Volume 77 — Kentucky Reports

1. The English doctrine of ancient lights and implied grants has no application in this state. Our ancestors did not bring with them all the English common law, but only so much of it as suited the condition of this country. (1 Tucker’s Blackstone, 8, 9.) If not repealed by the Revised and General Statutes the English doctrine is inconsistent with natural justice, and hence must be considered as not adapted to this country. 2.

<p>1. Errors in Assessments to pay por street improvements in the city op Louisville may be corrected by the courts when the property to be assessed is bounded by principal streets or laid off into squares.</p> <p>But when the property to be assessed is not bounded by principal streets or laid off into squares, the council must, by legislative action, determine what contiguous property is to be taxed, and the extent to which it is to be taxed. If, in such a case, the ordinance is invalid to any extent, this is not an error which the courts can correct,</p> <p>In directing that the assessment to pay for the improvement on Barret Avenue should extend to the depth of two hundred and fifty-two feet on the east side and one hundred and forty-seven and one half feet on the west side of said avenue, the ordinance was invalid, as decided in Preston v. Roberts, 12 Bush 570, in so far as it extended the assessment on the east side beyond one hundred and forty-seven and one half feet.</p> <p>The contractor who made the improvement on Barret Avenue is not entitled to recover of the lot-owners to the depth of one hundred and forty-seven and one half feet what he failed to collect to the depth of two hundred and fifty-two feet on the east side of said avenue, because the ordinance under which the improvement was made was invalid in so far as it extended the assessment beyond one hundred and forty-seven and one half feet.</p>

Case 3-JPETITI015r EQUITY APPEAL PROM HENDERSON COMMON PLEAS COURT. 1. The cost of the improvement was assessed against the property fronting on the street in pursuance of art. 3, sees. 8, 14, of the city charter of 1867, and sec. 16 of the amendment thereto of 1870. 2. Appellant’s obligation as abutting lot-owner to pay for the improvement of the street was not affected by the location and use of the railroad in the street.

Case 4 — INDICTMENT— APPEAL PROM JEPPERSON CIRCUIT COURT. 1. At common law larceny could not be committed of things which adhere to or savor of the realty. (1 Hale P. O. 510; 4 Black. Com. 232, 234; U. S. v. Casper Wagner, 1 Cranch Cr. Ct. 314; IT. S. v. Smith, ibid. 475; The State v. Davis, 22 La. An. 77.) 2. The statute of this state relating to the larceny of “goods and chattels” does not change the common-law rule. (Gen. Stat., chap. 29, art. 11, sec. 1; Bishop on Stat.

Case 5 — PETITION ORDINARY APPEAL FROM JEFFERSON COMMON PLEAS COURT. 1. A person signing his name on the back of a note “shall be deemed and treated as an assignor.” (Sec. 14, chap. 22, Gen. Stat.) 2. The assignee has used due diligence and prosecuted the payor to legal insolvency (Williams v. Obst, 12 Bush, 268), as shown by the sheriff’s return of no property. 3. The evidence shows that the assignee delayed suing at the request of the assignors.

<p>1. A RIGHT TO A PASSWAY, by prescription, is founded on uninterrupted use and enjoyment, time out of mind, or for such a length of time that the memory of man runneth not to the contrary.</p> <p>Such an enjoyment of the me not only creates a presumption of a right, but is conclusive evidence of its existence. (Hall v. McLeod, 2 Met. 98.)</p> <p>2. An agreement to open a new passway eor the privilege op closing an old one is founded on a sufficient consideration.</p> <p>3. A PRIVATE PASSWAY OVER THE LAND OP another is an interest in realty, and in order to create it the law requires that the contract shall be in writing.</p> <p>4. The use op a passway, under a verbal agreement with the owner of the land at the time it was established, under a claim of right, for more than twenty years, in this case, is held to have raised the presumption of a grant.</p>

Case 7 — INDICTMENT— APPEAL PROM GREENUP CIRCUIT COURT. 1. The indictment for “keeping a tippling-house,” by keeping a tippling-house, did not state the acts constituting the offense as required by the Criminal Code, sections 122, 123, 124, and section 3, page 364, General Statutes; see also Stowers v. Commonwealth, 12 Bush, 342; Foster v. Commonwealth, 12 Bush, 374; Commonwealth v. White, 18 B. Mon. 492. 1.

<p>Case 8 — PETITION EQUITY</p> <p>APPEAL PROM M’CRACKEH COMMON PLEAS COURT.</p>

Case 9 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The policy being executed after the application, its provisions, when in conflict with the application, must control; especially must its provisions control the application so far as the obligations of the company are concerned.

<p>1. motion to set aside A void judgment must be made and overruled in tbe lower court before an appeal can be prosecuted to tbe Court of Appeals to reverse it. (Bullitt’s Code, sec. 768.)</p> <p>2. The Court of Appeals will not entertain jurisdiction wben, conceding all tbe appellant claims, it bas no jurisdiction.</p>

Case 11 — PETITION ORDINARY APPEAL FROM WASHINGTON CIRCUIT COURT. The correspondence in this case between the juror and the judge was not sanctioned by the Code. The response of the judge to the note of the juror did not prejudice appellant, because it only repeated what was said in instruction No. 7, to which no objection was made by appellant.

Case 12 — PETITION EQUITY Appeal prom. garrard circuit court. 1. The onus is on the party alleging it to prove that the deed was made without consideration or fraudulent. 2. The acknowledgment and record of the deed were good as between the parties to it in the absence of fraud. No fraud is alleged or proved. (Wickliffe v. Lyons, 5 J. J. Mar. 87; Isaac v. Gearheart, 12 B. Mon. 235.) 3. A fraudulent deed is good against all the world except creditors and purchasers.

Case 13 — APPEAL FROM JUSTICE’S COURT APPEALS PROM HICKMAN COMMON PLEAS COURT. The title to the act in question relates to more than one subject, and is therefore unconstitutional. (Con., sec. 37, art. 2.)

Case 14 — PETITION ORDINARY APPEAL PROM JEPPERSON COMMON PLEAS COURT. 1. Resident citizens and tax-payers of a city are not competent jurors in an action against the city. (3 Oo.

<p>1. Time in which appeals must be taken to the Court of Appeals in civil actions under the Code of 1877, secs. .745, 837.</p> <p>On judgments rendered before the Code of 1877 took effect, the appeal must he taken within three years; and</p> <p>On judgments rendered after the Code of 1877 took effect, the appeal must be taken within two years, unless, etc., as provided in section 745 of the Code of 1877.</p> <p>“ Civil cases now pending,” as used in section 837 of the Code of 1877, means and applies to actions then pending in which no final . judgment had been rendered at the time the Code of 1877 took effect, January 1,1877.</p> <p>2. A TENANT CAN NOT DISPUTE THE TITLE OF HIS LANDLORD, Or of his vendee, until he surrenders the possession to him, although he did not enter under his title.</p>

<p>Case 16 — PETITION EQUITY</p> <p>APPEAL FROM GARRARD CIRCUIT COURT.</p> <p>1. Totten and wife, by selling, abandoned the homestead, and thereupon it became subject to the mortgage. The homestead exemption deprived the mortgagee of the benefit of his mortgage on the homestead only so long as the mortgagor held the title, and occupied it as his homestead. (Brown, Bro. & Oo. v. Martin & Co., 4 Bush, 50.)</p> <p>2. When the homestead was set apart, that is, when the twenty acres were set apart out of the ninety-two acres, to the mortgagor, the mortgagor and his family did not acquire a fee-simple title to the twenty acres. (Brame and wife v. Craig, 12 Bush, 407; Phipps, &e. v. Acton, &c. 12 Bush, 377.)</p> <p>3. By enforcing the mortgage on the seventy-two acres the mortgagee was not estopped‘from enforcing the same mortgage on the-other twenty acres so soon as the mortgagor abandoned his homestead by selling it, and, with his wife, conveying it to the purchaser.</p> <p>1. Totten, the mortgagor of the ninety-two acres, and his wife had the right to sell and convey the twenty acres which had been set apart to them as a homestead, although the mortgage, executed by the husband alone, embraced the whole ninety-two acres, and to reinvest the proceeds of the sale thereof in another homestead. (Phipps, &c. v. Acton, &o. 12,Bush, 377,; see also Anthony & Co. v. Wade, 1 Bush, 111.)</p> <p>2. While the husband may divest himself and family of the homestead .right by an absolute sale, it is clear that he can not do so by a mortgage in which his wife does not join with him. (Brame and wife v. Craig, 12 Bush, 404.)</p> <p>3. The husband and wife can alienate the homestead in all of the states except when expressly prohibited by statute. (Dearing v. Thomas, 25 Ga. 224; Kitchell v. Berryman, 21 111. 44; 23 111. 540; 31 111. 153; 12 Allen, 32; 3 Minn. 53; 34 N. H. 394; 36 Barb. 571; Sears v. Hanks, 14 O. St. 298; Lamb v. Shay, 14 Iowa, 570; Davis v. Kelly,14Iowa, 523.)</p> <p>4. The judgment enforcing the mortgage on the seventy-two acres and setting apart the twenty acres for the homestead barred the mortgagee’s claim upon the twenty acres. (Parker v. Cleveland, 19 Mich. 230; 31 Barb. 537; 33 Maine, 355; 32 Maine, 117; 6 Crunch, 103.)</p> <p>Totten, and wife had the right to sell the twenty acres set apart as a homestead, and with the proceeds, as they did, purchase another homestead — having this right, they conveyed a good title to their vendee Bogie. (Brame and wife v. Craig, 12 Bush, 407; Carter, Fisher & Co. v. Goodman, 11 Bush, 228; Brooks, &c. v. Collins, 11 Bush, 622.)</p>

<p>Case 17 — INDICTMENT</p> <p>APPEAL PROM MADISON CIRCUIT COURT.</p>

<p>1. Right of tenant to sell or assign his term—</p> <p>The assignment of a lease for a term of two years or more, without the consent of the landlord, does not operate as a forfeiture of the lease, or authorize the landlord to re-enter or take possession, as provided, by section 2, article 1, chapter 66 of the General Statutes, although the term would expire in less than two years from the date of the transfer or assignment of the lease.</p>

Case 19 — PETITION EQUITY APPEAL FROM BRACKEN CHANCERY COURT. 1. The vendor’s lien was not affected by the replevin of the debt, and the assignment of the benefit of that lien to the surety in the replevinbond, vested him with the rights of the vendor. (2 Bibb, 268; Clark v. Hunt, 3 J. J. Mar. 558-9.) 1. The assignment of the “ benefit of the execution ” did not carry with it the original lien reserved in the deed.

