. Maine Ins. Co., 49 Maine, 200; Stout v. The Fire Ins. Co. of New Havpn, 12 Iowa, 371; Jennings v. Chenango County Mu. Ins. Co., 2 Denio, 75; Glendale Woolen Co. v. The Protection Ins. Co., 21 Conn. 19.)</p> <p>Second. The act of Feb. 4,1874, provides: “All statements or descriptions in any application for, or policies of insurance shall be deemed and held representations, and not warranties, nor shall any misrepresentation, unless material or fraudulent, prevent a recovery- on the policy.” If it is admitted that this statute could control and determine a contract of warranty, which the parties themselves agreed should be such, it does not help the first, instruction given by the court below, for the fraudulency and materiality of the statements or descriptions were not submitted to the jury. This is certainly a question which the court or jury must pass on.</p> <p>Third. “If the interest of the assured be any other than the entire, unconditional, and sole ownership of the property, for the use and benefit of the assured, then the policy should be void.” This stipulation was violated, as it is shown and admitted that, at the time the policy was issued, the property was subject to a lien for purchase money. This was a fraud, and avoided the policy. (Security Ins. Co. v. Bronger, 6 Bush, 147.)</p> <p>Fourth. “The just mode of fixing the value, although the rule may not be of universal application, would be the value of the building as it stood on the ground on the day it was destroyed as compared with a new building of the same kind and dimensions. If the building was old, and dilapidated by use and decay, its value in that condition is what the appellees would recover.” (iEtna Insurance Co. v. Johnson, 11 Bush, 591.)</p> <p>This rule was violated in this case, as the jury was directed to ascertain the actual cash value of the property, without explanation as to the mode of ascertaining this value.</p> <p>Fifth. “ If the property shall become vacant or unoccupied, and so remain for more than ten days, without notice to and consent of this company in writing, that the same shall be void.” The policy was rendered void by the violation of this stipulation.</p> <p>Sixth. That the agreement of the parties was conclusive upon them, see Jeffries v. Life Ins. Co. (22 Wallace, 47).</p> <p>Seventh. As to the waiver of the benefit of the statute by agreement of parties, where there is no violation of public policy or morals, see Sedgwick on Statutory and Constitutional Law, p. 109.</p> <p>First. The instruction offered by appellant to the effect that the policy was void, for the failure of the assured to disclose the vendor’s lien on the property, jvas properly refused.</p> <p>The fact that there was a lien on the property was no evidence that the interest of the assured therein was not the entire, unconditional, and sole ownership. She had such an ownership, notwithstanding the lien.</p> <p>Second. The assured is not absolutely precluded by what the company’s agent miay write down in the policy, but can show, by proof, that the company’s agent had notice, at the time of the delivery of the policy, that the statements therein made were incorrect, and therefore the court below properly ruled that appellee could show, by evidence, that the agent knew as to the condition and occupancy of the property.</p> <p>The responsibility of the company for the acts of its agent is not limited to the receipt of premiums and the delivery of policies. (The Union Mu. Life Ins. Oo. of Maine v. Wilkinson, Am. Law Magazine, October, 1872, pp. 167, 168.)</p>

<p>1. Indictment for bigamy should aver specifically the time and place of the first marriage, and set out the name of the first husband or wife. (2 Bishop’s Crim. Pro., p. 881; 2 Archibald on Crim. PI. and Prac., p. 1024; Criminal Code, 1877, secs. 122, 124.)</p> <p>Commonwealth v. Whaley (6 Bush, 266), deciding contrary to the above, is overruled.</p> <p>2. When the words of a statute are descriptive of the offense, the indictment will be sufficient if it follows the language of the statute, and expressly charges the commission of the described offense.</p> <p>But this rule applies only to offenses which are complete in themselves, when the aftts set out in the statute have been done or performed, which is not the case as to the crime of bigamy.</p> <p>3. An incomplete record of divorce proceedings in Utah is inadmissible in this state to prove that tbe defendant had been divorced by a court of competent jurisdiction, or that the defendant believed she had been lawfully divorced by the Utah courts.</p> <p>4. In bigamy the felonious intent is not an element in the crime which may be rebutted by evidence.</p> <p>A person may be guilty of the crime of bigamy who, in good faith, believed he or she had been lawfully divorced.</p>

Case 16 — PETITION EQUITY APPEAL EROM LOUISVILLE CHANCERY COURT. The lien retained by appellant on the'undivided interest in the entire tract of land could not be affected in any wise by any division made by and between his vendee and the other joint owners.

<p>Case 17 — PETITION EQUITY</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>First. “Marriage is considered by the law in no other light than as a civil contract.” (Tyler on Infancy and Coverture, sec. 618; see also Reeve’s Domestic Relations, p. 195.)</p> <p>The marriage of a man and a woman can not sanctify the fraud of the latter, as in this case, in procuring or inducing the marriage.</p> <p>“ A marriage procured by force or fraud is also void ah initio, and may be treated as null by every court in which its validity may be incidentally drawn in question; the basis of the marriage is consent, and the ingredient of fraud or duress is as fatal in this as in any other contract, for the free assent of the mind is wanting.” (2 Kent’s Com., p. 42; see also Reeve on Dom. Rel., p. 206; Schouler’s Domestic Relations, pp. 25, 35; Tyler on In. and Cov., p. 863; Mather v. Ney, 1 Maulé & Selwyn, p. 265; Franldand v. Nicholson (otherwise Frankland), 3 Maulé & Selwyn, 260 ; Ibid. 537, 266, 267.)</p> <p>The provision of the General Statutes (sec. 5, art. 1, ch. 52), that courts of eqhity jurisdiction may declare void a marriage procured by force or fraud, is in perfect accord with the authorities cited above.</p> <p>Brief not in the record.</p>

Case 18 — INDICTMENT APPEAL FROM BRACKEN CRIMINAL COURT. The act of April 11, 1873, upon which this prosecution is based, is unconstitutional (Constitution, sec. 37, art.-2) — -first, because it relates to more than one subject, and, second, because the subject of the act is not expressed in its title. (Broaddus v. Broaddus, 10 Bush, 299.)

Case 19 — PETITION ORDINARY APPEAL FROM BOYD CIRCUIT COURT. The town of Catlettsburg did not own the strip of land between Front Street and the rivers, and had no right to enter upon it to protect the street or the property of the appellees. It was the duty of appellees to protect their own property, and not of the town.

Case 20 — INDICTMENT FOR HORSE-STEALING APPEAL ÍEOM BRACKEN CRIMINAL COURT. The indictment is not sufficiently certain, as required by the Criminal Code, sec. 124; nor is the defect cured by section 128. The indictment charges the stealing of the horse of W. F. Watson, whereas the proof shows the horse taken was the property of Cassam Watson. This did not warrant a conviction.

Case 21 — INDICTMENT APPEAL PROM JEFFERSON COMMON PLEAS COURT. First.

<p>Case 22 — INDICTMENT</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT.</p>

Case 23 — SUMMONS ON FORFEITED RECOGNIZANCE APPEAL PROM PAYETTE CIRCUIT COURT. Hog-stealing is punished as a felony. (Sec. 3, art. 11, chap. 29, Gen. Statutes.) Receiving stolen hogs is a felony. (See. 8, art. 11, chap. 29, Gen. Statutes.) The bail bond was taken for his appearance at a specified time. (Secs. 72, 73, 74, 80, Crim.

Case 24 — INDICTMENT APPEAL MOM GRAVES CIRCUIT COURT. This indictment is not for selling without license. There is no penalty by statute for breach of merchant’s license; the penalty is for selling without license. (Sec. 5, art. 3, ch. 92, Gen. Stat.) The evidence shows that appellant was a druggist; that he sold drugs in good faith.

<p>1. Ip one partner sells ardent spirits unlaweully, in the absence and without the knowledge or consent of the other, the latter is not liable.</p> <p>■2. “ No NEW LAW SHALL BE CONSTRUED TO REPEAL A EORMER LAW as to any offense committed against the former law,” &c. (Sec. 23, chap. 21, Gen. Stat.)</p> <p>3. A DISTILLER OP ARDENT SPIRITS HAD THE PRIVILEGE, Under seC. 8, art. 2, chap. 106, Gen. Stat., of selling at his distillery any spirits of his own manufacture, in quantities not less than a quart, but not to be drunk on the premises. But by act of March 20, 1876 (1 Sess. Acts, 1876, p. 137), he was authorized to make such sales at his residence, instead of at the distillery.</p> <p>For selling unlawfully at his residence, before the passage of the act of March 20, 1876, making such sales lawful, a distiller is liable on indictment and conviction, as provided by the former law, notwithstanding such selling, at his residence, would have been lawful at the time of the finding of the indictment and conviction.</p> <p>In this case the defendant, a distiller, made an unlawful sale of ardent spirits at his residence before the passage of the act of 1876, making such sales lawful, and was properly indicted and convicted after the passage of that act for the violation of the former law.</p>

<p>1. IN AN INDICTMENT POR THE LARCENY OR EMBEZZLEMENT OP MONEY, or United States currency, or bank notes, it is sufficient to allege the larceny or embezzlement of the same, without specifying the coin, number, denomination, or kind thereof. (Criminal Code of 1877, sec. 135.)</p> <p>In this case a demurrer was properly overruled to an indictment charging that the defendant'iiommitted the crime of grand larceny by feloniously taking and carrying away “one twenty-dollar note and one ten-dollar note, both of said notes being of the United States currency commonly called greenbacks. Said notes are not and were not before the grand jury, and could not by said jury be . had before it, because the whereabouts of said notes was not and could not be known to said jury; therefore said notes can not be more particularly described, either as to their date, number, or whether they belonged to the class technically called green or black backs. Said notes were and are of the value of four dollars and over,” etc.</p>

Case 27 — PETITION ORDINARY APPEAL PROM JEEEERSON COMMON PLEAS COURT. First. Before a real-estate broker can recover of his employer a commission he must show that he has earned it by furnishing a “ purchaser ” —a party ready, willing, and able to comply with Ms contract. Second.

