Volume 78 — Kentucky Reports

Case 1 — PETITION ORDINARY APPEAL FROM GRAVES CIRCUIT COURT. 1. The Court erred in rejecting as evidence the record of the suit in the-Graves Circuit Court of Smith’s executors v. Smith’s devisees, &c. 2. This Court will presume that all the decedent’s devisees had been summoned, inasmuch as about thirty years had elapsed, and the Court had general jurisdiction.

<p>1. An attachment cannot properly be issued before a summons has been issued upon the petition. (Civil Code, secs. 39, 194.)</p> <p>2. Attachment issued before summons is void.</p>

Case 4—PETITION ORDINARY APPEAL FROM THE JEFFERSON COURT OF COMMON PLEAS. The order of the 20th of July, 1878, is void. The Court had lost all power over the case at that time. (Louisville Chemical Works-v. Commonwealth, 8 Bush, 182; Act to amend an act, entitled “An act to establish a Court of Common Pleas for the county of Jeffe-son,” approved February 24, 1865 ; Civil Code, secs. 771 and 772; Hilliard on New Trials, p. 75; Buckner v. Conley, 1 Monroe, 3; Freeman on.

Case 5—INDICTMENT APPEAL FROM JEFFERSON CIRCUIT COURT. 1. The Court erred in permitting evidence that other persons than Lyons had been roped into appellants’ faro bank. (34 Iowa, 446; 55 N. Y. Rep., 565; Litt. Selected Cases, 497; Greenleaf's Ev., vol. 1, m.) 2. The third instruction given for appellee is error. (Sec. 1, art. 1, chap. 47, Gen. Stat. ; 2d vol. Russell on Crimes, secs. 21, 24; Elliott v. Commonwealth, 12 Bush, 176.) 1.

Case 6—MOTION APPEAL FROM JEFFERSON CIRCUIT COURT. 1. Witnesses in felony cases summoned by the State are paid out of the ' ■ Treasury. (Gen. Stat., sec. i, art. 16, chap. 41; Ibid, sec. 6, art. 2, chap. 16; 1 Littell’s Laws Iiy., 472; Ibid, 470; 3 Litt. Laws Ky., 40; Constitution, sec. —, art. 4; Register v. Ried, 9 Bush, 103-6; Cosby’s Con. Lim., 67, 71, 52; Sedgwick’s Con. and Stat.

<p>Case 7—MOTION</p> <p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p> <p>I. The creditors of a firm have no substantial independent lien on the partnership property. (Story on Partnership, sec. 97 ; Ibid, sec. 360; Ibid, 358, 361 ; 1 Lindley on Part., 213, 214, 674; Jones v. Lusk, 2. Met., 361; Wilson v. Soper, 13 B. Mon., 414; 21 Conn., 130.)</p> <p>2. The right of a creditor of all the individual members of the firm to sell the partnership property is indisputable, (i Penn., 198; 5 Johns. Ch’y, 320; 4 Harris, 62; 3 Wright, 402; 9 Harris, 82; 5 Casey, 14; Watson on Part., 72.)</p> <p>3. The Court erred in permitting appellee’s equitable defense to be filed, depriving appellant of a trial by jury. (Civil Code, sec. 648; Watson v. Gabby, 18 B. Mon., 663; Civil Code, secs. 312, 449, 444; Samuel v. Jordan, MS. Opin., 1875.)</p> <p>1. The partnership must be settled, and only the individual interest of each member of the firm can be subjected after the payment of all partnership debts.</p> <p>2. The partnership creditor has a prior lien upon the partnership effects, as against creditors of individual members of the firm. (German Security Bank v. Jefferson, 10 Bush, 330; Smith v. Wells, 4 Bush, 92; Williams v. Smith, .Ibid, 540; Watson v. Gabby, 18 B. Mon., 60; ■O’Bannon v. Miller, 4 Bush, 26; Howell, &c., v. Com. Bank Ky., 5 Bush, 99; Northern Bank Ky. v. Kifer, 2 Duvall, 170; Story on Part., sec. 358 ; 43 N. H., 145 ; 52 N. Y., 154; Parsons on Part., 342; 4 Barb., 588 ; Overholt’s Appeal, 2 Jones; 6 Pick., 350; 22 Ibid, 453 ; 3 Foster, 136.)</p> <p>3. The Court properly transferred the case to equity. (4 Bush, 541; Urban v. Winner & Fecklin, MS. Opin., 1878; Lair’s gd’n v. Wilson, 13 Bush, 589.)</p>

Case 8—ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. The judgment is erroneous, because of the provisions of the ware- - house act. 2. Independent of that act, upon the principles of common law the appellant is entitled to a reversal. 3. Before the appellee can recover, he must tender to appellant, as pledgee,. the $2,994 due by him to Smyser, Milton & Co., for advances upon-the goods consigned to him.

<p>Case 9—INDICTMENT</p> <p>APPEAL FROM M’LEAN CIRCUIT COURT,</p> <p>1. The bond of a tavern-keeper is a civil obligation or contract.</p> <p>2. The surety has the right to contest the actual breach of the bond, whether the principal be convicted or not.</p> <p>The surety had the right to raise the issue as to a breach of the principal’s bond, and can be' required to pay the penalty of the bond without a conviction of the principal. (Sections 256, 259, 260, Criminal Code; Margoley v. Commonwealth, 3 Met., 406.J</p>

<p>1. Stewart & Turney being indebted to appellant, transferred to bim on the 13th of October, 1876, $600 of an unliquidated demand held by them against O’Malley & McGill. On the 20th of October the assignors made an assignment for the benefit of their creditors, and a creditor of Stewart & Turney, on the 19th of December, 1877, attacked the transfer to the appellant.</p> <p>2. It was not necessary to record the transfer to appellant; .neither was it necessary to give actual notice to the creditors. The suit should have-been filed within six months after the transfer of the demand.</p>

Case 10—PETITION EQUITY APPEAL FROM MORGAN CIRCUIT COURT. The petition and amended petition state that the fund in contest is the property of appellant, Knowles, and that the attempt of the appellee to control it is unwarranted. This, upon demurrer, must be taken as true. 1. The judgment in controversy was obtained by a receiver of the Court with the object of bringing the money into Court. 2. There is no averment that the receiver is insolvent. _3.

Case 12—PETITION ORDINARY APPEAL FROM BOURBON CIRCUIT COURT. 1. The petition does not contain a cause of action. (Huffaker v. National Bank, Somerset, 12 Bush, 289.) 2. The dismissal of the former suit is a final judgment, and bar to the present action. (Freeman on Judgments, 19 ; Bank of Commonwealth v. Hopkins, 2 Dana, 395; Wood v. Ramond, 42 Cal. Rep., 644; 7 J. J. Mar., 165; 3 B. Mon , 741 ; 3 Met., 29.) 3.

<p>Section 737 of tlie Civil Code, in'regard to filing assignment of errors within ninety days after the appeal is granted, applies alone to appeals granted by the Court below.</p>

<p>In cases to which chapter 3, title 10, of the Civil Code apply, the appellant should present to the judge his assignment of errors, and the judge should direct the clerk to copy the material parts of the record.</p>

<p>Case 15—MOTION TO DISMISS APPEAL</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT.</p>

Case 16 APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. The Circuit Court erred in refusing to grant a new trial. (24 Wisconsin,. 165-) There had been three trials, and in each a verdict for appellee. The-Court correctly overruled the motion for another. (L., C. and L. R. R. Co. v. Mahoney's adm’r, 7 Bush, 235; Danville and Nicholasville: T. P. Co. v. Stewart, 2 Met., 122; Sandford v. Smith, 5 Bush, 471.)

<p>3. In actions in the Louisville Chancery Court against a non-resident, the warning order should be made by the clerk, and warn the defendant to answer within sixty days:.</p> <p>2. Section 809 of Civil Code does not change the old Code in the manner of summoning a non-resident in that Court.</p> <p>3. Sections 57 and 60, as to time for non-residents to answer, do not apply to the Louisville Chancery Court.</p>

<p>S. After having been indicted in the Circuit Court, appellant, who was never in jail, procured the Quarterly Court to try him. The act of 18Ü1 of March, 1876, was never intended to authorize such a state of case.</p> <p>2. The Circuit Court did not err in instructing the jury that such a trial, if procured by the appellant while he was not in jail, was void.</p> <p>3. There must be a -separate prescription for each sale by a druggist of ardent spirits.</p>

Case 19—PETITION ORDINARY APPEAL FROM OLDHAM CIRCUIT COURT. 1. The charter of the town of Lagrange confers no power upon its marshal to forfeit and sell hogs running at large in the town. 2. The ordinance is unconstitutional. It authorizes the marshal to take without notice and sell hogs running in the town. It provides for a forfeiture of property without a judicial trial.

Case 20—INDICTMENT APPEAL from graves circuit court. The second prosecution is barred by the first. (O’Brien v. The Commonwealth, 9 Bush, 333; Commonwealth v. Daniels, MS. Opin., 1876; Cooley on Constitutional Lim., 328; Tully v. Commonwealth, 11 Bush, 154.) 'The Attorney for the Commonwealth may, with the permission of the Court, dismiss an indictment at any time before the case is given to the jury.

