Volume 8 — Kentucky Opinions

<p>Landlord and Tenant.</p> <p>Landlord’s lien on goods must be satisfied before general creditors. The sale of such goods does not operate as an assignment for the benefit of creditors under Act of 1856.</p> <p>Landlord and Tenant.</p> <p>"Where real estate under lease is not surrendered, but is left vacant, the landlord purchasing such goods may: deduct from purchase price amount of rent due for time the real estate was vacant.</p>

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

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

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

<p>Promissory Note — Plea of Payment — Evidence.</p> <p>A plea of payment to a suit on a debt is good which sets up a contemporaneous contract showing that plaintiff had agreed to accept as payment the performance of certain advertising and supplying certain newspapers, which the defendant had performed and supplied.</p> <p>Evidence.</p> <p>Where an action at law is submitted to the judge without a jury, the court’s finding on the facts will not be reversed unless it be palpably wrong.</p>

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

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

<p>Guardian and Ward — Adverse Interests Not Permitted.</p> <p>A guardian is bound to protect tbe interests of his ward, and may not place himself voluntarily in a position where his own personal interests are in conflict with those of his ward.</p> <p>Adverse Interests — Ward’s Election. ’</p> <p>Where á guardian buys in property at a low price where it is his ward’s interest to have the property sold at a high price, such a sale may be set aside.</p> <p>Ward’s Election.</p> <p>If such a sale is consummated the wards may either elect to treat such a purchase as having been made in trust for them, or may repudiate it.</p>

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

<p>Real Estate, Purchaser in Good Faith — Party Not Prejudiced by a Judgment Has No Cause of Complaint.</p> <p>What constitutes a valid consideration is a matter of law, and a purchaser of real estate claiming to have paid a valid consideration should show what he did pay, that the court may judge of its validity.</p> <p>Party Not Prejudiced by Judgment.</p> <p>A party not prejudiced by the judgment has no cause of complaint.</p>

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

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

<p>Bankruptcy — New Promise to Pay — Recovery of Interest.</p> <p>A promise to pay a debt after discharge in bankruptcy is upon a valid consideration and may be enforced.</p> <p>Interest.</p> <p>If plaintiff may recover on such a debt he is entitled to recover interest as well as principal.</p>

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

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

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

<p>Debt — Defense—Statute of Frauds.</p> <p>If defendant only agreed to stand good for payment and the goods were bought by another on his own account, he is not liable on such an agreement unless the same is in writing.</p> <p>Defense.</p> <p>Where goods were contracted for by Anderson, the fact that they were charged to Scott did not create any liability on Scott, and a subsequent promise by Scott, unless in writing or made before delivery was completed, would not bind him to pay for such goods.</p> <p>Where in a contract between Anderson and Scott the latter agreed to pay for such goods, but failed to do so, the seller could not recover from Scott.</p> <p>Evidence.</p> <p>Such written contract between Anderson and Scott is not admissible in evidence in a suit by the seller to collect from both Anderson and Scott.</p>

<p>Landlord and Tenant — Statute of Frauds — Counterclaim.</p> <p>Where a tenant, by written, lease for five years agrees to pay each of three joint landlords a stipulated rental, and where to induce one of such lessors to sign the lease the tenant agrees to pay him an extra amount and writes a letter to such landlord agreeing to such extra payment, and afterward makes such extra payments, he cannot by counterclaim recover back such extra rent in a suit instituted on such written lease.</p> <p>Statute of Frauds.</p> <p>The letter signed by the tenant is sufficient to take his promise to pay the additional rent for five years out of the statute of frauds.</p>

<p>Landlord and Tenant — Recovery of Damages.</p> <p>Where there are two papers executed by the same parties, at the same time upon the same subject, they must be construed as one contract.</p> <p>Damages for Breach.</p> <p>Where a landlord agrees to make repairs as soon as practical and fails to do so, he is liable to the tenant for the damages he sustains on account of such failure.</p>

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

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

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

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

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

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

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

<p>Parties — Pleadings—Recovery of Real Estate — Ejectment.</p> <p>No default can be taken against persons named only in the body of the complaint.</p> <p>Pleadings.</p> <p>Pleading which seeks to recover land must describe it with reasonable certainty. An averment that plaintiff is the owner of 31,000 acres of land, except six thousand acres previously sold, but which does not describe the six thousand acres, is insufficient.</p>

<p>Purchase of Real Estate — Relation of Trust and Confidence Between Partners — Commission.</p> <p>Where the secret agent of the vendor agrees with associates to become a co-purchaser, he can derive no peculiar benefit to himself on account of a secret understanding with the seller.</p> <p>Trust and Confidence.</p> <p>The relation of trust and confidence existing between co-purchasers, whatever advantage one secures by his agreement with the seller, inures alike to all of them.</p> <p>Commissions.</p> <p>A co-purchaser of real estate, notwithstanding the relation of confidence between purchasers, may recover a commission from the seller of such real estate earned before he became associated with the other purchasers.</p>

<p>Real Estate — Possession Under Preemption Claim — Bill of Exceptions.</p> <p>While it may be true that the occupant of real estate under preemption entry has no such title that he may transfer the same by sale, he can legally pass his possession to another.</p> <p>Bill of Exceptions.</p> <p>Where there are numerous blanks In a bill of exceptions, the court of appeals cannot determine which instructions were given or which refused.</p>

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

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

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

<p>APPEAL FROM TODD CIRCUIT COURT</p>

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

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

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

<p>Injunction — Damages.</p> <p>When an injunction is dissolved the court may in its discretion call a jury to assess the damages sustained by those against whom the injunction was procured.</p> <p>Damages.</p> <p>When the use of money is enjoined, the rate of damages does not exceed ten per cent.</p>

<p>Real Estate Conveyance — Bond—Warranty—Assignment of Bond.</p> <p>Persons executing a bond to convey real estate, containing a warranty that the land described therein contain^ 300 acres, are bound to make good a deficiency in the acreage of the land sold.</p> <p>Assignment of Bond.</p> <p>One who assigns a bond in which there is contained a warranty that the land described contains a designated number of acres, and thereafter joins with the assignee in a warranty deed and receives a part of the purchase price, is liable for a deficiency in acreage named in the bond and deed.</p>

<p>Practice — Deficient Record.</p> <p>Where the cleric’s certificate shows that part of a deposition is missing from his office and hence not included in the record, the court of appeals will presume that the judgment helow is correct.</p>

<p>City — Street Improvements — Payments for.</p> <p>The city is liable for such improvements of a public street as are ordered by it; and if there is a contract between the contractor and the owners of the real estate by which the owners are to pay for such work or any part thereof, the city to avoid payment must set up such contract by way of answer.</p>

<p>Conveyance to Defraud Creditors — Mortgage of Grantee to Innocent Purchasers — V alidity — Election.</p> <p>An innocent mortgagee of land mortgaged hy the grantee, in a deed made to defraud the creditors! of the grantor, is entitled to have his debt paid out of the land before the same can be made subject to the creditors’ claims.</p> <p>Creditors’ Claims.</p> <p>While an innocent mortgagee of lands, mortgaged by a grantee of a deed made to defraud grantor’s creditors, is entitled to receive his money, the creditors of such grantor are' entitled to receive the amount in excess of the mortgagee’s claim.</p> <p>Parties to Creditors’ Action.</p> <p>Where the grantee, in a deed made to defraud creditors, has con-, veyed the land, neither he nor his grantor are necessary parties to a creditor’s action to recover the excess over the sum due an innocent mortgagee of such grantee.</p> <p>Election of Creditors.</p> <p>Where the grantee of a deed made to defraud creditors, mortgages the land to an innocent party, and in a foreclosure the land is sold, creditors entitled to the excess of purchase money after the payment of the mortgage may elect to take personal! judgment against the owner of the land or have the land sold.</p>

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

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

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

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

<p>Contract to Rebuild a Mill — Rents—Condemnation of Mill property by the State.</p> <p>Where the owners of mill property agree that a third person may rebuild and repair a mill and reimburse himself out of the rents and use of the mill, and after it is rebuilt the state condemns it and takes it, the person rebuilding it is entitled to participate in the money due from the state on account of such condemnation.</p>

<p>Survey of Land.</p> <p>Under the provisions of the act of 1815 (2 Morehead & Brown 1023) those claiming title pursuant to a survey registered within a year will prevail over claimants under a prior survey not registered for years after the subsequent survey was made.</p>

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

<p>Bill of Exceptions — Partition—No Report Made.</p> <p>Where a pleading is rejected and the pleader fails to make such pleading part of the record by bill of exceptions or otherwise, no question is presented to the court.</p> <p>Partition — No Report — Abandonment.</p> <p>Where a partition suit is brought and commissioners appointed to partition land, and no report is made by them for eight years, and the owners did not take possession of lands said to have been given them therein, but treated the land as undivided and bought and sold interests therein as undivided, such partition is held to have been abandoned, and a new partition may be had.</p>