<p>Case 20 — PETITION EQUITY</p> <p>APPEAL EROM LOUISVILLE CHANCERY COURT.</p> <p>1. The rule of priority established by section 33, chapter 37, Eevised Statutes applies only to proceeds of personal estate and such funds as come to the'hands of the administrator in virtue of his office.</p> <p>This rule results from the fact that the only priority established by law is found in said section 33, and as said section is in the chapter devoted to administrators, it is clear that it only speaks of and refers to such property and' effects as usually and legally go into the hands of the administrator.</p> <p>This conclusion is fortified by section 26 of the same chapter, which expressly provides that an estate held for the life of another shall go to the administrator, and be applied and distributed as personal estate.</p> <p>2. The act of 1839 was repealed by the Eevised Statutes and the Civil Code of 1854.</p> <p>3. As to the power and duties of administrators, see Manion’s adm’r v. Lambert’s adm’x, 10 Bush, 297; Eank v. Hill’s adm’r, 8 Bush, 67; Payne v. Pusey, 8 Bush, 567; Herndon v. Lancaster, 6 Bush, 485; Heeter v. Jewel, 6 Bush, 510.</p> <p>4. The distinction between legal and equitable assets has not' been abolished in this state. (Heeter v. Jewell, 6 Bush, 510.)</p> <p>5. “ Legal assets are those which the executor takes by operation of law, and which creditors could attach in a court of law. Equitable assets are those which the executor takes by an express charge of the testator, and which a creditor could only reach through a court of equity. Assets are thus denominated legal or equitable according to the kind of remedy open to the creditor, and not according to their own nature.” (Wigram on Wills, 353.)</p> <p>6. The question in this case is not whether the fund in controversy is “ legal or equitable assets, but whether the proceeds of real estate are subject to the same rule of priority as are the proceeds of personal estate. There is positive law for subjecting the latter and none whatever for subjecting the former, and therefore it is insisted that appellees are not entitled to the priority adjudged by the lower court. (Story’s Eq., sec. 551; Williams on Executors, 1198; Grider v. Payne, 9 Dana, 188.)</p> <p>1. In the distribution of an estate of an insolvent decedent, the wards of such decedent are entitled to priority in the distribution of the proceeds of real as well as personal estate. (Acts of 1705, Virginia, 3 Henning, 375; Act of March 1, 1797, Guardian and Ward, 1 More-head & Brown, 770; Act of February 24, 1797, Executors and Administrators, section 52, 1 Morehead & Brown, 669; Act of February 20, 1839, Settlement of Estates, Loughborough, 240; Act of March 10, 1856, Fraudulent Assignments, etc., sections 2 and 7,1 Eev. Stat. 554-6; Eev. Stat., chap. 37, art. 2, secs. 33-4-5; Gen. Stat., chap. 39,.art. 2, secs 33-4-5; Civil Code, sec. 465; New Code, sec. 428.)</p> <p>2. Cases decided under act of February 20, 1839, Loughborough, 240; Commonwealth v. Barstow, 3 B. Mon. 290; Fitzhugh v. Fitzhugh, 6 B. Mon. 4; Bull v. Bull, 8 B. Mon. 332; Schoolfield v. Eudd, 9 B. Mon. 291; Curie v. Curie, 9 B. Mon. 309; Place v. Oldham, 10 B. Mon. 400.</p> <p>3. Cases decided under sections 33-4-5, article 2, chapter 37, Eevised Statutes. (White v. Carrico, 2 Met. 232; Salter v. Salter, 6 Bush, 624; Martin, Cobb & Co. v. Curd, 1 Bush, 327.)</p> <p>4. “ The best and surest mode of expounding an instrument is by referring to the time when and circumstances under which it was made.” This maxim is often applied in the construction of statutes. (Broom on Legal Maxims, 502.)</p> <p>5. “ No interpretation of a statute can be admitted which is inconsistent with the language'of the act fairly understood and considered with reference to the previous state of the law, nor any which, although consistent with the words used, can not give them some reasonable operation.” (Potter’s Dwarris on Stat. 207, 218, 209, note 23.)</p> <p>6. It is an established rule of statute construction to look beyond the letter of the act, and to ascertain the intention of the legislature from the context, the subject-matter, the effects and consequences, the reason and spirit of the law. A technical construction is forbidden.” (Eev. Stat., chap. 21, see. 16; Gen. Stat., chap. 21, sec. 16; 1 Kent’s Com. 461-2, s. p.; Mason v. Bogers, 4 Litt. 377.)</p> <p>7. “ For the sure and true interpretation of all statutes in general, four things are to be discerned and considered: 1. What was the common law before the making of the act; 2. What was the mischief and defect against which the common law did not provide; 3. What remedy the legislature hath resolved and appointed to cure the mischief; 4. The true reason of the remedy. (Potter’s Dwarris on Stat. 184; 1 Kent’s Com. 464, s. p.)</p> <p>8. Long acquiescence in the construction of a statute is strong evidence that such construction is true. (Eobinson v. Swope, 12 Bush, 24-5.)</p> <p>9. Where a law antecedent to a revision of the statutes has been settled by judicial construction, such construction should be given to the regulation on the same subject in the revision unless there is a manifest intention of the legislature that a different one should prevail. (Yates’s case, 4 Johnson; Overñeld v. Sutton, 1 Met. 621; Allen v. Ramsey, 1 Met. 637.)</p> <p>10. The true distinction between legal and equitable assets is to be found, not in the character of the property, nor in the nature of the forum, nor in the remedy of the administrator, but in the remedy of the creditor. (2 White & Tudor’s Leading Cases in Equity, Silk v. Prime, 88 notes, side-page; 2 Williams on Executors, 1520, side-page; Snell’s Principles of Equity, 502; Smith’s Manual of Equity, 267.)</p> <p>11. “In distributing legal assets equity follows the law and respects legal priorities, but where assets are the growth of equitable jurisdiction and the fruit of equitable principles, equity will pursue its great law of equality in proceeding to their distribution. (2 Tudor & White’s Leading Cases in Equity, Silk v. Prime, 88 notes, side-page ; 1 Story on Equity, sections 553-4; Adams on Equity, 256, side-page.)</p> <p>12. The common-law rule as to liability of real estate to payment of debts restricted such liability within a narrow compass, i. e. where the heir was expressly bound with the ancestor by specialty. But where there was a devise charged with or for the payment of debts, a creditor couid subject the land in equity, the devise being held to create an equitable trust. (Adams on Equity, 253-4-5, side-pages.)</p> <p>13. Whenever real estate is by statute made liable for the payment of debts of the decedent, then it constitutes legal assets, which must be distributed according to the legal rules of priority. (1 Story on Equity, section 552 a; Adams on Equity, 253 note, 254 note, side-pages; 3 Red-field on Wills, 134, 237-8; Bloodgood v. Bruen, 2 Bradford’s Surrogate, 8; McCandlish v. Keen, 13 Grattan, 633; Goodchild v. Ferret, 5 Beavan, 398; Charlton v. Wright, 12 Simons, 274; Lovegrove v. Cooper, 2 Smale & Giffard, 271; Bull v. Bull, 8 B. Mon. 332.)</p>

Cases 21, 22, 23 — PETITIONS ORDINARY APPEALS from mercer circuit court. 1. Directors of a bank are trustees for the stockholders, and as such bound for losses occasioned by their fraud or negligence.

<p>Case 24 — MANDAMUS</p> <p>APPEAL PROM PRANK LIN CIRCUIT COURT.</p> <p>1. The constitution (section 1, article 11) imposes upon the General Assembly the duty of investing the surplus school-fund, and it has no power to authorize any officer, court, or person to draw any part of it from the treasury for any purpose whatever, and therefore the act under which the appellee makes his demand is unconstitutional.</p> <p>2. “ Fund,” as used in said section of the constitution, means an invested sum whose income is devoted to a specific object.</p> <p>“ Invest ” means to so place that it will be safe and- yield a profit. »</p> <p>1. The uniform construction of the constitution by the executives and legislatures from 1851 to 1873, and the superintendents of public instruction, and the auditors, all have sanctioned the interpretation contended for by appellees, as is shown by the Revised Statutes, chapter 88, article 1, section 3; Act of February 22,1860, Appendix 2, Stanton’s R. S., 720; Act of May 24, 1861, Myers’s Supp. 437; Act of February 16,1866; Acts 1865-6, 47; Act of March 7, 1868; Acts 1867-8,45; Act of March 10, 1870; Acts 1869-70, 110; Act of March 5, 1872; Acts 1871-2, 42; Act of March 28,1873; Acts 1873,27; Acts 1850-51, vol. 1, 75; Acts 1851-52, vol. 1, 29; Acts 1855-6, vol. 1, 67; Acts 1.857-8, vol. 1,69; Register v. Reid, 9 Bush, 106; sec. 9, art. 1, chap. 18, Gen. Stat.</p>

<p>Case 25 — PETITION</p> <p>APPEAL FROM GREEN CIRCUIT COURT.</p> <p>1. The words used in the will were sufficient to create a trust. (Hill on Trustees, 65.)</p> <p>2. Upon the death of all the beneficiaries in the trust-estate, it descended to their heirs-at-law respectively. (Gill’s heirs v. Logan’s heirs, 11 B. Mon. 233.)</p> <p>3. The rents and profits arising from the hire and use of the land since the death of all the beneficiaries, pass in the same proportions as the interests in the land and to the same persons.</p> <p>The will vested the absolute title to the land in Y. O. Booker, subject to the life-estate or right to the support out of the same of the three nieces of the testator, and therefore the execution-sale vested the absolute title in the purchaser, subject to the interests of the nieces. (2 Story’s Eq., sec. 977; White’s heirs v. Prentiss, 3 Mon. 506; lb. 454.)</p>

Case 1 — INDICTMENT APPEAL FROM M'CRACKEN CIRCUIT COURT. 1. An indictment charging a merchant with the offense of selling liquors without license, without charging to whom the same was sold, is too uncertain and indefinite. (Commonwealth v. White, 18 B. Mon. 492.) 1. The indictment is good because it charges defendant with being a merchant and selling without a license. (Herine v. Commonwealth, 18 Bush, 295; Hainline v. Commonwealth, 18 Bush, 850.) 1.