<p>Case 21—INDICTMENT</p> <p>appeal from spencer circuit court.</p> <p>1. If the appellant had reasonable grounds to believe his life was in imminent danger from the deceased, and he could secure his safety in no other way than by killing the deceased, he had the right to pursue and slay him. (Luby v. Commonwealth, 12 B., 1 )</p> <p>2. There should not have been given an instruction in regard to sudden heat and passion, as there was no proof to sustain it. (Phillips v. Commonwealth, 2 Duv., 32S; Young v. Same, 12 Bush, 243; Bohannan v. Same, 8 Bush, 481 )</p>

<p>Case 22—PETITION EQUITY</p> <p>APPEAL FROM TAYLOR CIRCUIT COURT.</p> <p>1. The conveyance to Mrs. Allen is neither actually nor constructively fraudulent. She was entitled to nearly if not quite as much as paid for the house and lots in Lebanon from the estate of her father.</p> <p>2. Although a note held byj. H. Allen, as guardian of Louella Bridge-water, may have been used by him in part payment for land which was exchanged for the house and lots in Lebanon, the paper is not found in this suit. She has no lien upon the lots for her demand.</p> <p>3. The Revised Statutes, sections 2 and 3, chapter 40, have no application to this case, because Allen never owned the lots, nor has he attempted, to make any conveyance thereof.</p> <p>4. Allen had the right to decline to convert his wife’s share in her father’s. estate to his own use. (Simms v. Spalding, 2 Duvall; 2 Bush, 535.)</p> <p>1. J. FI. Allen is not a competent witness. (Vol. 1, Acts of 1871-2, page-12.)</p> <p>2. We insist that the Circuit Court properly subjected to sale the house- and lots in Lebanon to pay the debt of $700 due to Louella Marchand, and then to satisfy the claims of J. F. Bridgewater’s heirs against. Allen as his administrator. The conveyance to Mrs. Allen was fraudulent. Bridgewater’s estate to that extent is represented by the-house and lots in controversy. (Rev. Stat., chap. 80, Secs. 20, 21, and 22.)</p> <p>1. The conveyance to Mrs. Sublett of the tract of land in controversy is. fraudulent as to Marchand and wife. Sublett was surety upon the bond of Bridgewater’s administrators when he paid for the land and caused it to be conveyed to his wife. (3 J. J. Marshall, 290; Lyne v. Bank of Ky., 5 J. J. Marshall; 9 B. Mon., 514; 2 Bibb, 381; 4 Dana,. 231; 1 Met., 350; 2 Met., 206; Revised Statutes, chap. 40, sec. 2;. Gen. Stat., 44; 2 Bush, 75; 3 Bush, 213; 8 Bush, 333; Kerr on Frauds, 203; Story’s Eq., vol. —, sec. 355; Ibid, vol. 2, chap. 32, sec. .1210.)</p> <p>2. The allowance to Russell & Averitt is exorbitant.</p> <p>3. The school fund attached in the hands of Bowman should be appropriated to appellant’s debt.</p> <p>1. The conveyance to Mrs Sublett is valid. When it was made there was. no debt existing against her husband, but only a remote contingent, liability.</p> <p>2. The statute in regard to fraudulent conveyances does not apply to this. case. (Doyle v. Sleeper, 1 Dana, 331; Crozier v. Young, 3 Mon., 157; Marshall v. Marshall, 2 Bush, 413.)</p> <p>The allowance to Russell & Averitt was reasonable. The amount was. agreed upon between them and the guardian of Mrs. Marchand. '</p>

Case 23—PETITION ORDINARY APPEAL FROM M’CRACKEN CIRCUIT COURT. 1. The words alleged are slanderous. Although they do not import a felony, they charge an offense that is indictable, and may be punished by fine and imprisonment. (Gen. Stat., sec. 7, art. 8, chap. 29; 5 Johnson, 190; Am.

Case 24—PETITION ORDINARY appeals from franklin circuit court. 1. The appellant pleads and proves that he has paid $2,000 to the judgment creditor before the judgment was rendered. 2. There is no averment in the petitions-that the Galveston district court had jurisdiction to render the judgment paid by the appellees. 3.

<p>1. The donee takes an absolute estate in things consumed in their use, as. grain when given, though only for life or a specified term; but if they may or may not be consumed, as work stock, &c., and there is a bequest over, the ulterior legatee takes them as they are at the end of the particular estate.</p> <p>2. The increase of the stock belongs to the owner of the particular estate.</p> <p>3.If an absolute devise be qmlified by words clearly indicating a desire ■ by the testator that other parties should share in his bounty, the devisee will hold the property devised as trustee under the will.</p> <p>■4. The marriage of a %vidow, she being the trustee, terminates the trust, and vests absolutely the property in the children, to be divided under the will.</p> <p>■5. Judgment against the widow as administratrix de bonis non, with the will annexed, erroneous, she having fully administered the estate and holding as trustee.</p>

<p>4. The indictment accuses appellant of an offense relating to section 7, article 28, chapter 29, General Statutes, while a part of the particular acts charged relates exclusively to the 8th section of the same article.</p> <p>■2. The instruction is error, because it applies the penalty fixed in the 7th section, not exceeding $2,000, to acts relating alone to section 8, where the penalty does not exceed $500.</p> <p>3. The demurrer to the indictment ought to have been sustained, because acts constituting more than one offense are charged.</p>

Case 27—PETITION EQUITY APPEAL FROM BRACKEN CHANCERY COURT. 1. The deed from Struve and wife to Coleman operated and was adjudged to be a conveyance of all his property for the benefit of his creditors. 2. Having passed their title and the deed adjudged to be in force with the effect mentioned, in no case can they be entitled to a homestead in the land.

Case 28—PETITION ORDINARY APPEAL FROM WOODFORD COURT OF COMMON PLEAS. 1. The court erred in refusing to quash the summons and return and dismiss the action on the ground that the defendant was not a corporation, but an ordinary partnership. 2. The court erred in refusing to direct the jury to find for the defendant on its motion. 3. There must, in every action in personam, be a person as defendant. A partnership is not a person.

<p>1. This court will not dismiss an appeal because of a defective affidavit: made to obtain a warning order.</p> <p>2. An affidavit made by the appellant’s attorney upon which to obtain a. warning order in this court against non-residents must state that affiant believes the appellees are absent from this state, as well as-that they are non-residents of the State.</p> <p>3. The clerk of this court has no authority to appoint an attorney for' appellees constructively summoned. It must be done by the court.</p>

<p>Case 30—PETITION ORDINARY</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>'It was clearly intended by section 41, article 4, of the constitution, to prescribe the qualifications, term of office, and time and manner of electing judges of all police and city courts, whether established before or after the adoption of the constitution. (Section 41, art. 4, constitution; Hall v. Hostetter, 17 B. Mon., 784; City of Owensboro v. Webb, 2 Met., 576: Maysville v. Shultz, 3 Dana, 10.)</p> <p>'The constitutional power df the legislature to change the time for the election of police judge of Owensboro from August to April is denied. (Sec. 41, art. 4, of the constitution is upon this point conclusive.)</p> <p>'The original charter establishing the town of Owensboro is not in existence, and the legislature, in its discretion, has established a new corporation, fixing the time at which the police judge is to be elected. The 41st section, article 4, of the constitution does not inhibit the legislation granted by the act of February, 1866. (Section 38, art. 4, constitution; charter city of Owensboro, approved February, 1866; section 6, article 6, of constitution )</p>

Case 31 APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. The amount in controversy being over fifty dollars, a petition should have been filed by appellee in the justice’s court. (Civil Code, secs. 39> 7°5> 9°, 663; Peabody v. Spalding, MS. Opinion). 2. The amendment should not have been permitted. 1. A. & Sons had the right to pay the money to Puff as soon as the order of attachment was discharged. 2. They were ignorant of the appeal, and paid the money without notice of it.

<p>Case 32—PETITION ORDINARY</p> <p>APPEAL FROM SCOTT COURT OF COMMON PLEAS.</p> <p>I. The court erred in refusing a non-suit. (Carroll v. Charter Oak Ins. Co., 38 Barb., 408; Diehl v. Adams Ins. Co., 58 Penn. St.,’ 4527 Viele v. Germania Ins Co., 26 Iowa, 9; Packard v. Sears, 6 Ad. & Cl., 469; Parson on Bills, 594; Story on Prom. Notes, sec. 280; Long vs. Young, 8 Eng. Ark., 401; Ins. Co. v. Wolf, 5 Otto, 326; 22 Mich., 473; 29 Iowa, 565; 7 Allen, 241; 66 Penn. St., 22; 58 Ibid,. 444; Baer v. Phcenix Ins. Co., 4 Bush, 242; 7 Allen, 239; 29 Iowa,. 562; 9 Md., 1.)</p> <p>2. The court erred in its instructions. (May on Ins., 711; Flanders Fire Ins., 155; 2 Arnold on Ins., 1215, 1224, 1226; 7 Ohio, 325; 4 Taunt., 330; ICeel v. Ogden, 3 Dana, .107; Wing vs. Haydon, 280; Pollard v. Taylor, 2 Bibb, 234; Wood Fire Ins., 693, 709; 5 Hill N. Y. R.r 421; 8 Johnson N. Y. R., 1; 3 B. & P., 191; 4 Camp., 297.)</p> <p>I. The motion for a non-suit was properly overruled, and the instructions given contain the law. (May on Insurance, sec. 468; Manhattan Ins. Co. v. Stein, &c., 652; 52 Maine Rep., 492; 43 Barb. N. Y.r 351; 28 Wis., 472; Walters v. Chin, I Met., 502; Plummer v. Newdigate, 2 Duv., 1; Meriman on Plead., 246; 111. Rep., 1877; Central Law Journal, 1877, p. 167; Wool on Ins., 176, 178; 43 Wiseman’s. Rep., 108; Baer v. Phoenix Ins. Co., 4 Bush, 242; Kenton Ins. Co. v. Shea, 6 Bush, 174.)</p>

<p>a. When the allegations of a pleading are so indefinite that the precise nature of the claim or defense is not apparent, the objection to the pleading must be by motion to make more definite, under section 134 of Civil Code, and not by demurrer. By failing to so move, the objection is waived.</p> <p>:2. The description of the land adjudged to be sold was sufficient. The commissioner's report describes the land by metes and bounds, and the judgment refers to his report for a description. The land was thus sufficiently identified to locate it.</p>

Case 34—PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The appellee knew when Hunt pledged the tobacco to her that he was insolvent, and necessarily that the pledge was made in fraud of the bankrupt act. 2. The object of the act was to prevent all preferences of creditors, and as far as possible to insure the equal distribution of the bankrupt’s property. (Sec. 5, Rev. Stat. U. S.; Bump on Bankruptcy, 795, 806, 815; 16 Nat.