Case 28. — APPEAL FROM JUSTICE'S COURT. APPEAL PROM HENRY CIRCUIT COURT. First. This court has decided that a replevin bond, in which all the •defendants in the execution did not join, should be quashed on the motion of the execution plaintiff in the following cases: Skinner v. Robinson, Hardin, 4; 5 Mon. 404^-5; 1 J. J. Mar. 491; 2 J. J. Mar. 137; 1 B. Mon. 238; 2 B. Mon. 304; 4 B. Mon. 305 ; 1 Duvall, 291.) Second.

<p>Case 29 — PETITION EQUITY</p> <p>APPEAL FROM WHITLEY CIRCUIT COURT.</p> <p>First. The proper and necessary parties were not made to this suit. (Civil Code, secs. 35, 36.)</p> <p>Second. There was no such description of the land in the petition and judgment as is required by law. (Lawless v. Barger, 9 Bush, 665.)</p> <p>First. Appellant did not object in'court below because of any defect of parties, and can not now object on that ground in this court. (Civil Code, sec. 92.)</p> <p>Second. The note filed with and as part of appellee’s petition shows it was given for the purchase money of appellant’s interest in the “John Ross farm.” This is sufficient to identify the land as required by sec. 125 of the Code.</p>

CASE 30 — PETITION EQUITY APPEAL EROM LOUISVILLE CHANCERY COURT. The chancellor has no jurisdiction to order the sale of a leasehold estate, or any chattel, real or personal, on the petition of the owner of an 'undivided half thereof against the owner of the other half, and divide the proceeds, on the ground alone that the property is not susceptible of division. By purchasing each one half o>f the leasehold, the appellant and appellee became part owners, but not partners.

Cases 31-32 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. First. The city of Louisville can not collect taxes by a. suit in chancery. (Johnston v. Louisville, 11 Bush, 527.) Second. The notes being for real estate, with their consideration expressed on their face, are not commercial paper, and are not such as can be put upon the footing of foreign bills, even by a discount by the banks alleged to have discounted them.

Case 33 — INDICTMENT—NUISANCE APPEAL FROM MARION CIRCUIT COURT. “A public offense, in the meaning of this Code, is any act or omission for which the law has prescribed a punishment.” (Criminal Code, sec. 1.) “All public offenses may be prosecuted by indictment, except public officers, etc.” (Criminal Code, see. 6.) An indictment may be set aside when it “was not found and prosecuted as required by this Code.” (Sub-sec. 3 of sec. 159.) The indictment in this case was…

Case 34 — PETITION EQUITY APPEAL FROM MARION CIRCUIT COURT. Held: “If the defendant had any other title to the land ... it was his duty to have asserted it in the suit brought to sell the mortgaged property.

Case 35 — PETITION EQUITY APPEAL FROM METCALFE CIRCUIT COURT. First. The note sued on was executed Oct. 16, 1856, and due twelve months after date. The indorsement on the back of the note shows that $40 were paid on the note Dec. 25, 1862. This payment evidenced by the indorsement on the back of the note suspended the operation of the statute of limitations between the accrual of the cause of action Oct. 16, 1857, and the date of payment.

Case 36 — PETITION ORDINARY APPEAL FROM KENTON CIRCUIT COURT. On motion to dismiss, see Civil Code (Myers’s), sections 703, 708, and sections 635, 640 of Code of 1877.' On the construction and effect of the record of the proceedings in the chancery court, see Rev. Sfcat., secs. 1, 4, 16, art. 2, chap. 47; Act of Feb’y 14, 1866, sec. 1, p. 728, and Gen. Stat., secs. 1, 5, 6, art. 2, and sec. 15, art. 4,,chap. 52; and Acts of 1846, p. 42. Brief not in record.

Case 37 — PETITION EQUITY APPEAL FROM ANDERSON CIRCUIT COURT. First. In awarding the rescission of the contract in this case the court below was bound to place the parties in the position they respectively occupied before the contract was made — to place them in statu quo. Second. As to the improvements made by appellee, the question is not as to the cost or abstract value of them, but the enhanced permanent value which they confer upon the property.

<p>Case 38 — MOTION TO DISMISS APPEAL</p> <p>APPEAL PROM MERCER CIRCUIT COURT.</p> <p>This case is reversed because the petition is fatally defective. The opinion is marked for publication to show the rulings of the court on the motion to dismiss the appeal.</p>

Case 39 — PETITION EQUITY APPEAL PROM NICHOLAS CIRCUIT COURT. First. It was error to adjudge a sale of so much of the land as might be necessary to pay a part of the debt sued on before settling the issue as to the remainder or contested part of the debt, and especially so when it appeared in the pleadings that there was a payment not then due. Second.

Case 40 — ATTACHMENT FOR RENT APPEAL PROM GARRARD CIRCUIT COURT. A statement on oath of the facts, under the Revised Statutes (sec. 3, art. 2, ch. 56), was all that was essential to the issual of an attachment for rent, and such a statement is sufficient as an affidavit under sec. 5, art. 2, ch. 66, of the General Statutes. An affidavit is a statement or declaration reduced to writing and sworn or affirmed to before some officer who has authority to administer an oath.

Case 41 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. Nothing short of the payment of the debt could avail Bryant, a principal debtor. (Burrus v. Anderson, 3 Met. 500.) 2. As to the plea of former adjudication, it must kppear by the record of the prior suit that the particular controversy sought .to be concluded was necessarily tried and determined.

Case 42 — PETITION ORDINARY APPEAL PROM GRANT CIRCUIT COURT. The proof of the claim conformed to the requirements of the statute and Code. The proof by the witness Clark, that he knows, etc., was sufficient. (See Trabue’s ex’r v. Harris, 1 Met. 601.) The proof of the claim offered to the administrator when the demand is made, should be sufficiently comprehensive to warrant the payment of the debt.

<p>1. Upon the dissolution op an injunction to restrain the commission op waste, cutting and removing timber, etc., an action may be maintained to recover such damage as was sustained by reason of the wrongful suing out of the injunction. Section 325 of the Civil Code, requiring the courts to assess the damages upon the dissolution in whole or in part of an injunction, applies only to injunctions “to stay proceedings upon a judgment or final order.”</p>

Case 44 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT. , 1. In order to create a lien for the purchase-price of a chattel, as ■against a purchaser without notice, there must be a conveyance or mortgage to that effect, acknowledged and lodged for record as prescribed by the statute. (Vaughn v. Hopson, 10 Bush, 337.) 2. In this case the transaction was evidently a sale, and the device of a lease was resorted to to evade the registration laws of this state.. 3.

<p>Case 45 — PETITION EQUITY</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>There are hut two modes by which the lease can he annulled or rescinded: 1. By forfeiture, as provided in section 6 of act of February 24, 1869 (1 Sess. Acts 1869, p. 42), under which the lease was made; 2. “Upon one year’s notice” and payment to the lessees the “full and fair value,” etc., as provided in section 12 of said act.</p> <p>Having failed in the attempt to forfeit the lease in the former suit (12 Bush, 8), the state is restricted by said act to the single remedy by giving one year’s notice and payment, as prescribed in said act.</p> <p>When a statute creates a right, and at the same time prescribes a remedy to enforce the right, that remedy must he pursued to the exclusion of all others. (Russell v. Muldraugh’s Hill Turnpike Road Co., 13 Bush, 307.)</p> <p>The judgment appealed from declaring the forfeiture of the lease and the unconditional surrender of the leased improvements upon the Kentucky River to the state is unauthorized by the law.</p> <p>Brief not in the record.</p>

<p>1. A RIGHT TO A HOMESTEAD IS NOT waived by a failure to claim if at a sale under a judgment enforcing a mortgage lien, nor by the mortgagor purchasing the land at the sale, and afterward surrendering it to be sold again in satisfaction of his purchase bonds.</p> <p>The right to the homestead isrsuccessfully asserted in this case, after the sale had been confirmed, and the homestead is directed to be set apart, or $1,000 of the proceeds of the sale to be paid to the defendant to enable him to purchase another homestead.</p> <p>2. A right to a homestead can be waived by an actual sale or abandonment of the premises by the husband; or by a mortgage, waiver, or release in writing, subscribed by the defendant and his wife, and acknowledged and recorded in the same manner as con- . veyances of real estate.</p>

Case 47 — PETITION EQUITY APPEAL PROM M’CRACKEN CIRCUIT COURT.