Case 2 — INDICTMENT APPEAL PROM MEADE CIRCUIT COURT. While one in possession of license issued bj^the county court would be liable to the penalties for an infraction of the local-option law, he would be protected by such license from the penalties of the general law.

Case 3 — INDICTMENT APPEAL FROM KENTON CRIMINAL COURT. 1. A motion in arrest of judgment should be sustained when the facts stated do not constitute the offense charged in the indictment. Under the statute against erecting and continuing a fence in a public road, appellants- were indicted for erecting and continuing a fence in a street in West Covington. The indictment is insufficient.

Case 4 — INDICTMENT APPEAL FROM M’LEAN CRIMINAL COURT. 1. While it would seem, from section 347 of the Criminal Code, that this court has no jurisdiction of this appeal, Commonwealth v. Davis, 12 Bush, 240, settles the question that it has jurisdiction.

Case 5 — PETITION ORDINARY APPEAL PROM HENRY CIRCUIT COURT. L The execution of the new note was not a payment of the original. (Shipp v. Haskin, 4 Dana, 616.) This case differs essentially from Montgomery v. Armstrong, 5 J. J. Mar. 176. 1. After executing a new note to the assignee in place of the old one, it is too late for the payor to make defense upon the ground that he had made payments to the original payee which had not been credited on the original note. 2.

Case 6 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. Where a vendor’s lien is retained in a deed to secure the payment of an assigned note, recited as a part of the unpaid purchase-money, the lien may be enforced against the property, although recourse against the purchaser or assignor of the note may have been lost. Purchaser of real property is trustee of the premises for the vendor until the purchase-money is paid.

Case 7 — INDICTMENT APPEAL PROM GALLATIN CRIMINAL COURT. 1. “An assault is any unlawful physical force, partly or fully put in motion, which creates a reasonable apprehension of immediate physical injury to a human being.” (2 Bishop, see. 32.) 2. Indictment should set out the nature and cause of the accusation. If circumstances of aggravation are relied on, they should be set out in the indictment.

Case 8 — PETITION ORDINARY APPEAL FROM GRAYSON CIRCUIT COURT. 1. When an injunction is dissolved, the party against whom it was obtained must, by motion, have his damages assessed. (Old Code, sec. 325; New Code, sec. 295; Crawford v. Woodworth, 9 Bush, 745.) 1. As the plaintiff dismissed his petition and injunction before answer, section 295 of the Code has no application to this case.

<p>Case 9 — PETITION EQUITY</p> <p>APPEAL EBOM WARREN CIRCUIT COURT.</p>

<p>Case 10 — RULE</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>1. One court can not divest another, of equal jurisdiction, of jurisdiction of a case pending therein. Under section 210 of the Code each court should assent to the surrender of its own attached jurisdiction.</p> <p>The motion to transfer from the Campbell Chancery Court to the Louisville Chancery Court having been overruled in the former court, the matter was res adjudicata, and until reversed was binding on the latter court, and upon the clerk of the former court.</p> <p>2. After the case was submitted in the Campbell Chancery Court, the clerk of that court had no power to transmit the papers to the Louisville Chancery Court.</p> <p>1. For the purposes of the act of 1862, Myers’s Supplement, page 42, and of section 210 of the New Code, appellant was as much the officer of the Louisville Chancery Court as he was of the Camphell Chancery Court.</p>

<p>1. Transper op equitable issues to the equity docket, etc.</p> <p>When both legal and equitable issues are formed in an ordinary action, the court should transfer the equitable issues only to the equity docket, because, if the equitable defenses fail, the parties are entitled to the verdict of a jury on the legal' issues.</p> <p>But although the court may have improperly transferred legal issues with an equitable issue, yet, if the court properly adjudged in favor of the equitable defense, and that is a full defense to the action, its refusal to retransfer the legal issues to the ordinary docket was not error, because the plaintiffs action had been defeated, and there was nothing to try at law.</p> <p>2. Estoppel by conduct,where the subject op the representation is the title to land, is not available as a defense in a suit at law. (Bigelow on Estoppel, page 603.)</p> <p>3. Ip one having title to land induce another to purchase it prom one who has no title, the legal owner can not be permitted afterward to assert his title and defeat the purchase.</p> <p>The owner of land sold unde)' execution, having induced another to purchase it from one who was the purchaser at the execution sale, is estopped in a court of equity from asserting his title against such purchaser, and his action to recover the land was properly transferred to the equity docket and dismissed.</p>

Case 12 — PETITION ORDINARY APPEAL FROM PAYETTE CIRCUIT COURT. 1. The custom allowing the agent a per cent on renewals and policies secured by him for three years after his removal by the company, was not inconsistent with the written contract. “ In many instances evidence of custom or usage is admissible for the purpose of annexing incidents to the terms of a written instrument concerning which the instrument is silent.

Case 18 — PETITION EQUITY APPEAL FROM ADAIR CIRCUIT COURT. 1.

<p>Case 14 — PETITION EQUITY</p> <p>APPEAL IEOM LINCOLN COMMON PLEAS COURT.</p>

<p>Case 15 — APPEAL</p> <p>APPEAL FROM MEADE CIRCUIT COURT.</p>

<p>Case 16 — PETITION EQUITY</p> <p>APPEAL PROM OWEN CIRCUIT COURT.</p>

<p>Case 17 — MOTION TO DISMISS APPEAL</p> <p>APPEAL PROM WARREN COMMON PLEAS COURT.'</p>

Case 18 — INDICTMENT—October APPEAL EROM BULLITT CIRCUIT COURT. 1. The “ act to prohibit the sale of intoxicating liquors in the county of Bullitt,” approved March 21, 1871 (Acts 1871, vol. 2, p. 321), was not expressly or by implication repealed by the local-option law of January 26, 1874 (Acts 1873-4, pp. 10-12). After the act of 1871 took effect, the sale of intoxicating liquors in Bullitt County was prohibited by said act.

Case 19 — PETITION EQUITY APPEAL EEOM LOUISVILLE CHANCERY COURT. 1.

<p>Case 20 — WARRANT IN FAVOR OF LIVERY-STABLE KEEPER</p> <p>APPEAL PROM MONTGOMERY CIRCUIT COUfeT.</p>

Case 21 — INDICTMENT APPEAL PROM GREEN CRIMINAL COURT. 1. An indictment for an offense created by statute must describe the offense in the words of the statute, or in words of similar import. (Conner v. Commonwealth, 13 Bush, 721; Tully v. Commonwealth, 11 Bush, 154; Taylor v. Commonwealth, 1 Duv. 161.) 2. Appellant was convicted as an aider and abettor of the robbery. This could not have been properly done until after a principal offender had been convicted. 3.

Cases 22, 23, 24 — PETITIONS EQUITY APPEALS FROM LOUISVILLE CHANCERY COURT. 1. The order appointing the guardian can not be attacked in this action. (Jacobs’s adm’r v: L. & N. R. R. Co., 10 Bush, 271; Westcott v. Cady, 5 John.’s Ch. R. 234; Freeman on Judgments, 132.) 2., Effect of marriage óf female guardian upon her trust. (1 Revised Statutes, 545; Bacon’s Abr. 554; 8 Simmons, 346; 1 Beavan, 348 ; 2 Douglass (Mich.) 433.) 3. Judges£>ro tem of Jefferson County Court.

Case 25 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. Congregation divided into two societies, each claiming to constitute the church named in the deeds. The sole issue is one of identity. 2. Civil courts recognize as conclusive, on parties, the proceedings and determinations of church tribunals acting within the limits of jurisdiction conferred by their own fundamental law of organization.

<p>Case 26 — MANDAMUS</p> <p>APPEAL PROM FRANKLIN CIRCUIT COURT.</p>

CASE 27 — PETITION FOR MANDAMUS, &c. APPEAL EROM ELLIOTT CIRCUIT COURT. 1. The right to make the motion for a mandamus was waived, because it was not made or entered on the day named in the notice. (Civil Code, secs. 523, 481, 482; Foster v. Wade, 4 Met. 252.) ' 2. The allegations that the county court had made the levy, etc., made the answer good. (Gen. Stat., sec. 6, art. 2, chap. 27 ;• Bush v. Madeira, 14 B. Mon. 172.) 3.

<p>1. Lost pleadings should be supplied before trial, etc.</p> <p>The commissioner should report, the evidence of the contents of the lost paper, heard by him, and if the evidence will enable him to do so, write out and report a substitute, which, when his report is approved by the court, will stand in the place of the lost paper.</p> <p>2. A substitute for A lost petition must contain every fact' necessary to constitute a good cause of action — if it does not, it will not support a judgment for the plaintiff.</p>

CASE 29 — PETITION ORDINARY APPEAL PROM OWEN CIRCUIT COURT. 1. The plea of non est factum must present a state of case from which the necessary legal deduction is, that the parties did not execute the bond, or it is not sufficient. (Taylor, &c. v. Craig, 2 J. J. Mar. 459; McCoy v. Hill, 2 Litt. 375.) 2. A county court can only speak by its records. (Fletcher v. Leight, Barrett & Co., 4 Bush, 307; Chamberlin & Tapp v. Brewer, &c., 3 Bush, 569.) 3.

Case 30 — PETITION ORDINARY APPEAL PROM BOYLE CIRCUIT COURT. 1. The negligence alleged in failing to give signal of the approach of the train is too remote to claim damages. (2 Greenleaffs Ev., sec. 256; Bosworth v. Brand, 1 Dana, 377; Patch v. City of Covington, 17 B. Mon. 729.) 2. It was the negligence of appellee which caused the injury. (Phil., Wil. & Bal.

