Volume 79 — Kentucky Reports

Case 1 — PETITION ORDINARY appeal prom warren court of common pleas. 1. The addition to the writing sued on was a “material alteration,” which released the sureties. The words added are a part of the obligation, although written on the margin. .(Daniel on Negotiable Instruments, secs. 149, 1373 and 1375; Woodworth v. Bank of America, 19 Johnson, 391; Lisle v. Rogers, 18 B. M., 538.) 2.

<p>1. The devise of the estate by the testator is to his executors, to make profit, increase, and income for the benefit thereof.</p> <p>2. Neither the whole nor any specific portion of the income is to be appropriated by the executors for the benefit of Charles Davidson, but only such sums, not exceeding the income of one fourth thereof, as they may deem most expedient.</p> <p>3. It is manifest that the testator did not intend to give to his son Charles any estate independent of the will of the executors; but it was given to the executors, who, in the exercise of their discretion, were to apply not exceeding the income thereof to Charles Davidson’s support.</p> <p>4. Inasmuch as the trust is not enforceable by the beneficiary, the estate cannot be subjected by his creditors.</p>

Case 3 — EQUITY APPEAL FROM JEFFERSON COMMON PLEAS COURT. 1. The writ of prohibition is an extraordinary judicial writ, issuing from a court of superior jurisdiction. (High on Ex. Rem., sec. 762; Fitzherbert’s Natura Brevium, 39.) 2. It is the remedy afforded by the common law against the encroachments of jurisdiction by inferior courts. (High on Ex.

Case 4 — INDICTMENT APPEAL FROM MARION CIRCUIT COURT. 1. There may be, and is, a reason for complaint upon the part of a negro-that his race is denied the right to form a part of the grand jury;, but a white man has none. He is denied no right, and the 14th amendment of the constitution of the United States gave no right to the white man that he had not before its adoption. In the case of Johnson v. The Commonwealth (Ky.

Case 5 — EQUITY APPEAL PROM SCOTT COURT OF COMMON PLEAS. 1. The court erred in ruling that, on appeal from the county court in a road case, it should be tried ele novo. 2. We maintain that the appeal was strictly an appeal from a lower to a higher court, and in no sense is it an original case in the common pleas court. No new evidence can be introduced upon the appeal.

Case 6 — EQUITY APPEAL FROM KENTON CHANCERY COURT. 1. The money sought to be recovered inured to the benefit of Mrs. Rob- ■ inson. She was separated, as to property, from her husband by the ■ judgment of a court. She had seven horses and a buffalo with the.circus. 2. According to the law of New York, whenever a feme coveH may be sued as a feme sole, they are sued in the same manner, and the same-proceedings are had as if they were not covert.

Case 7 — INDICTMENT APPEAL FROM DAVIESS CIRCUIT COURT. 1. The indictment charged appellant with setting up and keeping a faro-bank. 2. The punishment is clearly in the alternative. The jury found simply a verdict of guilty. 3. The court erred in fixing the punishment. (Subsec. 2, sec. 257, secs. 258, 259, Criminal Code.) 4. It was the province of the court to instruct the jury as to their duty, not to usurp their functions. (Bishop’s Criminal Law, vol. 1, secs. 838, 842.)

Case 8 — EQUITY appeal prom mercer circuit court. The appellants, who are infants, may appeal at any time during their minority. They can appeal within one year after they- attain their majority, and, therefore, may appeal at any time previous thereto. 1. Two years having elapsed since the rendition of the judgment, the right to appeal is barred. 2. It is true infants may appeal-within one year after they become of age, but that time has not arrived..

Case 9 — INDICTMENT APPEAL FE03I GRAVES CIRCUIT COURT. 1. The state of intoxication intended by the “Act to prevent intoxication of county officers in this Commonwealth,” approved April 9,, 1878, is drunkenness to such a degree as to incapacitate the officer from doing his official business. 2. County judges may be removed from office for malfeasance or misfeasance in office or willful neglect of official duty. (Constitution, art. 4, sec. 36; Cooley’s Const.

Case 10 — ORDINARY APPEAL PROM DAVIESS CIRCUIT COURT. 1. The instruction given was erroneous. It ignores the facts, and does not contain the law. 2. The direction to the jury to give double damages and double the value of the property, if it was wrongfully sold, was error. 3.

Case 11 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. I. That part of the judgment brought into question by the cross-appeal-is right. (Rowan’s heirs v. Portland, 8 B. Mon., 237; Wicldiffe v. Lexington, 11 lb., 163.) 2. Appellees are entitled to no compensation on account of the construction and operation of appellee’s road in the street. (Cosby v. 0. & R. R. R. Co., 10 Bush, 291; Angelí on Highways, 7.) 3.

Case 12 — EQUITY APPEAL FROM NELSON CIRCUIT COURT. 1. The court erred in admitting the testimony of Samuel Russell, executor of Henry Russell, as to matters occurring between appellant’s, testator and himself. 2. The Civil Code, subsec. 2, sec. 606, excludes such evidence. 3. It is upon this testimony alone that the circuit court released appellee’s testator from responsibility. 1.

Case 13—EQUITY APPEAL FROM SIIELBY CIRCUIT COURT. 1. The proof shows that Bright’s assets exceeded his liabilities'several thousand dollars. 2. Insolvency and a design to prefer creditors must concur before the trust for the benefit of all his creditors can result from the operation of the statute. (11 Bush, 353.) 3. Bright could not know, nor could he believe, with any reasonable certainty, that he would he called on to pay the debts he owed for others as surety. 1.

Case 14 — EQUITY APPEAL FROM BRECKINRIDGE CIRCUIT COURT. 1. The effect of the orders of the county court giving further time to the sheriff to pay the balance due from him to the county was to release the sureties. (Sneed’s ex’r v. White, 3 J. J. Mar., S25; Martin v. Taylor, 8 Bush, 384; Robinson v. Miller, 2 lb., 179; Offut v. 'Glass, 4 lb., 480; Itenningham v. Bedford, 1 B. Mon., 325.) 2.

Case 15 — EQUITY APPEAL FROJI FRANKLIN CIRCUIT COURT. 1. There can be no forfeiture in this case, for, although the obligation is for ten per centum interest, and is usurious, inasmuch as the 4th section of the usury law was repealed by the act of March, 1878, appellant is entitled to recover his debt, with eight per cent, interest. 1.

Case 16 — EQUITY APPEAL FROM FRANKLIN CIRCUIT COURT. 1. The eminent domain of the state consists of property and rights held1 for the people. The former she may part with, the latter she can. not. Vested rights have reasonable limits and restrictions, and must have some regard for the general welfare and public policy. 2.

<p>Case 17 — EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>No briefs on file.</p>

<p>1. Tho remedy is included in the obligation of contracts.</p> <p>2. The remedy cannot be so altered as to materially impair the obligation. If the impairment be material, it is forbidden by the constitution.</p> <p>3. The laws in force when the contract is made form a part of it.</p> <p>4. The act providing “ for the redemption of real estate sold under an order or judgment of a'Yourt,” approved April 9,1878, has no application to the demand of appellee, inasmuch as the obligation was executed, and appellee’s cause of action accrued several years prior to the passage of the act.</p>

Case 19 — ORDINARY APPEAL FROM MONTGOMERY CIRCUIT COURT. The statutory requisition for an affidavit and demand is not necessary. (Gen. Stat., 993; Bullitt’s Code, sec. 438; Fox v. Apperson, 6 Bush, 665.) 1. An affidavit and demand was necessary. (Stanton’s Rev. Stat., 509; lb., 331; Myers’ Code, sec. 521; Civil Code, secs. 471, 472.) 2. The action at law cannot be sustained.