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

<p>Malicious Prosecution — Instructions—Argument.</p> <p>It is no justification for a defendant in a suit for malicious prosecution to show that he was advised hy officers and detectives to procure a warrant for plaintiff’s arrest.</p> <p>Malicious Prosecution.</p> <p>In a suit for malicious prosecution, if the defendant in procuring plaintiff’s arrest acted maliciously and without probable cause, plaintiff is entitled to recover.</p> <p>Instructions.</p> <p>An instruction which requires the jury to find for the plaintiff in a malicious prosecution cause if the defendant in procuring the plaintiff’s arrest did not have prohahle cause for doing ,sov is erroneous, for before plaintiff is entitled to a judgment he must show that his arrest was procured maliciously and without prohahle cause.</p> <p>Time of Argument.</p> <p>The court in its discretion has power to limit the time that shall he given for argument in a cause tried therein, hut should not abuse such discretion.</p>

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

<p>Cities — Public Improvements — Power—Defense.</p> <p>Cities, in conformity with, their charters, have power to cause alleys and streets to he improved either upon petition or without it.</p> <p>Public Improvements.</p> <p>An alley is a public highway.</p> <p>Defense.</p> <p>It is no defense to a suit brought by a contractor to recover assessments for improvements made, that the real estate assessed had been assessed for other public improvements.</p>

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

<p>Attachment — Priority—Pleading Conclusion.</p> <p>Where plaintiff begins attachment proceedings against a defendant under a wrong name and had to begin over again, his first action does not give him priority over those filing attachment proceedings after his first suit was begun.</p> <p>Pleading Conclusion.</p> <p>A pleading must set forth facts, and no issue of fact is raised where conclusions are pleaded.</p>

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

<p>Statute of Frauds — Specific Performance — Description in Deed.</p> <p>No action at law or suit in equity can be maintained to enforce a verbal contract for tbe sale of real estate, and bence the court cannot decree specific performance of such a contract.</p> <p>Description in Deed.</p> <p>Where a description in a deed is so vague and uncertain that the vendee cannot learn from it what land he takes under it, the deed is void for uncertainty.</p>

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

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

<p>Pleadings — Demurrer—Continuance—Instructions.</p> <p>A demurrer to the reply, going back to the answer in which the set off is relied upon, raises the question of the sufficiency of the answer.</p> <p>Continuance.</p> <p>A continuance on the ground of surprise on the part of defendant will not be allowed where such defendant has not been diligent in procuring his evidence.</p> <p>Instructions.</p> <p>An instruction to the effect that the plaintiff is entitled to recover as a part of his damages for loss of time and loss of employment, is erroneous when there is no averment in his complaint of any such loss.</p>

<p>Railroad Company — Stock Subscription — Sale of Franchises.</p> <p>When a railroad company is out of business because of the sale of its franchises, it still exists for the purpose of collecting what is due it and paying its debts.</p> <p>Liability of Stock Subscribers.</p> <p>Stock subscribers are only liable on their subscriptions for stock in a railroad company to raise funds to pay debts, where such company has gone out of business; and there must be debts by the company before there is any liability.</p>

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

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

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

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

<p>Sale of Land — Description—Judgment.</p> <p>Land sought to be subjected to sale to satisfy a debt must be described in the petition so that the commissioner to make sale can identify the land from an examination of the petition and papers in the suit. A judgment for plaintiff on such a defective petition will be reversed.</p>

<p>Mill and Mill Seat — Sale of by Parol Contract.</p> <p>Where a mill and mill seat are not only sold, but three acres of ground surrounding it, “so long as the property was used as a mill,” such mill and mill seat is a part of the real estate, and no action can be maintained upon a parol contract for its sale.</p>

<p>Motion for New Trial — Conflicting Evidence.</p> <p>Where the record fails to show clearly when a motion for new trial was made, the court of appeals will presume it to have been made within the proper time.</p> <p>Conflicting Evidence.</p> <p>When the evidence is conflicting the court of appeals will not disturb the judgment on that account.</p>

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

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

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

<p>Trust Estate — Husband and Wife — Payments by Trustee — Approval of Bond of Trustee.</p> <p>Where an estate is left in trust for the benefit of a daughter, the trustee cannot claim credits for money advanced to the husband of ■ such daughter.</p> <p>Payments by Trustee.</p> <p>When by will an estate is left to a daughter, and her brother is made trustee, and the daughter and trustee and other members of the family live together in the family homestead, and such trustee expends large sums of money in supporting all the members of such family, on account of his affection for them, and uses the income of the members of such family and even more than their income in doing so, he cannot claim credit against the daughter’s estate on account of such excessive expenditures.</p> <p>Bond of Trustee.</p> <p>The bond of a trustee, where an estate in trust is created by will, must be approved by the court and not by the clerk.</p>

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

<p>Suit on Notes — Defense That Notes Were Given to Defraud Creditors— Statute of Limitations.</p> <p>It is no defense to a suit on notes to set up an unlawful arrangement between the parties to defraud creditors. Such a defense comes in bad grace from a defendant who has been a party to such a fraud.</p> <p>Statute of Limitations.</p> <p>Where a right of action accrued in 1864, and the defendant left the state in 1866 and became a non-resident, the statute of limitations will not run in his favor while absent, and his occasional return for temporary purposes, without the knowledge of plaintiff, will not change the rule.</p>

<p>Judgment by Default — Injunction.</p> <p>Where one fails to defend when sued upon a note, he cannot enjoin the collection of the judgment for a defense that existed and of the existence of which he had knowledge before the judgment was rendered.</p>

<p>Forfeited Recognizance — Suit on Weight of Evidence — Statute.</p> <p>Where the evidence in a trial to recover on a forfeited recognizance is conflicting, the court of appeals will affirm the judgment of the lower court, for when the law and evidence is submitted to the trial court his finding has the same effect as the verdict of a jury.</p> <p>Statute.</p> <p>Pursuant to Crim. Code, § 94, if the defendants in a suit on a forfeited recognizance before judgment is entered surrender the defendant into! court, the court has power to remit the whole or a part of the sum named in the bail bond; but setting up in an answer that they are willing to arrest the accused is not equivalent to actual surrender.</p>

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

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

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

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

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

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

<p>Infants — Sale of Real Estate — Descent.</p> <p>The interests of infants in real estate cannot be sold except by following the steps pointed out in the statute.</p> <p>Descents.</p> <p>Where land is derived by descent from the mother, the real estate of an infant, by the law of descent, passes to the next of kin on the mother’s side.</p>

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

<p>Judgment — Clerical Misprision — Motion.</p> <p>A clerical misprision is the erroneous entering or recording of a judgment rendered by a court, and may be corrected by motion.</p> <p>Judgment Correctly Entered.</p> <p>A judgment correctly entered but which is erroneous cannot be corrected by motion, but must be appealed from.</p>

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

<p>Vendor’s Lien — Descent to Heirs.</p> <p>Where notes given for the purchase of real estate expressly reserve a lien on the land, such land may be subjected to the payment thereof, even when it has descended to vendee’s heirs.</p>

<p>Final Judgment — Power to Change.</p> <p>When, in a suit hy an administrator against heirs and creditors to settle an estate as insolvent, an issue is made between a creditor and the estate, which is referred to and reported by a master, who hears the evidence, and upon exceptions being filed to the report, it was heard and overruled by the court and judgment entered against the claimant, such judgment is final and the trial court has no power after the term of court ends to permit the creditor to withdraw his claim and then modify his judgment.</p>

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

<p>Guardian and Wards — Sale of Real Estate — Supplémental Proceedings.</p> <p>A proceeding for the sale of the wards’ real estate where such wards were not made parties is ineffectual to divest them of title.</p> <p>Supplemental Proceedings.</p> <p>Where in an original proceeding to sell a ward’s real estate, no good title is conveyed because the ward was not made a party thereto, a supplemental proceeding pursuant to the statute of September 30, 1861, (Myer’s Supp. 424) may result in a judgment of the court confirming such sale and conveyance.</p>

<p>County Court Jurisdiction — Administrator De Bonis Non.</p> <p>When the county court has appointed an administrator de honis non of an estate, he has exhausted his power, and cannot make an order • on a day thereafter appointing a co-administrator.</p> <p>Administrator De Bonis Non.</p> <p>An administrator de honis non not interested in the estate as an heir or creditor has no sufficient interest in the funds to be allowed to raise a question as to whether the former executor had proper authority to use a part of the trust funds to enclose the graveyard where the decedent is buried.</p>

<p>Administrator, Maintenance of Action — Decedent’s Association Membership.</p> <p>Where a decedent died prior to any distribution of the proceeds of an association of which he was a member, and before the members were empowered by law, in, the event of a dissolution, to retain the property among themselves, the administrator cannot maintain an action against the living members for contribution.</p> <p>Decedent’s Association Membership.</p> <p>Where, under the rules of an association of which decedent was a member it was provided that at the death of a member his wife or mother would be entitled to certain named benefits, it is held where the wife died prior to her husband, but decedent’s stepmother survived him that such stepmother is not entitled to such benefits.</p>

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

<p>Contract — Mutual Covenants — Pleading—Proof.</p> <p>When, covenants in a contract are mutual and to he performed at the same time, neither party can maintain an action without averring a tender; and in cases where the first act is to be done by the defendant, plaintiff must aver his readiness to comply.</p> <p>Pleading — Pro of.</p> <p>Before a party to a contract can introduce proof excusing him from performance, because prevented by the act or conduct of his adversary, he must first aver such fact in his pleading.</p>