<p>1. Circuit court has no power to grant an appeal apter the expiration OP the term at which the motion for a new trial was overruled.</p> <p>An appeal granted at a subsequent term is a nullity.</p> <p>2. Giving time to a day in a subsequent term to prepare a bill op exceptions does not operate to prevent the collection of the judgment by execution, or stay any proceedings on the judgment.</p> <p>3. Assignment op errors and schedule must be piled within ninety DAYS from the granting of the appeal.</p> <p>4. Extending time to prepare a bill op exceptions does not extend time to file assignment of errors and schedule — does not prevent the appellant from filing his assignment of errors and schedule within ninety days, as required by the Code.</p> <p>Appellant may require the entire record to be copied, or part of it including the bill of exceptions thereafter to be signed.</p> <p>5. Ip appellant should be prevented prom piling the transcript in the clerk’s office of the Court of Appeals twenty days before the first day of the second term of the court after the judgment was rendered, he may, upon cause shown, obtain from the Court of Appeals an ordér extending the time of filing the same.</p> <p>[Note by Rep. — The application to extend the time of filing must be made by motion in. the Court of Appeals more than twenty days before the first day of the second term next after the judgment appealed from was rendered.]</p> <p>6. Filing cross-errors is not a waiver, by the appellee, op his right to have the appeal dismissed because the assignment of errors and schedule or transcript was not filed within the time prescribed by the Civil Code.</p> <p>Assignment of cross-errors in the leaver court only placed the appellee in a condition in which he might pray a cross-appeal in the Court of Appeals.</p> <p>7. The appeal prayed in the lower court is dismissed with damages, because the assignment of errors and schedule were not filed within ninety days after tlSS granting of the appeal.</p>

Case 32 — PETITION EQUITY Appeal prom kenton chancery court. 1. The power of a city to assess a tax is derived from its charter, and extends to specific objects only. It can not be exercised without warrant, and for soine use expressly authorized. (Cooley on Taxation, pp. 50-52; Central Law Journal, vol. 2, p. 156; 20 Wall. 663.) •2. It does not appear here that the parties engaged were advocates, or for what service the appropriation was made.

Case 33 — PETITION ORDINARY APPEAL PROM JEFFERSON COMMON PLEAS COURT. 1. The onus was on the appellee to show that the coupons sued on were taken from spurious bonds. (Bowman v. McElroy, 15 La. 668; same, 509; G. W. R. R. Co. v. Bacon, 30 111. 347.) 2. The purchaser of bonds in open market is not bound to make critical examination to escape the imputation of bad faith in the purchase. (Birdsall v. Russell, 29 N. Y. 220.) 3.

Case 34 — PETITION EQUITY APPEAL FROM KENTON CHANCERY COURT. 1. “ It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily and fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.” (Dillon on Mun.

Case 35 — PETITION EQUITY APPEAL FROM MEADE CIRCUIT COURT. 1. When the petition describes the land of a non-resident, sets up a debt against him, and prays a sale of the land to satisfy his debt, it is a proceeding in rem, and the court has jurisdiction to adjudge the sale of the land without summons, appearance, or attachment.

<p>Case 86 — INDICTMENT</p> <p>APPEAL FROM GARRARD CIRCUIT COURT.</p> <p>Briefs of counsel on both sides have been misplaced.</p>

Case 37 — INDICTMENT APPEAL FROM GARRARD CIROtTIT COURT. 1. A new trial ought to be granted where there are strong probable grounds to believe that the justice of the ease has not been fairly and fully tried, or that the verdict is clearly contrary to the evidence. (Mahan v. Jane, 2 Bibb, 33.) 2. The court makes it the duty of the court to give the whole law applicable to the case, whether asked for or not.

Case 38 — PETITION EQUITY APPEAL FROM HARRISON CIRCUIT COURT. Brief not in record. 1. The correctness of the judgment appealed from depends upon the construction to be given to sections 12 and 13 of article 2, chapter 66, General Statutes.

Case 39 — PETITION EQUITY APPEAL PROM CALDWELL CIRCUIT COURT. 1. The certificate of acknowledgment is sufficient, because it states all the facts required by law to make it valid. 2. The act of the deputy is the act of the clerk, and should be in the name of the clerk. (Talbott’s Devisees v. Hooser, 12 Bush, 408.) 1. The certificate of acknowledgment was void as to the feme covert, because it did not embrace the memorandum made by the deputy who took the acknowledgment.

<p>Case 40 — PETITION EQUITY</p> <p>APPEAL PROM BRACKEN CHANCERY COURT.</p>

<p>Case 41 — PETITION. ORDINARY</p> <p>APPEAL PROM TAYLOR CIRCUIT COURT.</p> <p>1. When an infant avoids a contract for personalty he must restore the consideration. (Bailey v. Bamberger, 11 B. Mon. 115; see also 1 J. J. Mar. 246 ; 1 Dana, 45; 7 Bush, 410; 6 Bush, 473; Newman’s PI. and Pr., p. 371.</p>

Case 42 — PETITION EQUITY APPEAL FROM OWEN CIRCUIT COURT. The homestead law exempts so much land, including the dwelling-house and appurtenances, as shall not exceed $1,000 in value. (Gen. Stat., sec. 9, art. 13, chap. 38.) This does not limit the right to one tract or to a fee-simple title. It embraces any title or estate less than a fee-simple. (See Gardner v. Smith, &c., 10 Bush, 245.) 1.

<p>1. Objection first made in motion and grounds for new trial, as to alleged errors committed during the progress of the trial, can not ■ he considered by the Court of Appeals.</p> <p>2. Instructions as to the sanity of the accused, giving him the full benefit of the law applicable to the defense of insanity, are copied and discussed in the opinion herein, affirming the judgment of conviction on defendant’s plea of insanity.</p> <p>3. Opinions of witnesses derived from observation are admissible in evidence when, from the nature of the subject under investigation, no better evidence can be obtained. (Hardy v. Morrill, 56 N. H. 232.)</p> <p>4. Opinions of non-professional witnesses as to the sanity of the ACCUSED may be admitted as evidence by the court.</p> <p>But the court must be satisfied, before admitting such opinions, that the witness has had an opportunity, by association and observation, to form an opinion as to the sanity of the person in reference to whom he is to speak or give his opinion.</p> <p>5. An expert should not be allowed to express his professional opinion as to the sanity of the accused when there is no hypothetical case, or agreed facts submitted to him; or from the evidence of other witnesses when he did not hear all the evidence of the other witnesses.</p> <p>6. What response the witness was expected to make must be shown in the record before the Court of Appeals can decide whether the court below erred or not in refusing to allow the question to be answered. (Tipper v. Commonwealth, 1 Met. 6; Bowler v. Lane, 3 Met. 311; Chrystal v. Commonwealth, 9 Bush, 669; Nichols v. Commonwealth, 11 Bush, 575.)</p> <p>7. A DECISION OF THE COURT OF APPEALS IS AUTHORITY, and to be regarded as law only in so far as it passes upon questions actually presented, and necessarily decided, in the particular case.</p> <p>8. The Court of Appeals has no jurisdiction to consider original affidavits not a part of the record made in the lower court; or to direct an inquiry as to whether the appellant has not become insane since the rendition of the verdict and sentence of the lower court against him.</p>

Case 44 — COUNTY COURT SETTLEMENT Section 2, article 22, chapter 28 of General Statutes declares that no appeal shall be taken to the Court of Appeals from the order of a county court. Such an appeal must lie to the circuit court, or an injury is left without remedy.

<p>Case 45 — PETITION ORDINARY</p> <p>APPEAL FROM MARION CIRCUIT COURT.</p> <p>When the plaintiff made the motion to have the entry made at the foot of the judgment, the statute (section 1, article 3, page 418, General Statutes) made it the duty of the court to direct or order the entry to be made.</p>

<p>Case 46 — PETITION EQUITY</p> <p>APPEAL FROM FAYETTE COMMON PLEAS COURT.</p>

<p>CASE 47 — AGREED CASE</p> <p>APPEAL PRÓM CHRISTIAN CIRCUIT COURT.</p> <p>Cited Gen. Stat., chap. 41, art. 8, sec. 1, and art. 19, sec. 5.</p>

<p>1. Foreign wills relative to estate in this state — how probated, ETC.</p> <p>The simple judgment or order of a foreign court of probate, admitting a will to probate, is sufficient to authorize an authenticated copy of such will to be admitted to record in this state as a will of personalty.</p> <p>But, in order to entitle a foreign will to probate as a mil of real estate in this state, it múst appear from the foreign transcript, not only that the will was admitted to probate in tthe foreign court, but that the evidence heard there was such that, if it were introduced here, would authorize the probating of the will as a will of real estate in this state.' (Rev. Stat., sec. 31, chap. 106.)</p> <p>2. In determining whether a foreign will shall be probated in this state, as a will of real or personal' estate, the foreign judgment must be left entirely out of view — the question must be determined by what appears in the foreign transcript.</p> <p>3. A will probated in Tennessee relative to real estate in this state, on the production of an authenticated copy and certificate of the probate thereof in Tennessee, was. admitted to probate in this state. The probate in this state is held to have been insufficient as a will of real estate, because the Tennessee transcript did not show that the name of the testator was subscribed to the will by himself, or by another by his direction, in the presence of the subscribing witnesses, etc., etc.; and because of this defect in the foreign transcript, a copy of the will, so probated in this state, was not competent as evidence to show that the plaintiff held or acquired title to land in this state under or by virtue of said will. (Rev. Stat., sec 29, chap. 106.)</p> <p>4. Each state may regulate, for itself, the manner in which real estate within its limits shall be conveyed or transmitted.</p> <p>5. Foreign wills are admitted to probate by comity, and not of right.</p>

<p>CASE 49 — PETITION EQUITY</p> <p>APPEAL PROM MONTGOMERY CIRCUIT COURT.</p> <p>1. Section 1, chapter 70, General Statutes, it is contended, is broad enough to secure a lien in favor of appellants.</p>

<p>1. When appellee fails to file his schedule within the time prescribed by paragraph b, subsection 4, section 737 of, the Civil Code, he must submit to a trial in the Court of Appeals on the record as presented by appellant.</p> <p>2. Appellant must exhibit in the transcript so muck of the record as will show affirmatively that the decision complained of is erroneous. (Huffaker & Shy v. National Bank of Monticello, 13 Bush, 644.)</p> <p>It appears from the record in this case that appellee filed an answer, and from appellant’s assignment of errors that the answer raised one or more issues of fact, and that the court decided those issues against appellant, but as the appellant did not make the answer part of the record, the Court of Appeals does not know what the issues were, and can not adjudge that the court below erred in deciding them, and therefore the judgment is affirmed.</p>

Case 1 — PETITION ORDINARY APPEAL PROM MONTGOMERY CIRCUIT COURT. 1.An agreement to subscribe for stock, if accepted, is binding and enforeible (2 Bouvier’s Law Die., p. 388, “Proposal”), although the corporation was not organized. (17 B. Mon. 48.) 1. The petition was defective, because it did not aver a promise to pay the subscription when made. (Huffaker, &c. v. National Bank of Monticello, 12 Bush, 290.) 2.