Case 35—EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The appellant’s property cannot be taken away from her under a lien-. created against it for.the benefit of a street contractor, unless she derives some benefit from the improvement. She has actually been injured by it. 2. Her counter-claim against appellees cannot be avoided upon the ground that they did the work under the order's of the city. 3.

Case 36—INDICTMENT APPEAL FROM FAYETTE CIRCUIT COURT. 1. The court erred in failing to instruct the jury as to involuntary manslaughter. 2. The court, in giving an instruction which purported to define malice, erred to appellant’s prejudice. (Crim.

<p>1. If several articles, each belonging to a different person, be stolen at’ the same time, but one offense has been committed.</p> <p>2. Two parcels of property, taken from places two hundred yards apart, although taken the same night by the same person — held not to have-been taken at the same time, and each act is a separate offense.</p>

<p>Case 38—INDICTMENT</p> <p>APPEAL FROM JESSAMINE CIRCUIT COURT.</p> <p>I. The court erred in refusing to a^lmit* evidence that appellant was . afflicted with a disease called somnambulism.</p> <p>2. It should have admitted evidence that his children had been sick, and he, in waiting upon them, had recently lost sleep. (Hamilton’s Lectures on Metaphysics, vol. I, 319; Wharton & Stille’s Med. Jour., sec. 482; Maudsly on Insanity, 484; Brown’s Med.-Juris. Insanity, 15; 14 Bush, 398; 3 B. Mon., 579.)</p> <p>3. The court erred in instructing the jury. (Terrill v. The Commonwealth, 13 Bush, 255; 10 Bush, 499.)</p>

Case 39—ORDINARY APPEAL FROM THE JEFFERSON COMMON PLEAS COURT. 1. The only cases where notice of acceptance is necessary is where there is a mere offer or proposal to guarantee. 2. As to whether this was an absolute agreement or a mere proposition to guarantee, we cite the following authorities: (Howe v. Nichols, 22 Maine, 175; Lent v. Padelford, 10 Mass., 230; Douglass v. Howland, 24.

Case 40—PETITION EQUITY APPEAL FROM BATH COURT OF COMMON PLEAS. In the absence of tables, there is no better guide in estimating the value-of potential dower than the opinions of witnesses of experience and observation. 1. The table formulated by Professor Bowditch, estimating the value of potential right of dower, has for several years had the sanction of other States, particularly of Massachusetts. 2.

<p>1. It never was at common law a punishable offense to produce, with the consent of the mother, an abortion prior to the time the mother became quick with child.</p> <p>2. The indictment does not allege that the mother was quick with child, nor does it aver that the potion was administered with the intention to destroy the life of the child, nor that such was the result produced by the potion. There being no statute, it is held that the indictment is not good.</p> <p>3. The instructions do not form a part of the bill of exceptions, and cannot be considered.</p>

Case 42—ORDINARY APPEAL FROM BALLARD COURT OF COMMON PLEAS. 'The dismissal of the petition amounts to, and is, a dissolution of the injunction.

Case 43—INDICTMENT APPEAL FROM MADISON CIRCUIT COURT. 1. The court erred in excluding evidence as to the bad character of Pratt two years before the trial. (46 Barb., 128; Am. Law Reg., N. S., vol. 6.) 2. Erred in instructing the jury, and in failing to instruct upon involuntary manslaughter. (Holloway v. The Commonwealth, 11 Bush, 346; Phillips v. Same, 2 Duv., 328; Young v. Same, 6 Bush, 312; Bohannon v. Same, 8 Ibid, 481; Conner v. Same, 13 Bush, 718; 1 Bishop’s. Crim.

Case 44—PETITION EQUITY APPEAL FROM HENDERSON COURT OF COMMON PLEAS. 1. The machinery erected by Clore & Clay was erected after appellee’s conveyance to them. It changed a tobacco warehouse into a planing-mill. It was not mentioned in the deed, and was, after appellant’s purchase of it under execution, taken from the freehold without injury to it, and without impairing appellee’s lien for his purchase money. 2.

Case 45—PETITION EQUITY APPEAL FROM CALDWELL CIRCUIT COURT. 1. The act to incorporate the Kentucky Masonic Mutual Insurance Company, approved December 18, 1867, is unconstitutional and void. It relates to more than one subject. (Chiles v. Thomas, 4 Met., 75; 12 Bush, 396.) 2. After the death of Jno. McLin the insurance money to which appellee was entitled was his as the creditor of the company, and subject to appellants’ debt.

Case 46—ORDINARY APPEAL FROM LINCOLN CIRCUIT COURT. Appellant was the surety of Helm in the execution quashed, upon the ground that the return day fixed by appellee as clerk was less than the time required by the statute. In consequence of its quashal appellant was compelled to pay the greater part of the judgment. It was the fault of appellee, and he should make, the loss good to appellant. 1. No breach of appellee Miller is alleged. 2.

Case 47—INDICTMENT APPEAL FROM SHELBY CIRCUIT COURT. 1. Under the indictment appellee might have been convicted of a felony or of an assault and battery. 2. The first conviction is no bar to the indictment. (Commonwealth v. Hawkins, n Bush, 603.) .,3. If appellee was in fact tried before the justice for assault and battery under the name of a breach of the peace, the justice had no jurisdiction, and the trial is a nullity. (Gen. Stat., 29, art. 6, sec. 2; Ibid, art. 19; Crim.

<p>Case 48—ORDINARY</p> <p>APPEAL FROM SCOTT COURT OF COMMON PLEAS.</p> <p>.1. The appellants are only bound as a corporation. (Trask v. Roberts, I B. M., 201; McBean v. Morrison, I Mar., 545; Whitney v. Sudduth, 4 Met., 297; Yowell v. Dodd, 3 Bush, 582; Church v. Graham, MS. Opin.)</p> <p>'The obligation is that of appellants as individuals. (Murray v. Carothers, I Met., 80; Church v. Graham, MS. Opin.; McBean v. Morrison, I Mar., 545; 3 Mar., 259; i B. Mon., 201; 4 Met., 297; Yowell v. Dodd, 3 Bush, 583.)</p>

<p>Case 49—PETITION ORDINARY</p> <p>APPEAL FROM MARION COURT OF COMMON PLEAS.</p> <p>There was no sufficient proof to sustain the attachment. (Civil Code, sec. 194, subsec. 2.)</p> <p>The proof clearly sustains the attachment. (Sec. 194, Civil Code, sub-sec. 2.)</p>

<p>1. A consignor of goods, after they have passed from the hands of the railroad company with which the contract of affreightment was made, into the hands of another company, has the same right to change their destination while in transitu, by taking a new bill of lading, as if the first company had a continuous line to the place of destination.</p> <p>2. Such new bill of lading is valid, when called in question between a bona fide holder and one claiming a lien by virtue of an attachment.</p> <p>3. The service of an attachment upon a railway company creates no lien. upon properly not within the county at the time it is served.</p>

Case 51—ORDINARY APPEAL FROM NELSON CIRCUIT COURT. 1. Appellant is a bona fide purchaser for value in a distant county. He was entitled to possession until a better title be shown. 2. Appellee, claiming right through various executions, must lake upon himself the burden of showing the judgment upon which the fi. fas. issued. This he has not done, and, therefore, the judgment should be reversed, (i Ld.

Case 52—EQUITY APPEAL FROM LINCOLN CIRCUIT COURT. I. The husband clearly had the power to impose the conditions of the deed, whether the wife could bind herself by a promise or not. 2. He liad tile right in equity to assign to appellant his interest in the fund. (7 Paige, 76; 17 Howard’s U. S. Rep., 368; 2 Selden, 187; 3 Barb., 243; 15 N. Y., 425; Orr v. Orr, 8 Bush, 158; 2 Bl.

Case 53—EQUITY APPEAL FROM BOURBON CIRCUIT COURT. I. The lien acquired by appellants gave them priority to all others. •2. The act of 1866 in favor of colored persons cannot affect the rights of third parties. 3. The act of March 17, 1876, reviving the negro marriage act, is unconstitutional. 4. Appellees were not housekeepers, with a family, at the institution of this suit.

Case 54—EQUITY APPEAL FROM MARION CIRCUIT COURT. 1. The proof clearly shows that the land belongs to appellants, and it should not have been subjected to appellee’s debt. 2. The land was erroneously sold on a credit of three months. (Civil Code, 696.)