Case 20 — ORDINARY APPEAL PROM TAYLOR CIRCUIT COURT. 1. The demurrer to each paragraph of the petition should have been sustained. 2. Appellant is only bound to exercise ordinary diligence. There is no averment of want of such care. (Sherman & Redfield on Negligence, secs. 18, 351, 6.) 3. The court erred in permitting evidence of injury to appellee’s child, and in allowing the physician, Dr. Bass, to put a pecuniary estimate upon the suffering of appellee.

Case 21 — ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. The term of appellee as prosecuting attorney of the Louisville city court does not begin until the first Monday in January, 1881. (Constitution, art. 4, sec. 41; new charter of Louisville, March 3,1870; Acts-1879-’S0, page 27; Gen. Stat., chap. 21, secs. 1, 23; Louisville City charter, sec. 41.) 1.

Case 22 — EQUITY APPEAL FROM FAYETTE COURT OF COMMON PLEAS. 1. The interest agreed to be paid after the maturity of the note forms no part of the price of the land. ' It is money to be paid for forbearance by the obligee or his assignee. 2. The appellant’s answer avers that appellee failed to verify his demand and present it for payment to appellant within a year after his appointment. 3. The court erred in sustaining the demurrer.

Case 23 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. The division of this court upon the former hearing operates as an affirmance as to all questions upon which the division existed.

Case 24 — EQUITY APPEAL PROM MERCER COURT OP COMMON PLEAS. 1. The court erred in dismissing appellant’s petition. 2. After arriving at fourteen years, the infant had the undoubted right to choose a guardian in Texas. The infant acquired no domicile in Texas by being taken there. She ■could not legally consent to the removal from Kentucky, and; as a -result, the court in Texas had no jurisdiction to appoint another •guardian, although he was chosen by her.

Case 25 — EQUITY APPEAL PROM ADAIR CIRCUIT COURT. 1. By the second clause of the will, the widow took the 115 acres of land for and during her lifetime, and not in fee. '2. The power given to the executors by the seventh clause of the will to sell decedent’s lands cannot have any reference to land devised to the widow, for that would deprive her of her estate in the land, if the executors determined to sell it. ■'3.

<p>T. A party who is making no issue hostile to the claim of a decedent’s executor, is a competent witness when offered by a co-obligor who makes a defense against the estate.</p> <p>:2. In a suit by an executor against a principal and surety, the principal makes no defense, and judgment is rendered against him. The surety relies upon usury, and offers the principal as a witness to establish his plea. He is a competent witness.</p>

Case 27 — EQUITY APPEAL FROM FAYETTE COURT OP COMMON PLEAS. 1.

Case 28 — EQUITY APPEAL PROM BOURBON COMMON PLEAS COURT. 1. Section 13, article 2, chapter 66, General Statutes, gives the landlord a superior lien on the tenant’s property, specified therein, against all persons whatsoever, whether they be creditors or purchasers.

Case 29 — EQUITY APPEAL FROM CUMBERLAND CIRCUIT COURT. 1. The judgment is neither warranted by the pleadings, proof, nor • prayer for relief. 2. The answers of Thos. S. Ellison and E. S. Ellison are not made counter-claims or cross-petitions against any party whatever. They ought, in this state of case, to recover nothing. (Civil Code, sec. 97, subsec. 1; Cain v. Ray, 8 Bush, 343; Anderson v-Ward, 6 Mon.,. 419; 14 Bush, 210; 1 Duv., 366; subsec. 4, sec. 97, Civil Code.) 3.

<p>1. After a return of “no property” upon an execution, the growing crop of the debtor may be subjected, by a proceeding in equity, to the payment of the debt before the first of October.</p> <p>2. Although a growing crop is not subject to execution until the first day of October, yet, under the 439th section of the Civil Code, a court of equity, upon the return of the execution, will subject the crop, with due regard to the rights of both creditor and debtor, before that time.</p>

Case 31 — ORDINARY APPEAL FROM HARRISON CIRCUIT COURT. 1. The decedent, as messenger of Adams Express Company off from duty, had no right to take his seat in the baggage car. His place-was in a passenger car. 2. He was guilty of contributory negligence by taking his seat in a more-dangerous place, if the train should be wrecked by a collision. 3. The court erred in instructing the jury. (Ky. Cen.

Case 32 — EQUITY APPEAL FROM BRACKEN CHANCERY COURT. 1. The facts do not show that Wiley contemplated insolvency. He was doing precisely what he contracted to do, and was not insolvent. : 2. The tobacco may be regarded as having been set apart for the particular purpose of the contract between appellants and Wiley, and as soon as appellants took possession of it their lien was complete, and superior to that of appellees.

<p>Case 33 — EQUITY</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>1. There is no substantial allegation in the pleading of appellee that' the assignment was made in contemplation of insolvency. The liability was incurred simultaneously with the mortgage. Hawkins was not, in fact, then unable to pay his debts.</p> <p>2. There was no intent to defraud creditors. The creditors of Hawkins had notice of the mortgage by the recitals of the deed of assignment. (Swigertv. Bank of Ky., 17 B. Mon., 268; Bennett v. Titherington, 6 Bush, 196; Underwood v. Ogden, 6 B. Mon., 607; Ward v. Orotty, 4th Met., 61; Gen. Stat., 259; 1 Story’s Eq. Ju., 387; Gen.. Stat., 714; Thompson.v. Heffner, 11 Bush, 360.)</p> <p>1. The mortgage from Hawkins to Farmer was not recorded withim thirty days after its execution. (Gen. Stat., 490.),</p> <p>2. The certificate is insufficient, and though the mortgage may have been recorded, it is not a legally recorded instrument. (Miller v. Henshaw, 4 Dana, 330; Franklin v. Beeker, 11 Bush, 595; Broad-well v. King, 3 B. Mon., 450; Dougherty v. Kircheval, 1 Mar., 52; 3 J. J. Mar., 13; Phillips, v. Clarke, 4 Met., 348.)</p> <p>3. The assignee accepted the conveyance to him for the benefit of Hawkins’ creditors without notice of appellant’s mortgage. (Hildoburn v. Brown, 17 B. Mon., 783.)</p> <p>4. Hawkins was actually insolvent when the mortgage was executed.</p>

Case 34 — ORDINARY APPEAL FROM KENTON CIRCUIT COURT. 1. The answer of appellee does not constitute a defense to the action,. and judgment should have been rendered for appellant because of ' its insufficiency. 2. The law only requires of a holder of a bill of exchange ordinary diligence; that is, that he shall avail himself of the usual channels . of communication in giving notice.

Case 35 — EQUITY APPEALS FROM LOUISVILLE CHANCERY COURT. 1. A lien cannot be created upon property to be acquired in futuro as against creditors. (Trustees of Caldwell Institute v. Young, 2 Duv. 582; Boss v. Wilson & Peters, 7 Bush, 32.) .2.

Case 36 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The petition does not contain a cause of action. In a direct proceeding against a citizen to coerce the collection of a demand by the-sale of his property, it is material to allege and prove eveiy essential step tending to establish the validity of the claim.

Case 37 — ORDINARY APPEAL EROM MARION CIRCUIT COURT. 1. The court erred in putting the burden of proof on the appellee. 2. It erred in letting in proof that did not point to general reputation. 3. The refusal of the court to permit proof that appellee had conveyed away and hid his estate since the suit, was erroneous. ■4. The instructions for appellee are error. 5. Appellee’s remark to the juror was ground for a new trial. 1.