Cabe 2 — INDICTMENT APPEAL PROM NICHOLAS CRIMINAL COURT. 1. It is incumbent on the vendor of spirituous liquors to know that his customer labors under no disability. (Ulrich v. Commonwealth, 6 Bush, 400.) 2. If the act of March 6,1878 (Acts 1878, vol. 1, p. 81), requires the indictment to use the word “knowingly,” and to charge that the defendant “knowingly,” etc., it changed the law as announced in Ulrich v. Commonwealth, 6 Bush, 400.

Case 3 — WILL CASE APPEAL FROM MARION CIRCUIT COURT. 1. “No will shall be valid unless it be in writing,” etc. (Sec. 5, chap. 113, Gen. Stat.) 2. The execution or contents of a will can not be proved by proving the declarations of the testator. (Fowler v. Fowler, 3 Pr. Wins. 353; Lea v. Polk County Copper Company, 21 How. 493; Wharton on Ev. 992; Sugden v, Lord St. Leonard’s, 1 Prob. Div. Law Rep'. 227; Doe v. Hiscocks, 5 M. & W. 363; Doe v. Palmer, 6 Eng.

Case 4 — PETITION EQUITY APPEAL FROM BULLITT CIRCUIT COURT. 1. Appellant is an innocent purchaser of the land without notice that any lien existed on the land or that any lien-notes were outstanding. From the face of the record the vendor, being the holder of the lien-notes, could alone have released the lien. His release binds the holders of the notes, and they have no lien as against appellant. (Gen. Stat., sec. 12, chap. 24; Act of March 18, 1876; Gen. Stat. 859, 860.) 2.

Case 5 — INDICTMENT FOR TRESPASS APPEAL FROM KENTON CRIMINAL COURT. 1. Grand jurymen are required tobe citizens and housekeepers. (Sec. 1, art. 1, chap. 62, Gen. Stat.) 2. A grand juryman is a competent witness to prove that he was not a citizen, and therefore was not a competent grand juryman. (Civil Code, secs. 605, 606; Crim.

Case 6 — PETITION EQUITY APPEAL PROM LINCOLN CIRCUIT COURT. 1. The demurrer to the answer should have been overruled or carried back and sustained as to the petition. (Mitchell v. Mattingly, 1 Met. 239; Young v. Duhme, 4 Met. 242; Martin v. McDonald, 14 B. Mon. 437; Lytle v. Lytle, 2 Met. 128.) 2.

Case 7 — INDICTMENT— APPEAL PROM KENTON CRIMINAL COURT. 1. The indictment was insufficient — it charged that the defendant “usurped” without any specification of the facts or circumstances constituting the criminal act. (Con. of Ky. art. 13, sec. 12; Crim.

Case 8 — PETITION EQUITY APPEAL PROM BOURBON COMMON PLEAS COURT. 1. The products of the wife’s land, cultivated by her or by hands employed and paid by her, are not subject to her husband’s debts. (Gen. Stat., art. 2, chap. 52; Campbell v. Galbreath, 12 Bush, 462; Bishop on Married Women, sec. 726.) 2.

CASE 9 — PETITION ORDINARY APPEAL PROM NICHOLAS CIRCUIT COURT. 1. The action should have been upon the alleged new promise, and not upon the original note, on which the action against the surety was -barred by the statute of limitations (Hopkins v. Stout, 6 Bush, 378; Egbert v. McMichael, 9 B. Mon. 44; Graham v. Hunt, 8 B. Mon. 7; Carson v. Osborne, 10 B. Mon. 155; Carr v. Robinson, 8 Bush, 274), and the action should have been dismissed. 2.

Case 10 — PETITION EQUITY APPEAL PROM FAYETTE CIRCUIT COURT. 1. The investment of the wife’s money in the house and lot, in pursuance of the post-nuptial contract, and taking the deed to the husband without her knowledge or consent, constituted the husband her trustee, and in equity the property was exclusively her own, and not subject to his debts.

Case 11 — PETITION EQUITY APPEAL FROM KENTON CHANCERY COURT. 1.

Case 12 — PETITION EQUITY APPEAL from spencer circuit court. 1. The chancellor has no right or jurisdiction to set aside or quash an execution-sale of land on the ground that the judgment on which the execution issued was subsequently reversed. (Williams v. Cummins, 4 J. J. Mar. 639; Gossom v. Donaldson, 18 B. Mon. 237; 8 B. Mon. 105; Mon. 95; 2 Met. 550; 4 Dana, 438 ; 12 B. Mon. 472.) 2. An express promise to pay the $310 and the $392.24 was proved.

<p>Case 13 — PETITION EQUITY</p> <p>APPEAL FROM WARREN CIRCUIT COURT.</p> <p>1. The credit for the tuition and board was given to the father and not to his infant daughter, and did not bind her or her estate. (Tyler on Infancy and Coverture, page 102; 1 Parsons on Contracts, 311; 1 Smith's Leading Cases, pp. 245, 246; 11 N. H. 51.) It was her father’s debt, and therefore her estate can not be subjected to its payment.</p> <p>1. Board and tuition are necessaries for which the estate of the infant appellant was properly held to be liable (Ewell on Infancy, pp. 60, 61), and for which she is liable on an implied contract. (Gay v. Ballou, 4 Wend. 403; Tyler on Infancy and Coverture, p. 57; 5 Littell, 339; 1 Bibb, 519.)</p> <p>2. If the infant had had a statutory guardian he would have been allowed to expend the principal of her estate for her education (Gen. Stat., p. 506; 6 B. Mon. 294); and therefore the chancellor can subject so much of her estate as may be necessary to pay the reasonable cost of her education.</p>

Case 14 — PETITION ORDINARY APPEAL FROM MASON CIRCUIT COURT. 1. Appellant did not agree to suppress, stifle, or impede public prosecutions, but only “ to use every legal and proper means to stay or have them dismissed.” Not being a witness, or personally interested in the prosecutions, there was no vice in this agreement. He did not agree to absent himself as a witness as in Kimbrough v. Lane, 11 Bush, 556, or to compound a felony as in Gardner v. Maxey, 9 B. Mon. 90. 2.

<p>1. A complete law on the subject op wills is contained in the chapters on wills in the Revised and General Statutes.</p> <p>2. An appeal prom the order op a county court, probating or rejecting a will, must be taken to the circuit court within five years after the rendering of the order; and in this there is no saving in favor of infants. (Secs. 28, 88, chap. 106, Rev. Stat.; secs. 27, 37, chap. 113, Gen. Stat.)</p> <p>3. An appeal prom the judgment op a circuit court, ordering a WILL TO BE PROBATED OR rejected, to the Court of Appeals, must be taken.within one year after the decision in the circuit court; and in this there is no saving in favor of infants.</p> <p>But an adult or infant, when not a party to the proceedings in the circuit court, in addition to the right of appeal from that court within one year, may, by proper proceedings in equity, instituted within three years after the final judgment in the circuit court, impeach the validity of the judgment of the circuit court, and—</p> <p>An infant may assail or impeach the judgment of the circuit court, if not a party to the proceeding, within twelve months after attaining full age. (Secs. 28, 38, chap. 106, Rev. Stat.; Secs. 27, 37, 38, chap. 113, Gen. Stat.)</p> <p>4. The right or title op the purchaser op real estate prom a devisee is not affected by the reversal, by the circuit court, of the judgment of the county court, probating a will on an appeal prosecuted by the infant children of the testator, more than five years after the rendering of the order of probate in the county court. Such a judgment of reversal is held to be void, in this case, as to all not parties to the appeal proceedings in the circuit court, and did not create a lis pendens against such prirchaser.</p>

<p>Case 16 — PETITION ORDINARY</p> <p>APPEAL PROM HARRISpN CIRCUIT COURT.</p> <p>Briefs not in the record.</p> <p>Brief not in the record.</p>

Case 17 — INDICTMENT—February APPEAL FROM JEFFERSON CIRCUIT COURT. 1. The embezzlement alleged in this case has been punishable under the general laws at all times since 1864, unless embezzlement from the Louisville Gas Company is excepted from the operation of the general law. (Bev. Stat., sec. 1, art. 12, chap. 28; Act of February 9, 1864, Myers’s Supp. 201; Act Adopting Gen. Stat., sec. 3, art 1.) 2.

Case 18 — PETITION ORDINARY APPEAL PROM JEFFERSON COMMON PLEAS COURT. 1. The statute against gaming applies to all persons who lose money at any game. (Secs. 1, 2, chap. 47, Gen. Stat.; see. 17, chap. 21, Gen. Stat.; Conner v. Ragland, 15 B. Mon. 636; Chambers v. Simpson, 1 Mon. 114; Statutes of New York, secs. 8,14, art. 3, title 8, vol. 1, page 614; McDougal v. Walling, 48 Barb. 370; Meech v. Stoner, 19 N. Y. 27.) 1.