Case 55—ORDINARY APPEAL FROM SCOTT CIRCUIT COURT. The printed words waiving presentment, protest, and notice were on the back of the note when the appellee assigned it to appellants, and, therefore, he must be held to have made the indorsement subject to the limitations contained in the printed matter. 'The printed words in regard to presentment, &c., were on the back of the note when appellee assigned it, but were not subscribed or regarded as amounting to anything whatever.

Case 56—INDICTMENT APPEAL FROM FAYETTE CIRCUIT COURT. I. The instructions were prejudicial to appellant. He was entitled to an instruction as to involuntary manslaughter. (21 Alabama, 300; I Lewin C. C., 1C4.) •2. He was entitled to an instruction that death must have resulted from the wound alone. (Wharton’s Crim. Law, 7Ü1 rev. ed., 751, sec. 3.) 'The court erred in defining malice. Whether there was malice or not, should have been left to the jury.

Case 57—EQUITY APPEAL FROM DAVIESS CIRCUIT COURT. 1. The bond executed by the appellee as administrator with the will annexed of J. I. Johnson is not the bond required by the statute. (9 Dana, 102; Rutherford’s heirs v. Clark, 4 Bush, 32; 3 S. & M., 715 ; 8 Serg., p. 54; 2 lb., 642.) 2. No title passed to appellant, because appellee describes himself as executor, when he was in fact administrator with the will annexed of the decedent.

Case 58—EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The process is a continuous direction to the marshal, beginning with a summons and ending with the order of attachment. It is one instrument. (Civil Code, sec. 732.) 2. Appellant was not bound to accept the tender of the money by appellee. It was not the amount due to appellant. (Ray v. Lawrence, 8. Dana, 81; Gen. Slat., 255.) 3. The chancellor erred in adjudging costs against appellant.

Case 59—ORDINARY APPEAL FROM FRANKLIN CIRCUIT COURT.. 1. Appellant insists that his discharge in bankruptcy binds the state as: well as individuals. (Section 33, Bankrupt Act, p. 533, vol. 14, U. S. Stat. at Large; Ibid, sec. 34; 3 McLean Ct. Ct. Rep., 485; 10 Penn., 466; 10 Grattan, 494; 8 Bankrupt Reg., 309; 13 .lb., 235; 28 Ark.,. 118.) 2. Public policy forbids that section 6,. article 2, chapter 108, Gen. Statutes, shall be so construed as to apply to jailers.

Case 60—WARRANT APPEAL FROM LOUISVILLE CITY COURT. 1. The law as it now is, and not as it was when the judgment was rendered, is the law to be applied. (U. S. v. Schooner Peggy, i Cranch, 104; ICeller v. State, 12 Md., 322; Hartung v. The People, 22 N. Y., 97; Bishop on Statutory Crimes, secs. 175, 176, and 177; Naylor v. City of Galesburg, 56 111., 285; 40 Ala., 307; 1 Wash.

Case 61—EQUITY APPEAL FROM HARRISON CHANCERY COURT. -Appellant, holding a note against both Levi and Noah Patterson, is entitled, as against the estate assigned of' each, as much as any creditor of one of them until the debt is satisfied, if there be enough estate. (22 Am. Rep., 754; 11 Casey, 481; 21 P. F. Smith; I Bland, 484; Logan v. Anderson, 18 B. Mon., 114.) 'The creditors of Noah Patterson should be.made equal.

<p>:i. Under a devise of real estate to a trustee, with directions to pay over to the cestui que trust the rents as they fall due, such rents are liable in the hands of the trustee for the payment of the debts of the cestui que trust.</p> <p>.2. A trust will not be implied except where it is shown that the testator intended to create it where he points to the objects, the property, and the way it shall go.</p> <p>.3. A deed of assignment for the benefit of creditors which conveys all the real, personal, and “mixed” property of the debtor, and purports to give a schedule thereof, followed by the clause, “ and any and all other property not exempt from execution which by oversight may have been omitted in the foregoing list,” is held to pass to the assignee the income of property held in trust for the benefit of the debtor, although it is not mentioned in the schedule.</p>

<p>Case 63—MOTION TO DISMISS APPEAL</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p>

Case 64—PETITION EQUITY APPEAL FROM BATH COURT OF COMMON PLEAS. It being- the intention of the testator that the profits of the daughter’s, estate should be expended in her support, the mother, having maintained her, should not be charged with the rent of her land. The mother controlled her daughter’s estate as trustee, and not as. guardian; but admitting that she acted as guardian, having supported the daughter, she should not be charged with the rent of her estate.

<p>1. There is nothing to show that the county court imposed any railroad tax for the year 1878 upon the property-holders in districts Nos. I, 5, and 9, in Nelson county.</p> <p>2. Without the authority of the Nelson county court, the sheriff had no-right nor power to collect any railroad taxes in either of said districts. He was a mere trespasser, and his sureties cannot be held bound for any taxes collected without the order of the court.</p>

Case 66—ORDINARY APPEAL FROM M’CRACKEN COURT OF COMMON PLEAS. Even if convicts had been compelled to work out their fines and costs-due from them, appellee cannot recover his fees from the city. (Charter city of Paducah, Acts 1871, vol. 1, 155, secs. 100, 114, 181; Gen. Stat., 479; 13 Bush, 221; sec. no, City Charter; Dillon on Mun. Cor., 169; Wortham v. Grayson County Court, 13 Bush.) 2.

Case 67—INDICTMENT APPEAL FROM MADISON CIRCUIT COURT. :i. Appellant’s license was obtained before the vote was 'had, and, therefore, cannot be affected by any vote under the “option act.” (Miller v. Rucker, I Bush, 137.) :2. The act cannot operate retrospectively. (Cooley’s Con. Lim., 37°-) The license gave no protection after a majority had decided against selling liquors. (Anderson, &c., v. Commonwealth.)

<p>Case 68</p> <p>APPEAL FROM NELSON CIRCUIT COURT.</p> <p>1. It is clearly shown that the Bond in controversy was taken from appellant without his consent. The allegations of appellee’s petitipn are fatal to his demand.</p> <p>2. The bond had been past due for several years, and was not passed toappellee in discharge of a pre-existing debt. (May v. Quimbey, 3, Bush, 96; Lee v. Smead, 1 Met., 634; Alexander v. Springfield Bank, 2 Met., 535.) •</p> <p>1. The fact that the paper was overdue'does not affect appellee’s right to- . enforce his lien upon it.</p> <p>2. A bona fide purchaser for value of a negotiable bond may hold it against the true owner. Any persofi in possession may fill up the blank and sue upon it. (Session Acts i855-’6, 12; 7 Wallace, 700; 10 Ibid, 127;. 10 Ibid, 68; Ibid, 90; 16 Ibid, 402; 20 Ibid, 72; Gen. Stat., chap. 22, sec. 6; 1 Dow., 50; 2'Johnson’s Chy., 443; 3 B. Mon., 446; 5. Litt., 33; 9 Dana, 416; 16'B. Mon., 575 ; 5 Ibid, 400; 2 Wash., 233;, 2 Met., 537; 2 Howard, 371 ;'21 Wendell, 551; 6 Wheaton, 220; 3, Saund., 222; 4 Duer, 362¡"Daniel on Negotiable Instruments, vol. 2, 459; Ibid, 1, 627; 2 Wallace, no; 4 Dolphus & E., 870; 22 How., 96; 38 N. J., 146; 20 Am. Rep., 379; 47 N. Y., 143 ;■ 7 Am. R.,423; J. John., 264; I Term Rep!',’16; 10 Cushing, 373 ; 22 Eng. Law and Eq., 516; 10 John. Rep., 104;'5 Ibid, 239; 5 John. Chy. Rep., 54;. 6 Ohio, 448 ; 1 Am. Law Reg., 75.)</p>

<p>Case 69—ORDINARY</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>1. The Jefferson circuit court has no jurisdiction to try and determine this cause.</p> <p>3. The plaintiff has no legal capacity to prosecute this action. (23 N. Y., 465 ; 30 Barb., 99 ; 18 111., 349 ; 45 Maryland, 177 ; Shearman & Red-field on Negligence, 296; 71 111., 344; 98 Mass., 85; 4 Allen, 233; 12 Ibid, 438; 4 111., 521; 22 111., 609; 10 Ohio, 121.)</p>

Case 70—PETITION EQUITY APPEAL FROM LINCOLN CIRCUIT COURT. 1. The recovery by Napier of a right of way over the land conveyed to-appellant is a breach of the warranty contained in the deed. (Butt v. Napier, MS. Opin., May, 1878; Williams on Real Property, 375; Wash, on Real Prop., vol. 3, 396; Rawle on Cov., 203; 4 Kent, 559;. Davis v. Logan, 5 B. Mon., 342; Bouv. Law Die., 1st vol., Eviction;.

Case 71 EQUITY APPEAL FROM KENTON CHANCERY COURT. .1. The question as to whether the improvement of Ash street is proper or not is a legislative question, or if judicial, it is to be decided by the council of the city of Ludlow. (Sec. I, chap. 1419, Acts 1871, vol. 1. P- 333-) 2. A railway company owning a lot upon a street ordered by the city authority to be improved at the expense of lot-owners, is as much bound to pay its proportion as private individuals.