<p>Case 48 — WILL CASE</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p>

<p>Case 49 — WILL CONTEST</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p>

Case 50 — PETITION EQUITY APPEAL EEOM ESTILL CIRCUIT COURT. The deed from the moment it was lodged for record was notice to the world; it vested the title to the land in the children. A deed is not properly lodged for record until the tax is paid, nor is it notice unless recorded, or properly lodged for record, and can not be used to defeat a Iona fide purchaser for a valuable consideration paid. (See Phillips v. Clark, &c., 4 Met. 352; sec. 32, chap. 24, Rev. Stat.)

<p>1. In a motion by purchaser of land sold under execution, for a writ of possession, as provided in section 9, article 12, chapter 38, General Statutes, the plaintiff must aver and prove every fact necessary to establish his right to recover. (Bunnell, &c. v. Thomson, 12 Bush, 116.)</p> <p>The sheriff’s deed being exhibited, it was also necessary to show that the land was not subject to redemption, or had not been redeemed.</p> <p>2. In making out title to land under an execution sale, it is necessary to exhibit or show the judgment, execution, levy, and sale; in not showing these facts the notice was defective in this case.</p>

Case 52 — PETITION ORDINARY APPEAL PROM M’CRACKEN CIRCUIT COURT. 1. The difference between Terrill’s bid and the price at which the property was resold represents the damage sustained by the owner of the property by Terrill’s failure to execute his bonds and comply with his contract. That difference also represents the additional credit that the owner, the appellant, would have had on the executions against it. 2.

Case 53 — PETITION ORDINARY APPEAL EROM DAVIESS CIRCUIT COURT.

Case 54 — PETITION EQUITY APPEAL FROM PAYETTE CIRCUIT COURT.

Case 55 — PETITION ORDINARY APPEAL FROM BARREN CIRCUIT COURT. 1. This action is prosecuted under sections 4, 5, 6, and 7 of chapter 57, General Statutes.

Case 56 — PETITION ORDINARY APPEAL PROM DAVIESS CIRCUIT COURT. 1. Appellant’s defense, in this action of slander, was two-fold: 1. He denied uttering the words charged, and denied malice; 2. He pleaded that, on the occasion when the words were alleged to have been uttered, he was conducting his own defense in the case in which appellee testified, and that any thing then said was in good faith in his defense, *and addressed to the court, therefore privileged.

Cases 57, 58, 59 — INDICTMENTS APPEAL PROM CHRISTIAN CIRCUIT COURT. APPEALS PROM JESSAMINE CIRCUIT COURT. The act of January 26, 1874, known as the local-option law, neither commands what is right nor does it prohibit what is wrong, nor is it permanent, uniform, or universal, nor does its obligatory force depend upon the action of the supreme power of the state; it is unconstitutional. (Cooley’s Con.

Case 60 — PETITION ORDINARY APPEAL PROM HARRISON CIRCUIT COURT. 1.

Case 61 — PETITION ORDINARY APPEAL PROM JEFFERSON COMMON PLEAS COURT. 1. Section 10, chapter 24, General Statutes, does not apply to pledges of warehouse receipts, because a pledge is not a mortgage, and said section provides for mortgages only. 2. In a pawn or pledge of goods, a delivery of possession is essential. The general property does not pass as in case of mortgage, but remains in the pawnor.

Case 62 — PETITION ORDINARY APPEAL PROM POWELL CIRCUIT COURT. The statute requiring all demands against a decedent’s estate to be verified embraces a claim on which suit was brought in his lifetime. No recovery can be had until the affidavit is made. (Gen. Stat. 451; Myers’s Code, sec. 473.) The plaintiff must make the affidavit whether the administrator defendant calls for it by rule or not.

Casts 63 — MOTION IN COURT OF APPEALS ON MOTION EOE BULE AGAINST CLERK OF JEFFERSON COMMON PLEAS COURT. The clerks of the circuit courts are bound to make out records for parties appealing to the Court of Appeals, without having payment or security for the fee. (Collins v. Cleveland, 17 B. Mon. 459.) There is nothing in the General Statutes or Civil Code prohibiting a clerk from retaining the records for his legal fees.

Case 64 — PETITION ORDINARY APPEAL PROM ROBERTSON CIRCUIT COURT. 1. The questions involved in this case are: 1. Has the appellant manifested title to the land in contest? 2. Has his right of entry under his title been tolled by adverse possession in the appellees and those under whom they claim? 2.

<p>1. Ratification by a principal op his agent’s acts is only binding when made on full knowledge of the facts as they actually exist, not merely as the agent believed them to exist.</p> <p>2. The good faith of the agent docs not exonerate him from liability to his principal, if he has been in fact negligent or has disregarded orders.</p> <p>Plaintiff, a bank, in this case authorized its agent to make a loan on a note with any good collateral security. The agent made a loan on Bank of Louisville stock security, which would have been good security had it been free from prior liens, but the existence of prior liens was claimed by the Bank of Louisville. The plaintiff, with knowledge of this claim, accepted the note and collaterals, and brought suit to compel the Bank of Louisville to make a transfer of the stock on its books to the plaintiff, and to subject it to the payment of the note. In this suit it was defeated, the priority of the lien of the Bank of Louisville being established. The plaintiff then brought this action against its agent for negligence for making the loan without good security. Held, that the plaintiff had not ratified the agent’s act, and on proof of negligence in taking the collateral, it was entitled to recover against the agent.</p> <p>3. Where an agent to loan money takes insufficient security, the principal is not bound, at his peril, to accept and discharge the agent, or to reject the security, and look only to the responsibility of the agent.</p> <p>The principal, in such a case, may take the security, and still hold the agent bound for any deficiency which, after due diligence, he suffers on it.</p>