<p>Cases 19, 20 — PETITION ORDINARY</p> <p>APPEAL PROM CAMPBELL CIRCUIT COURT.</p> <p>1. An objection to a pleading for want of verification is essentially in the nature of a plea in abatement, and is waived if not taken advantage of before response filed. (Meador v. Turpin, 4 Met. 93.)</p> <p>2. Plaintiff was entitled to have time, until the calling of the cause for trial, to verify his petition. (Civil Code, sec. 137.)</p> <p>3. The cause of action being founded on a written contract filed with the petition, the court below erred in requiring a verification. (Civil Code, sec. 116, subsec. 3.) .</p> <p>1. The withdrawal of the answer left the case as if no answer had been filed.</p> <p>An objection for want of, or defect in, verification may be made at any time until after the commencement of the trial. (Civil Code, secs. 137,138.)</p>

Case 21 — PETITION ORDINARY APPEAL FROM BOYLE CIRCUIT COURT. . 1.

Cases 22,23 — PETITIONS EQUITY APPEALS FROM LOUISVILLE CHANCERY COURT. 1. The warehouse-receipts are invalid— Because a sale or pledge of a quantity of goods, to be separated from a larger mass, passes no title and confers no lien without and until separation.

Case 24 — PETITION EQUITY APPEAL PROM ROCKCASTLE COMMON PLEAS COURT. 1. The mortgage executed by the husband alone was ineffectual as to the homestead right in the land embraced by the mortgage. (McGrath, &c. v. Berry, 13 Bush, 395; Grout v. Sauter, 13 Bush, 445.) 1. The homestead claimed in this case was paid for after the creation of the plaintiff’s debt, although purchased before its creation, and is therefore subject to plaintiff’s debt.

<p>1. The publication of the notice of the filing of the petition and object thereof, in proceedings to empower a married woman to contract, etc. as a feme sole, as provided for in the act of February 14, 1866 (Myers’s Supp. 728) was sufficient, when published in one issue of the paper, designated by the court, at least ten days before the rendition of the decree, and therefore the court had jurisdiction to render the decree in this case.</p> <p>2. A married woman empowered to contract, etc. as a feme sole may employ her husband to act as her agent.</p>

<p>1. Taxation for railroad purposes — to pay bonds, etc. Legislative judgment and discretion control in establishing tax-districts, and in determining the objects to be taxed, to aid in the construction of railroads through such districts.</p> <p>2. Whether the lands of particular individuals, located in the district defined by the legislature, receive any direct benefits from the railroad, is not a question to be inquired into by the courts.</p> <p>3. Six-mile Island, in the Ohio River, lying within and composing part of Harrod’s Creek precinct, in Jefferson County, is subject to be taxed for the payment of the bonds of said precinct, issued to aid in the construction of a narrow-gauge railroad through said precinct, although the owner of said island may not derive any direct benefit from said railroad.</p>

<p>Case 27 — PETITION EQUITY</p> <p>APPEAL FROM M’LEAN CIRCUIT COURT.</p> <p>1. An infant defendant by guardian may prosecute a cross-action against the plaintiff. (Civil Code, secs. 28, 35, 36.)</p> <p>2. The homestead law gives to the surviving wife and children, or the surviving husband and children, a homestead right in the homestead of the husband or wife, and the same, whether set apart or not, is exempt from distribution or sale under execution. (Gen. Stat., secs. 9,13,14,15, art. 13, chap. 38.)</p>

Case 27 — PETITION ORDINARY APPEAL FROM HART CIRCUIT COURT. 1. The law does not require a railroad company, making a special contract exempting it from loss by fire, to have depots that are proof against fire. (R. R. Co. v. Lockwood, 17 Wallace; 3.Bush, 194; Story on Bailments, sec. 570.) 2. There was no proof as to how the depot was set on fire, and therefore there was no proof that it was set on fire by the negligence of the railroad company or its agents.

<p>Case 29 — INDICTMENT</p> <p>APPEAL PROM PAYETTE CIRCUIT COURT.</p> <p>1. The jury, on the facts proved in this case, ought to have .been instructed as to the law of involuntary homicide. (Conner v. Commonwealth, 13 Bush, 714.)</p> <p>2. The court erred in instructing the jury that malice is “implied by law from any deliberate, cruel act,” etc. (Farris v. Commonwealth, 14 Bush, 362.)</p> <p>3. The indictment should be sufficient to enable defendant to prepare to meet the charge, and constitute a good bar to another prosecution. (Commonwealth v. McAtee, 7 Dana, 29; White v. Commonwealth, 9 Bush, 179.)</p>

Case 81 — PETITION ORDINARY APPEAL FROM JEFFERSON COMMON PLEAS COURT. A surety who signs an obligation, on condition, can deliver the same as an escrow to the principal obligor, where there is evidence on the face of the writing of a non-compliance with the condition. The incompleteness of the instrument is in itself sufficient notice to the obligee, and is the best notice that could have been given.

Cases 32, 33, 34 — PETITIONS ORDINARY APPEALS FROM HART CIRCUIT COURT. 1. Appellant was not present in person or by counsel at the trials in the Hart Circuit Court, and therefore there was no waiver, by him, of his right to make objection to the jurisdiction of that court. 2. The change of venue, made on the application of only one of the five defendants, from the Barren to the Hart Circuit Court was null and void.

Case .35 —PETITION EQUITY APPEAL FROM BATH CIRCUIT COURT. 1. The appointment of receivers is regulated by the Civil Code. (Old Code, secs. 328, 329.) 2. The chancellor has no jurisdiction to appoint receivers, in a case-like this, independent of the Civil Code: (High on Receivers, secs. 557, 559, 560, 562, 663; Jordan v. Beal, 51 Ga. 602.) 3.

Cases 36, 37, 38, 39 — PETITIONS ORDINARY APPEALS FROM JEFFERSON COMMON PLEAS COURT. 1. It was not necessary to allege, in the plaintiff’s petition to recover the money bet and won and received by the defendant, that the defendant had been previously indicted and convicted of the offense of betting on an election, under section 1, article 2, chapter 47, General Statutes. There is a distinction between the offense of “ betting ” and receiving the thing wagered.

Cases 40, 41 — PETITION FOR MANDAMUS APPEALS FROM KENTON CIRCUIT COURT. 1. The appellant, by his failure to give bond on the first Monday in January, 1879, was not prevented from tendering to the court within a reasonable time a sufficient bond and being sworn in as sheriff. (Con., art. 6, secs. 4, 9; art. 5, sec. 3; art. 3, sec. 37; Gen. Stat., secs. 10, 12, chap. 81.) The act authorizing the county court to declare the office of sheriff vacant is unconstitutional and void.

Case 41 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. Creditors of a partnership have no lien on the partnership assets, except through the partners themselves by substitution. If the partners have no lien, the creditors have none.

Case 42-PETITION ORDINARY APPEAL FROM OLDHAM CIRCUIT COURT. 1. The Jefferson Court of Common Pleas erred in ordering a change of venue in this case, and the Oldham Circuit Court erred in refusing to remand it, and in assuming jurisdiction of it, and trying it.

<p>Case 43 — INDICTMENT</p> <p>APPEAL prom spencer circuit court.</p> <p>1. The only question involved in this appeal is whether the justices of the peace constituted a legal board for comparing the polls. (Sec. 1, art. 5, and sec. 4, art. 7, chap. 33, Gen. Stat.; Cox v. Kash, 1 Bush, 201; Police Commissioners, &c. v. Louisville, 3 Bush, 597.)</p> <p>1. The local - option act requires the polls to be compared by the sheriff, county judge, and clerk, whether they were candidates or not at that election, and therefore the comparison of the polls by the two justices in this case, was illegal and void. (Cox, &c. v. Kash, 1 Bush, 202; sec. 1, art. 5, chap. 33, Gen. Stat.; Local-option act of 1874; Anderson v. Commonwealth, 13 Bush, 487; Commonwealth v. Welch, 2 Dana, 330.)</p>

Case 44 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT. 1. Appellant Ann O. Wallace, as devisee of Mary F. Buford, deceased, on the facts of this case, is entitled to a rescission of the contract made by Mary F. Buford to purchase the land in controversy.

<p>Case 45-PETITION EQUITY</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p>

<p>1. Where there is ample evidence to authorize the finding of the lower court, the Court of Appeals will not enter into a minute examination and analysis of the evidence to determine whether there may not be a preponderance against the finding.</p> <p>In dismissing plaintiffs’ petition in this action to recover the agreed compensation for towing a coalboat from Pittsburgh, Pa., to Jeffersonville, Ind., on the pleadings and evidence presented, the court below adjudged that the coalboat had not been delivered at the place agreed upon. That judgment is affirmed; and—</p> <p>In dismissing the defendant’s counter-claim for damages against the plaintiffs, resulting from the negligence of the plaintiffs, in not landing the coalboat at the place agreed upon, the court below fidjudged that there was not such negligence as would of itself render the plaintiffs liable. That judgment is also affirmed. (Coleman v. Meade, 13 Bush, 358.)</p> <p>2. The distinction between common and private carriers, and the decisions and authorities in relation thereto, are discussed and set forth in the opinion herein.</p> <p>3. Private carriers and bailees for hire are liable only for the injury or loss of goods intrusted to them when it results from the failure of themselves or their servants to exercise ordinary care, and are not bound to carry for any person unless they enter into a special agreement to do so.</p> <p>4. A COMMON CARRIER IS ONE WHO OFFERS TO CARRY FOE ANY PERSON, between certain termini, or on a certain route; and he is bound to carry for all who tender him goods and the price of carrying, and insures the goods against all losses but that arising from the act of God or of the public enemy, and has a lien on .the goods for the carriage.</p> <p>5. No ONE CAN BECOME BOUND AS A COMMON CARRIER, UNLESS HE CONSENTS TO BE BOUND IN THAT CHARACTER, or has SO acted as to justify the belief that he intends to be so bound; and he is not so bound, unless he is under a legal obligation to receive and carry the goods, and would be liable to an action if, without reasonable excuse, he refuses to receive them.</p> <p>6. Owners of towboats, jobbing and towing on the Ohio River and its tributaries, are not common, but are private carriers, and, consequently are only liable in case they fail to exercise ordinary care and skill, considering the nature of their business.</p>