Case 38 — EQUITY APPEAL FROM FLEMING CIRCUIT COURT. .1. There is no allegation of fraud or corruption against the arbitrators, and on this ground alone can the award be impeached. (53 Barb., 342; Parsons on Con., 215; 2 J. C. Eep., 551; lb., 339; lb., 101; 6 Pick., 148; 53 Barb., 342 ; 2 Story’s Eq., 1454 ; 37 Howard, 20; lb., 88; 44 Vermont, 523; 2 Duteher N. J. Eep., 130.) '2. A mistake of the arbitrators as to the law will not vitiate the award. (6 Vesey, 282; 2 Mad.

Case 39 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The executor is not entitled to the fund. The charter of the company provides who shall bo the beneficiaries of the fund upon the death of a member, and their rights cannot be affected by any action of the member, or the company, or both. (Ky. M. M. Life Ins. Go. v. Miller, 13 Bush, 489.) 2. An insurance policy is in the nature of a devise, and is governed somewhat by the same rules. 3.

Case 40 — EQUITY APPEAL FROM BULLITT CIRCUIT COURT. 1. The contract and mortgage created in the wife a separate estate im the fund. (Bryant’s adm’r v. Bryant, 3 Bush, 155; Campbell v. Gal-breath, 12 lb., 459.) 2. The husband became the trustee for appellants, who are the brothers. and sisters of Mrs. Shanklin. '3. The petition exhibits a complete cause of action. 1.

Case 41 — ORDINARY APPEAL from jessamine circuit court. Appellant, who is appointed executor of the decedent’s will, clearly has the right of appeal from the county court of Jessamine county, which rejected the paper. This right has frequently been asserted in this court.

Case 42 — EQUITY APPEAL FROM BARREN CIRCUIT COURT. •Section 491 of the Civil Code, in so far as it authorizes a sale of the interest of an adult remainderman at the instance of the life-tenant, is unconstitutional, as it operates to deprive a citizen of his property without his consent.

Case 43 — ORDINARY APPEAL FROM PULASKI CIRCUIT COURT. It was not necessary to aver that execution upon the judgment' against Hale, the guardian, had been returned “no property found,” to maintain the action. The allegation is that appellee, as county judge, accepted insufficient security on the bond. The petition contains a cause of action. (Stanton’s Rev. Stat., chap. 43, art. 1,. sec. 4; Daniels v. Vertrees, 6 Bush, 4; Coulter v. McIntyre, 11 lb.,. 565; ICy.

<p>A suit instituted for the purpose of haying conveyances set aside as voluntary and made to hinder and delay creditors, cannot he maintained without a judgment and return of nulla bona.</p>

<p>Case 45 — ORDINARY</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>Appellant's brief withdrawn.</p> <p>When appellant resigned his office of public administrator, he vacated' his position as administrator of Olsen, and the court properly dismissed the action. (Warfield v. Brand, 13 Bush, 88; Renfro v. Trent, 1 J. J. Mar., 604; Gray v. Grundy, 2 lb., 133; Davenport v. Irvine, 4 lb., 60; Gen. Stat., 454; Marshall v. Marshall, 4 Bush, 251;. Gen. Stat., 443.)</p>

Case 46 — EQUITY APPEAL FROM SHELBY CIRCUIT COURT. The husband was compelled to sell, and sold the land to pay purchase-money due thereon. Having sold in good faith for that purpose, the widow is not entitled to dower, although more land was sold than would pay the purdhase-money. The deed passed appellee’s dower. (13 B. M., 535; 1 M. & B. Stat., 448; 3 Bush, 360; 2 Rev. Stat., chap. 24, secs. 22, 23; 16., 1 vol., art. 4, sec. 6, chap. 47, p. 26.) 1.

Oase 47 — EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. The court below erred in adjudging the purchaser’s response insuffi- ■ cient. 2. An infant should have the privilege of redemption, inasmuch as he cannot control the sale of his land. 1. The act of 1878 does not apply to this case. The only object of that act is to protect a judgment debtor against the sacrifice of his land at execution sale. 2. The sale is not void, even if the act does apply to the case.

<p>Case 48 — EQUITY</p> <p>APPEAL from bourbon circuit court.</p> <p>’The devisor meant by the word survivors those who had not in the meantime died without issue, or who, having ,died, had left issue, as well as those who, with or without issue, actually survived. (Birney v. Richardson, 5 Dana, 429 ; 8 Yesey, 10; 14 lb., 578; Roper Leg., vol. 1,426; .Haskins v. Sale, 25 Penn.)</p> <p>In tlie limitation as to Plicebe, daughter of the devisor, there is nothing to confine the operation of the fact of her death without children to any period whatever. Only those who actually outlived her take the ■ estate after her death. (Birney v. Richardson, 5 Dana, 424; Jarman on Wills, 2d vol., 608; lb., 610; Best v. Conn, 10 Bush, 38.)</p>

<p>Case 49 — EQUITY</p> <p>APPEAL PROM CARROLL CIRCUIT COURT.</p> <p>I. The will does not prevent any of the devisees from subjecting the estate devised to the payment of any debt they may bind themselves to pay. (Petty V. Malier, 14 B. Mon., 247 ; 5 B. Mon., 327; 7 Bush, 461.)</p> <p>:2. It is against the policy of the law that property shall be given to a person, and that the devisee shall not be able to dispose of it.</p> <p>'The will makes the property the separate 'estate of Mrs. Brashears, and interdicts its conveyance, by mortgage or otherwise, to pay her husband’s debts. (Griffith v. Griffith, 5 B. Mon., 144; Hutchinson v. Jones, 1 Duv., 76; Shackleford v. Collier, 6 Bush, 157; 8 lb., 395; 18 B. Mon., 306; 3 Met., 244; 17 B. Mon., 59; 2 Bush, 115.)</p>

Case 50 — ORDINARY APPEAL PROM HENDERSON COURT OP COMMON PLEAS. .Although the bond originally executed may have been defective, it was the duty of the court below to give reasonable time to appellant for the execution of a new bond. (Sec. 682, Civil Code; Waters v. Patrick, 1 Bush, 224.) No brief for appellee.

Case 51 — EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. A clerk of a court can make a valid assignment of his fees to become due. .2. The reservations in the contract for the benefit of appellee and his creditors are not binding upon appellant, appellee being the debtor and repudiating the contract. (Combs v. Brashears, 6 J. J. Mar., 631; High on Receivers, sec. 22; Clark v. Tilley, 31 Ind., 121; Ciples v. Blain, Rice’s Eq.

Case 52 — ORDINARY APPEAL PROM OHIO CIRCUIT COURT. 1. A petition for a writ of mandamus is the only remedy. Au appeal! does not lie to the circuit court. .2. The discretion of the county court, evidenced by their allowance to the judge, is the amount to which he is entitled. 1. It is clear that any person presenting a claim for an allowance before a county court of claims for twenty dollars or more, has an appeal to the circuit court. (2 Bush, 110; 11 Bush, 239.) .2.

Case 53 — ORDINARY APPEAL PROM BUTLER COURT .©P COMMON PLEAS. 1. Appellants’ motion to compel appellees to elect which cause of action they would prosecute should have been granted. 2. The general demurrer should have been sustained. 3. Appellee should have given appellants notice of the filing of the amended petition. ■4. The liability of appellants, if -it existed, was joint. The judgment is against them as individuals. 1.