<p>Case 66 — PETITION EQUITY</p> <p>APPEAL PROM FAYETTE CIRCUIT COURT.</p>

<p>Case. 67 — PETITION EQUITY</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>1. Marriage is a status over which the sovereign will has unlimited control, except as restrained by the organic law. (1 Bishop on Marriage and Divorce, sec. 19.)</p> <p>Section 32, article 2 of the constitution of this state does not limit the power of the legislature over the institution of marriage, but simply defines the mode by which such power shall be exercised.</p> <p>The legislature may confer power on the courts to dissolve the relation for cause or without cause; to proceed by appointing a guardian ad litem for a defendant of unsound mind without service, actual or constructive, as provided in act of 1865 (Myers’s Sup. 711), and to dispense with the jury to try the question of lunacy or unsoundness of mind, as provided in the act of 1871. (1 Sess. Acts 1871, p. 61.)</p> <p>These acts show that divorce proceedings are sui generis.</p> <p>2. A decree of divorce, so far as the divorce is concerned, is a finality. (Maguire v. Maguire, 7 Dana, 181; Parrish v. Parrish, 9 Ohio St. 537; Lucas v. Lucas, 8 Gray, 140; Smith v. Smith, 20 Mo. 170.)</p> <p>If the rules of procedure prescribed by the statute for other cases be applied to this, the judgment of divorce in this case was not void, a guardian ad litem having been appointed, and having made defense for the insane defendant. (Ray v. Mcllroy, 1 Mar. 613; Banta’s heirs v. Calhoon, 2 Mar. 168; Bustard v. Gates, 4 Dana, 430; Benningfield v. Reed, &c., 8 B. Mon. 105; Downing’s heirs v. Ford, &c., 9 Dana, 891; Bank U. S., &c. v. Cockran, &c., 9 Dana, 395.)</p> <p>3. Service of summons on persons of unsound mind is not provided for by the Code or Statutes, unless such persons are judicially found to be of unsound mind, or are confined in one of the state lunatic asylums.</p> <p>4. The affidavit to obtain constructive service is not a jurisdictional fact. (Thomas v. Mahone, 9 Bush, 125; Civil Code, sec. 91.) Sections 60 and 82 of the Code apply only to persons judicially found to be of unsound mind.</p> <p>The same imperative language is used relative to the appointment of a guardian ad litem for infants as for persons of unsound mind. (Civil Code, secs. 55, 56, and 60, 82.) In the case of each it is provided, that a guardian ad litem can not be appointed until after service of summons as directed by the Code, and tl\at no j udgment can be rendered until after the appointment and a defense by the guardian ad litem.</p> <p>“The infant defendants having been all summoned, the failure to answer by guardian or otherwise is only an error which would entitle them to a reversal, but it did not render the decree or sale either void or voidable.” (Thornton v. McGrath, 1 Duv. 354.) And in Simmons v. McKay (5 Bush, 25) this court decided that a judgment against nonresident infants, constructively summoned by warning order, was valid until reversed, notwithstanding a guardian ad litem had not been appointed to defend. (See also Blimm v. Commonwealth, 7 Bush, 322; Porter’s heirs v. Robinson, 3 Mar. 253; Bustard v. Gates and wife, 4 Dana, 436.)</p> <p>The affidavit is not essential to give jurisdiction, and is no part of the process. (Hynes v. Oldham, 3 Mon. 266; Benningfield v. Read, 8 B. Mon. 103; Allen v. Brown, 4 Met. 342; Bailey v. Beadles, 7 Bush, 383.)</p> <p>5. Mrs. Newcomb was a proper subject for constructive service. She was domiciled in Massachusetts, although the residence of her husband was in Kentucky. (Maguire v. Maguire, 7 Dana, 186; Rhymsv. Rhyms, 7 Bush, 316.)</p> <p>6. The residence of the husband and wife, under the statutes of this state, is not necessarily the same, as is shown by section 4,-chapter 47, Revised Statutes. (See Hick v. Hick, 5 Bush, 672; Wharton on Conflict of Laws, secs. 44, 45, 56, 67; Lieber’s Encyclopedia Americana, vol. 4, Appendix Domicilii.)</p> <p>7. If the law does not afford any other manner of judicial notification, then, should the defendant be an actual non-resident dweller, inhabitant, or abider in another sovereignty, no matter what may be his intention or purpose, the constructive service against him is the proper mode of proceeding. (1 Wend. 43; 4 Harr. 383; 2 Rich. 489; Spen. 328-333.)</p> <p>A guardian can change the domicil of an idiot so as to affect the distribution of the personal estate of "such idiot. (Holyoke v. Haskins, 5 Pick. 26.)</p> <p>8. If it be assumed that the court had jurisdiction over the subject-matter, in no event can the decree be gone behind, in a collateral proceeding, to ascertain whether there was a jury or not.</p> <p>It can not be determined in this case whether the trial in the divorce case was according to the mode prescribed by the act of 1865, or by the mode prescribed by the act of 1871.</p> <p>A denial of a jury trial, if tried under the act of 1865, would not have rendered, the proceeding void, but only liable to be reversed for error. (Cooley’s Con. Lim. 458.)</p> <p>In the acts of January 31, 1809 (4 Littell’s Laws, 19), and the act of March 2, 1843, no jury trial was required. (See Evans v. Evans, 5 B. Mon. 278.)</p> <p>“A jury shall not be used in any case for divorce or alimony.” (Sec. 8, art. 3, chap. 47, Rev. Stat.)</p> <p>9. A widow of unsound mind is not authorized by statute to renounce her husband’s will; it can not be renounced by next friend for her.</p> <p>10. “Jurisdictional facts, such as service of the writ, and the like, are presumed, and conclusively presumed, in the case of a domestic court of general jurisdiction, unless the record itself shows the contrary. (Coit v. Haven, 30 Conn. 196, 200; see also Collen v. Ellison, 13 Ohio, 446; Morgan v. Burnet, 18 Ohio St. 546; Grignon’s Lessee v. Astor &e., 2 How. 341; Deguindre v. Williams, 31 Ind. 446.)</p> <p>“Where the record' is silent on the subject of notice, the judgment of a court of general jurisdiction will support itself, and can not be collaterally impeached or called in question because of any alleged want of jurisdiction over the parties to the decree.” (Lawlor v. White, 27 Texas, 253.) See to same effect Hahn v. Kelley (34 Cal.)</p> <p>11. When a court of equity jurisdiction in this state grants a divorce, such decree, whether founded upon a jurisdictional fact or not, dissolves the marriage relation so far as Kentucky dominion and courts are concerned, and no court within the state, not even the court which rendered the judgment, could treat the parties as man and wife, until after such judgment of divorce was set aside by the court which rendered it, and that court, if it has any power to set aside such judgment, must do it within the time and according to the manner and form prescribed by law. (Maguire v. Maguire, 7 Dana, 181.) See Singleton v. Cogar (7 Dana, 479.)</p> <p>1. The absence of the affidavit of non-residence, or four months’ absence from the state, does not render the decree void in the divorce suit of H. D. against Cornelia W. Khwcomb.</p> <p>2. The affidavit, upon which an order of warning is made by the court, is not a jurisdictional fact. (Civil Code, secs. 88, 89.)</p> <p>3. When a defendant constructively summoned appeals to this court, he thereby enters his appearance, and the question of whether or not the lower court erred in entering a warning order against him becomes immaterial. (Gill v. Johnson, 1 Met. 650.)</p> <p>The distinction between the action of the court in ordering warning, when satisfactory evidence is made of the existence of the non-residency or other grounds for constructive service, and the action of a clerk making the order as a ministerial act, seems to be sustained by the reasoning of the court in Collins v. Ryan (32 Barb. 649); McCahill v. Eq. Life Ass. Society (26 N. J. Eq. R. 532.)</p> <p>Defendant is deemed to be constructively summoned thirty days after the warning order is made. (Thomas v. Mahone, 9 Bush, 125.)</p> <p>4. It is the process, and, when required, its execution, which brings a party before the court; and this is the jurisdictional fact.</p> <p>The want of the affidavit required by the statute (1 M. & B. 99) was error, and did not render the judgment void. (Lawlin heirs v. Clay, 4 Litt. 283; Hynes v. Oldham, 3 Mon. 266; Green’s heirs v. Breckinridge’s heirs, 4 Mon. 541; Blight’s heirs v. Banks, &c., 6 Mon. 206*; Tevis’s adm’r v. Richardson, 7 Mon. 655; Benningfield, &c. v. Reed, 8 B. Mon. 102.)</p> <p>In McLaughlin v. Ball (MS. Op.) the order of warning was made by the clerk without any affidavit of non-residency.</p> <p>Unpublished opinions are doubtful authority. (Trueman v. White’s heirs, 14 B. Mon. 573.)</p> <p>5. The distinction taken between the action of the court and of the clerk in making an order of warning in Hynes v. Oldham (3 Mon. 266), is consistent with other cases. (Mims v. Mims, 3 J. J. Mar. 105; Lloyd v. McCauley, 14 B. Mon. 430; Roberts v. Stowers, 7 Bush, 296; Long v. Montgomery, 6 Bush, 395; Ruby v. Grace, 2 Duv. 540.)</p> <p>6. The proof necessary to sustain an appeal, and when the same judgment is collaterally attacked, is very different. (Jacob’s adm’r v. L. & N. R. R. Co., 10 Bush, 269; Sidwell v. Worthington, 8 Dana, 77.)</p> <p>The affidavit upon which the warning order is made by the court, the record being silent, will be presumed to sustain the judgment of a superior court. (Peacock v. Bell, 1 Saund. 74; Jacob’s adm’r v. L. & N. R. R. Co., 10 Bush, 269.)</p> <p>There is no reason which justifies the indulgenceof legal presumptions when the mode pursued is actual service, which does not apply with equal force when the mode adopted is constructive service. See Hahn v. Kelly (34 Cal. 410), the reasoning of which is a conclusive argument against the limitations to presumptions as announced in Galpin v. Page (18 Wall. 367). This court has also disregarded the exception announced in Galpin v. Page in Sidwell v. Worthington (8 Dana, 77.)</p> <p>It was held in Ohio that the title to land passed in a sale made in proceedings against a non-resident, although no affidavit was made as required by the statute. (Newman v. City of Cin., 18 Ohio St. 331; see also Morgan v. Burnett, 18 Ohio, 546; Richards v. Skiff, 8 Ohio St. 586; Dean v. Thatcher, 3 Vroom, 470; Huntington v. Charlotte, 15 Vt. 49; Voorhees v. Bank of U. S., 10 Pet. 469.)</p> <p>7. When a court has obtained jurisdiction of a subject-matter, a defect in bringing the defendant before the court is mere error. (Thompson y. Tolmie, 2 Pet. 157; Harvey v. Doe, 7 Ind. 133; Dequidre v. Williams, 31 Ind. 446; Collins v. Ellison, 13 Ohio St. 446; Lawler v. White, 27 Texas, 253; Cox v. Thomas, 9 Gratt. 326; Durrett v. Davis, guardian, 24 Gratt. 317; Swearingen v. Gerlick, 67 111. 209; Morgan v. Burnett, 18 Ohio, 546; McGuire v. Justices, 7 B. Mon. 342; Graham v. Blount, 12 B. Mon. 244; Shackleford v. Miller, 9 Dana, 276; Cooley’s Con. Lim. 406.)</p> <p>8. Mrs. Newcomb was in fact a non-resident of the state. If not a non-resident, she had at the time of the warning been absent from the state Jour months. This question is res adjudieata by the court granting the order of warning and the divorce.