<p>I. The creditor of A lunatic is entitled to have the estate of such lunatic, not subject to exemption, sold to satisfy his debt.</p> <p>If the estate of a lunatic is not sufficient to pay his debts, “ the same, not subject to exemption, may, by a circuit or chancery court, be ordered to be sold, and proceeds distributed and estate settled, as prescribed by law for the settlement of the estates of insolvent decedents.” (Sec. 25, art. 2, chap. 53, Gen. Stat.)</p>

<p>CASE 47 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>1. The managing partner of a Louisville “pork-packing and provision-dealing” house can bind *kis firm by purchases of pork product in Chicago or other customary markets.</p> <p>2. A purchase of goods with the intention of making or losing, by selling them again at some future time, is business, and not gambling. .</p> <p>3. Fraud is never presumed; and, when an agent is ordered to buy goods for his principal, and to hold them until his principal orders him to ship or sell them, it will not be presumed (especially where the agent swears to the contrary) that the agent fraudulently sold his own goods to the principal, or fraudulently canceled his principal’s contracts before receiving orders to do so.</p> <p>4. A pledge by warehouse-receipts of three hundred thousand pounds of middles and three hundred and ninety thousand pounds of hams in bulk, when there are only two hundred and thirteen thousand pounds of middles and two hundred and sixty-two thousand pounds of hams in the bulk, is a valid pledge, and will be enforced in equity against the pledgor or his assignee for the benefit of creditors..</p> <p>5. A deed of assignment for the benefit of creditors which excludes one creditor’s claim is within the operation of the statute of 1856.</p> <p>6. The appellants are commission merchants dealing on the board of trade of Chicago. They are not brokers. (Searing v. Butler, 69 111. 575; Moeller v. McLaughlin, 60 111. 317.)</p> <p>A commission merchant purchasing for a customer on the Chicago Board of Trade becomes personally liable for the price to the person from whom he purchases. (Searing v. Butler, 69 111. 579; Wallace v. Bradshaw, 6 Dana, 382; Maxted v. Paine, Law Rep., 6 Ex. 132; Lyons v. Culbertson, 83 111. 36; Ashton v. Dakin, 4 Hurl. & Nor. 867; Rosewame v. Billing, 109 Eng. Com. Law Rep. 316.)</p> <p>As soon as the commission merchant has incurred a liability for his principal, he can sue the principal for indemnity. (Lacy v. Hill, Law Rep., 8 Ch. Appeal, 923; Lacy v. Hill, Law Rep., 18 Eq. 189; Ashton v. Dakin, 4 Hurl. & Nor. 867.) And if, upon additional margin being demanded, the principal fails or refuses to furnish it, the commission merchant has the right by law, as well as by custom and the rules of the Board of Trade, to sell out the property he has bought for the principal, or close out his contracts, and to hold the principal liable for the loss incurred. (Moeller v. McLaughlin, 60 111. 317; Lacy v. Hill, Law Rep., 18 Eq. 189; Corbett v. Underwood, 83 111. 324.)</p> <p>7. The defense, upon the ground that the assets of K., F. & Co. are not bound for appellants’ claim, because the transactions were for the benefit of John M. Ferguson alone, and not for the benefit of the firm, is purely technical, and is devoid of equity.</p> <p>The firm of K., F. & Co. was bound by the acts and purchases of J. M. F., in the name of the firm. (Winship v. Bank of United States, 5 Peters, 561; Palilucan v. Taylor, 75 111. 634; Wharton v. Woodburn, 4‘Dev. & Battle, Law, 507; Woodward v. Winship, 12 Pick. 435; Blinn v. Evans, 24 111. 317; Collyer on Partnership, secs. 392, 445, 446, 484; Parsons on Part., p. 173; Bigelow on Estoppel, p. 425; Warder v. Newdigate, 11 B. Mon. 177.)</p> <p>The transactions were real and valid; they were not shams; they were not gambling. (Ashton v. Dakin, 4 Hurl. & Nor. 867; Brown v. Speyer, 20 Grattan, 309; Smith v. Bouvier, 70 Pa. St. 331; Corbett v. Underwood, 79 111.; Lehman v. Strassberger, 2 Wood’s Cir. Ct. Rep. 554; Black v. Tiedmann, Chicago Legal News of December 14,1878; Pinxley v. Boynton, 79 111. 353; Rosewarne v. Billing, 109 Eng. Com. Law Rep. 316; Stanton v. Small, 3 Sandford, 230; Rusey v. Berry, 65 Maine, 570; Walcott v. Heath, 78 111. 436; Logan v. Musick, 31 111.; Clark v. Foss, 7 Bissell.)</p> <p>■ 8. A pledge without a delivery of possession is good as between the ■parties, and against all except purchasers for value: (Fletcher v. Morey, 2 Story, 555; Langton v. Waring, 18 Common Bench (N. S.), 313.)</p> <p>An assignee for the benefit of creditors is not a purchaser for value. (2 Story’s. Rep. 555 ; 1 Am. Le. Ca. 52; 1 Am.- Le. Ca. in Eq. 87.)</p> <p>It is not requisite now that property in a mass, like meats in bulk, wheat in bins, oil in tanks, etc., etc., should be separated into piles. Such warehouse-receipts as appellants’, in this case, have by commercial usage a settled meaning as conveying such an undivided portion of the mass, and this usage is recognized and sanctioned by the courts. (Kimberly v. Patchin, 19 N. Y. 335; 6 Cal. 603 ; 8 Cal. 489; 6 Randolph (Va.), 473; 13 FI. 523; 12 Mich. 328; 37 Me. 414; 57 Me. 97; 20 Wis. 615; 23 Wis. 643; 39 Conn. 413; 9 Mass. 407; 14 Allen, 439; 14 Allen, 376 ; 36 111. 150; 41 111. 344 ; 66 111. 108, 217; 58 Mo. 218; 62 Mo. 400; 19 Ohio St. 344 ; 42 Iowa, 38; 55 Ga. 633; 3 Dillon, 234. 420; 51 N. Y. 75.)</p> <p>When K., F. & Co. gave receipts covering all the hams they had in bulk in their warehouse, they had no further right to any of the hams. (Horr v. Barker, 6 Cal. 489; 8 Cal. 603 ; Knights v. Wiffen, Law Rep. 5 Queen’s Bench, 660; Jackson v. Anderson, 4 Taunton, 24; Dale v. Olmstead, 36 111. 150; 41 111. 344; 2 Lansing, 211.)</p> <p>1. The averments of the petition must be proved as pleaded. (Shear-man v. Burrows, 10 A. & S. 593, 696.)</p> <p>If the proof does not agree with the pleadings it is a failure of proof, although the facts proved may themselves constitute a cause of action or defense. (Gasper v. Adams, 28 Barbour, 441; Walter v. Bennett, 16 N. Y. 250; Carrell v. Collins, 2 Bibb, 430; Lucket v. Bohannon, 3 Bibb, 378; Moore v. Dewees, Litt. S. C. 228; Bull v. McCrea, 8 B. Mon. 422; 2 Bibb, 23,462 ; 2. Mar. 612; 1 Litt. 349; Myers’s Code, secs. 156,157, 158; Newman’s PI. & Pr., p. 729; Dodd v. King, 1 Met. 433.)</p> <p>2. Cowling was a partner in these transactions of appellants, and notice to him that Ferguson’s purchases were not partnership purchases was notice to appellants. (7 Dana, 369; 7 J. J. Mar. 423; Story on Part., sec. 107 y 17 111. 477 ; 36Vt.-150; 39 Vt. 260; Lindley on Part, 230, 232.) '</p> <p>3. Before appellants can recover they must show that they made such contracts as could be enforced by the principal, and that they were compelled to respond thereto by the default of such principal. (Bostick v. Jardine, 3 H. & Co. 70; Robinson v. Mollett, L. R. 7 Eng. and Ir. Ap. 80.)</p> <p>4. Appellants must show that sirch dealings were within the apparent scope of the business of K., F. & Co., and not, to the'knowledge of plaintiffs, disapproved of by the partners who were not.personally cognizant of them. These facts are not proved; they are essential. (Lindley on Part. 193; Story on Part. sec. 210; Warder v. Newdigate, 11 B. Mon. 175.)</p> <p>5. Appellants must show that the contracts made by them were valid contracts—</p> <p>They must prove that the alleged loss sustained by them arose out of contracts of purchase and sale, made by them for and as agents of K., F. & Co., and that said contracts were legally binding upon and enforcible by K., F. & Co. against the opposite contracting party. (Taussing v. Hart, 58 N. Y. 425; Day v. Holins, 103 Mass. 306; Pickering v. Demerett, 100 Mass. 417.)</p> <p>If any such apparent contracts were made, they were illegal and void, by reason of incorporating with them, as part thereof, the rule of the Board of Trade of Chicago, 23, sections 1 and 5. (Lyons & Co. v. Culbertson, Blair & Co., 83 111. 34.)</p> <p>If such apparent contracts were made, they were the contracts of John M. Ferguson; they were not within the scope of the ordinary business of the partnership of K., F. & Co., and therefore were not binding on said firm. (Story on Partnerships, secs. 110, 111; tBreckinridge v. Shrieve, 4 Dana, 376; Warder v. Newdigate, 11 B. Mon. 177; Wagnon v. Clay, 1 Mar. 257; Story on Agency, secs. 165, 169.)</p> <p>6. The purchases were intended as wagering contracts by Ferguson; and it must be presumed they were so known by appellants and the parties from whom they purchased. (Griswold v. Bland, 73 E. C. L. 540; Cassand v. Herman, 1 Bosworth, 212; Kirk v. Bouvier, 70 Pa. St. 330; Kirkpatrick v. Bensall, 72 Pa. St. 158; Walcott v. Heath, 79 111. 433; 23 111. 493; 51 111. 473; Calamer v. Day, Yt. 144; Sampson v. Shaw, 101 Mass. 145; Lyons, &c. v. Culbertson, Blair & Co., 83 111. 34.)</p>