<p>Landlord and Tenant — Possession.</p> <p>Where a tenant agrees to take the store room of his landlord subject to a contract between the landlord and a person who was engaged in making improvements thereon, he is not entitled to possession before the contractor completes the improvements unless the delay is the result of unreasonable interference by the landlord. The landlord is not entitled to collect any rent until possession is given to the tenant.</p>

<p>Sale of Real Estate — Title Bond — Warranty—Purchaser.</p> <p>Where a title hond is assigned the implied warranty is, not that the land is free of incumbrance, hut that the assignor has title to the hond.</p> <p>The purchaser of a title hond is hound to take notice of its contents, and where reference is made therein to notes that constitute a lien on the land described in the hond, he is held to take such bond subject to such notes.</p>

<p>Guardian and Ward — Suit on Guardian’s Bond — Parties—Pleading— Judgment Excessive.</p> <p>Where in a suit on a former guardian’s bond it is averred that a new guardian has been appointed, it will be presumed by the court of appeals that tbe former guardian bad resigned or been discharged.</p> <p>Parties to Suit.</p> <p>It is not necessary to sue in the name of the state to recover on a guardian’s bond. Such a suit should be brought in the name of the ward by his next friend or guardian.</p> <p>Pleading.</p> <p>Tile petition in a suit on guardian’s bond must set forth, in terms or substance the conditions in the bond which is the foundation of the action, and mating the bond an exhibit cannot take the place of such averments.</p> <p>Excessive Judgment.</p> <p>A judgment in a suit on a guardian’s bond is excessive which is for a greater sum than demanded by the petition.</p>

<p>Landlord and Tenant — Improvements by Tenant.</p> <p>Wliere improvements are made by a tenant who sells out to another, the purchaser succeeds only to the rights of the tenant, and cannot claim possession and ownership by adverse possession as against the lessor.</p>

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

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

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

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

<p>Sale of Personal Property — Delivery—Unrecorded Mortgage.</p> <p>A valid sale of growing tobacco may be made without delivery of actual possession where not susceptible of actual delivery.</p> <p>Unrecorded Mortgage.</p> <p>An unrecorded chattel mortgage made in good faith, not with a view to defraud other creditors, is valid between the parties and against all purchasers of the chattels described, having notice of the pledge or mortgage, except purchasers from a creditor who had no notice.</p>

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

<p>Witnesses — Impeachment.</p> <p>It is competent for a party to prove that a witness-has made statements out of court contrary to what he has testified to in the trial, and thus impeach the witness.</p> <p>Impeachment.</p> <p>The examination of impeaching witnesses must be confined to the general reputation of the person sought to be impeached, and such witnesses will not be permitted to testify as to particular facts.</p>

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

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

<p>Judgment — Process—Cause of Action.</p> <p>No valid judgment can be taken against a party not served with process and who does not appear to the action.</p> <p>Cause of Action.</p> <p>A party seeking to recover as the assignee of another must do so, if at all, on the cause of action set up by his assignor, and not on a separate cause of action he may have independent of the rights he secured by the assignment.</p>

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

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

<p>Practice — Quieting Title.</p> <p>Where no objection is made, in the circuit court, to the form of the action or to the misjoinder of actions, it is too late to make such objections on appeal.</p> <p>Quieting Title.</p> <p>Where appellees have shown both title and possession in themselves, they are entitled to have such title and possession quieted.</p>

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

<p>Dedication of Real Estate to Public Uses — Acceptance.</p> <p>Where a plat is filed purporting to dedicate a town lot to the public use, but before it is accepted by the public, the donor has withdrawn his proposal, the town fails to secure any title thereto.</p>

<p>Will — Rule of Construction.</p> <p>Where there is a devise over in the event of the death of the preceding devisee, it refers to the event happening during the life of the testator.</p>

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

<p>Infants — Service of Process Upon — Description of Real Estate — Judgment.</p> <p>No judgment can be legally rendered against infants in a proceeding to sell their lands where no guardian ad litem is appointed to defend them.</p> <p>Judgment.</p> <p>A judgment for the sale of land should set forth an accurate description of the land to be sold so that it may be identified by reference to the judgment.</p>

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

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

<p>Judicial Sale of Real Estate — Mistake in Description — Power of Court to Correct — Judgment.</p> <p>Where the court has ordered the sale of various tracts of real estate, designated by numbers, some of which were improved and valuable and others unimproved and less valuable, and by mistake in the sale and purchase thereof one buys what is supposed by the parties to be the valuable parcels for a high price and another buys at a low price what is supposed to be the unimproved parcel of landj while in truth by mistake the descriptions were erroneous, and the purchasers did not receive what they bought, such error is one of fact and may be corrected upon the supplemental petition of a purchaser filed in said cause.</p> <p>Power of the Chancellor.</p> <p>The chancellor on a proper issue made for the purpose upon facts established, may correct a decree of a former term wrongfully entered through mistake or fraud.</p>

<p>Husband and Wife — Attachment—Sufficiency of Petition.</p> <p>In an attachment suit against the husband a wife may enter her appearance and make defense in the name of her husband for the benefit of herself and minor children.</p> <p>Sufficiency of Petition.</p> <p>A petition on an account states no cause of action which declares that the defendant is indebted to plaintiff blank dollars, evidenced by an account filed amounting to blank dollars, and prays judgment for blank dollars.</p>

<p>APPEAL PROM MADI'SON CIRCUIT COURT.</p>

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

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

<p>Real Estate — Conveyance—False Representations.</p> <p>Where a grantee is induced to buy real estate and take conveyance thereof by the false representations of an insolvent grantor, that he is the owner thereof, although the contract is executed, the warranty in the deed is no indemnity, and he is entitled to relief to the extent that his vendor had no title to the land conveyed.</p>

<p>Judgment in Foreign State — Pleading to Invalidate.</p> <p>Where it is sought to invalidate a judgment taken in a foreign state, the petition, to be good against demurrer, must aver facts showing that the court rendering such judgment had no jurisdiction. The pleading of mere conclusions is not sufficient.</p>

<p>Perjury — Grand Jurors Competent Witnesses.</p> <p>■Where in a civil suit one is charged with perjury in making a statement under oath before the grand jury, a member of the grand jury is competent to prove what the statement was.</p>

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

<p>Suit on Note — Defense—Evidence.</p> <p>Where a suit is brought on a note, the answer pleading payment, and that plaintiff accepted payment in confederate money in full payment, and the illegality of confederate money is pleaded in reply, it was necessary for defendant to show by proof that at the time and place of payment the military power and jurisdiction of the confederate states predominated, or that the payment was voluntarily received by plaintiff in satisfaction.</p> <p>Evidence.</p> <p>It was error to refuse to permit plaintiff to testify as to such matters in his own behalf.</p>

<p>Guarantor — Notice of Acceptance of Guaranty — Reasonable Time.</p> <p>Where a person by letter not addressed to any particular individual guarantees the credit of another, such guarantor has the right to be informed within a reasonable time, when any one should accept it, and not receiving such notice he is not bound.</p> <p>Reasonable Time.</p> <p>Where a written letter of guaranty is acted upon in November, 1870, and the guarantor is not notified of the acceptance of his guaranty until August, 1871, such a notice is not given within a reasonable time.</p>

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

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

<p>Judicial Sale — Exceptions to Report of Sale — Bidders.</p> <p>Where a judicial sale is regular in every way, and reported to the court, it is no ground for sustaining exceptions to it that the property did not bring as high a price as it would if again offered.</p> <p>Bidders.</p> <p>A bidder interested in the sale who does not attend or bid cannot complain that the property was sold at too low a price.</p>

<p>Insurance Policy — Bill of Exceptions.</p> <p>Where a fire insurance policy provides that the company shall not be liable where loss occurs when the building insured is vacant, the insured cannot collect on such policy when the building was vacant at the time of the fire and for weeks prior thereto. ,</p> <p>Bill of Exceptions.</p> <p>When the bill of exceptions is filed and no exceptions to the order of filing are taken, no question as to them is raised.</p>

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

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

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

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

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

<p>Partnership Property — Dissolution—Creditors.</p> <p>A partner after dissolution of the firm is entitled to a lien on the real estate of the partnership, which had been bought and improved by ■the partnership, for a debt due him from his late partner, and this lien is superior to the lien of creditors whose claims arose after dissolution against the surviving partner.</p>

<p>Counterclaim — Damages—Evidence—Measure of Damages.</p> <p>In a suit to collect the price of machinery sold, the defendant cannot recover on his counterclaim where there is no proof showing the amount of damages sustained hy reason of the failure of plaintiff to deliver the machinery promptly.</p> <p>Measure of Damages.</p> <p>Remote and uncertain damages cannot he recovered under a counterclaim filed in a suit for the purchase money of machinery.</p>

<p>Commissioner’s Sale of Real Estate — Set-Off—Compensation of Commissioner — Usury.</p> <p>Where there are several tracts of land to be sold by a commissioner the court should order them sold separately.</p> <p>Set-Off.</p> <p>A debt due from an executor cannot be pleaded as a set-off against an individual debt.</p> <p>Compensation of Commissioner.</p> <p>Pursuant to Gen. Stat., chap. 75, § 14, the allowance to a commissioner for making sales of land cannot exceed ten dollars per tract.</p> <p>Usury.</p> <p>Compounding interest at the lawful rate, once a year, is not usurious.</p>