<p>1. When an execution defendant agrees with the sheriff to surrender personalty to him to satisfy a fi. fa. in his hands, and the levy is then indorsed, although the property is left with the defendant, the levy is valid as against other execution creditors.</p> <p>2. The rule which requires the officer to do some act that would be a. ' trespass but for the writ in his hands, has no application to this case.</p>

Case 73 — EQUITY appeal from -henry circuit court. 1. The statute clearly provides that if more than ten per centum per annum be charged, the entire interest agreed to be paid shall be forfeited. 2. There is no question that Gist agreed to pay, and appellee agreed to receive, a higher rate of interest. (Sess. Acts 1871, vol. 1, 62.) 1. To constitute usury there must be. a corrupt agreement to pay and receive an illegal rate of interest for the loan or forbearance of money.

Case 74 ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 'The unsafe condition of the premises, the knowledge of the fact on the part of appellee, his promise to repair, his undertaking the work, the careless and unskillful manner of doing it, and the injury to appellant, are alleged. There is abundant authority that the motion in arrest ■of judgment should not have been granted.

Case 75 — EQUITY APPEAL FROM MARION CIRCUIT COURT. 1. Appellants, as creditors of Leon, were entitled to be made parlies and controvert appellee’s attachment against Leon. 2. Appellee’s attachment should have been discharged. (Civil Code, 29; I Duvall, 31; Myers’ Code, sec. 41, 257; Peters v. Conway, 7 Bush, 568; Bell v. Hall, 2 Duv., 293; 2 Met., 52; 1 Ibid, 450; 1 Green.

<p>Case 76—INDICTMENT</p> <p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p> <p>1. The declaration of Young is not admissible, because it was not made when he believed he would die. (3 Ala., 317; 4 Starkie on Ev., 461; 6 Bush, 312.)</p> <p>2. The declaration of one conspirator, made after the act is committed, is not competent against another. (Thompson v. Commonwealth, I Met., 13; 3 Greenleaf, sec. 94; Wharton, 703-4.)</p> <p>3. The instructions are erroneous. (1 Wharton, sec. 1031; Hall v. Hostetter, 17 B. Mon., 784; Trustees of Owensboro v. Webb, 2 Met., 576; Speed v. Crawford, 3 Ibid, 207 ; 1 Hale, 456; Fost., 30S; Arch., 327; Crim. Code, sec. 271.)</p> <p>I. No error was committed by. the circuit court in permitting evidence for appellee. (II Georgia, 615.)</p> <p>•2. The declaration of Young, the wounded man, was reduced to writing two hours before his death, although he then did not believe he would die. A short time before he died he asserted that all the declaration was true. It then became competent evidence. (Wharton’s Crim. Law, vol. 1, sec. 674; 12 Cox, C. C., 168; Young v. Commonwealth, 6 Bush, 317.)</p> <p>.3. There is no error in the instructions given. (Rutherford v. Commonwealth, 13 Bush, 608; Shanahan v. Same, 8 Ibid, 464; Wharton on Homicide, secs. 239, 226, 240, 255, 273; Bishop on Crim. Law, vol. 1, sec. 654; East, 314. 315, 319; Bl. Com., vol. 4, 200, 316; East, 302; Wharton on Crim. Law, vol. 2, secs. 1030, 1041; I Hale, 446; Russell on Crimes, 535; Mickey v. Commonwealth, 9 Bush, 573.)</p>

<p>Case 77 — EQUITY</p> <p>APPEAL FROM KENTON CHANCERY COURT.</p> <p>1. The act in question is unconstitutional. It is void for uncertainty. (Constitution of Iiy., sec. 37, art. 2; United States v. Palmer, 3 Wheat., 631; 5 Wallace, 107; 2 Cranch, 358; 1 Ohio, 480; 1 Ld. Ray., 775 Go.., 171; 5 Cal., 209; 6 Mod., 62; Dwarris, 502.)</p> <p>2. There has been no judicial determination of the fact that any nuisance existed.</p>

<p>Case 78 — EQUITY</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>The appellee, a bastard, cannot inherit through his mother from her' ancestors. (8 Dana, 121; I Blackstone, 378; 2 Bouv. Inst., 354;, Schoneir’s Dom. Rel., 379; 2 Kent’s Com., 229; 1 Coke, 116; 42 Conn., 491; Gen. Stat., 370; Berry v. Owen, 5 Bush, 452; 1 Met.,. 636; Scroggin v. Allen, 2 Dana, 363; Remmington v. Lewis, 8 B. Mon., 606.)</p> <p>The appellee, although a bastard, is the heir of his mother, and can. inherit from her ancestor. (Gen. Stat., chap. 31, secs. 18, 2, 5; Scroggin v. Allen, 2 Dana, 363; 8 B. Mon., 606; 42 Conn., 4911. Am. Rep., vol. 19, 353; 6 Vermont, 83 ; 5 Wheat., 207; 4 Ohio,. 354; 2 Disney, 158; Reeve on Descent, 96.)</p>

Case 79 — ORDINARY APPEAL FROM MONROE CIRCUIT COURT. 1. The answer fails to aver that the court rendering the judgment directed that he be arrested unless he paid it. (Crirn. Code, sec. 289.) 2. There is no authority for the arrest of appellant in Barren county upon a judgment in Monroe county. General Statutes, chapter 29, article I, section 25, provides for the only state of case in which it can be done. 1. No order of court to arrest the appellant was necessary. 2.

Case 80 — EQUITY— APPEAL FROM OWEN CIRCUIT COURT. 1. The proof shows that Suter’s transfer of his property was not in contemplation of insolvency, but to enable him to pay his debts. 2. Inasmuch as appellant’s purchase of and payment for the property was. in good faith, to the extent of his payment over and above his debt against Suter, he should have been adjudged to be a preferred cred-itor.

Case 81 — EQUITY— APPEAL FROM NICHOLAS CIRCUIT COURT. 1. Appellant is not a purchaser. The land was derived by descent from his father. 2. The statute as to purchasers has no application to him. (Gen. Stat., art. 13, sec. 9, chap. 38; 2 Wash, on Real Property, 401; Brame v. Craig, 12 Bush, 404.)

Case 82 — EQUITY— APPEAL FROM LOUISVILLE CHANCERY COURT. 1. Whatever annoyance appellant’s factory may have caused appellees, it must be a common and public nuisance, if nuisance at all, and appel- 4 lees are thereby subjected to no greater inconvenience than their ' neighbors. 2. Appellant and its predecessors have long been permitted to use the- ^ smoke-stack within the knowledge of appellees, without protest or complaint from any person. 3.

Case 83 — EQUITY— APPEAL FROM WOODFORD CIRCUIT COURT. I. Upon the death of Mrs. Henderson without children, the remainder-interest in the moiety of which she was life tenant passed to the children of Mrs Bohon. 2 Even if that moiety reverts to the heirs of Mrs. Evans, the children of Mrs. B. are entitled, as heirs of Mrs. E.. to one-fifth of it.

Case 84 — EQUITY— APPEAL FROM M’CRACKEN COURT OF COMMON PLEAS. 1. Neither the E. and P. R. R. Company nor the Commercial Bank relied upon the power of attorney, nor acted with any regard to it, and the bank had no right to regard it. 2. The bank should have clearly proven Johns' agency to draw money before they can be protected by it, and the nature and extent of it.

Case 85 — ORDINARY— APPEAL from mason circuit court. 1. After the jury was sworn it was too late to object for want of notice. (1 Bibb, 341; I Mon., 15.) 2. The claimant’s bond was valid, and authorized by section 645 of.the Civil Code. (Ibid, secs. 650 and 660; Williams v. Smith, 4 Bush, 540.) 'The 645th section of the Civil Code does not authorize the execution of the bond. There is no authority to be found for it.

Case 86 — EQUITY— APPEAL FROM LOUISVILLE CHANCERY COURT. The release of J. T. Mendel was obtained by fraud, and cannot protect the surety. (Bigelow on Estoppel, 473, 540; Howard v. Huston, 2 El. & B., 1; 28 Me., 520, 540; 38 111., 152; McAdams v. Hawes, 9 Bush, 23.) 1. The release of the appellant’s guardian, although it may have been obtained by fraud, released the appellee as his surely. 2.

<p>Case 87 — ORDINARY—</p> <p>APPEAL FROM PULASKI CIRCUIT COURT.</p> <p>The words charged are actionable. (Townsend on Slander, 246-7; 33 Vermont, 182; 12 Penn., 200; 7 Black, 506; 96 Mass., 354.)</p> <p>The demurrer was properly sustained. (Civil Code, sec. 90; Hilliard on Torts, vol. 1, 251 ; Townsend on Slander, secs. 171, 321.)</p>

<p>1. The bond of appellant Batchelor, as cashier, is, that he shall “faithfully and honestly discharge his duties as cashier aforesaid, and faithfully apply and account for all such moneys, funds, and valuables, and return the same, on proper demand, to the order of the board of directors of said bank, or to the person or persons authorized to receive them.</p> <p>■2. The appellants were entitled, upon their motion, to a trial by jury of the issues'made in the case.</p> <p>3. The want of diligence on the jDart of the directors constitutes no defense on the part of the cashier for a neglect of his duty; and if the loss has been caused by his negligence, he and his sureties are liable. The issues were purely legal, and the question of a want of diligence on the part of the cashier in the discharge of his duties was proper for a jury to determine, and the case should not have been transferred to equity.</p> <p>4. The right of the bank directory to appoint, control, and direct the labors of subordinates, subjecting their work to the supervision of the cashier, is necessarily implied. The position assigned a particular subordinate may afford facilities to plunder his principal and render it more difficult to detect the fraud, still it does not increase the diligence required of the cashier.</p> <p>•5. The cashier is not an insurer of the honesty and fidelity of those who hold subordinate positions in the bank; he is required only to exercise that degree of diligence in regard to the action of his subordinates consistent with the discharge of all his duties in connection with the bank that is reasonable and practicable.</p> <p>6. He is not required to examine by actual inspection every original entry made by those under him; but his care extends to a general supervision of the books and affairs of the bank; and having faithfully done this, he has discharged his duty as cashier.</p>

Case 89 — INDICTMENT— APPEAL FROM ROCKCASTLE CIRCUIT COURT. 1. The special judge who tried the case had no right to preside, because he is judge of another district. (Cooley on Const. Law, 181; Gen. Stat., 187, 862; 3 Met., 574; art. 4, sec. 2, Const. Ky.) 2. A continuance should have been granted. (Arch. Crim. Prac. and Plead., 568; 7 Bush, 121.) 3. The evidence of Dunlap, &c., was competent. (1 Met., 379; Kennedy v. Commonwealth, 14 Bush, 361.) 4.