<p>1. Contracts for the sale of goods to be delivered at a future day are not invalidated by the circumstance that, at the time of making the contract, the purchaser intends to resell before the time appointed for the delivery.</p> <p>2. Contracts for future delivery, entered into without any mutual agreement, tacit or express, that they are not to be performed by delivery of the goods and payment of the price, are valid, and no subsequent agreement to settle them by the payment of differences can render them invalid.</p> <p>8. The fact that the purchaser for' future delivery intends not to receive and pay for the goods, but to resell them before the date of the delivery, furnishes no ground for holding that, it was tacitly understood, the contract was not to be performed and was to be settled by the payment of differences.</p> <p>4. A purchaser of goods for future delivery — through a commission merchant by depositing a margin — who orders a resale before the contract time for delivery, is liable for all losses thereby sustained.</p> <p>5. A gaming contract is one in which it is agreed or understood in the beginning that the thing dealt for is not intended to be delivered, but, that the parties are to settle their mutual wagers on the price, by paying the difference between sales at different times.</p> <p>The contracts in this case are held to be valid.</p>

<p>Case 49 — PETITION EQUITY</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>1. The appellees have failed to set out in their pleadings any valid cause of action against the sureties of H. L. Pope in his official bond, or to allege a breach thereof.</p> <p>2. If, as the petition alleges, the President and Directors unlawfully failed or refused to make the necessary order upon or requirement of the cashier with respect to the money which was unaccounted for, they (the President and Directors) and not the sureties must answer for the wrong if there was any wrong.</p> <p>“ The liability of a surety is always to be measured by his covenant.” (Warfield v. Brand’s adm’r, 13 Bush, 77, and authorities cited therein.)</p> <p>3. The sureties agreed to become bound for H. L. Pope, the cashier, on two conditions: First, if he should not faithfully perform his duties as prescribed in the charter and by-laws of the bank. Second, if he should not apply or pay over, the moneys of the bank as the President and Directors might order or require. A breach of neither of these conditions having been alleged, no liability of the sureties has been shown.</p> <p>In the argument on the former appeal the attention of this court was not called to this point, and it escaped the notice of this court, but it is not too late to urge the objection now.</p> <p>This court will never allow a judgment to stand that does not rest upon-a valid pleading. This is expressly provided in section 123, Code of 1854.</p> <p>The amendment of the prayer of the petition by the receiver was insufficient, in that it failed to set out the facts showing his appointment and qualification, and that he had executed bond as required by section 331 of the Code. (Gillet v. Fairchild, 4 Denio, 80, and cases cited under sec. 331, Myers’s Code.)</p> <p>4. The act of a cashier of a bank in pursuance of authority from the hoard of directors, although in violation of the law of its existence, binds the bank. (3 Grant (Pa.), 135.)</p> <p>5. On this second appeal- the appellants are not precluded from raising any objection to the sufficiency of the pleadings by the former decision of this court on the first appeal wherein appellants were appellees. Being appellees in the first appeal from a judgment in their favor, appellants were not then bound to make any objection to the sufficiency of the petition, and now for the first time being appellants, they have a right to make and are not precluded from raising any legal objection to the sufficiency of the petition on which the judgment appealed from was rendered against them.</p> <p>1. In reversing the judgment of dismissal on the first appeal, this court was bound to decide and did decide, first, that the petition presented a cause of action, and second, that that cause of action was sustained by the evidence.</p> <p>2. Appellants have no right to raise or make any objection now for the first time in this court, or to ask this court to decide that the petition does not state facts sufficient to constitute a cause of action, because they are precluded from making such objection by the former decision of this court in this case.</p> <p>3. While section 123 of the old Code provides that the right to make the objection “ that the petition does not state facts sufficient to constitute a cause of action,” shall not be deemed to have been waived by failure to make such objection by demurrer or answer, it does not provide that such waiver shall not be made in some other way, as by going into trial on the merits, or by verdict or judgment; nor does it prescribe what question shall be raised by making the objection at any time after answer. Such a waiver is expressly provided for by the last paragraph of section 400 of the same Code, and such a waiver is expressly made by a plea of confession and avoidance. (1 Chitty’s PI. 671, 672.)</p> <p>That part of section 123 on which appellants rely is omitted entirely from the Code of 1877. (See Code of 1854, secs. 123, 400; Code of 1877, secs. 118, 371.)</p> <p>4. Defects in pleadings are aided, first, by pleading over as by plea of confession and avoidance (1 Chitty’s PI. 671-673); second, by verdict aided by the common-law intendment (1 Chitty’s PI. 337, 673-682); third, by the statute of jeofails (1 Chitty’s PI. 682-684).</p> <p>^Defective pleadings have been held by this court to have been cured by answer, by pleading over, by verdict, and by judgment. (Barbour’s Digest, pp. 1163-1165.)</p> <p>5. When the objection to the sufficiency of the petition is made before answer, the question raised is, “ Does the petition state facts sufficient to constitute a cause of action in the plaintiff?”</p> <p>If made after answer and before trial on the merits, the question raised is, “Do the pleadings state facts sufficient?” etc.</p> <p>If made after trial on the merits and judgment in favor of the plaintiff, the question raised is, “ Do the pleadings state facts sufficient to sustain or support the judgment ?” or, “ Does the record state or exhibit facts sufficient to sustain or support the judgment?” (1 Chitty’s PI. 337, 528, 671, 672, 673; Riggs v. Maltby & Co., 2 Met. 88; Escott & Son v. White, &c., 10 Bush, 175; L. & P. Canal Co. v. Murphy, 9 Bush, 527; Francis v. Hazelrig, 1 Mar. 94; Keyes v. Powell, 2 Mar. 253; Barbour’s Digest, pp. 1163-1165.)</p> <p>6. On a second appeal “nothing is brought up but the proceedings subsequent to the mandate.” (Ex-parte Sibbald v. The United States, 12 Peters, 488, 491; Himely v. Rose, 5 Cranch, 314, 316; The Santa Maria, 10 Wheaton, 431, 439, 440; Wells on Res Adjudicata and Stare Decisis, secs. 613 to 623; Herman on Estoppel, pp. 95, 165; Bigelow on Estoppel, pp. 16, 17, 22; Aurora City v. West, 7 Wallace, 82, 102, 106.)</p> <p>The foregoing rule was adopted in this state at an early day, and has never been questioned or doubted by this court, but has been adhered to up to this day. (Meredith v. Clarke, Sneed, 189; Brown v. Crow’s heirs, Hardin, 443, 448; Morgan v. Dickerson, 1 Mons. 20; Kennedy’s heirs, &c. v. Meredith, 4 Mon. 408, 410; Legrand v. Baker, &c. 6 Mon. 244; . Bryan, &c. v. Beckley, Littell’s S. C. 91, 93; Nelson’s heirs v. Clay’s heirs, 7 J. J. Mar. 139; 5 Littell, 150,155 ; Ford v. Gregory’s heirs, 10 B. Mon. 175, 183; Mason v. Mason, 5 Bush, 193.)</p> <p>The same rule prevails in other states. (Resing, &c. v. Carr, 70 Ills. 596; Ogden v. Larrabee, 70 Ills. 510; Matthews v. Sands, 29 Ala. 136-140.) This list of cases might be extended almost without limit.</p>

<p>1. Public policy does not prohibit voluntary contributions to railroads por purposes of construction, etc., or render void a contract based upon the consideration that the road shall be located in or through a certain locality, unless the public interest is to be sacrificed by it.</p> <p>2. If the Cincinnati Southern Railway should be permanently located and constructed through Lexington “we will pay the sums set opposite our names in equal installments, at six, twelve, and eighteen months, from the first of July, 1873, unto Thomas Mitchell, as triistee . . to be used and applied by him only toward paying the damages, cost, etc., in acquiring the right of way,” etc.</p> <p> The foregoing subscription, is enforced: </p> <p>The completion of the road is not a condition precedent to the payment of the money subscribed as above.</p> <p>3. But where officers of sjjch corporations undertake to receive donations for their own private use, or make contracts by which they are to be paid for using an influence that will or may locate a line of railroad in a particular locality, such contracts will be held to be void as against public policy.</p>

Case 51 — PETITION ORDINARY APPEAL FROM JEFFERSON COMMON PLEAS COURT. 1. In the proceeding to empower Mrs. Mann to contract, etc., as a feme sole, the publication of the notice required by the statute (Myers’s Supp. 728), was sufficient, although the order designating the newspaper was not made until the judgment was rendered, and therefore the proceedings were not void although they may have been irregular and erroneous. 2.

<p>1. The prisoner must be present when the jury return their verdict, and, if he desires to do so, he has a right, by polling the jury, to demand, face to face, of each juror whether the verdict is his verdict, and to object to it unless each member of the jury shall answer for himself that the verdict is his.</p> <p>The prisoner in this case was indicted and tried for murder; the case was given to the jury about sunset, and the court adjourned for the day. The prisoner was placed in jail, and his counsel retired to their rooms in the town. After dark the jury reported to the judge that they had agreed upon a verdict. The judge went to the court-room, and, without causing the prisoner to be brought in, and in the absence of his counsel, and without notice to them, the verdict, finding the prisoner guilty of manslaughter and fixing his punishment at six years and four months’ confinement in the penitentiary, was received and the jury discharged. Held, that</p> <p>. The court erred in receiving the verdict in the absence op the prisoner, and for this error the judgment of conviction is reversed.</p>

Case 58 — PETITION APPEAL PROM BOONE CIRCUIT COURT. 1. The action on the new promise was not barred by the five years’ statute, section 2, article 3, chapter 71, General Statutes, because the new promise was in writing. 2. This new promise exonerated appellant from any laches of which he might have been guilty in prosecuting suit against the maker of the note. (Landrum v. Trowbridge, Dwight & Co., 2 Met. 281.) 3.

Case 54 — PETITION EQUITY APPEAL FROM MERCER COMMON PLEAS COURT. 1. A deposit is a naked bailment of goods to be kept without reward, and to be returned when required. (Jones on Bailments, 36, 117.) If the deposit is with a banker, he returns not the specific money deposited, but the same sum. 2.

Case 55 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. An assignment of a reversion does not, by common law, carry rent as an incident; neither does a partial assignment pass the rent under the statute. A mortgage is not an assignment; neither does it convey any title or estate in the land mortgaged. A receiver of a mortgaged reversion has no claim to the lease, which, before his appointment, had been sold to a meritorious purchaser. 2.