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

<p>Criminal Law — Insanity—Instruction.</p> <p>Insanity of a defendant at the time of the commission of a crime is a complete defense.</p> <p>Where there is evidence produced in a criminal cause that the defendant was at the time of the offense on the verge of delirium tremens, and where instructions are asked, the court should instruct the jury that if they believed from the evidence that the defendant at the time of the commission of the crime, was not sane, and could not, because of mental incapacity, know right from wrong, whether that incapacity was caused by drink or not, they should acquit.</p>

<p>Criminal Law — Sale of Whisky by a Physician.</p> <p>A defendant cannot claim exemption from the penalty denounced by law against selling intoxicating liquors because he is a physician.</p> <p>Sale of Whisky by Physician.</p> <p>A physician may make a sale of intoxicating liquors, if made in good faith and for medical purposes only. Such physician cannot legally sell for any other purpose.</p>

<p>Promissory Note — Defense—Gift.</p> <p>Where the payee of a note retains it until her death and it then passed to her executrix, evidence that the testatrix said at one time that all she wanted was the interest during her life and after her death it (the note) was to he Mrs. Easthman’s, is not sufficient to sustain a claim of Mrs. Easthman to ownership of the note.</p>

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

<p>Married Women — Contracts to Pay Money Void — Description in Judgment.</p> <p>A contract of a married woman to pay money is void, and while she may, after she ceases to be a married woman, consent that her real estate be ordered sold to pay said debts, where she does not then make a new promise to pay such debts no personal judgment can be taken against her.</p> <p>Description in Judgment.</p> <p>A judgment ordering the sale of real estate must contain such a description of the land as will énable the commissioner and purchasers to find it without reference to papers and exhibits on file in the case.</p>

<p>Contracts — Parties to Action — Pleadings.</p> <p>Where a partnership is indebted on a note, and dissolves, and one of the partners and another executed a written contract with the withdrawing partner that they would pay the debts of the partnership to the amount of $4,107.41, a creditor of such partnership cannot sue on the contract without making the retiring partner a party.</p> <p>Where a dissolving partnership is indebted to A on a note and at such dissolution B, one of the partners, and C enter into a contract with the retiring partner to pay the debts of the firm up to $4,107.41, before A can recover on such contract he must in a court of equity make all of such persons defendants and may, by showing the insolvency of the retiring partner, be subrogated to his rights and recover the amount due him, but in such a proceeding he must aver and show that B and C are still bound to the retiring partner under their contract.</p>

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

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

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

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

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

<p>Real Estate — Boundary Line — Depositions.</p> <p>Depositions taken by one party in a former cause between the same parties, in which title to the same land was, involved may be read in evidence by the other party.</p>

<p>Breach of Contract — Damages—Assignment—Parties to Suit — Pleading.</p> <p>Where a written contract is not assignable, an assignment will pass an equitable right only, and where suit is brought on such contract for its breach the assignor must be made a party.</p> <p>Pleading — Waiver.</p> <p>The failure to malre a person a party when it appears on the face of the petition that he should be a party, is a cause for demurrer, but when no demurrer is filed such objection is waived.</p> <p>Pleading — Proof.</p> <p>Before plaintiff can recover for breach of a contract he must not only aver and prove defendant’s failure to comply with its terms, but he must aver and prove that he himself complied with or was ready to carry out his agreement.</p>

<p>Appeals — Bill of Exceptions.</p> <p>Time to prepare a bill of exceptions may be extended to the succeeding term of the court but not beyond such succeeding term.</p>

<p>Infancy — Settlement—Pleading.</p> <p>Where an infant, who is a party to a contract of settlement, fails to set up such infancy, he is hound by the terms of such settlement the same as if not an infant.</p>

<p>Practice — N egligence.</p> <p>A party to a cause who neglects to attend and look after his interests cannot, in the absence of fraud or statements of his adversary misleading him, complain that his cause was submitted and disposed of in his absence.</p>

<p>Decedents’ Estates — Heirs—Duty of Court — Remedy.</p> <p>When heirs receive anything from an estate as distributees, they are to that extent bound personally to pay decedent’s debts, and such heirs may be sued for the debts of their ancestor.</p> <p>Duty of Court — Remedy.</p> <p>Where an administrator has been removed and a creditor of the decedent seeks to recover from heirs, his remedy is by an action in equity against the heirs. Such an action should be transferred to the equity docket.</p>

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

<p>Real Estate — Adverse Possession — Husband and Wife.</p> <p>Where the wife acquires title and possession of real estate, the fact that she was married did not vest the husband with any possession that could ripen into title in himself adverse to the claim of the wife.</p>

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

<p>Pleading — Adverse Possession of Coal Lands.</p> <p>The statement in a pleading that the pleaders are the heirs of a named person, is but a conclusion. The pleaders should aver the death of the ancestor and their relation to him, so that the court may determine whether they are heirs or not.</p> <p>Adverse Possession.-</p> <p>Where the surface of land is owned by one party and the coal beneath by another, mere possession by the surface owner is not adverse to the owner of the coal, unless there be some right asserted by the surface owner of such a character as to warrant the presumption that it was known or should have been known by those owning the coal.</p>

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

<p>Marriage — Annulment.</p> <p>A suit to annul a marriage obtained by force or fraud cannot be sustained by only tbe admission of the defendant.</p>

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

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

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

<p>Husband and Wife — Note of the Wife to Husband.</p> <p>The note of a married woman does not bind her personally. It cannot bind her personal estate unless signed by herself and husband and executed for necessaries for herself or family.</p> <p>Note of Wife to Husband.</p> <p>Where a note is executed by the wife to the husband, to be enforced there must be some contract back of it authorizing the chancellor to interfere to prevent a fraud or great wrong to the husband. The note itself in such a case does not evidence a consideration.</p> <p>Note of Wife to Husband.</p> <p>If at all, it is only in exceptional cases when the note of a married woman can be made the foundation of an action in favor of her husband.</p>

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

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

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

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

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

<p>Criminal Pleading — Suit on Recognizance — Surety.</p> <p>Where a charge of assault and battery is made and a surety signs a recognizance bond and afterwards the charge is changed, charging a felony, the surety is not liable in case of default, but where the first charge is amended after bond given but no new or higher offense is charged, such surety is still bound.</p>

<p>Attachment — Garnishee—Pleading.</p> <p>An attachment creditor must aver in his petition or affidavit in direct terms or in substance that his claim is just, and that he verily believes he is entitled to recover the amount set forth.</p> <p>Garnishee — Pleading.</p> <p>To authorize a judgment against one served as a garnishee it must he averred that the garnishee defendant is indebted to the attachment defendant, and it is not sufficient to aver that one verily believes that such garnishee is indebted to such defendant.</p>

<p>APPEAL PROM BOYLE CIRCUIT COURT;</p>

<p>Administrator — Suit on Bond — Parties Plaintiff.</p> <p>Where an administrator settles Ms accounts and has left in Ms hands a sum for distribution to the heirs of his decedent, but does not distribute, a joint suit may not be maintained by the heirs, but each has a separate cause of action against such administrator and his bondsmen.</p>

<p>Decedents’ Estates — Claim—Married Women.</p> <p>Where a claim of a married woman has been allowed by the administrator and not questioned either by him or the heirs in a proceeding to sell real estate to pay debts to which they were parties, they will not be allowed in a petition for a settlement of the estate to question its validity.</p> <p>Married Women.</p> <p>While a married woman may plead coverture in her own behalf, such disability cannot avail her adversaries who were themselves under no disability.</p>

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

<p>Real Estate — Judicial Sale — Redemption from Sale — Sale Bond.</p> <p>In order for one to make out a title to land through a sheriffs deed, such person must show the execution and judgment on which it issued, or a bond of equal dignity of a judgment by judicial sanction.</p> <p>Sale Bond.</p> <p>Where a bond is taken by a commissioner for the balance of the purchase money of land sold, but which is not reported to the court, a title secured through an execution on such bond and sale thereunder by the sheriff is not good, and will be set aside.</p>

<p>Husband and Wife — Real Estate — Purchase—Set-Off.</p> <p>Where land is purchased by the husband with the wife’s money and conveyed to her, a purchaser from her cannot by buying claims against her husband set them off against the purchase money he owes the wife.</p> <p>Husband and Wife — Fraudulent Conveyance.</p> <p>When land is purchased by the husband and conveyed to his wife,, the greater portion of the purchase money being furnished by the wife,, such conveyance could not be in fraud of the husband’s creditors who* became such long after the real estate was so purchased.</p>

<p>APPEAL PROM MUHLENBURG- CIRCUIT COURT.</p>

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

<p>Insurance Policy — Insurable Interest — Principal and Agent.</p> <p>When a tenant acting for himself and his landlord takes out a policy of insurance on a building and contents, the contents belonging to the tenant and the building to the landlord, and the policy is delivered to the tenant and is by its terms made payable to him, and he informs the agent of the facts of ownership and the agent then amends the policy by making it payable to the landlord and tenant in proportion to the ownership of each, and the premium is paid, the company is not in a position to deny its liability on account of the policy being made payable to the two persons.</p>