</p> <p>The presumption that the residence of the wife is that of the husband ceases when that relation is practically severed, and a separation is caused by incurable insanity. (Barber v. Barber, 21 How. 583.)</p> <p>There is a recognized distinction between domicil and residence. (Maguire v. Maguire, 7 Dana, 186; Hick v. Hick, 5 Bush, 672.)</p> <p>The law gives to a father authority to fix or change the residence of his infant child. Why should not the husband of an insane wife have the same authority? A statutory guardian has this right. (Schouler’s Domestic Relations, 452; Townsend v. Kendall, 4 Minn. 418; Anderson v. Anderson, 42 Vt. 350; Gardner v. Farmingdale, 45 Maine, 537.)</p> <p>If Mrs. Newcomb was not amenable to constructive service as a nonresident, she certainly was as being absent from the state four months.</p> <p>The divorce record being silent as to the facts upon which the court based the warning order, it must be presumed in this collateral attack upon the judgment of divorce, that what was done was rightfully done. (Loughborough’s Statutes, 12; Clark v. Arnold, 9 Dana, 305; 2 B. Mon. 151; 1 B. Mon. 404.)</p> <p>9. Mrs. Newcomb’s amenability to constructive service in the divorce suit is res adjudieata. (Knowles v. Gas Light Co., 19 Wall. 58; Christmas v. Russell, 5 Wall. 304; Whiting v. Johnson, 5 Dana, 390; Roberts v. Caldwell, 5 Dana, 512; Hendricks v. Whittmore, 105 Mass. 28; Granger, v. Clark, 22 Maine, 128; see also Coit v. Haven, 3 Conn. 196; Cullen V. Ellisner, 13 Ohio St. 546; DeGrand v. Williams, 31 Ind. 446.)</p> <p>10. The denial of a jury trial, where that privilege is reserved by the constitution, does not render the proceedings void, but only makes them liable to be reversed for error. (Cooley’s Con. Lim. 410.)</p> <p>The provisions of our Bill of Rights have been construed as to the right of trial by jury. (Carson v. Com., 1 Mar. 291; Harrison v. Chiles, 8 Litt. 202; Harris v. Wood, 6 Mon. 642.)</p> <p>A trial by jury in an inquisition of lunacy was not a matter of right under the laws of the colony and state of Virginia in force at the time of the adoption of the constitution of this state in 1792. (8 Henning’s Statutes at Large, sec. 7, pp. 879, 380; 12 lb. 199; 13 lb. 129; Matter of Wendell, 1 Johns. Ch. 600; Turner v. Meyers, 1 Hag. 414; Parker v. Parker, 2 Lee, 382; Wightman v. Wightman, 4 Johns. Ch. 343; 1 Bishop on Marriage and Divorce, secs. 105-110 and 115; Rowdon v. Rowdon, 28 Ala. 565; Cole v. Cole, 5 Sneed, 57; True v. Ramsey, 21 N. H. 52.)</p> <p>In this state divorce suits have always been brought in equity where jury trials are the exceptions. (Watts v. Griffin, Litt. Sel. Cas. 247.)</p> <p>11. As to the difference between the contract and status of marriage, see Bishop on Married Women, vol. 1, sec. 23.</p> <p>The fact that marriage is “ a dvil and political status ” is the only reason why a state can grant a divorce. Legislative divorces are valid where granted, and also in other states. (Cooley’s Con. Lim. 403; Rhyms v. Rhyrns, 7 Bush, 316; Ditson v. Ditson, 4 R. I. 115; Thompson v. State, 28 Ala. 12.)</p> <p>12. Divorce suits are proceedings in rem affecting the status of the parties. (2 Bishop on Marriage and Divorce, 155, 165; Thompson v. Steamboat Morton, 2 Ohio St.; McCahill v. Eq. Life Ass. Soe., 26 N. Y. 532; Boswell’s lessee v. Otis, 9 How. 848; Green v. Van Buskirk, 7 Wall. 145; Cochran v. Fitch, 1 Saund. Ch. 145; Molyneaux v. Seymour, &c., 30 Ga. 440; Galpin v. Page, 1 U. S. (9th Cir.) R. (Sawyer) 332; Parrish v. Parrish, 9 Ohio St. 534.)</p> <p>The appointment of a guardian ad litem under the act of 1865, and his appearance, was a sufficient appearance to prevent a decree of divorce from being void. (Banta v. Calhoon, 2 Mar. 167; Bustard v. Gates, 4 Dana, 436; Downing v. Ford, 9 Dana, 391; Bank U. S. v. Cockran, 9 Dana, 395; Benningfield v. Reed, 8 B. Mon. 105; Berry v. Rogers, 2 B. Mon. 308; Simmons v. McKay, 5 Bush, 35; Thomas v. Mahone, 9 Bush, 125; Sturges v. Longworth, 1 Ohio St. 545; Rogers v. McLean, 81 How. Pr. 280.)</p> <p>1. The constitution did not secure a jury trial in the divorce suit of H. D. Newcomb against Cornelia W. Newcomb.</p> <p>The act of 1871, authorizing the court, without the intervention of a jury, to decide all actions instituted under the'statute of 1865, is not in violation of the constitution.</p> <p>Courts of equity in this state have always had, by statute, exclusive jurisdiction in actions of divorce, and are forbidden to impanel juries to ascertain any of the facts involved in such actions. (1 Stat. Law, 121, 122, 126, 127; 2 Rev. Stat. (Stanton’s), 17, 27; Civil Code, sec. 457; Gen. Stat. 522, 526.)</p> <p>H. D. Newcomb’s suit for divorce did not involve the liberty or any right of property of his wife. The wife’s contingent right of dower was hut an inchoate right. By statute divorce has always barred dower. (2 Bishop on Married Women, sec. 42; Barbour v. Barbour, 46 Maine, 13; Lucas v. Sawyer, 17 Iowa, 521; Moore v. City of N. Y., 4 Sandf. 460; Pratt v. Tefft, 14 Mich. 200; Noel v. Ewing, 9 Ind. 54; 1 Scribner on Dower, 8.)</p> <p>A right of trial by jury in a divorce suit did not exist at the time of the adoption of our first constitution, and consequently was not embraced by the jury clause of the bill of rights. (Carson v. Commonwealth, 1 Mar. 290; Harrison v. Chiles, 3 Litt. 202.)</p> <p>Under the ancient chancery practice, where the court was advised of the incapacity of the defendant, a guardian ad litem, was appointed for the defendant without having a formal inquisition. (Story’s Eq. Plead., sec. 71; 1 Smith’s Ch. Pr. 260; Edwards’s Parties in Ch. 211; Mit. Eq. by Jeremy, 103, 104; Cooper’s Eq. 32, 33, 109.)</p> <p>2. The finding by the court as to the fact of the lunacy of Mrs. New-comb in the divorce suit was conclusive in that case. (Clark v. Trail, 1 Met. 39.)</p> <p>Under the old constitution the general assembly had a right to grant divorces upon the theory that marriage was not a contract in the ordinary sense of that word, hut an organic institution, relation, or status, which the sovereign could abrogate. (Cabell v. Cabell, 1 Met. 319; Maguire v. Maguire, 7 Dana, 181; 1 Bishop on Marriage and Divorce, sec. 665, et seq.)</p> <p>3. If-the constitution entitled Mrs. Newcomb to a jury trial in the divorce suit, the denial of that right by the act of 1871 would not render the proceedings void, but only reversible for error. (Cooley’s Con. Lim., 1st ed., p. 410.)</p> <p>4. When a widow has not sufficient capacity to renounce the will of her husband, a renunciation can not be made for her by next friend or by the court.</p> <p>The right to renounce is personal and individual, and to he exercised in ner discretion. (2 Scribner on Dower, 469, 474; Sherman v. Gray, 6 Gray, 307; Boone v. Boone, 3 Har. & McH. 95; Hinton v. Hinton, 6 Ired. L. 274; Lewis v. Lewis, 7 Ired. L. 72; Collins v. Carman, 5 Md. 503; Welch v. Anderson, 28 Mo. 293; 1 Bishop on Married Women, sec. 443; Noel v. Garnett, 4 Call. 92; Blount v. Gee, 5 Call. 481; Creighton v. Creighton, 2 Dev. Ch. 338; Saunderly v. Thompson, 2 Dev. Ch. 539; Sherman v. Newton, 6 Gray, 507.)</p> <p>It is insisted by appellee’s counsel that the renunciation by Mrs. Newcomb was binding upon her, on the theory that “she would not be permitted to stultify herself.” (1 Mar. 562.) That theory has no support in the existing law. (Taylor v. Dudley, 5 Dana, 308; 1 Story’s Eq. Jurisprudence, sec. 225.)</p> <p>5. The decree of divorce was valid, and can not be impeached in this action.</p> <p>“The courts of the state where the complaining party resides have jurisdiction of the subject-matter.” (2 Rev. Stat. 20.; 2 Bishop on Marriage and Divorce, see. 155, et seq.; Cooley’s Con. Lim., 1st ed., 405.)</p> <p>6. When a final decree is rendered by a court of general jurisdiction, having also jurisdiction of the subject-matter, the presumption of law is, that such final decree was within the power of the court to render, unless the want of jurisdiction appears affirmatively on the face of the record. (1 Smith’s L. Cas., part 2, 1021-1026; 2 Am. L. Cas. 638'; Peacock v. Bell, 1 Saund. 74; Sanford v. Sanford, 28 Conn. 199; Dequindre v. Williams, 31 Ind. 446; Broadhead v. McConnell, 3 Barb. 184; Voorhees v. Bank U. S., 10 Pet. 473; Mcllvoy v. Speed, 4 Bibb, 86; Hahn v. Kelly, 34 Cal. 391; Dunbar v. Hallowell, 34 111. 169; Grainger v. Clark, 22 Maine, 130; Cook v. Darling, 18 Pick. 393; Trimble v. Longworth, 13 Ohio St. 438; Foot v. Stevens, 17 Wend. 483; Hart v. Sexas, 21 Wend. 40; Chemung Canal Bank v. Judson, 4 Sel. 260; Hatcher v. Rochelan, 18 N. Y. 95; Tullman v. Ely, 6 Wis. 259, 260; Pillsbury v. Dugan, 9 Ohio, 118; Prince v. Griffin, 16 Iowa, 554; Cooley’s Con. Lim., 1st ed., 406.)</p> <p>And this presumption is absolutely conclusive in all collateral proceedings of the courts of the same state, when the want of jurisdiction does not affirmatively appear on the face of the record. (2 Am. L. Cas., 5th ed., 615; Coit v. Haven, 30 Conn. 198; Dequindre v. Williams, 31 Ind.,456; Moore v. Starks, 1 Ohio St..369; Sanford v. Sanford, 28 Conn. 15, 16; Granger v. Clark, 22 Maine, 130; Cook v. Darling, 18 Pick. 393; Wever v. Zane, 3 Ham. 305; Lawler v. White, 27 Texas, 254; McCahill v. Equitable Life Assurance Society, 26 N. J. 536-7; 1 Smith’s L. Cas., 6th ed., p. 1020; Thompson v. Tolmie, 2 Pet. 157; Carrington v. Brents, 1 McLean, 175; Homer v. Doe, 1 Ind. 131; Reynolds v. Stanberry, 20 Ohio, 350; Baker v. Chaplin, 12 Ohio, 206; Prince v. Griffin, 16 Iowa, 554; Pillsbury v. Dugan, 9 Ohio, 118.)</p> <p>7.A defense on the ground of want of jurisdiction must be set forth with certainty and exactness. The plea must “show specifically wherein defect consists, and negative every reasonable intendment going to sustain the judgment.” (2 Am. L. Cas., 5th ed., 632, 656; Harrod v. Barreto, 1 Hall, 163; Moulin v. Ins. Co., 4 Zabriskie, 248; Shunway v. Stillman, 4 Cow. 296; Welsch v. Sykes, 3 Gilman, 197; Gunsnel v. Rice, 13 Minn. 400; Broadhead y. McConnell, 3 Barb. 184; Jacob v. L. & N. R. R. Co., 10 Bush, 263; Moore v. Starks, 1 Ohio St. 369; Reynolds v. Stanherry, 20 Ohio, 344; Owings v. Beall, 1 Litt. 258; Porter v. Silver, 5 J. J. Mar. 35; Hensley v. Force, 7 English, 756.)</p> <p>8. If, as claimed by appellee, jurisdiction did not exist, unless an affidavit presenting the requisite grounds for a warning order was in fact made, presented, or filed as the basis of such warning order, then the pleadings should have distinctly alleged that no such affidavit was made, presented, or filed.