Case 90 — ORDINARY— APPEAL FROM CLARK COURT OF COMMON PLEAS. 1. It is well settled that a sale of chattels must be accompanied by the possession, and the want of it is not presumptive but conclusive evidence of fraud as against creditors of, or purchasers from, the vendor. (Jarvis v. Davis, 14 B. Mon., 529; Enders v. Williams, I Met.) 2. The sale is void as to subsequent creditors. (Waller v. Cralle, 8 B. M., 12.) 3. Notice cannot affect such a creditor.

Case 91-ORDINARY — appeal prom hart circuit court. 'The execution of a bond of indemnity to the sheriff does not prevent a suit against him and his sureties upon his official bond. (Civil Code, 643, 211.) 'The demurrer was properly overruled. The bond of indemnity executed to the sheriff cuts off the appellants’ right of action against the appellees. (Civil Code, secs. 211, 643.)

•Case 92 — PETITION EQUITY — APPEAL FROM LAUREL CIRCUIT COURT. 1. The appellant Jackson was not a necessary party defendant, and the court erred in permitting appellee to make him a defendant. (Taylor v. Moran, 4 Met., 127.) 2. Amended petition not good, because it fails to allege that Jackson had been requested to reduce the height of the dam.

Case 93 — EQUITY'— 1. The petition on its face shows that the court had no jurisdiction of the case. (Civil Code, secs. ‘¡6, 422.) -.2. There was no notice of the application for an allowance. (Morehead & Brown's Stat., 127 ; Whitesell v. Whitesell, 8 B. Mon., 50 ; Cravens v. Cravens, 4 Bush, 435 ; 1 Duv., 196.) 1. The Garrard court of common pleas had no jurisdiction to make the order of allowance to appellee. (Gen. Stat., chap. 5Z) art- 3> sec-lb., sec. 4.) 2.

Case 94 — EQUITY— appeal from bourbon circuit court. The check in favor of Shaw was delivered by Taylor in contemplation' of insolvency. The proof shows that lie knew he could not pay his. debts, and that the check was drawn in payment of an antecedent, debt. The preference brings the case within the act of 1856.

Case 95 — EQUITY— APPEAL FROM CALDWELL CIRCUIT COURT. 1. The judgment is for too much. 2. The circuit court should have adjudged to Mrs. McLin one third of the money due from appellant. (Acts Gen. Assembly, 1867; Ky. Mas. Mut. Ins. Co. v. Miller, 13 Bush, 489; Same v. Kembrough MS. Op., 1878; Same v. Yates, MS. Op., 1879.) It is clear that the legislature never intended that the money due from the Kentucky Masonic Mutual Ins.

<p>1. Error not considered unless assigned in grounds for new trial.</p> <p>2. Authority to a warehouseman to sell whisky carries witli it the right to issue warehouse receipt, which passes the property to the purchaser, regardless of the surrender of the prior receipt.</p> <p>3. Section 7 of warehouse act of 1869, forbidding issuing of second receipt. without written consent of holder of prior receipt, &c., is in the interest of commerce, to protect the holder of the second receipt, and to prevent fraud, and will not allow the holder of first receipt to ignore his oral authority to sell. He is estopped to deny such authority.</p> <p>4. A writing evidencing the whole of an agreement between the parties,. which has been delivered, accepted, and business transacted under it, although not signed, has the same force and effect as if it had been, signed by the parties.</p> <p>5. Such a contract cannot be altered, added to, or varied any more than other written contracts that contain the entire agreement of the parties.</p> <p>6. It was error to permit appellee Stagg to state to the jury either his. understanding of what the writing meant, or that it did not contain all of the terms of the contract, there being no allegations of fraud or mistake.</p> <p>7. Evidence is admissible in order to identify the subject-matter of the. contract, but not to alter it or change its meaning.</p>

<p>Case 97 — ORDINARY—</p> <p>APPEAL FROM PULASKI CIRCUIT COURT.</p> <p>The court erred in refusing the instruction asked for by appellant. The trespass committed by cutting down his trees could not deprive him of his property, whatever may have been done with it by the trespasser. The good faith of the railroad company cannot protect them as purchasers.</p> <p>1. Although the timber was taken from appellant without his consent, yet it is shown that its value was greatly enhanced by the labor of the trespasser. In his hands we concede that a recovery could be had; but as between the appellant and the appellee, who are bona fide purchasers, the rule is different. (49 Miss., 236; 17 Am. Law Reg., 578.)</p> <p>2. The suit is to recover the identical property. The court’s instruction as to damages is error.</p>

Case 98 — PETITION ORDINARY — APPEAL FROM GALLATIN CIRCUIT COURT. 1. The failure of a duly elected sheriff to qualify as such renders him ineligible to be appointed to fill the-vacancy, and such order of appointment and any bond executed by him under it are null and void. (Basham v. Commonwealth, 13 Bush, 39; Hoglan v. Carpenter, 4, Bush, 91; Commonwealth for &c. v. Young, &c, 5 Dana, $64; McCormack v. Young, 3 J. J. Mar., 183; Cook v. Bank of ICy., 5 J. J. Mar., 184) 2.

Case 99 — EQUITY— APPEAL FROM CLAR1C CIRCUIT COURT. 1. The parties, by their own act, converted the debt of L. W. Gay as-guardian into his individual debt. 2. The first sale being void, the attaching creditors of the mortgagor are entitled to the proceeds of the rent note, although made payable to-the guardian for whose wards the property was purchased. 3.

Case ioo — INDICTMENT— APPEAL PROM FAYETTE CIRCUIT COURT. An indictment for setting up a faro bank should aver that money or some ■ other thing is or may be won or lost thereby.

<p>Case ioi — EQUITY—</p> <p>APPEAL FROM KENTON CHANCERY COURT.</p> <p>1. The assignment of errors is sufficient. (O’Reagan v. O’Sullivan, 14 Bush, 184.)</p> <p>2. One not a party to a deed takes no present interest.</p> <p>3. The intention of the grantor is the controlling element.</p> <p>The word “heirs” in the deed means children. (Harper v. Wilson, 2 Mar., 466.)</p> <p>1. The assignment of errors is insufficient. (Maxwell v. Dudley, 14 Bush, 303 ; O’Reagan v. O’Sullivan, 14 B.ush, 1S4.)</p> <p>2. Persons not in esse may sometimes take by way of remainder, but never in presentí.</p> <p>3. The intention of the grantor must control in the construction of a deed, and its natural and legal meaning given it. (Williamson v. Williamson, 18 B. M., 371; Carroll’s heirs v. Carroll’s heirs, 12 B. M., 641; 2 Black. Com., pp. 180, 208 ; Webb & Harris v. Holmes, 3 B. M., 404; Foster v. Shreve, 6 Bush, 520; Carr and wife v. Eslill, 16 B. M., 309; Cesna v. Cesna, 4 Bush, 516; Turner v. Patterson, 5 Dana, 296; Walters, &c., v. Crutcher, 15/B. M., 10; Filtman v. Butts, 8 Bush, 120; Spurren's heirs v. Parker, 16 B. M., 284.)</p>

<p>Case 102 — PETITION EQUITY —</p> <p>APPEAL FROM PULASKI COURT OF COMMON PLEAS.</p> <p>1. A lien cannot be retained for the benefit of a stranger to'a deed, especially so unless the stranger accepts its benefits before other rights attach, (io Bush, 426; 11 Bush, 39.)</p> <p>2. It is only where there is a statement of the unpaid purchase money that a lien between vendor and vendee can be retained against purchasers or creditors.</p> <p>i. A lien for the purchase money may be retained in a deed for the benefit and use of a third party, and this is so at common law. (Pack v. Carder, &c., 4 Bush, 121; Story’s Eq. Jurisprudence, secs. 1227, 1233;. Gen. Stat., sec. 24, chap. 23; Ibid, sec. 12, chap. 24; Summers, &c.,. v. Kilgus, &c., 14 Bush, 456.)</p>

<p>Case 103 — INDICTMENT—</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p>