<p>Partition.</p> <p>Where the owner of three-fourths interest in a tract of four hundred twenty-six acres of ground sells his interest, and instead of conveying his undivided interest, conveys a stated number of acres which was assumed to be his whole interest, bis purchaser will not be disturbed in the land he received provided it is found in a partition proceeding that the remaining one-fourth interest in value can be carved out of the tract not conveyed to such purchaser.</p>

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

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

<p>Tax Collector — Approval of Bond — Removal from Office.</p> <p>A tax collector duly appointed and who files a bond approved by the judge cannot be deprived of his office because of insufficient bond until he has had an opportunity to show the bond to be sufficient or has failed to furnish additional bond within a reasonable time after being ordered to do so.</p>

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p>

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

<p>Criminal Law — Appeals.</p> <p>Where an appeal is taken in a criminal case the record must be lodged with the clerk of the court of appeals within sixty days after the judgment is rendered, and where not filed within that time it will be dismissed on motion.</p>

<p>Landlord and Tenant.</p> <p>By consenting that his tenant may sub-lease the premises, the landlord does not release his tenant from liability or accept the sub-lessee as his tenant.</p>

<p>Specific Performance of Contract — Judgment.</p> <p>Where plaintiff asks for judgment requiring defendant to carry out his contract and convey to him certain real estate, or that the court should cause such conveyance to be made by a commissioner, the court has no authority to render judgment against the defendant for the value of the land.</p> <p>Judgment — Jurisdiction.</p> <p>When specific performance is demanded requiring defendant to convey to plaintiff certain real estate, and the court renders judgment requiring such conveyance and appointing a commissioner to make the same, such judgment is final and the court has no jurisdiction thereafter to change such judgment. The court retains jurisdiction thereafter in said cause only for the purpose of executing the judgment.</p>

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

<p>Cities — Improvement of Streets — Ordinances—Contracts.</p> <p>The city council has the power to improve the streets, imposing the burden equally upon all the citizens, and make contracts by its authorized agents, and although there may he a departure from the specifications contained in the ordinance, having accepted and approved the work, it must pay for it by making it a burden upon all.</p> <p>Ordinance — Contracts.</p> <p>Where an ordinance provides for the improvement of a street and for the payment therefor by the property holders whose property borders on such street, before the property-owners can be made to pay for such work it must he shown that the contract and specifications are in accordance with the provisions of the ordinance, and he approved by the council and not be left to the discretion of the engineer alone.</p>

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

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

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

<p>Tease Contract — Arbitration—Fraud.</p> <p>Where in a lease contract the rent is to be six per cent of the valuation, to be made each five years by two arbitrators, one to be appointed by each party, with a clause that if they fail to agree on a valuation, that fixed by the assessor was to be taken, a party to such contract is not entitled to have such valuation fixed by a court where no fraud is charged, and neither party has failed to appoint an arbitrator in good faith.</p> <p>Tease Contract — Arbitration.</p> <p>When the rent in a lease depends upon the valuation of the realty, to be determined by arbitrators, or in case of their failure, the valuation fixed by the assessor is to be taken, and the arbitrators in good faith cannot agree, the assessor’s valuation determines the amount of rental to be paid.</p>

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

<p>Final Judgment — Appeal—Administrator Purchasing Trust Property.</p> <p>An appeal can only he taken from a final judgment, and where two days after rendition a motion is filed to set it aside, the court, so long as the motion was pending, had full power over the judgment; and not being disposed of, the judgment was not final.</p> <p>Administrator Purchasing Trust Property.</p> <p>An administrator, who is a creditor of an estate and entrusted with the sale of property to pay debts, cannot legally become the purchaser of such property unless the entire transaction is characterized by the utmost good faith.</p>

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

<p>Will — Limitations.</p> <p>Where a testator bequeaths a life estate to his widow, but does not dispose of the fee of his real estate, but places the property in the hands of an executor to manage and sell at the death of his widow and divide the money among his children, such fee descends at his death to his heirs.</p> <p>Limitations.</p> <p>When a testator disposes of his personal property, making no disposition of his realty, but does provide that his executor shall sell the same at the death of his widow and distribute the proceeds among his children, and his children of full age convey the real estate, for a fair consideration, to a purchaser who takes possession and holds it adversely to all the world for more than thirty years, his title is good. The statute of limitations also is a bar to an action to recover the land from him.</p>

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

<p>Foreign Judgments — Defense.</p> <p>Where a judgment is rendered in Ohio, the court having jurisdiction over the subject-matter and parties, no defense can be interposed to a suit brought upon it in Kentucky which would have constituted a defense in the original action in Ohio.</p>

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

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

<p>City Council — Record as Evidence — Evidence.</p> <p>The record of the proceedings of the city council is the best evidence of such proceedings, and parol proof cannot establish a fact required to be made a matter of record.</p> <p>Evidence.</p> <p>Oral testimony is not admissible to show that which the city records state is not true.</p>

<p>Attorneys at Law — Parties Conducting Their Own Causes — Weight of Evidence.</p> <p>A party litigant may appear by himself or by counsel. He may be required by the court to elect to either take charge of his defense, or permit it to be done by his counsel.</p> <p>Weight of Evidence.</p> <p>Where the evidence is conflicting and has been-passed upon by-the court and jury, the court of appeals, unless manifest injustice has been done, will not interfere.</p>

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

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

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

<p>Mortgage — Pleading.</p> <p>Where a mortgage is acknowledged by a married woman in accordance with the statute, and when its contents have been explained to her by the officer before whom acknowledged, before she can have such, mortgage canceled sbe must aver and prove facts showing that it was not read and explained, or that it was not acknowledged, or other facts to avoid the instrument.</p> <p>Pleading.</p> <p>If it appears that the wife had no power to divest herself of title, facts should be pleaded setting up such want of power.</p>

<p>Patent Rights — Defense on the Ground of Fraud.</p> <p>When a right to manufacture and sell a patented article is conveyed by one not entitled to convey, and .hence fraudulent, before the purchaser can avail himself of the fraud as a defense to an action to collect the purchase price, he must offer to return what he has purchased.</p>

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

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

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

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

<p>Written Contract — Defense of Fraud in Execution.</p> <p>Before plaintiff can be relieved from tbe terms of a written contract be must aver and prove facts showing his right to such relief. A judgment rendered in his favor against a railroad company for trespass will be reversed when not sustained by evidence.</p>

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

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

<p>U sury — Pleading.</p> <p>It is not necessary that a defendant plead the payment of usurious interest. If such facts are made to appear by plaintiff’s statement they are sufficient, and defendant is entitled to credits on the debt to the amount of such usurious payments.</p>

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

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

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

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

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

<p>Decedents’ Estates — Property Set Off to Widow.</p> <p>Wliere a decedent left suviving him children by a former marriage, also a widow and children by her, and during the life of the widow-certain personal property was set oft to her as exempt, and the widow-then died, the children of her body alone were entitled to such property.</p>

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

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

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

<p>Contracts Made with Infants — Enforcement.</p> <p>A contract made with an infant cannot be enforced for the sale of his real estate by proving the declarations of the infant, prior to his arriving of age, to the effect that the consideration had been fully paid, and without showing that the contract was beneficial or that the wants of the infant required the sale to be made.</p>

<p>Attachment Bond — Damages—Malice—Measure of Damages.</p> <p>Punitive damages cannot be recovered in a suit on an attachment bond, except upon proof showing that obtaining the attachment was malicious and without probable cause.</p> <p>Measure of Damages.</p> <p>Where in a suit on an attachment bond, the plaintiff fails to show that defendant in obtaining the attachment acted with malice and without probable cause, but where the attachment was dissolved solely on the weight of the evidence, the measure of damages that may be recovered is the damage to his property by reason of the seizure or such actual damages as was the result of the seizure.</p>

<p>Statute of Limitations — New Promise.</p> <p>There can be no recovery upon a debt upon a new acknowledgment of indebtedness after the debt has been barred by the statute of limitations; but the moral obligation to pay tbe debt will furnish the consideration of a new promise.</p>

<p>Criminal Law — Indictment.</p> <p>An indictment for executing a forged note is fatally defective, when it fails to allege that the note was not a genuine note, or that the accused knew it to have been a forgery.</p>

<p>Real Estate — Conveyance—Courses, Distances and Monuments.</p> <p>Where a boundary line is to be determined between two land owners, courses and distances called for in the deed must yield to monuments or local objects called for in the description.</p>

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

<p>Appeal Bond — Clerical Errors in Appeal Bond.</p> <p>Where an appeal bond is styled “Appeal from a judgment of T. R. Barnett, Judge, Green quarterly court,” but it is recited in the body of the bond that it is taken from the judgment of the Green county court, a mere omission by the draftsman, it is held that a recovery may be had on such bond, notwithstanding such defect.</p>

<p>Judicial Sale — Mortgage Foreclosure — Judgment—Descriptions.</p> <p>A judgment for the sale of land will be reversed where it does not in itself contain such a description of the land as will enable the master to find it without reference to the title papers.</p>