</p> <p>9. The validity of the final decree of divorce can not, in this collateral proceeding, depend in any degree upon the fact that the affidavit of non-residence or absence does or does not appear on the record. (1 Stat. Law, 576; Williams v. Moi’gan, 1 Litt. 168; Hynes v. Oldham, 3 Mon. 266; Voorhees v. Bank U. S. 10 Pet. 473; act of February 3, 1813; 2 Stat. Law, 806.) And in such a case the affidavit was not essential to jurisdiction. (Richardson v. Parrott, 7 B. Mon. 382; Lamp-ton v. Usher’s heirs, 7 B. Mon. 57; Gates v. Kennedy, 3 B. Mon. 167; Bustard v. Gates, 4 Dana, 429; Shaefer v. Gates, 2 B. Mon. 455; Benningfield v. Reed, 8 B. Mon. 104-5; Downing’ v. Ford, 9 Dana, 391; Bank U. S. v. Cockran, 9 Dana, 395; Dawson v. Litsey, 10 Bush, 411-12; Nelson v. Moore, 3 McLean, 321; Ray v. Mellroy, 1 Mar. 613; Banta v. Calhoon, 2 Mar. 168; Robb v. Irvin, 15 Ohio, 701.) This rule was not changed by the Code of Practice. (Simmons v. McKay, 5 Bush, 35; Pond v. Doneghy, 18 B. Mon. 558; Thornton v. McGrath, 1 Duv. 354; Allen v. Brown, 4 Met. 343; Bailey v. Beadles, 7 Bush, 384; Civil Code, sec. 88.)</p> <p>In Brownfield v. Dyer (7 Bush, 506) and McLaughlin v. Ball (MS. Op.) the orders of warning were not made by the court, but were issued, as shown by the record, by the clerks without authority. In Long v. Montgomery (6 Bush, 396) there was no service of process or appearance, and the default judgment was held to be void.</p> <p>If the language of Galpin v. Page (18 Wall. 354) is broad enough to cover the precise question presented in this case, that opinion should not be followed, because it is not in harmony with the decisions of this court, and also because it is not in harmony with later decisions of the Supreme Court of California. (Hahn v. Kelly, 34 Cal. 391; Clarke v. Sawyer, 48 Cal. 139; see also Kemp’s Lessee v. Kennedy, 5 Cranch, 173 ; Ex parte Tobias Watkins, 3 Pet. 204; Kennedy v. Georgia, 8 How. 611; Grignon v. Astor, 2 How. 338; Diel v. Page, 2 Green Ch. 143; Elkner v. Guild, 10 Wis. 571.)</p> <p>10. If Mrs. Newcomb was not amenable to constructive service, the decree of divorce can not be disregarded in this collateral proceeding, because she was defended by a special guardian ad litem appointed in compliance with the statute of 1865.</p> <p>1. The decree of divorce pleaded in this action as a bar to Mrs. Cornelia W. Newcomb’s claim for dower is void upon the face of the record, because she was never given a day in court. The right of every defendant to a day in court, and to citation according to the forms of law is fundamental. (Sir Alexander Dow’s Case, 5 Clarke & Finnelly, 21; McVeigh v. United States, 11 Wall. 267; Connecticut Insurance Co. v. Hall, 16 Am. Law Reg. 606; Windsor v. McVeigh, 93 U. S. (3 Otto), 277; Burdick v. Bloom, 1 Hill, 141; Brumstead v. Read, 31 Barb. 669; Lasere v. Roehereau, 17 Wall. 437.)</p> <p>2. Service of summons, whether actual or constructive, is regulated by statute. (Myers’s Code, secs. 74, 88; Bailey v. Beadles, 7 Bush, 384.) And it is not competent for courts to vary or derogate from the requirements prescribed by legislative authority. (Burdick v. Bloom, 1 Hill, 141; Long v. Montgomery, 6 Bush, 395; Roberts v. Stowprs, 7 Bush, 297; Galpin v. Page, 18 Wall. 370; Christie v* Unwin, 3 Perry & Davidson, 208.)</p> <p>3. In the suit for divorce Mrs. Newcomb was in no legal sense a non-resident of Kentucky, her husband being resident here; nor was she domiciled abroad. As her removal from Kentucky was ordered and effected by her husband, and her detention there procured by him, she was, in legal contemplation, resident and domiciled in Kentucky, -for all purposes of suit brought by him, and therefore entitled to actual service of summons. (Jackson v. Jackson, 1 Johns. 432; Maguire v. Maguire, 7 Dana, 181; Hick v. Hick, 5 Bush, 670; Allen v. Allen, MS. Op., Sept. 28, 1868; Bouvier’s Law Dictionary, 444; Green v. Green, 11 Pick. 411; Lane v. Purdee, 2 Meigs, 232; Brown v. Lynch, 2 Bradf. 218.)</p> <p>The concurrent animus et factum requisite to effect a change of domicil is totally wanting as to Mrs. Newcomb. She was an involuntary absentee under her husband’s order (Mitchell v. United States, 21 Wall. 353)., and constructive summons, at the husband’s suit against her for divorce, did not give jurisdiction.</p> <p>4. Constructive service of summons, in all cases, is statutory, and strieti juris. (Myers’s Code, secs. 88, 89; Bigelow v. Stearns, 19 Johns. 41 ; Hallett v. Righters, 13 How. (N. Y.) 45; Jackson v. Esty, 7 Wend. 148; Corwin v. Merritt, 3 Barb. 345; Pollard v. Wigener, 13 Wis. 572; Thatcher v. Powell, 6 Wheat. 119; Eaton v. Badger, 33 N. H. 237; Galpin v. Page, 18 Wall. 368, 369.)</p> <p>5. The affidavit of non-residence of defendant required by the Code (secs. 88, 89) is a statutory and essential part of constructive service, and its omission was fatal to the entire proceedings in the divorce suit. The record 'does not show on its face a substantial compliance with the provisions of the Code. (Brownfield v. Dyer, 7 Bush, 505; McLaughlin v. Ball, MS. Op., Oct. 28, 1874; Mims v. Mims, 3 J. J. Mar. 105; Jones v. Hoffman, 18 B. Mon. 656; Kibbe v. Benson, 17 Wall. 624; Galpin v. Page, 18 Wall. 350; Cook v. Farren, 34 Barb. 95; Denning v. Corning, 11 Wend. 353; Brodhead v. McConnell, 3 Barb. 189; Wright v. Douglass, 3 Barb. 575; Raymond v. Smith, 1 Met. 67; Gill v. Johnson, 1 Met. 652.)</p> <p>6. Even had the statutory requirements for constructive service been rigidly and accurately observed, it would have been ineffectual to conclude Mrs. Newcomb in the divorce suit, because—</p> <p>First. She was not amenable to any but actual service of summons. ( Vide supra.)</p> <p>Second. She was of imbecile mind, had been conveyed beyond the state by her husband, and by him left in a lunatic asylum in Massachusetts, and kept there by his orders. She was powerless to obey any order warning her to appear. (Dean v. Nelson, 10 Wall. 172 ; Lasere v. Rochereau, 17 Wall. 437; McVeigh v. United States, 11 Wall. 259; Windsor v. McVeigh, 93 U. S. (3 Otto) 274.)</p> <p>7. Presumptions in favor of jurisdiction are not to be indulged where constructive service is resorted to, and the record fails to show that the statute has been strictly followed. (Starbuck v. Murray, 5 Wend. 158; Corwin v. Merritt, 3 Barb. 346.)</p> <p>But on the contrary, the presumption is against the jurisdiction in such a case; even in divorce cases. (Borden v. Fitch, 15 Johns. 121; Bradshaw v. Heath, 13 Wend. 402; Vischer v. Vischer, 12 Barb. 640; Kerr v. Kerr, 41 N. Y. 272; Boyd’s Appeal, 2 Wright (Pa.) 241; Meyar v. Meyar, 3 Met. 302.)</p> <p>8. A decree of divorce may be collaterally attacked whenever benefit or protection is claimed under it by the adverse party. (Borden v. Fitch, 15 Johns. 121; Vischer v. Vischer, 12 Barb. 640; Kerr v. Kerr, 41 N. Y. 272; Bradshaw v. Heath, 18 Wend. 402; Latham v. Edgerton, 9 Cow. 229; Putnam v. Man, 3 Wend. 205; Barnes v. Harris, 3 Barb. 608; Doty v. Brown, 4 How. (N. Y.) 437; Pollard v. Wegmer, 13 Wis. 572; Eaton v. Badger, 3 N. H. 237; Pendleton v. Weed, 17 N. Y. 72; Fitzhugh v. Custer, 4 Texas, 399 ; Hervey v. Edmonds, 68 N. C. 243.)</p> <p>9. It was not competent for the chancellor who tried the divorce suit to find the fact that Mrs. Newcomb was a lunatic. That being the ground upon which the divorce was sought by her husband, the law guarantied her a jury to tjy a writ de lunático, and the failure so to proceed was fatal to the decree, as it infringed the jury right. (Constitution of Kentucky, art. 13, sec. 8; Rebecca Owings’s Case, 1 Bland (Md.), 299; O’Daniel v. Flanagan, MS. Op., Nov., 1875; Shelden on Lunacy, side-pages 35 and 624; Fitzherbert Natura Brevium de Lunático; Story’s Eq. Jurisprudence, secs. 1362-1365; Bac. Abr., title Idiots B; Statute 36, Edwd. Ill, ch. 14; Cameron’s Committee v. Pottinger, 3 Bibb, 12; Mordaunt v. Moncriefl'e, Law Bep. 2 Divorce Appeals, 375; Commonwealth v. Jones, 10 Bush, 756; Carson v. Commonwealth, 1 Mar. 291.)</p> <p>10. Mrs. Newcomb having been once sane, and not having been found lunatic by a jury on trial of a writ de lunático inquirendo, is sane in the eye of the law. (Cameron’s Committee v. Pottinger, 3 Bibb, 12; Wilson v. Oldham, 12 B. Mon. 55, 57; Rebecca Owings’s Case, 1 Bland (Md.), 290, 299.)</p> <p>11. A widow unsound in mind, but not found lunatic by the verdict of a jury, can by deed renounce the provisions of her husband’s will, and claim her statutory dower and distributable right in his estate. (Young v. Young, 1 Mar. 562.)</p> <p>1. The judgment of divorce pleaded by the defendants below (now appellants) as a defense to Mrs. Cornelia W. Newcomb’s suit for dower and distribution in her husband’s estate, is void, because—</p> <p>First. The chancellor had no jurisdiction over Cornelia W. Newcomb to decree a divorce from her. She was not actually summoned, as she was entitled to be, and could have been. (Myers’s Code, sec. 86.)</p> <p>Second. She was placed beyond the state by her husband, and kept out of it by him, and was therefore not, in contemplation of law, a nonresident, nor absent from him, and was not subject to constructive service of summons at his suit. (Dean v. Nelson, 10 Wall. 172; Lasere v. Rochereau, 17 Wall. 437; McVeigh v. United States, 11 Wall. 266.)</p> <p>Third. She was never constructively summoned, for all the essential requirements of the law authorizing a constructive summons were not complied with. (Myers’s Code, secs. 88, 89; Brownfield v. Dyer, 7 Bush, 505; Galpin v. Page, 18 Wall. 364; Tounsley v. McDonald, 32 Barb. 604; McLaughlin v. Ball, MS. Op., Oct. 1874.)</p> <p>Fourth. No legal presumption supplies the non-existence in the record of material facts of summons. (Starbuck v. Murray, 5 Wend. 158; Galpin v. Page, 18 Wall. 364.)</p> <p>Fifth. Neither an infant or a lunatic can be brought within the jurisdiction of the court by any less summons, actual or constructive, than is necessary to give jurisdiction over the adult sane. The requirements of the Code necessitate further particulars. (Myers’s Code, secs. 81, 82.)</p> <p>Sixth. Hynes v. Oldham (3 Mon. 267) and Benningfield v. Reed (8 B. Mon. 102) are to be distinguished from the present practice as prescribed by the Code.</p> <p>2. The judgment of divorce was unconstitutional and void for want of a jury trial.</p> <p>First. The only legal ground of divorce alleged, or attempted to be proved, was lunacy, within the terms of the act of 1865. (Myers’s Sup. 711.)</p> <p>Second. Mere corporal separation, caused by disease (and especially if ordered by the plairitiff), and not involving a suspension of marital authority or defiance of it, is not “a living separate and apart” within the meaning of the statute.</p> <p>Third. Neither in ancient or modern times has it been legal to investigate or sustain a charge' of lunacy, to the detriment of the non compos, except by jury trial. (Sheldon on Lunacy, side-pages 35, 624; Story’s Eq. Jurisprudence, sec. 1362-1365; Bac. Abr., title Idiot B; Constitution of Kentucky, Bill of Rights; Carson v. Commonwealth, 1 Mar. 291; Eitzherbert Natura Brevium; Rebecca Owings’s Case, 1 Bland, 299.)</p> <p>Fourth. The bill of rights can not be denied effect by any refusal to inquire into ajviolation of it, or a denial of its guaranties, and “ the ancient mode of trial by jury ” can not be directly or indirectly abridged. The decree of divorce, in so far as it rested on the charge of lunacy, which charge was tried without a jury, and found against the alleged lunatic, was an invasion of the ancient mode of trial by jury, and therefore unconstitutional.</p>