Case 5 ^ORDINARY APPEAL FROM MONTGOMERY CIRCUIT COURT. 1. If the purchaser allows the former owner of the land to redeem even in part, and after the lapse of a year charges him ten per cent., it is usury. (Williams v. Williams, 8 Bush, 241.) 2. This case is different from Smith v. Young (11 Bush, 393), but is similar to the case of Rudd v. Planters’ Bank of Kentucky (MS. Opin., May, 1879). 3.

Case 55 — EQUITY APPEAL PROM GRAVES CIRCUIT COURT. .1. Although the law implies a contract to pay interest upon a note after its maturity, the presumption may be rebutted by verbal testimony. (Butler v. Sudduth, 6 T. B. Mon., 542; Strader v. Lambeth, 7 16., 589.) • : 2. The proof of the agreement is ample. '1. It is not competent to prove by oral evidence that no interest was to be charged upon the notes in controversy. It contradicts the writing. 2.

Case 56 — EQUITY APPEAL PROM GRAVES CIRCUIT COURT. The real estate of appellee, Mrs. Othelda Harned, is liable, under the statute, to satisfy a note executed by her for a sewing-machine.

<p>1. In a suit against defendants upon a joint contract, one’ being ’resident; the other a non-resident, a several judgment may be rendered, against the resident served with process.</p> <p>2. Although the court below erred in adjudging the costs against the’ non-resident to be paid by the resident defendant, the error is too' insignificant to reverse upon it.</p>

Case 58 — MISDEMEANOR APPEAL EROM MADISON CIRCUIT COURT. The word merchant is comprehensive. One who engages solely in the traffic or sale of liquors is a merchant. If this he not the case, a party who is in good faith a merchant must obtain license to sell, while a party who is not a merchant may sell as much whisky as he chooses without license, provided it is not drunk on his premises, or adjacent thereto.

Case 59 — EQUITY APPEAL FROM GRAYSON CIRCUIT COURT. The mortgage contains no covenant to pay the demand, and is only a security for it. Clearly, appellees’ claim is only an account, and is barred in five years. No property that had been mortgaged was found. Burtlc’s claim, evidenced by the mortgage, stands upon the footing of a specialty.

<p>Case 60 — BAIL-BOND</p> <p>APPEAL PROM OHIO CRIMINAL COURT.</p> <p>1. The indictment should have been quashed. (Gen. Stat., 712, 896.)' It was error to render judgment on the bail-bond. It was discharged by the failure of the grand jury to indict accused at the first term of court after its execution.</p> <p>2. The bond was forfeited before trial, and judgment rendered thereon afterwards. In a misdemeanor accused can appear by counsel. (9 Dana, 304; 1 Duv., 26; 3 Tb., 84; 1 16., 244; 16., 235.)</p>

Case 61 — EQUITY APPEAL PROM DAVIESS CIRCUIT COURT. 1. An injunction can be granted only on some one of the grounds specified in the Civil Code, and therefore cannot he granted to restrain the collection of an illegal tax. 2. The proof fails to show clearly that the property has been listed in another county. 3. As the sheriff acted in an official capacity, no judgment for cost should have been rendered against him. 1.

Case 62 — EQUITY APPEAL PROM CALDWELL CIRCUIT COURT. 1. When the partner died, the partnership was dissolved, and the title-was vested in his heir. 2. In order that realty shall be regarded as partnership property for purposes of the partnership, it must be purchased with money of the partners; it must he purchased for partnership purposes, and it must be appropriated and used in the partnership business..

Case 63 — EQUITY APPEAL- FROM KENTON CIRCUIT COURT. 1. The railroad company had no power to make the compromise or dismiss the suit. A corporation possesses only those powers which its charter expressly confers or are incident to its existence. (Dartmouth College v. Woodward, 4 Wheat., 518; Beach v. Fulton Bank, 3 Wend., 583; Green’s Brice’s Ultra Yires, p. 29 and note.) 2.

<p>Case 64 — ORDINARY</p> <p>APPEALS FROM FRANKLIN CIRCUIT COURT.</p> <p>1. It is not in the power of the legislature to diminish the salary of the judge of the criminal court for the twelfth judicial district during the continuance of his term of office. (Constitution, art. 4, sec. 25; lb., art. 18, sec. 13.)</p> <p>.2. This court, in Adams v. The Auditor (13 B. Mon., 150), held that the legislature had no power to deduct from the salary of a circuit .judge; except under the thirteenth section, article eight, referred to, for neglect of official duty. (Nuttall v. Garrard, 2 Met., 106; Cochran v. The Auditor, 9 Bush, 8.)</p> <p>1. The act of April 3, 1880, is void, because it attempts, without any neglect of duty on his part, to diminish, during the time for which he was elected, the compensation of the vice chancellor, fixed by law, in contravention of sec. 25, art. 4, and sec. 13 of the constitution.</p> <p>2, Appellant’s compensation is fixed by sec. 776 of the Civil Code of Practice. (Auditor v. Adams, 13 B. Mon., 150; 2 Met., 106.)</p> <p>1. The compensation of the vice chancellor is fixed by section 776 of the Civil Code of Practice. The act of April 13, 1880, does not repeal the section referred to, nor in any way affect it. (Chiles v. Monroe, 4 Met., 75; Jones v. Thompson, 12 Bush, 394; Rushing v. Sebree, lb., 199.)</p> <p>2. The act of April 13, 1880, is unconstitutional, because it attempts to reduce the salary of the vice chancellor during the continuance of his term of office. (Auditor v. Cochran, 9 Bush, 9.)</p>

<p>1. There is a manifest distinction between permitting a receiver to-collect a judgment already rendered, and conferring upon him the. right to institute an action in which he has no interest, for the-purpose of recovering a judgment for the benefit of others. The parties in interest must sue.</p> <p>2. It is as necessary to state a cause of action as to sustain it by proof.. The absence of either prevents a recovery.</p> <p>3. The action against appellant is barred by the statute of limitations.</p>

Case 66 — EQUITY APPEAL FROM MERCER CIRCUIT COURT. The only objection to the judgment is, that the circuit court ordered the bonds to be refunded in bonds of the same state — North Carolina — a repudiating state. It is greatly to the interest of the infant that the bonds should be re-funded. The bonds now held are non-productive, while, if they are re-funded, all the infant’s debts can be paid, and she will have, in addition, a considerable income.

Case 67 — OBDINABY If any dedication has ever been made to the public of the ground claimed as a highway, there is nothing to show that it ever was accepted by the constituted representative of the public, the county court. Without that acceptance of record in some definite form, the alleged dedication amounts to nothing. (Elliott v. Treadway, 10 B. Mon., 27; Bowman v. Wickliffe, 15 lb., 98-; 8 Grattan, 636; Gedge v. Commonwealth, 9 Bush, 64.) 1.

<p>Case 68 — EQUITY</p> <p>APPEAL FROM ROBERTSON CIRCUIT COURT.</p> <p>1. The purchase-money due for the land must be paid before a homestead can be allotted. (Sec. 9, art. 13, chap. 38, Gen. Stat.)</p> <p>2. The sixteenth section provides that the homestead exemption shall not apply to sales under execution, attachment, or judgment at the suit of creditors, if the debt or liability existed prior to the purchase of the land.</p> <p>The taking of personal security creates a novation, and the lien upon the land for purchase-money is waived, if it ever existed. The notes are not in fact for purchase-money.</p>

Case 69 — EQUITY APPEAL PROM TODD CIRCUIT COURT. Mrs. Allensworth became entitled to her land by her husband’s will. She has an independent title in fee, and has the same right to a homestead in the land as if she had bought it after her husband’s death. (Gen. Stat., 433-5; Lear v. Totten, 14 Bush, 104; Booth v. Collins, 11 lb., 622; 12 16., 404.) No brief for appellee.