<p>Case 104— PETITION ORDINARY —</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>I. The several bills of exchange accepted by appellant, and delivered to the bank after he had become indebted to it, were given in renewal of a prior indebtedness from him to the appellee. (Ilonore’s ex’rs v. Blakewell, &c., 6 B. M., 72; Muer v. Grow, 10 B. M., 282.)</p> <p>2. The various renewals executed by appellant contained usury, which was carried forward into the bill sued on, hence appellee should recover only the sum actually due at the time the renewals began, deducting all payments made and dividends received. (Smith v. Young, &c., ii Bush, 393.)</p> <p>3. The reservation of a lawful rate of interest after maturity on a usurious obligation works a forfeiture of the interest so reserved after maturity as well as before. (Wilday v. Morrison, 66 111., 53 j Discoll, &c., v. Tannock, 76 III., 154; Garr v. Louisville Banking Company, .11 Bush, 189-90; Herrell, &c., v. National Bank of Somerset, 12 Bush, 57; Evans v. Chappel, MS. Opin., April .3, 1877; 2 Parsons on'Contracts, 128.)</p> <p>1. Each bill accepted by appellant-was a distinct obligation, and operated as a payment of the prior bill, and any usury embraced in it cannot be regarded as carried forward into the new bill. (Letcher v. Bank of Commonwealth, 1 Dana, 83; Smith v. Young, 11 Bush, 393; 4 J. J. Mar.; 3 J. J. Mar., 681.)</p> <p>2. Interest at ten per cent, may be charged, and a reasonable rate of exchange in addition thereto, and the court cannot determine that the excess over ten per cent, charged on the various bills accepted by appellant is not wholly to be set down to the account of exchange, instead of to the account of interest. (Pelcher’s assignee v. The Banks, &c., 7 B. M., 348.)</p>

<p>Case 105 — -MOTION—</p>

Case 106 — APPEAL FROM LINCOLN COMMON PLEAS COURT. The third instruction given by the circuit court is error^g6 Excheq., ¿3_Jírook v.Took,; 33 Mo., 334; Cent. Law Jour., 1879.) Appellant ratified the act of Middleton by his promise to pay the note. (Greenleaf on Ev., vol. 2, 297; Bouv. Inst., vol. 2, 25; Forsyth v. Bonta, 5 Bush, 548.) ,__ 'The instructions given by the circuit court contain no error.

Case 107 — EQUITY— APPEAL PROM LOUISVILLE CHANCERY COURT. 1. Appellee has shown no just demands against appellant. 2. No authority sustains the remarkable proposition assumed by appellant, that the Kentucky and Ohio corporations are a partnership.

<p>'On the 1st day of January, 1873, S. L. Goar conveyed by deed to W. H. Cox all his interest in the partnership of Cox & Goar in the Southern Hope Nursery, at Anchorage, Jefferson county, Kentucky, for the consideration of $5,680, for which Cox executed to Goar his .three promissory notes for $1,893.33 each, and a lien was retained upon the property, and all property that maybe added thereto, to secure the payment of the purchase-money. The deed was not recorded. On the 14th of February, 1874, Cox executed a deed of assignment to Goar for the benefit of his creditors.</p> <p>1. Held — That the conveyance by Goar to Cox, although unrecorded and without notice, gave to Goar an equity superior to that of antecedent creditors of Cox who had notice of the equity before they acquired a legal right to the property assigned.</p> <p>2. The conveyance by Cox to Goar, as assignee for the benefit of his creditors, gave them an equitable right to claim their distributable share as creditors, under the conveyance; and that equity, not having been reduced to a legal right before notice of Goar’s equity, is subordinate to his claim.</p> <p>3. No attempt is made to set aside the conveyance from Cox to Goar for fraud. Such a conveyance is evidently good between the parties, and the lieu attached as soon as any stock was added; and, being good between the parties, it is good as to antecedent creditors, unless attacked for fraud.</p> <p>4. Where an action is brought to enforce a trust created by assignment, the complainant is held to take under the assignment, and will not be heard to say that the fund should be otherwise distributed.</p> <p>5. The action having been instituted by a general creditor, the costs must be paid out of the general estate, instead of that on which there are liens.</p>

Case 109 — PETITION ORDINARY — APPEAL FROM JEFFERSON COMMON PLEAS COURT. 1. The stenographer’s report is not before this court, and there is nothing here to show that it is not signed; but the judge attached it to the bill of exceptions, and thereby identified it. 2.

<p>A provision of the charter of the town of Richmond authorizing a tax of five per cent, upon all sales made by auctioneers, except such as are made by citizens of the town or county who are bond fide owners of the property sold, discriminates against citizens of other slates, and is unconstitutional. (Sec. 2, art. 4, Constitution U. S.)</p>

Case hi — PETITION ORDINARY — APPEAL FROM MONTGOMERY CIRCUIT COURT. Although an agent sign his principal’s name as surety for another without any written authority to do so, such signing may thereafter be verbally ratified so as to make it binding ttpon the principal.

Case 112 — PETITION EQUITY — APPEAL FROM GARRARD COURT OF COMMON PLEAS. 1. The payments made by J. W. Lusk should first be applied to the interest which accrued against him after Samuel Lusk’s death. Neither the debtor nor creditor having made any appropriation of the payment, it is the duty of the chancellor to do so. (Blanton v. Rice, 5 Mon., 253; Burke v. Albert, &c., 4 J. J. M., 99; McDaniel v. Barnes, 5 Bush, 185 ; Greenleaf on Evidence, secs. 530, 532, and 533.) 2.

<p>Case i 13 — PETITION ORDINARY —</p> <p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>I. A promissory note, negotiable and payable at a bank, and discounted by the bank, is placed upon the footing of a foreign bill of exchange, and the defense of want of consideration between the original parties, cannot be made to it. (General Statutes, chapter 22, sections 6 and 21;. Civil Code, section 19.)</p> <p>2. An adult woman can maintain an action for her seduction. (Wisconsin, Code, sec. 2555; Iowa Code, page 435 ; Rees v. Cupp, 59 Ind., 566; Overton’s Code of Practice, sec. 109; Thompson & Steger’s Statutes (Tenn.), sec. 2801, vol. 2; Code of Alabama (1852), sec. 2133.)</p> <p>3. Past cohabitation and seduction are good considerations to uphold a written agreement.. (Shenks v. Mongle, 13 S. & R., 29; Newman’s Practice and Pleading, page 329; McDonald v. Fleming, 12 B. Mon., 286; Clarke v. McFarland, 5 Dana, 45; Burgen v. Strauglin, 7 J. J. Mar., 583; Winebrinner v. Weisiger, 3 Mon., 32; The Marchioness of Annandale v. Harris, 2 P. W., 4^2; Priest v. Parrot, 2 Vesey, 160; Gray v. Matthias, 5 Vesey, Jr., 286; Tremer v. Vaughn, 2 Wilson 339; citing Exodus, chap. 22, verses 16 and 17', and Deuteronomy, chap. 22, verses 28 and 29; 2 Robinson’s Practice, pages 31 and 32.)</p> <p>1. The note sued on was executed by the maker for the benefit of the mother of his bastard child, and in part for the benefit of the child, and is therefore based upon a sufficient consideration. (Burgen v. Straughn, 7 J. J. Mar., 584 and 585.)</p> <p>2. A note made negotiable and payable in bank, and discounted by the bank is placed upon the footing of a foreign bill of exchange, and prior equities and defenses are thereby cut off. (Spencer v. Biggs, 2 Met. (ICy.), 123 ; Kelly & Co. v. Smith & Shotwell, I Met. (Ky.), 317; Early v. McCart, 2 Dana, 414; Arthur v. Hart, 17 Howard U. S. Rep., 11-16 ; Mehler, &c., v. Ferguson, MS. Op., January Term, 1879; 5 Bing. N. C., 577 ; Lawrence v. McCalment, 226; Sargent v. Larned, 2 Curtis C. C., 340; Breathitt v. Rogers, 32 Ark., 758.)</p> <p>1. A woman has no cause of action for her seduction. (1 Parsons on Contracts, page 435, 5th ed.; Woodward v. Anderson, 9 Bush, 624.)</p> <p>2. Forbearance to prosecute a suit showing no cause of action, or a claim having no foundation in law or equity,_is not a sufficient consideration to uphold a promissory note given therefor. (Chitty on Contracts; Parsons on Contracts, page 440, 5th ed., and cases there cited; Long v. Lowell, 42 Mo.. 545;^Palfrey v. Portland, &c., R. R. Co^ Cory v. Stucker, 31 Blackford, 161 ; Cabot v. Haskins, 3 Pick., 83; Jarvis v. Sutton, 3 Md., 289; Gould v. Armstrong, 2 Hall, 266; I,owe v. Wetherby, 4 Dev. & B.; Martin’s ex'rs v. Black’s ex’rs, 20 Ala.; Savings Bank v. Callard, 15 N. PI.; Wade.v. Simeon. 2 C. B., 548.)</p> <p>3. The negotiation of a note to a bank by a party taking it from the payee with notice of the maker’s equities and defenses does not deprive the maker of those equities and defenses as against such party to whose hands the note has been returned. (Story on Bills of Exchange, sec. 1S7; Spencer v. Biggs, 2Met'., 123; Tuggles v Adams, 3 A. K. Marsh; Schute v. Large, 6 Barb.; Early v. McCart, 2 Dana, 416; Tomlin’s Law Dictionary, p. 945; Smith’s Mercantile Law, p. 336; 1 Daniel on Negotionable Instruments, sec. 176.)</p>

Case i 14 — PETITION EQUITY — APPEAL FROM OLDHAM CIRCUIT COURT. 1. The husband was jointly liable with the obligors in the indemnifying bond. (Campbell v. Galbreath, 12 Bush, 459.) 2. The husband may be regarded as trustee for his wife, and this being a controversy in regard to the misuse of the trust property, he was a necessary party. (Jones’ assignee'v. Johnson, 10 Bush, 649.) .3.