Case 68 — PETITION ORDINARY APPEAL PROM TRIGG? CIRCUIT COURT. 1. The moral obligation of a bankrupt to pay a debt, notwithstanding his discharge, is a sufficient consideration for a new promise to pay a debt created before the filing of his petition in bankruptcy. (Graham v. Hunt, 8 B. Mon. 7; Egbert v. McMichael, 9 B. Mon. 44.) 2.»A conditional promise to pay “when convenient” is sufficient and enforceable.

Case 1 — PETITION ORDINARY APPEAL FROM JEFFERSON COMMON PLEAS COURT. 1. The notes were written and signed in Missouri, but delivered in this state. They were therefore contracts made in this state. 2. The maker of the notes, the appellee, residing in Missouri at the time they were executed, in 1848, became a resident of Kentucky in 1864, and therefore the statute of limitations of this state did not commence to run until 1864. 3.

Case 2 — PETITION EQUITY APPEAL FROM OWSLEY CIRCUIT COURT. 1. The debtor in this case died in 1870 while the act of February 10, 1866, was in force. It is therefore claimed that his widow and children hold the homestead in fee-simple, and that the court below erred.in adjudging a sale thereof, subject to the widow’s life-estate. 2.

<p>1. The bond, which a claimant of property levied upon by execution is permitted to execute by section 645 of the Civil Code of 1877, must be executed to the plaintiff in the execution, not to the beneficial owner of the judgment and execution or assignee thereof. (Watson v. Gabby, 18 B. Mon. 658.)</p>

Case ¿-PETITION EQUITY APPEAL PROM HENDERSON COMMON PLEAS COURT. 1.