Case 70 — EQUITY APPEALS FROM LOUISVILLE CHANCERY COURT. 1. The money was voluntarily paid. 2. Appellees had full knowledge of the situation of their land, and having voluntarily paid the taxes, they cannot recover them back. •3. The payments were made without protest or objection. More than five years have elapsed after appellees, by ordinary diligence, ought to have discovered the alleged mistake. •4.

Case 71 — EQUITY APPEAL FROM LINCOLN CIRCUIT COURT. 1. Appellant was not, as to appellee Hayden, a pendente lite purchaser,. as Hayden had not filed his cross-petition at the time her mortgage • was executed. (Secs. 96 and 97, Civil Code.) 2.

<p>1. There being no such devise of the interest given to his sons by the devisor as amounts to a charge upon the estate to pay appellant’s debt, he has no lien upon the lands conveyed by the devisees- to bona fide purchasers and mortgagees.</p> <p>2. The executor had no authority, express or iinplied, to bind the devisees by his acknowledgment of appellant’s demand in writing, so as to subject the devisees to its payment.</p> <p>3. Appellant’s demand is barred by the statute-of limitations.</p>

<p>Case 73 — INDICTMENT</p> <p>APPEAL EROM PAYETTE CIRCUIT COURT.</p> <p>1. If the appellant is punishable at all, it is under section 10, chapter 47, General Statutes. (West v. Commonwealth, 3 J. J. Mar., 641; sec. 3, chap. 29, Gen. Stat.; 15 Pick., 231; 6 Serg. & Rawle, 5; 3 16., 273; 1 Rawle; 289; 5 lb., 64.)</p> <p>:2. The instruction given is error. (Smith v. Commonwealth, 6 B. Mon., 22.)</p> <p>1. Pool-selling is no more nor less than permitting or inducing a bet on a horse-race. The pool-seller is simply a stake-holder.</p> <p>2. Although not indictable under the statute for suffering gaming in his house, appellant is punishable for keeping a disorderly house at common law. (6 B. Mon., 23; Gen. Stat., chap. 47, sec. 11; Brown v. Watson, 6 B. Mon., 588.)</p>

Case 74 — EQUITY APPEAL FROM MASON CIRCUIT COURT. The contract made between appellee and Hines and wife extinguished the note as though it had been surrendered to them and destroyed. 1. Doyle retained a lien upon the land to secure the payment of the- ■ note. (Gen. Stat., 589.) 2. The talk about some new arrangement by which Doyle was to surrender to Hines and wife the note never was consummated.

Case 75 — INDICTMENT APPEAL PROM CUMBERLAND CIRCUIT COURT. 1. The statute prohibiting persons of color from serving on grand and petit juries is in conflict with the constitution of the United States, and indictments found under that statute are void. '2. The police judge before whom the writ of habeas corpus was returned had jurisdiction to hear appellant’s complaint under the writ, and his action was final. (Civil Code, secs. 399, 400, 401, 409, 420, 422, and 423.) .1.

<p>Case 76 — ORDINARY</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>1. An “assault and battery,” within the meaning of chapter 10, section 1, General Statutes, is an intentional injury.</p> <p>2. Under this statute, actions seeking compensation for actual injury done the person or the estate of the plaintiff, do not die with the person.</p> <p>1. This is an action for assault and battery, although the shooting is charged to have been unintentional, and the action died with the person who did the injury. (Gen. Stat., chap. 10, sec. 1.)</p> <p>:2. For an injury which is immediate and not consequential, trespass is the proper remedy and not case, without regard to the motive of the wrong-doer. (1 Chitty on Pleadings, pp. 77, lpl, 102, 151, 190, 191, 193; 2 Addison on Torts, sec. 788.)</p> <p>The petition sets up no other cause of action than an assault and battery, which dies with the person. (Gen. Stat., p. 179; 3 Blackstone, 121; Bouvier’s Law Dictionary, “ Assault.”)</p>

<p>Case 77 — ORDINARY</p> <p>APPEAL PROM LEWIS CIRCUIT COURT.</p> <p>The court erred in refusing to permit appellants to read to the jury the-deed from Keitli to Harlan. It is more than eighty years old. (Harlan v. Seaton, 3 B. Mon., 312; Greenleaf on Ev., vol. 1, secs. 21, 46, 141, 144, 570; Hedges v. Ward, ^15 B. Mon., 115; Bennett v. Runyan, 4 Dana, 423; 2 Bibb, 421; Bowling v. Ewing, 9 Dana, 77;. Thurston v. Watson, lb., 233; 6 B. Mon., 532; Burgen v. Chenault, 9 B. Mon., 7; Blight v. Atwell, 7 B. Mon., 267; Sharp v. Wickliffe, 3'. Litt., 12; -5 Dana, 241; 6 Dana, 109; 2 B. Mon., 434; 4 J6., 20.)</p> <p>1. The bill of exceptions does not state that it contains all the evidence.'.</p> <p>2. Possession of land in one county cannot be construed to give possession in another. (Herd v. Walker, 5 Litt., 22; Sowder v. McMillan, 4 Dana, 456; Roberts v. Long, 12 B. Mon., 195.)</p> <p>3. There was no legal proof of the execution of the deed from Keith to. Harlan, and it was property excluded. (Howland v. Hardin, MS. Opin., 1876; 1 Greenleaf on Ev., 141; Cook v. Totten, 6 Dana, 109;, Winston v. Gwathmey, 8 B. Mon., 21.)</p>

Case 78 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The fourth clause of the testator’s will contains two requests of the nominated executor: 1. That he should take charge of, raise, and educate Lillie Barrett in his family. 2. That he should, out of the-funds in his hands, expend for her or settle upon her ten thousand dollars.

Case 79 — ORDINARY APPEAL PROM CAMPBELL CIRCUIT COURT. As the property attached was not more than sufficient to satisfy the prior liens upon it, appellee was not damaged by the failure of appellants to produce the property. (Civil Code, secs. 214, 216, 221, and 222; Bell v. Western River Improvement and Wrecking Co., 3; Met., 558.) 1. As the answer of appellants was fatally defective, the court properly-refused to set aside the judgment to permit it to be filed. 2.

Case 80 — EQUITY APPEAL PROM CALDWELL CIRCUIT COURT. Exceptions to depositions should be in writing, and filed before the beginning of the trial. As the written exceptions in this case were not filed until after the trial began, they should not have been considered.