<p>Contracts — Agency.</p> <p>- An agent cannot collect what is due his principal by discharging his (the agent’s) own debts; the debtor in such a case cannot discharge his indebtedness to the principal by crediting himself with an amount owing to him by the agent.</p>

<p>Appeal — Bill of Exceptions.</p> <p>An unsigned, bill of exceptions is of no force or effect, and cannot be considered by the court of appeals.</p>

<p>Married Women — Contracts.</p> <p>The assignment of notes made hy a married woman cannot convey title to the notes.</p> <p>Contracts.</p> <p>When the disabilities of a married woman are removed, she cannot he compelled to execute a contract entered into during the existence of her coverture.</p>

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

<p>Damages — Killing Animals — Evidence—Burden of Proof.</p> <p>A lessee of a railroad company, while using the road, is liable for damages in killing .stock in the same manner and to the same extent as if it had been the owner of the road.</p> <p>Evidence.</p> <p>A contract between the railroad company owning the road, wherein that company agreed to build cattle guards at a crossing, is not admissible in an action against the lessee of such railroad, for damages in killing an animal.</p> <p>Burden of Proof.</p> <p>In a suit for damages against a railroad company for killing an animal by its cars, the company admitting the killing, the law presumes the killing to have resulted, from the negligence and carelessness of the agents and employees of the company, and the burden was on it to disprove such negligence and carelessness.</p>

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

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

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

<p>Bill of Exchange — Endorser’s Liability.</p> <p>Where a bill of exchange, endorsed by A is negotiated at the bank as between A and the bank, A is a principal; and where B for the accommodation of A endorses with him a new bill of exchange as a renewal of the first one, B’s liability is that of endorser for A, and if he should have to pay the bill might recover the whole amount from A.</p>

<p>Special Charters — Power of the Legislature to Amend.</p> <p>Where, by legislative enactment in granting a charter or public franchise, the power to amend is reserved, the legislature may amend such charter, even though investments have been made under the. same which may be affected by such amendment.</p>

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

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

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

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

<p>Judgment — Sale of Real Estate — Description.</p> <p>A judgment ordering tlie sale of real estate, which in itself fails to describe the particular real estate, is erroneous and will he reversed.</p>

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

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

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

<p>Suit on Contract — Specific Execution — Tender of Deed.</p> <p>Where a suit is brought for a specific execution of contract and the petition shows plaintiff is not in a condition to perform his part of it, and fails to aver that he has the legal title to the land, or tenders a deed to his vendee, such suit must fail.</p>

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

<p>Surety Bonds — Liability of Sureties — False Representations of Holders of Bonds.</p> <p>Sureties to a corporation for tlie good conduct and fidelity of an officer tbrougb whose hands its moneys are to pass, are to he treated with entire good faith, and where such corporation, knowing that its bonded officer is failing, to account for its money, in answer to inquiries of the bondsmen represent that the money is being accounted for, it cannot recover on such bond for defalcations occurring after such reprentations were made.</p>

<p>Real Estate Conveyance — Representations—Relief.</p> <p>"Where two grantors being children of an intestate from whom they inherited land, sell and convey the same to an innocent purchaser, and represent to him that a third heir, who would have an interest in the land if living, is in fact dead, when he is alive, such purchaser is entitled to- a credit of one-third of the purchase price and should be allowed to retain it as indemnity against the claim of the absent heir, or else to have the contract of purchase rescinded.</p>

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

<p>Husband and Wife — Estate of Wife — Liability of to Pay Debts.</p> <p>A wife’s general estate is not liable for the debts of the husband, but is liable for those of the wife incurred before marriage, and for those contracted after marriage on account of the purchase of necessaries for herself or any member of her family, her husband included, as shall be evidenced by writing signed by herself and husband.</p>

<p>APPEAL FRÓM FAYETTE CIRCUIT COURT.</p>

<p>Criminal Law — Homicide—Threats—Evidence of Bruises on Defendant —Evidence—Self-Defense Defined.</p> <p>In a charge of murder where threats have been made by the deceased against the life of the defendant and some of them communicated to defendant, all are admissible as evidence.</p> <p>Evidence of Bruises on Defendant.</p> <p>In a charge of murder, where self-defense is relied upon, evidence of bruises on the defendant shortly after the offense is committed, is admissible.</p> <p>Evidence.</p> <p>When in a murder trial it appears that a short time before the killing the deceased had been placed under bond on application of defendant, to keep the peace and be of good behavior to defendant, the record of such proceeding is admissible to show the tendency of defendant to resort to the law rather than to violence and because it served to illustrate the character of deceased.</p> <p>Self-Defense.</p> <p>Under the defense of self-defense in a murder charge, the rule is that when one believes and has reasonable ground to believe that he is in danger of immediately losing his life, or of sustaining great bodily injury at the hands of another, he has a right to do whatever is apparently necessary for his own security. He must act rationally, in view of all the facts and circumstances, but if these are such that there is no other apparent safe means of escaping the danger, he may legally slay his adversary.</p>

<p>Practice and Pleading — Bad Petition May Be Cured by Answer — Demurrer.</p> <p>Where a petition is defective, but is answered on the merits, such defect may in some cases be cured.</p> <p>Demurrer.</p> <p>Where a defective petition is made good by an answer, and the petitioner demurs to the answer, it will reach back to the petition.</p>

<p>Mortgage of Personalty in the Possession of a Bailee — Delivery of Possession.</p> <p>A sale of personal property left in the possession of the seller or his bailee after sale, is fraudulent as to creditors; but where the bailee, at the instance of the seller, delivers the property to the purchaser, or agrees to hold the same for the vendee, it is an actual delivery and is not a sale fraudulent as against creditors.</p>

<p>Suit to Set Aside Conveyances of Real Estate — Joint Suit — Waiver.</p> <p>Where two conveyances are made at different times to different persons for separate tracts of ground, there should be separate suits to set them aside; but since the statute, Civ. Code, § 114, provides that unless objection is made in the court, the error in improperly joining two actions in one is, waived, no objection having been made in the court below none can be made in the court of appeals.</p>

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

<p>Mortgage to Defraud Creditors — Burden.</p> <p>Wtien a mortgage is attacked upon the ground of fraud by a creditor, the burden is on the parties to such mortgage to show what the consideration was.</p>

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

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

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

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

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

<p>Bond to Replevy Judgment — Execution—Practice.</p> <p>Replevin, bonds executed by a part only of the defendants in an execution will be quashed on motion of the obligee.</p> <p>Practice — Quashal of Bond.</p> <p>The question of whether a surety has been released by the acts or omissions of the plaintiff cannot be raised by an answer filed to a motion to quash a replevin bond.</p>

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

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

<p>Bonds of City Marshal — Liability of Sureties.</p> <p>Where the law requires the city marshal to execute two bonds, one conditioned that he will account to the city for taxes collected each year and the other conditioned that he will account for all moneys-coming into his hands in discharging his general duties', etc., and such officer fails to account for money collected on execution by him, only the sureties on the general bond are liable and not those on the bond relating to the collection of city revenues.</p>

<p>APPEAL FROM McLEAN CIRCUIT COURTi</p>

<p>Public Carriers — Special Contract — Burden of Proof.</p> <p>When it appears by tbe proof that a special contract was made with a carrier for| the delivery of freight under circumstances of fairness and good faith, the burden is on the shipper to show that the contract ought not to he enforced because unfair and of its having been imposed upon him in a way that prevented him from examining it and understanding it.</p>

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

<p>Lost Wills — Competency of Jurors.</p> <p>In a trial to establish a lost) will a challenge of a juror should be sustained where it is shown that the juror’s mother was a cousin ot the testator and also related to both parties to the suit.</p> <p>Admissibility of Evidence.</p> <p>Where in a petition to establish the terms of a lost will a paper filed with the petition is not a copy of the will but was written by the draftsman from memory more than eight months after the will was prepared and after he had last seen it, it is not competent to be read to the jury for any purpose. Such a writing might be referred to by the draftsman to refresh his recollection as a witness but is not evidence to be read to the jury.</p>

<p>Appeal — Limitations Presented by Plea.</p> <p>The three years limitation which bars an appeal to this court must be presented by a plea and cannot be made available by being incorporated into a brief.</p> <p>Time to File Plea.</p> <p>The Court of Appeals on its own motion may give appellee time in which to file a plea of the limitations barring an appeal after three years.</p>

<p>Officers of Towns — Marshal.</p> <p>Before a town marshal can be compelled to pay over public money some party entitled to receive it must make demand therefor.</p> <p>Town Trustees.</p> <p>Town trustees have no right to the possession of the publio funds and are not proper parties to demand them from the marshal.</p>

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

<p>Decedent’s Estates — Judgment of a Foreign State Binding in Kentucky.</p> <p>Wliere a judgment .establishing a claim against an estate has been entered in a foreign state it will be final here unless there is some defense offered that did not exist in the state where entered. The holder of such a judgment cannot be required to establish his claim here, but his claim consists of the sum adjudged due him in the judgment.</p>