Case 115 — APPEAL— APPEAL FROM WARREN COURT OF COMMON PLEAS. 1. No order of forfeiture appears in the record. 2. There is no verdict of a jury or judgment of the court, without which there can be no forfeiture. (Gen. Stat., p. 162; I Dana, 98.) 3. There was no motion made for a judgment on the bond, which was necessary. (3 Mon., 213.) 4. The court, by its acceptance of the defendant, at the instance of the sureties, discharged the sureties.

<p>Case 116 — ORDINARY—</p> <p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. The material question is, whether, on the consent in writing of Mrs. Snapp to the discharge of Hopkins in bankruptcy, his action on the faith thereof, the action of other of his creditors induced thereby, varied the position of appellant with regard to his original liability.</p> <p>Í. It is insisted that it was a departure from the contract and increased his risk, and as a result released him from his obligation as surety. (10 Hare, 633; 4 Mon., 443; lb., 492; 5 Maryland, 109; 9 Wheat, 680; 3 J. J. Mar., 528; sec. 3112, Rev. Stat. U. S.; 9th ed. Bump on Bankruptcy, 722; In, re Brent, 8 Bankrupt Reg., 444.)</p> <p>1. The question is, whether the mere assent of the creditor that the principal debtor shall receive his discharge, and the withdrawal of that assent before it is made effective by any action of the bankrupt court, will release the surety.</p> <p>2. The surety should not be discharged from the performance of his contract when he cannot show that it has been to the slightest extent modified by any agreement between the creditor and principal. (De Colyer on Guarantees, 401.)</p> <p>_3. A discharge of the bankrupt with the assent of appellee will not release the surety. (Sec. 5118, Rev. Stat. U. S.; 14 B. R., 477; 9th ed. Bump’s Bankrupt Law, secs. 3118, 5110, 3114; 7 Bing, 308; McGrath v. Gray, 9 Com. Pleas, 216.)</p>

<p>1. A mortgagee cannot enforce his lien against buildings which have been removed from the mortgaged land, and have become part of another freehold.</p> <p>2. Upon application of a mortgagee, a court of equity will restrain the mortgagor from committing waste where it appears that the mortgage security will be endangered unless the court interferes.</p>

Case i 18 — PETITION ORDINARY — APPEAL FROM TODD CIRCUIT COURT. 1. The verdict in this case is palpably and flagrantly against the evidence. .2. The assignment of the notes to appellee by W. D. Meriwether, sr., was not a gift inter vivos, because there was no delivery to the donee. (Duncan’s adm’r v. Duncan, $ Lit., 12; Brown v. Brown’s adm’r, 4 B. M., 538; Knott v. Hogan, 4 Met., 102.) 3.

Case 119 — MANDAMUS— APPEAL FROM FRANKLIN CIRCUIT COURT. 1. This is an action upon a liability created by statute, and is barred by limitation. 2. The statute provides that limitations prescribed by the chapter on that subject shall apply to actions brought by or in the name of the Commonwealth, and there is no good reason why actions against the state should not be barred likewise. 1.

<p>Case 120 — EQUITY—</p> <p>APPEAL 'FROM HANCOCK CIRCUIT COURT.</p> <p>1. It is alleged that the fraudulent services of Lightfoot was the consideration of the promised conveyance. It is also clear that these services, however fraudulent, were rendered to the Breckinridge Coal Company and to the Cloverport Coal and Oil Company, and not to the appellant, Bennett.</p> <p>2. The court erred in refusing to vacate the judgment upon the ground that it was entered by mistake of the clerk in vacation.</p> <p>3. The minute on the orders of the last day of the term did not authorize the clerk to enter the judgment in vacation.</p> <p>1. The motion to set aside the judgment was properly overruled. A motion to correct it might have been made with some propriety, but not a motion to set it aside altogether.</p> <p>2. Although, as between appellant and Lightfoot, the consideration for the land may have been fraudulent, yet as appellee had bought it in good faith, without notice of any fraud, and for a valuable consideration, the sale should be upheld in equity, and a conveyance made to him upon the payment of the purchase money.</p>

<p>1. The law of the case, as presented to the jury by the circuit court, was more favorable to the appellant than the facts warranted.</p> <p>2. The Criminal Code requires that the jury be kept together until a verdict is found, and if they find and report it on Sunday, and the court renders the judgment on the Monday following, both the verdict and judgment are valid.</p> <p>3. Although the orders fail to show that a plea of “not guilty” was entered, it is manifest from the entire record that an issue was made, and that the appellant had a fair and impartial trial.</p> <p>4. The presence of the accused when instructions are given or modified is essential to the ends of justice; but this court will not reverse in case he is not present! unless, considering the whole record, it is of the opinion that his substantial rights have been prejudiced thereby.</p>

CASE 122 — PETITION EQUITY — APPEAL FROM SIMPSON CIRCUIT COURT. 1. The proof tends to show the utmost good faith on the part of the guardian, and it is only where this is wanting that a ward can repudiate a settlement had with his former guardian. 2. The appellee, by his failure to return the bonds within a reasonable time after discovery of the alleged fraud, has forfeited his right to relief.

Case 123 — ORDINARY— APPEAL FROM HENDERSON COURT OF COMMON PLEAS. r. The paper does not contain any of the requisites of a notice. It must contain every averment to make a good petition. 2. Although the objection to the notice may not have been made in the inferior court, the appellant was not prevented from making it in the common pleas court. (Civil Code, sec. 653; lb., 726; Burbage v. Squires, 3 Met., 77.) 1.

<p>1. The presumption of law is, that a note in the hands of the maker of it, indorsed by the payee, has been paid; and one to whom the maker has discounted it cannot recover against the indorser without an allegation that it was indorsed for the maker’s accommodation.</p> <p>2. A verdict will uot cure the failure to make the averment.</p>

Case 125 — EQUITY— APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The appellants are not required to show a title beyond the reach of all possible question. Moral certainty is all that can be required. 2. Appellants and those under whom they claim have held the adverse possession of the lot of ground for fifty years. 3. The court below should have quieted the title of appellant as against the heirs of Ward.

Case 126 — PETITION ORDINARY — APPEAL’ FROM BOURBON CIRCUIT COURT. 1. In an action against a railroad company alleging the negligent killing or injuring of stock, before a presumption of negligence on the part of the company can arise, proof that the company or its agents caused the injury must be clear and unmistakable. 2. The proof offered by appellant was more than sufficient to rebut the statutory presumption of negligence. 3.

Case 127 — PETITION ORDINARY — APPEAL FROM CHRISTIAN CIRCUIT COURT. 1. Although the judgment relied upon as a defense to this action is to be-treated as a foreign judgment, it cannot be thus collaterally attacked, except for want of jurisdiction.

<p>Case 128 — EQUITY—</p> <p>APPEAL FROM GREENUP CIRCUIT COURT.</p> <p>1. The allegation that the improvements upon the land sued for as a homestead were made prior to the creation of the execution debt, is unnecessary. Inasmuch as the exception to the general provisions of the statute is contained in an entirely separate section, it is matter to be relied upon, and must be pleaded by the appellee. (Stevenson v. Marony, 29 Ills., 534; sec. 9, art. 13,‘chap. 38, Gen. Stat.; 1 Chitty’s Plead., 254; lb., 256; Commonwealth v. McClanahan, 2 Met., 10.)</p> <p>5. If appellant was occupying the land claimed as a homestead at the timeappellee attempted to subject it to the payment of his debt, it is sufficient. (ICenney v. Wh.eeler, MS. Opin., 1868.)</p> <p>1. Appellant did not reside upon the land when the debt was created, and was not a married man with a family. When the execution was levied he was married, but did not reside on the land. (Knight v. Whitman, 6 Bush, 54; ICibby v. Jones, 7 lb., 44.)</p> <p>2. It is not averred that the improvements were made on the land before the debt was created. Without this allegation the petition is insufficient'.</p>

<p>1. S. & S. being insolvent, made an assignment for the benefit of their creditors, conveying “ all that they have in satisfaction of their debts, and all debts due” to them. Held — That the assignment included a demand then pending by suit in the Jefferson common pleas court, against certain railroad companies, for damages to their foundry, and to an incorporeal hereditament appurtenant to it.</p> <p>2. Having the right to redeem the assigned estate, or to select one who might redeem, they selected appellant, who paid the amount agreed upon for redemption. He is entitled to recover the amount paid by the railroad companies to the assignee as a part of the estate assigned.</p> <p>3. Every conveyance is to be construed by a consideration of the entire. instrument, so as to arrive at the intention of the parties.</p>

Case 130 — INDICTMENT— APPEAL FROM LOGAN CIRCUIT COURT. .A party accused of a felony has a right to meet the witnesses face to face. It was error in the court to allow a witness to point out to the jury the place of the killing in the absence of the defendant. (Constitution of Kentucky, Bill of Rights, sec. 12; Criminal Code, secs. 183 and 236; 3 Wharton’s Criminal Law, sec. 3160; 1 Bishop’s Criminal Procedure, sec. 668; Louisiana Annual Reports, vol. 24, p. 46.)

Case 131 — PETITION EQUITY — APPEAL FROM HENDERSON COMMON PLEAS COURT. 1. A return of “no property” as to one of two defendants in an execution which has been replevied by the other, is a sufficient return upon which to institute an action. (Sec. 17, p. 684, Gen. Stat.) 2. The Henderson court of common pleas had jurisdiction to issue execution on a transcript from the quarterly court.