Cases 5, 6 — PETITION ORDINARY APPEALS PROM JEPPERSON COMMON PLEAS COURT. 1. The bond of Gallagher, the pension agent, inured to the benefit of every pensioner on the rolls for the Louisville agency. (Rev. Stat. U. S., secs, 4764, 4765, 4766, 4779, 4780.) Section 4766 aforesaid prohibited the agent from recognizing the power of attorney, even if it had been properly executed, which is denied. 2.

Case 7 — PETITION ORDINARY APPEAL FROM JEEPEESON COMMON PLEAS COURT. 1. The Code requires judgment to be entered pursuant to the general verdict, unless a special finding is inconsistent with it. (Sec. 328.) 2. By the general verdict for $500 in favor of appellant, the jury found that she did not contribute to her injury by her own carelessness or negligence. (Johnson v. Louisville R. Co., 10 Bush, 231.) 3.

Case 8 — INDICTMENT FOB MURDER APPEAL PROM LOGAN CIRCUIT COURT. 1. The circuit court erred in admitting jurors, against the protest of appellant, who had formed opinions about his case from newspaper reports and rumors. (Constitution of Kentucky, art. 13, secs. 8, 12; 1 Coke’s Inst. 156 6; 3 Bac. Abr. 258; 2 Tidd, 780; Hale’s Hist. Com. Law, ch. 12; Selfridge’s Trial, 9; Burr’s Trial, vol. 1, p. 359; 3 Wharton’s Crim. Law, sec. 3065; Crim.

Case 9 — PETITION ORDINARY APPEAL PROM MADISON CIRCUIT COURT. 1. Ellis & Higgins, by failing to answer, confessed all tbe material allegations of the petition as to Green as well as themselves. (Greenleaf on Evidence, sec. 174.) 2. The liability of a partner does not depend on the question as to whom credit was given, nor on the question as to whether the money borrowed was used upon partnership account or not. (Parsons on Partnership, 2d ed., page 64.) 3.

Case 10 — PETITION EQUITY APPEAL FROM CAMPBELL CIRCUIT COURT. 1.The agreement between the Truesdell heirs, that they should not jointly or separately sell their interest in the lands, etc., referred to in the agreement, or the proceeds or issues thereof, nor have any division or distribution thereof, and that the last survivor should take the same, etc., was against the policy of the law authorizing alienation and partition, and repugnant to the incidents inseparably annexed…

Case 11 — PETITION ORDINARY APPEAL PROM JEPPERSON COMMON PLEAS COURT.

Case 12 — PETITION EQUITY APPEAL PROM BOYD CIRCUIT COURT. 1. Held: was superior to that created by the subsequent levy of the attachment. 2. The levy of the attachment did not create any lien on the land, because the levy does not show that the sheriff posted a copy thereof on the land, or that he delivered a copy thereof to the occupant, as required by the Code, section 228. 1.

Cases 13,14,15,16,17,18 — PETITIONS ORDINARY APPEALS EROM BOYLE CIRCUIT COURT. 1. A suit for malicious prosecution of a civil action can be maintained without an averment that the plaintiff has been arrested, or his property in some way interfered with. (Oox v. Taylor’s heirs, 10 B. Mon. 20.) 2. Where there is a good cause of action, but the plaintiff sues in a court which has no jurisdiction or cognizance of the cause, an action for malicious prosecution will lie.

Case 19 — PETITION ORDINARY APPEAL FROM BOYD CIRCUIT COURT. 1. The coal-road incline, etc., operated by appellee constitute a railroad in contemplation of the act of 1854, and of chapter 57, General Statutes. (10 Bush, 232.) 2. The corporate powers of appellee were conferred by act of January 9, 1852. (2 Acts 1851-2,778.) 3. There is a clear distinction between chapter 10, Revised Statutes and the act of 1854. (Hansford’s adm’x v. Payne, &c., 11 Bush, 380.) 4.

Case 20 — PETITION ORDINARY APPEAL FROM JEFFERSON COMMON PLEAS COURT. 1. This court must presume that the record, made according to appellants’ schedule, presents the whole case to this court for its consideration, and in passing upon the sufficiency of the amended petition this court can not go outside of the record thus presented to learn what the original petition contained. 2.

Case 21 — APPEAL IN WILL CASE APPEAL from warren circuit court. 1. Undue influence is personal restraint, or fear of personal injury or imprisonment. (2 Met. 445-447.) This case is like Harrel, &c. v. Harrel, &c. (1 Duv. 204) and Broaddus, &c. v. Broaddus, &c. (10 Bush, 299). (See also 2 J. J. Mar. 342; 1 Bush, 116.) 2. None but experts or attesting witnesses can express an opinion as to whether the testator was or not of sound mind and disposing memory.

Case 22 — MOTION ON BAIL-BOND APPEAL PROM SHELBY CIRCUIT COURT. The county judge was as much bound by the terms of the orders fixing the bail in each of the four cases, as if he had been some other person than the one who made the order. In taking the bond for the aggregate amount of bail fixed in the four prosecutions, instead of taking four separate bonds, the county judge acted ministerially. (Commonwealth v. Hall, MS. Op., January, 1857.)

Case 23 — INDICTMENT APPEAL FROM JEFFERSON CIRCUIT COURT. 1.

Case 24-PETITION ORDINARY APPEAL PROM JEFFERSON COMMON PLEAS COURT. 1. This suit is brought, not for any property taken and appropriated by appellants, either corporeal or incorporeal, but for indirect or consequential damages, in the shape of the diminution of appellee’s property, caused by the construction and operation of the railroad tracks, not upon the property itself, but upon the public street in front of his property. 2.

<p>Case 25 — MOTION ON BAIL - BOND</p> <p>APPEAL FROM EDMONDSON CIRCUIT COURT.</p> <p>The response was sufficient. (Com. v. Terry, 2 Duv. 383; Kirby v. Com., 1 Bush, 114; Com. v. Webster, 1 Bush, 616.)</p>

Case 26 — PETITION EQUITY APPEAL FROM BOYD CRIMINAL COURT. 1. Section 14 of “An act to establish a criminal court for the sixteenth judicial district,” approved March 10,1876, conferring jurisdiction, on said criminal court, of actions by equitable proceedings, is unconstitutional, because such jurisdiction has no natural connection with, and is foreign to the subject expressed in the title of the act.

Case 27 — PETITION EQUITY APPEAL PROM PENDLETON CIRCUIT COURT. 1. Held: by analogy, that where a case is submitted for decision on motion of defendants, without the consent of the plaintiff, at the same term, or, as in this case, on the same day they filed their answer, the defendants, nothing else appearing in the record, must be held as consenting that the statements of the petition may be taken as…

Case 28 — MOTION IN CRIMINAL COURT APPEAL EROM KENTON CRIMINAL COURT. The Hon. W. L. Jackson, Judge of the Ninth Judicial District, presided in this case, in the Kenton Criminal Court, under an appointment by the Governor, pursuant to section 10, article 4, chapter 12, General Statutes. 1.

Case 29 — INDICTMENT FOR MURDER APPEAL FROM SHELBY CIRCUIT COURT. 1. Under an indictment for murder the accused can not he convicted of the statutory offense of killing by willfully striking, under section 2, article 4, chapter 29, General Statutes, for the obvious reason that every allegation of the indictment for murder may he admitted to he true, and the accused be not guilty of the statutory offense. v 2.

<p>Case 30 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>The court below erred in overruling the appellant’s objections, as purchaser, to the confirmation of the sale, because the proceeding under which the sale was adjudged (under chap. 63, Gen. Stat.), did not conform to said chapter, in that the required covenants to married women and infants were not executed; the commissioners were not appointed, etc.; and also in that the sale was in contravention of the will of'Mrs. Flournoy, under which the parties derived title.</p> <p>1. The act of March 14, 1851 (Acts 1851, 461) authorizing Mrs. Flournoy to make a will, is not in conflict with section 32, article 2 of the constitution of this state.</p> <p>2. A court of equity had jurisdiction to sell separate estates of married women under section 17, chapter 47 of the Revised Statutes, for reinvestment, etc.</p> <p>3. The proceeds of the sale are to be reinvested, and therefore a bond and commissioner’s report are not required by article 6, chapter 63, General Statutes, under which the sale was adjudged. (Paul v. Paul and wife, 3 Bush, 483; Griffith v. Burton and wife, 5 Bush, 358; Terrell, &c. v. Spence and wife, 5 Bush, 637.)</p>

Case 31 — PETITION ORDINARY APPEAL PROM GARRARD COMMON PLEAS COURT. 1. The note for $1,300 was given for the joint benefit of Brunette Doty’s four children. The court erred in rendering judgment for an undivided part of the note, without showing cause for not uniting with plaintiffs their co-obligees in interest. 2.

Case 32 — INDICTMENT APPEAL FROM FAYETTE CIRCUIT COURT. 1. Each section of art. 23, chap. 29, General Statutes, was intended to define and punish a different class or grade of offense. Eor the offense described in section 1, a fine of from $500 to $10,000 is imposed, while for the offense described in section 3, a fine from $100 to $1,000 is imposed. 2.