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

<p>Gas Meters — Contract to Furnish Gas.</p> <p>Where meters furnished to measure gas used are not correct within that degree of accuracy practicable to attain and defendant has charged and collected from plaintiff an amount beyond the gas used, plaintiff is entitled to recover.</p> <p>Evidence.</p> <p>Before evidence of the quantity of gas used by one tenant in a given house should be allowed to go to the jury to show that another tenant of the same house used a less amount of gas, it should be made to appear that both tenants burned gas for an equal period of time in an equal number of burners, etc., and such evidence will never be allowed to fix the test of the quantity of gas used when the test by meters is as nearly accurate as it is possible for human ingenuity to attain.</p>

<p>Criminal Law — Intoxicating Liquors — Indictment.</p> <p>In charging a sale on gift of spirituous and vinous liquors to intoxicated persons, it is necessary to name the persons.</p> <p>Indictment.</p> <p>In charging a sale of liquors to minors, such minors must be named and it must be averred that the sale was made without the special written direction of the father or guardian of such minor.</p>

<p>Bail Bond — Surrender by Bondsmen — Release from Liability.</p> <p>To release a bondsman on a bail bond tbe bondsman at any time before a forfeiture may surrender tbe defendant to tbe jailer of tbe county in wbicb tbe offense was committed, accompanied with a certified copy of tbe bail bond to be delivered to tbe jailer wbo must detain tbe defendant and give a written acknowledgment of tbe surrender.</p>

<p>Principal and Surety — Release of Surety.</p> <p>Any enforeible agreement by wbicb a creditor gives indulgence 'to tbe principal without the consent of the surety, releases the surety.</p> <p>Release of Surety by Action of Creditor.</p> <p>The act of the creditor in staying an execution which was a lien on the principal’s property without the surety’s consent releases the surety to the extent of the sum that could have been made out of such execution.</p>

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

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

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

<p>Criminal Law — Arrest of Judgment — Demurrer.</p> <p>In a criminal charge the defect in an indictment should have been taken, advantage of by demurrer.</p> <p>Arrest of Judgment.</p> <p>A motion for an arrest of judgment in a criminal case will not be sustained when a public offense is1 charged in the indictment.</p>

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

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

<p>Cities — Jmprovement of Streets.</p> <p>In order to enforce street assessments on property-holders for the improvement or repair of public ways it must be pleaded and proven not only that the city bad tbe power to make such, assessments but that in making them, it has substantially followed the mode prescribed by the law. if the power to make the assessments depends upon the existence of certain facts, it must be averred and proven that said facts existed.</p>

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

<p>Will — Life Estate — Distribution to Children.</p> <p>Where a widow by will is given a life estate, with the burden of supporting and educating the children out of the estate, she had no power to give the whole estate to one of the children or to expend it to her own use.</p>

<p>Judicial Sale of Real Estate — Judgment—Notice of Sale.</p> <p>Where real estate is ordered sold the judgment should direct how and where the sale shall be made and the length of time it shall be advertised, and where real estate ordered sold consists of separate tracts not adjoining they should be ordered sold separately.</p>

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

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

<p>Mortgage Waives Right to Homestead Exemption.</p> <p>Persons who execute a mortgage) on their real estate thereby waive their right to a homestead exemption on such property.</p> <p>Appeals.</p> <p>When an appeal is granted by the court rendering a judgment the record must be filed in the clerk’s office of the court of appeals ninety days after judgment rendered, subject to the power of the court to extend the time not later than the first day of the second term after judgment, but an appeal may be granted by the clerk of the court of appeals at any time within three years from the date of judgment.</p>

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

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

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

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

<p>J udgment — Fraud.</p> <p>Fraud to vitiate a judgment must relate to the manner in which it was obtained and not to the foundation upon which it rests.</p>

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

<p>Change of Venue — Objections and Exceptions.</p> <p>Where no exceptions were taken to an order of the court changing the venue of a cause and no objections made to the jurisdiction of the court to whom it was sent, no question can be raised in the court of appeals.</p>

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

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

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

<p>Damages — Recovery for Injury — Negligence.</p> <p>It is the duty of a turnpike company to keep its road free from obstructions and upon its failure to do so must answer in damages resulting from an injury by reason of its neglect of duty.</p> <p>Duty of Turnpipe Company.</p> <p>When an obstruction such as a road roller 'is left standing on the roadway late in the afternoon, without the knowledge or fault of the company or its agent and before the company had a reasonable opportunity of knowing of the obstruction, the company cannot be held liable for damages to a traveler on the road whose horse scared at the obstruction and ran away, especially where it is shown that the obstruction remained in the road only over night.</p>

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

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

<p>Landlord and Tenant — Eviction.</p> <p>Where the tenant is evicted before his rent becomes due, the landlord cannot recover for the unexpired term from the date of eviction.</p> <p>Eviction.</p> <p>Where a tenant has a written lease on the wife’s real estate executed by the husband and wife, he may legally hold the estate against the lessor and his vendee. Such tenant under such circumstances can hold the estate against one who inherits it before the expiration of the lease.</p> <p>Eviction.</p> <p>WRere a tenant holding a lease during the term becomes the purchaser of the real estate his leasehold interest merges in his fee simple title and the relation of landlord and tenant ceases to exist.</p> <p>Taxes.</p> <p>The perpetual lien for taxes secured by clauses found in a city charter, means only that the lien exists so long as the right to collect taxes can be enforced, and such collection cannot be enforced after five years.</p>

<p>Promissory Note — Representations to Induce Signature.</p> <p>It is the duty of a creditor to deal with, one who becomes bound to him as surety for his debtor in the utmost good faith, but he is not bound to make unsought disclosures of the amount of the principal’s indebtedness.</p> <p>Usury.</p> <p>To receive usurious interest in advance is as much a violation of the statute as to contract for its payment at a future time.</p>

<p>Practice — Exceptions.</p> <p>The failure to have the court pass upon exceptions taken to the introduction of evidence is a waiver of all objections to evidence.</p> <p>Bill of Particulars.</p> <p>A defendant has a right to demand a bill; of particulars before he answers, but where he answers without one he waives his right to raise the question.</p> <p>Bond for Costs.</p> <p>The failure of a non-resident plaintiff to give bond for costs at the time of commencing suit, was ground for dismissing it, hut when on defendant’s motion the plaintiff was ruled to give bond and did so, no motion having been made to dismiss, defendant waived his right to raise any question as to the failure to give such bond in the first instance.</p>

<p>Judicial Sales of Real Estate — Duty of Purchaser to Investigate Title.</p> <p>Judicial sales' of real estate are made without warranty, and it is the duty of a purchaser at such sales to investigate the title before the sale is confirmed, and where he fails to do so and it turns out that there are some unpaid taxes due, he must hear the consequences. '</p>

<p>Railroad Company — Eminent Domain.</p> <p>Tlie statute gives jurisdiction to the county court to hear exceptions filed to the award of commissioners in a proceeding by a railroad company to appropriate a right of way and the transfer of such a cause to the common pleas court by consent of both parties will not give such probate jurisdiction to hear such cause.</p> <p>Jurisdiction of Court — Eminent Domain.</p> <p>The statute, gives the county court exclusive original jurisdiction of proceedings by a railroad company to appropriate a right of way and no other court can exercise any such original jurisdiction. Original jurisdiction cannot be given by consent upon a court having only appellate jurisdiction.</p>

<p>County Sheriff — Collection of Execution — Liability of Bondsmen— Pleading.</p> <p>A petition seeking to hold a sheriff and his bondsmen liable for the failure of such officer to make a levy pursuant to an execution in his hands is fatally defective when it does not aver that the debt or any part of it has been lost nor any allegation that plaintiff has sustained any damages by reason of the failure of the sheriff to collect the amount of the execution.</p>

<p>Landlord and Tenant — Lien of Landlord on Produce.</p> <p>A landlord has a lien on the produce raised by his tenant, and a bona fide purchaser of such produce after its removal from the leased premises is bound to take notice, at his peril, of the existence of such lien.</p>

<p>Principal and Surety — Assignor—Diligence of Assignee.</p> <p>An assignee of a note must show diligence in the proceedings against the obligors to entitle him to recover against his assignor upon a return of no property on the execution against the payors.</p> <p>Diligence of Assignee.</p> <p>Due diligence is a matter of law. It consists in pursuing the legal remedy against the obligor to and after judgment at such time and in such manner as by law he was authorized to do.</p> <p>Diligence of Assignee.</p> <p>The failure to sue out an execution on the judgment for eighteen days, in the absence of any excuse- offered and the failure to deliver it to the sheriff for four days after its issue, does not show that degree of diligence required to hold the assignor.</p>

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

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

<p>Bond for Costs — Non-resident Plaintiffs.</p> <p>Non-residents who are plaintiffs are required to give bond for costs, but where there are two persons who are plaintiffs, one a non-resident and one a resident, no bond can be required from the non-resident.</p>

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

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

<p>Navigable Streams — Right to Use.</p> <p>A person has a right to use a navigable stream to float his logs in and he is not liable for injury to others in doing so where he is not guilty of negligence or carelessness.</p>

<p>Attorney and Client — Appeals.</p> <p>An attorney at law does not, by virtue of his employment to conduct the prosecution or defense of an action in the circuit court, have the right to prosecute an appeal to' the Court of Appeals.</p>