<p>Case 81 — EQUITY</p> <p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>The lands of the wife having been sold under an agreement with her-husband that its proceeds should be invested in a larger and more valuable tract, and the deed be made to her, and the money having-been so invested, and the husband having, without her knowledge- or consent, taken a deed to himself, a trust thereby resulted to her;, and the husband having thereafter invested her with the title, in order to carry out the former agreement, the same should be upheld - against the husband’s creditors. (Sec. 19, p. 587, General Statutes; Mallory v. Mallory’s adm’r, 5 Bush, 464; Miller and wife v. Edwards, &c., 7 Bush, 396; Pribble v. Hall, 13 Bush, 61; Latimer v. Glenn, &c., 2 Bush, 544; Story’s Eq., vol. 2, sec. 1377a.)</p> <p>1. The attempted voluntary conveyance by Samuel L. Campbell through his brother to his wife is void as to the debts created before the execution of the deeds. (Hurdt v. Courtney, 4 Metcalfe, 143; 5 J. J. Mar., 551; 3 Dana, 513.)</p> <p>2. Not having been recorded in the proper clerk’s office in the time required, the deed cannot be used against L. D. Campbell’s creditors without proof of its execution. (2 Litt., 237; 4 lb., 272; 4 Paige, 65; lb., 74; 6J6., 366; 8J6., 161; Whitesides v. Dorris, 7 Dana, 101; 8 B. Mon., 529; Latimer v. Glenn, 2 Bush, 543; 4 Bush, 37; 3 Md., 1; 1 Met., 34.)</p> <p>1. The money which paid for the land was, according to law, the property of Samuel L. Campbell by virtue of his marriage with appellant.</p> <p>2. The deeds from the husband to his brother, and from him to appellant, were voluntary, fraudulent, and void.</p> <p>3. The deed from Campbell to Bronston, trustee, for his creditors, was recorded eighteen days before the deed from S. L. Campbell to his brother was recorded.</p>

Cash 82 — ORDINARY APPEAL PROM BALLARD CIRCUIT COURT. 1. By the plain terms of the statute there must be authority in writing to , authorize one to bind another as surety. (General Statutes, chapter 22, section 20.) 2. Although appellant was present when his name was signed by an attorney, yet the statute was not complied with. 3. There is no exception made by the statute in favor of the commonwealth. 1. The statute referred to applies exclusively to civil contracts.

Case 83 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. We insist that appellee cannot forfeit |600 by reason of the failure to demand a paid-up policy within thirty days after the note for $107 was due. It cannot enforce a forfeiture for failing to pay the note and still retain it as its property. 2. The demand for a paid-up policy was made in a reasonable time. (Montgomery v. Phoenix Mut. Ins. Co., 10 Bush, 64; 9 Dana, 151.) ■3.

<p>1. The mere possession of a promissory note is not prima facie evidence of ownership as against the payee or his personal representative. The burden of proof is on the claimant to show that his possession is rightful.</p> <p>:2. That the party in possession of the note said at the time she assigned it that she had acquired it as a gift from the payee was not compe-. tent to establish the gift, nor as a part of the res gestae.</p>

Case 85 — INDICTMENT APPEAL FROM LAUREL CIRCUIT COURT. 1. The taking and detaining-contemplated by the statute is the abduction or detaining where the wrong-doer actually takes or detains a woman against her will, having her completely under his control, with intent to have carnal knowledge of her. .2. The instructions given against the objections are not the law. (Crim. Code, secs. 225 and 340.) 1.

Case 86 — PETITION EQUITY APPEAL PROM LOUISVILLE CITANCERY COURT. 1. Appellants, by their contract with the railroad company, acquired art interest in the fund subscribed by the city of Louisville, and it was the duty of the president and directors of the company to apply the proceeds of that fund to the payment of appellants’ debt, and for the fraudulent and willful violation of that duty they are liable to appellants.

Case 87 — INDICTMENT APPEAL PROM FLOYD CIRCUIT COURT. 1. The court erred in refusing a continuance. Appellant was confined in jail, and did his utmost to obtain his witnesses. The time given was insufficient. Officers refused to execute the subpoenas, and at the end of the time given he was in no better condition to try. 2. Error was committed in excluding competent testimony. 3. The court erred in its instructions. 1. Appellant had a fair and favorable trial.

Case 88 — EQUITY APPEAL PROM KENTON CHANCERY COURT. 1. The remedy of appellee was not an injunction, but replevin. (Nesmith v. Bowler, 3 Bibb; 4 lb., 236; 5 Litt., 136; Watkins v. Logan, 3 Mon., 20; Bouldon v. Alexander, 7 lb., 423.) :2. Section 291, Civil Code, distinctly provides, that upon motions to dissolve an injunction upon notice, the court shall not be bounddo take the answer as true. 3. The court erred in overruling appellants’ demurrer to the petition.

Case 89 — INDICTMENT APPEAL FROM OHIO CIRCUIT COURT. 1. The court erred in overruling appellant’s demurrer to the indictment. 2. And erred in instructions to the jury. No brief.

Case 90 — ORDINARY APPEAL PROM KENTON CIRCUIT COURT. 1. The fact as to negligence is for the jury to decide. A scintilla of evidence is not sufficient to give a case to the jury. (47 Md., 76; 91 E. O. L. R. R., 146 ; lb., 72; 5 Am. Rep., 251.) 2. Only ordinary care and diligence is required of a railroad company toward others than those in its charge. (47 Md., 76; 1 Exchequer, 13; Law R. O. P., 631; P. & M. R. R. Co. v. Iioel, 12 Bush, 41.) 3.

Case 91 — INDICTMENT APPEAL FROM CALLOWAY CIRCUIT COURT. 1. The indictment is sufficient. :2. The statement of the indictment as to the time at which the offense was committed is not material further than as a statement that it was committed before the time of finding the indictment, unless the time be a material ingredient in the offense. (Crim. Code, see. 129; lb., 136, 137; Wharton’s Am. Crim.

<p>■Case 92 — EQUITY</p> <p>APPEAL PROM HICKMAN COURT OP COMMON PLEAS.</p> <p>1. Story, in his Conflict of Laws, section 534, says that it is better that-we serve and protect the rights of our own citizens than the rights, of others.</p> <p>2. We insist the foreign creditors must literally comply with the statute, or else they cannot be admitted to prove their demands. (Sec. 8,. art. 2, chap. 39, Gen. Stat.)</p> <p>1. Hie court committed no error in exercising its discretion in permitting-the claims of foreign creditors to be filed and allowed. (Sec. 8, art.. 2, chap. 39, Gen. Stat.)</p> <p>2. The reason and spirit of the provision are to fairly settle the estates-of non-residents who die seized of property in this state, and pay it. equally to all the creditors, regardless of where they may reside.</p>

<p>Case 93 — ORDINARY</p> <p>appeal prom franklin, circuit court.</p> <p>'The meaning of the resolution of 1840 is, that the Public Printer should furnish, in a separate volume, such reports made to both houses of the general assembly as he had originally published. It is not true that the Public Printer printed one thousand copies of the report authorized by the act of March 10, 1870, to establish an Insurance Bureau. It is intended that the Bureau shall sustain itself. (Act March 12, 1878.)</p> <p>The Insurance Commissioner is a subordinate of the Auditor, and reports to him. The Auditor reports to the general assembly. The result is that the Public Printer was bound by the statute to print and publish the report. (Sec. 14 of the act to establish an Insurance Bureau, Sess. Acts, 1869-70, page 80; Sess. Acts, 1839-40, page-278.)</p>

Case 94 — INDICTMENT APPEAX, EROM BRECKINRIDGE CIRCUIT COURT. ,1. The court should have given the whole law applicable to the case. (7 Bush, 327.) :2. The third instruction is an abstract proposition. :3. In the fifth instruction the court say that the right of self-defense did not exist, unless to avoid great bodily harm, which would endanger appellant’s life. This is error. (Bishop on Crim. Law, vol. 2, 630; Bl. Com., vol. 2, 191; 13 Bush, 718.) -4.

Case 95 — EQUITY APPEAL FROM LEE CIRCUIT COURT. Appellee’s pleadings show title in the testator at the time of his death, and failed to show title either in his executor, or devisees, or heirs at law. It was error to render judgment for the sale of the land. (3 Bush, 187.) 1. No error was committed by the court to the prejudice of appellant. 2. The court ordered appellee to make decedent’s devisees parties against his protest.

Case 96 — ORDINARY APPEAL FROM LINCOLN COURT OF COMMON PLEAS. 1. The court erred in sustaining the demurrer to the original and amended petitions. 2. The appellant has a clear right of action under the 641st and 643d sections of the Civil Code. (Green v. Hacldey, 3 Met., 389; Rudy-v. Johnston, 11 Bush, 546; Anthony v. Wáde, 110.) By section 643, Civil Code, the officer escapes responsibility from the' claimant hy taking of the bond with good security and returning it.

Case 97 — EQUITY APPEAL FROM BOYD CIRCUIT COURT. 1. The cause of action for a deficit in the land was not assigned toappellee, nor could it have been assigned so as to enable appelleeto sue without joining the assignors. 2. If appellee ever had any right of action, it is barred by limitation. (Gen. Stat., chap. 71, art. 3, sec. 2.) 3.

Case 98 — ORDINARY APPEAL PROM UNlok CIRCUIT COURT. 'To make out an estoppel in pais it must be shown — 1. That the party sought to be estopped has made an admission or done an act with the intention of influencing the conduct of another. 2. That the other party has acted upon, or been influenced by, such act or declaration. 3. That the party will be prejudiced by allowing the truth of the admission tobe disproved.

Case 99 — ORDINARY APPEAL FROM NELSON CIRCUIT COURT. 1. The petition is insufficient. Appellee failed to allege the consideration paid for the assignment. 2. The statute is conclusive of this question. (Gen. Stat., chap. 22, sec. 7; Civil Code, sec. 134; 7 Bush, 379; 2 J. J. Mar., 140; 10 Johnson, 104; 1 Met., 643; 2 Bibb, 424; 16 B. Mon., 343; 1 Duv., 301; 1 Bibb, 595; 1 Mar., 544 ; 2 J. J. Mar., 190; 3 16., 260; 6 B. Mon., 530; 1& J6., 344; 4 Met., 300.) 1.

Case 100 — EQUITY APPEAL PROM WASHINGTON COURT OF COMMON PLEAS. 1. The statute recognizes the conveyance of the wife’s land in connection with the husband, but denies the power to make a will by her. 2. The power of the owner to dispose of property after death is not by natural laws, but by positive institutions of society.

Case 101 — INDICTMENT APPEAL FROM GRAYSON CIRCUIT COURT. 1. The indictment is insufficient. (Young's case, 14 Bush, 161.) -2. The indictment charged but one selling. The c-ourt permitted proof of two. 3. The liquor sold was not the property of appellant. 1. It is not necessary that the indictment should allege that appellant had no license. Under the “local option” law no license could be obtained. '2.

Case 102 — INDICTMENT APPEAL FROM GRANT CIRCUIT COURT. Section 24, page 414, General Statutes, provides that “ neither husband nor wife shall be competent to testify for or against each other.” The statute applies alike to criminal as well as to civil cases. The alleged error of the court is not made one of the grounds for a new trial, and therefore this court will not consider it.

Case 103 — EQUITY APPEAL FROM MADISON CIRCUIT COURT. 1. The word “ may ” used in the statute, is not infrequently equivalent to “shall.” Sometimes it is permissive, sometimes directory. “It means shall when the public or individuals have a claim de jure that the power shall be exercised.” (5 Johnson’s Ch’y, 113; 5 Conn., 188; 22 Barb., 104; Story’s Conflict of Laws, 17.) 2. When appellant made out her case, the court had no discretion, and should have granted the power.

CASfe 104 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. ‘The statute declares a bar of fifteen years. Appellee’s cause of action accrued upon the death of her first husband, who conveyed the lots. (Gossom v. Donaldson, 18 B. Mon., 241; Gen. Stat., chap. 71, sec. 9, art. 3; 5 J. L M., 15.) This suit was commenced twenty-one years after the appellee’s cause-, of action accrued. It is barred by the statute of fifteen years. A right to dower is a claim to a freehold in land.

Case 105 — EQUITY APPEAL PROM MONTGOMERY CIRCUIT COURT. 1. The paper in controversy does not dispose of any property, and is therefore not a will. (Redfield on Wills, vol. 1, pp. 4 and 5; Jarman on Wills, vol. 1, p. 1; Bouvier’s Law Dictionary, “Wills;” 4 Kent, 501; Byers v. Byers, 6 Dana, 313.) '■2. A testator cannot disinherit his heir, unless he devises his estate to some one else. (Boisseau, &c., v. Aldridges, 5 Leigh (Ya.) Reports, 222.) 3.

Case 106 — ORDINARY appeal prom bourbon circuit court. ' 1. Subsection 3 of section 203 of the Civil Code does not require a notice-to the garnishee specifying the debt or demand sought to be garnisheed. 2. An order of attachment can be served only by the officer to whom: it is directed, and not by any officer to whom it might have been-, directed. (Civil Code, sec. 40; suhsec. 1, sec. 47; sec. 199; subsecs.. 1 and 2 of sec. 867; Boaz v. Nail, 2 Met., 246-7.) 1.

Case 107 — EQUITY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. The court erred in sustaining the demurrer to appellant’s petition. 2. The appellant is entitled to recover rents from the 22d of December, 1867, to the time of his intestate’s death. 3. If not that, she is entitled to recover rents from October, 1872, to the. death of the intestate. 1. The right to an action for rent does not exist, unless there is a final recovery of dower.

Case 108 — EQUITY APPEAL PROM SHELBY CIRCUIT COURT. 1. Marriage is a good consideration for the antenuptial contract in this case, and the settlement by the husband upon the wife being in good faith, ought to be sustained. X The pleading of appellees cannot be construed as charging fraud against the wife.

Case 109 — ORDINARY APPEAL FROM FLOYD CIRCUIT COURT. 1. The court erred in overruling the demurrer to the petition. 2. If this bond makes appellant personally responsible, no fiduciary can prosecute an appeal with supersedeas without making himself bound personally for the entire matter in controversy, with damages and costs. 3. But such have not been the rulings of this court.

Case 110 — EQUITY APPEAL PROM WASHINGTON CIRCUIT COURT. 1.- Appellee lost her right to a homestead by abandoning the premises before it was allotted to her. 2. She resided in a house of her own after her husband’s death. The law does not give the widow her homestead. This home of her own should at least be estimated in allotting the homestead.

Case 111 — ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. The court erred in. refusing to instruct the jury as asked by appellant in instructions 1, 2, 3, and 4. 2. It erred in giving instructions 1, 2, and 3. ■ ,l 3. The promise of appiellant to pay a debt to appellees, in existence when the former had filed his petition in bankruptcy, and before his discharge, is void. (Ogden v. Redd, 13 Bush, 582-.) 1.

<p>1. After the father of a bastard child has claimed the benefit of the insolvent debtor’s oath, and an execution has been issued against him from the county court, and returned nulla bona, the circuit court has jurisdiction to enforce the collection of the judgment.</p> <p>2. The remedy for enforcing the judgment of the county court is not found alone in the statute in regard to bastardy. The chancellor has the power beyond the statute to compel the payment of the judgment.</p>

<p>1. The commonwealth cannot be sued in lier own courts without special legislative authority, and parties will not be allowed to evade this rule by ignoring the commonwealth in their suits, and proceeding directly against the public officer having the custody of the fund sought to be reached.</p> <p>'2. The act of the general assembly, requiring of the Piedmont and Arlington Insurance Company a deposit of $10,000 for the benefit of its policy-holders in this state, failing to make any provision for the disposal of the fund, the State Treasurer cannot dispose of it or be compelled to do so by order of any court until there be further legislative authority.</p>

Case 114 — EQUITY APPEAL PROM KNOX CIRCUIT COURT. 1. The guardian has the right under the statute to use such part of the principal of the funds of his ward as is necessary for her comfort and maintenance. 2. He ought not to have been charged with interest upon interest. (Bev. Stat., vol. 1, 578; 1 M. & B. Stat., 785 ; 4 B. Mon., 320;. Hughes v. Smith, 2 Dana, 251; Gen. Stat., 506.) It is the duty of the guardian to raise the ward upon the interest of the fund in his hands.

Case 115 — EQUITY APPEAL PROM BATH CIRCUIT COURT. 'The existence of the vendor’s lien did not affect the widow’s right to one third of the rents and profits of her deceased husband’s real estate prior to the assignment of dower. (Gen. Stat., sec. 8, art. 5, chap. 52.) The widow is entitled to one third of the rents and profits of only so much of the land as remains after satisfying the vendor’s lien. (4 Bush, 147.)

<p>Case 116 — ORDINARY</p> <p>APPEALS FROM HARRISON CIRCUIT COURT.</p> <p>1. Where several promise to contribute to a common object desired by all, the promise by each may be a good consideration for the promise of the others. (Parsons on Contracts; vol. 1, p. 452, 6th ed.; Watkins, Tr., v. Eames, 9 Cushing (Mass.), 539.)</p> <p>2. The fact that the company was not organized at the time the subscription was made does not invalidate it. (Lackey v. Richmond and Lancaster Turnpike Road Co., 17 B. M., 48; Thompson v. Page, 1 Met. (Mass.), 570.)</p> <p>3. Advances having been made and liabilities incurred on the faith of appellee’s subscription, appellant is entitled to recover. (1 Parsons on Contracts, p. 453, 6th ed.; Homer v. Dana, 12 Mass., 190; Thompson v. Page, 1 Met. (Mass.), 570; Mt. Sterling Coal Road Company v. Little, 14 Bush, 429.)</p> <p>The doctrine laid down in the case of Goff v. Winchester College does, not apply here, as the contract sued on in that case was in many respects different from the one sued on in this case. (Gill’s adm’r v. Kentucky Gold and Silver Mining Co., 7 Bush, 638; Fry’s ex’r v. Big Sandy Railroad Company, 2 Met., 314; 25 Ills., 393; 21 Penn., 220.)</p> <p>.As there was no incorporated company at the time the subscription sued on was made, it is not an enforceable contract. (Green’s Brice’s Ultra Vires, p. 475 and note; Angelí & Ames on Corporations, p. 271; Goff v. Winchester College, 6 Bush, 443; Phillips’ Limerick Academy v. Davis, 11 Mass. Beports, p. 112; Essex Turnpike Co. v. Collins, 8 Mass., 297; New Bedford and Bridgewater Turnpike Co., 8 Mass., 141; Mt. Sterling Coal Boad Company v. Little, 14 Bush, 429.)</p>

Case 117 — EQUITY APPEAL 'FROM HARRISON CHANCERY COURT. '1. The defendant was not entitled to judgment on his counter-claim, as the caption of his answer did not contain the words “ answer and counter-claim,” '2. It was error to allow the defendant to file the amended answer. 8. The proof did not authorize the recovery. 1. The proof authorized the recovery. -2 It was proper to allow the amended answer to be filed to conform the pleadings to the proof.

<p>1. In cases of house-breaking, which are analogous to burglaries at common law, whether the place of ingress was a part of the house charged to have been broken into, is a question of law for the court, and not a question of fact for the jury.</p> <p>2. Where there is internal communication between the apartment broken into and the room or building which the accused is charged to have feloniously entered, the offense is complete so far as the act of breaking and entering is concerned.</p> <p>3. Although a judgment of acquittal in a felony case cannot be reversed, it may be reviewed on the appeal of the commonwealth for the purpose of securing a uniform and correct administration of justice.</p>

Case 119 — EQUITY appeal from mason circuit court. 1. An action to set aside a conveyance as fraudulent does not accrue until the creditor has obtained a judgment and return of “nulla bona.” (Moffatt v. Ingham, 7 Dana, 495; Hulbert v. Grant, 4 Mon., 581; Page v. Boyce, 6 J. J. M., 83; Haskell v. Wynne, Ky. Law Rep., July, 1881; Evans v. Reay, lb., Sept., 1881; Napper v. Yeager, 16., July, 1881.) 2.

<p>1. The act “authorizing the Auditor to appoint agents to attend to revenue matters, approved April 29, 1880, is constitutional. ■</p> <p>2. The subject of the act is sufficiently expressed in the title.</p> <p>3. The agent is a mere subordinate, and his term -ends with that of the-Auditor appointing him.</p> <p>4. The act does not interfere with the duties of the assessor, but requires-that to be done which ho has omitted to do, and has no power to do„ after the return of his books has been made to the county court..</p> <p>5. The penalty is retrospective, and cannot be enforced.</p>

Case 121 — FORFEITED BAIL BOND APPEAL FROM ELLIOTT CIRCUIT COURT. As the accused was unable to appear without danger of losing his life,, his bond should not have been forfeited.

Case 122 — ORDINARY APPEAL PROM HARDIN CIRCUIT COURT. 1. The petition does not state facts showing that the Hardin county court had jurisdiction to appoint appellees administrators, nor does it allege that the order of appointment was “duly” made. (Sec. 122, ’Civil Code.) 2. When a claim against a decedent’s estate is pleaded as a set-off, demand is not necessary. (Millett, &c., v. Watkins, 4 Bush, 642; Bennett v. Crocklin, 3 Met., 322; Civil Code, sec. 732, subsec. 32.) 1.

Case 323 — EQUITY APPEAL PROM LOUISVILLE CHAKCERY COURT. L The paper filed by appellees, styled an answer and cross-petition, is. not a motion to have the action re-tried, and appellees not having complied with the law by appearing and moving to have the action re-tried within the time prescribed by law, are deprived of any right to make defense. (Kinney v. O’Bannon, 6 Bush, 692.) 2.

Case 124 — EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. Appellee being simply a volunteer, claiming the benefit of appellant’s release, and seeking to profit by his acts, occupies no better position than Doern would, if he were living, or than his privies in estate do. since his death. 2. Appellant is entitled to relief botli upon the ground of fraud and mistake. (1 Barb. 2b Y., 397; 10 Ho. Lords Cas., 90; 2 Lead. Cas.

Case 125 — INDICTMENT APPEAL FROM OLAY CIRCUIT COURT. 1. A conviction cannot be had upon the uncorroborated testimony of an accomplice. (Crim. Code, see. 241.) 2. The court erred in admitting testimony, and appellant can take advantage of this error, although not made a ground for a new trial. (Johnson v. Commonwealth, 9 Bush, 228; Turnbull v. Commonwealth, 79 Ky., 495.)- 1.

Case 126 — ORDINARY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. A subscription means a writing and a signature at its end. Both must he-proved to comply with the statutory term “ subscription.” 2. The paper in contest being a codicil purporting to affect other wills, its date was of the essence of the paper. 3. It was error to admit Pragoff to testify against infants. 4. The proof offered by the propounders was insufficient to authorize the probate. 5.

Case 127 — INDICTMENT APPEAL FROM FAYETTE CIRCUIT COURT. The contrivance used in selling “French pools” or “Paris mutuals” comes within the language and spirit of section 6, article 1, chapter 47, General Statutes. Any character of contrivance or device which involves chance or speculation as a source of gain deserves the penalty of the statute.

<p>The Governor has no power to fill a vacancy in the office of a Judge of the Court of Appeals, unless the unexpired term shall be less than¡ one year, in which case he may fill such vacancy by appointment.</p>