<p>Criminal Law — Indictment.</p> <p>While only one offense may be charged in an indictment, the mode and means of committing that offense may be stated in the alternative.</p> <p>Appeals.</p> <p>The court of appeals has no power to reverse a judgment of conviction on indictments for an error in overruling a demurrer.</p>

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

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

<p>Damages — Instructions—Negligence—Proximate Cause.</p> <p>To make a defendant liable for damages caused by his negligence, the negligence complained of must be the proximate cause of the injury, and an instruction not recognizing this rule is erroneous.</p>

<p>Reward for Arrest.</p> <p>Where two persons actively participate in causing the arrest of a person for whose arrest a reward is offered, the one disclosing where the offender was and having a warrant issued for his arrest, and the other acting under the warrant making the arrest, each is entitled to one-half of the reward.</p>

<p>Damages — Wilful Negligence — Carrier’s Liability.</p> <p>Where a railroad company1 by its engineer, machinist or its agents whose duty it is to care for and supervise the machinery, knew that a boiler was unsafe for use and voluntarily failed to remedy the defect, and it exploded, injuring or killing its employe, it is wilful negligence and the company is liable for the damages sustained.</p> <p>Recovery.</p> <p>Where a railroad company is guilty of wilful negligence, an employe injured as a result thereof is entitled to damages not only to include compensation, which is the value of claimant’s power to earn money, but the jury may also increase the damages by way of punishment for the wrong committed, looking to the character of the offense, the conduct of the parties and the attendant circumstances.</p>

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

<p>APPEAL PROM HENDERSON COURT OP COMMON PLEAS.</p>

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

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

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

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

<p>Trustee — Infants—Purchase of Real Estate for Infants.</p> <p>Where one member of a family buys in real estate for all at a low price by prevailing on other prospective buyers not to bid for the reason that he wanted to buy to protect infants, such purchaser becomes trustee for such infants, such purchaser has a lien for purchase money advanced by him, but holds the title for the benefit of the infants for whom he bought.</p> <p>Notice of Trust by Purchaser.</p> <p>One who buys real estate from the holder, of the record title thereof, but who has notice that his grantor holds such title for the benefit of infants, takes only the interest of the grantor, and the rights of such infants are not affected by his purchase.</p>

<p>Damages — Vindictive Damages.</p> <p>Where the shippers of live stock, under the rules of the railroad company, are only entitled to passes for one attendant for each two cars of live stock, shipped, but who were ignorant of such rule, and are given passes by the agent of the company for a greater number of attendants than allowed by such rule, which are not recognized by the conductor of the company’s train, who without rudeness or force requires such extra passengers to get off the train, the company is liable to them for their actual damages caused by being put off, but the company is not liable for vindictive damages.</p>

<p>Criminal Law — Indictment—Grand Juror.</p> <p>It is error in the court to set aside an indictment because of the fact that one of the grand jurors by whom it was returned was under the statute incompetent.</p> <p>Appeals.</p> <p>The statute limiting the right of appeal to the court of appeals to cases where the amount involved in the judgment is less than fifty dollars, has no application to criminal cases.</p>

<p>Criminal Law — Intoxicating Liquors — Sale by Druggists.</p> <p>Compounds of medicines with, alcoholic liquors, made in good faith as .medicines for medical use and not as a device to avoid the law regulating or prohibiting the sale of liquors, are not prohibited by the law, and a druggist may make and sell them for use as medicine without violating the law.</p>

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

<p>Damages — Pleading—Proof.</p> <p>Unless plaintiff seeks to recover punitive damages, it is not necessary to prove that the injury complained of was inflicted either purposely or wantonly.</p> <p>Pleading.</p> <p>In actions for injuries to the person neither motive, interest nor the circumstances under which the injury was inflicted need be pleaded.</p> <p>Pleading.</p> <p>In actions for injuries to person an averment of the extent of the injury and the manner of its infliction is sufficient.</p>

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

<p>Married Women — Separate Estate in Lands.</p> <p>A conveyance to a married woman, her heirs and assigns forever, free from the use and control of her said husband, where the warranty is in the same words, is sufficient to create a separate estate.</p> <p>Estoppel.</p> <p>The statute does not permit a married woman to sell or incumber her separate estate, nor can she estop herself of the right to claim it, by such representations as would estop other persons free from statutory disability.</p>

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

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

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

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

<p>Taxation — Sale of Real Estate at Tax Sale.</p> <p>Proceedings to sell property for taxes must substantially conform to tbe statute; tbe omission of any step deemed essential to protect tbe taxpayer renders a tax sale void.</p>

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

<p>Redemption from Sale of Real Estate — Agreement to Extend Time for Redemption.'</p> <p>The owner of land sold on decree may redeem it from sale within a year, but where the purchaser at such a sale for a consideration agrees to give the owner a longer time and breaks the agreement and procures a deed from the sheriff, the owner may set such deed aside and be allowed to redeem within the time agreed upon between the parties.</p>

<p>Conveyance — Officer Before Whom Deed Acknowledged.</p> <p>The certificate of an officer that a deed was acknowledged before him, when he is not authorized to take acknowledgments, furnishes no evidence of the execution of the deed.</p> <p>Evidence.</p> <p>Before a copy of a recorded writing can be read in evidence -it must appear that the original was authenticated in the mode provided by the statute.</p> <p>Recording of Deeds.</p> <p>The clerk is not authorized to record a deed without direct proof of its execution, although such deeds may sometimes be admitted in evidence .as ancient writings.</p> <p>Evidence.</p> <p>The declarations of a person while in possession of land are admissible to prove the character of that possession.</p>

<p>Damages — Contractor—City Not Liable.</p> <p>Where an improvement is being constructed in the city by an independent contractor, the city is not necessarily bound to answer for the carelessness or negligence of such contractor.</p> <p>Liability of City.</p> <p>If the work of constructing a city improvement is of such a character as to be likely to result in injury to persons or property even when skilfully performed, for any injury resulting from the dangerous character of the work and not directly from the negligence of the contractor the city may be liable.</p>

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

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

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

<p>Practice — Bond for Costs — Dismissal of.Action — Waiver.</p> <p>The defendant has the right to have an action against him dismissed when a non-resident plaintiff fails to give bond for costs, but by failing to move a dismissal he waives the right.</p> <p>Notice by Surety to Sue.</p> <p>Where not waived by the creditor a written notice to sue must he served on him by a surety, if such surety desires him to sue the principal.</p>

<p>Mortgage — Rents of Mortgaged Real Estate — Receiver.</p> <p>The mortgagor of real estate is entitled to receive the rents, and the tenant having leased such premises and paid the rent for the term or having agreed to pay it to the owner, cannot be required to pay such rent to the mortgagee before he receives title through foreclosure.</p> <p>Receiver.</p> <p>The mortgagee in an action to foreclose may have a receiver appointed to collect the rents and take charge of the property, where it is shown that the mortgaged property is in danger of being lost, removed or materially injured and that the property is probably insufficient to discharge the mortgage debt, but when no receiver is appointed the mortgagee is not entitled to such rents.</p>

<p>Husband and Wife — Liability of Wife for Necessaries.</p> <p>Where goods are purchased on the wife’s credit by the husband and were necessaries for the family, the estate of the wife may be subjected to pay for them.</p>

<p>Criminal Law — Reasonable Doubt — Instruction—Perjury.</p> <p>An instruction in a criminal case is erroneous which fails to say to the jury that before it can convict it must believe the existence of recited facts beyond a reasonable doubt. Saying to the jury it must acquit if it has a reasonable doubt as to the guilt of the accused does not dispense with the necessity of charging it that it must believe from the evidence beyond a reasonable doubt that such facts existed before it could find the accused guilty.</p>

<p>Married Women — Judgments—Jurisdiction.</p> <p>Judgments against married women and infants when they are before the court by virtue of process in cases over which the court has jurisdiction are not void, hut are binding, though erroneous, until reversed; but such married women or infants may appeal from such judgments within one year after the removal of the disability.</p>

<p>Married Women — Disability.</p> <p>The disabilities placed upon married women are for their protection and they cannot be divested of their title to real estate unless the requirements of the statutes authorizing them to alienate their lands are substantially complied with.</p>

<p>Transfer of Courses to Federal Court — Security.</p> <p>Where the conditions exist to authorize the transfer of a cause from the state to federal court, the applicant for transfer must at the time of malting his application, offer good surety that he will enter said cause in the-federal court and file copy of papers as required by the Federal Statutes.</p>

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

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

<p>Mental Capacity — Deeds and Gifts.</p> <p>A parent has the absolute right in disposing of his property to give to some of his children all of it and to others nothing, but when he is old and infirm and not able to understand or comprehend how he is disposing of his property, such facts may turn the scale and establish his mental incapacity to dispose of his property.</p>

<p>Will — Construction.</p> <p>Where a will bequeaths a life estate in real estate to three persona and after probate two of such devisees die, the third is entitled to a life estate in all of the land and the owner of the fee cannot take the possession until after the death of the life tenant.</p>

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

<p>Executo r — E j e ctment — H eirs.</p> <p>A personal representative empowered to sell land by the terms of a will bas no right to maintain an action of ejectment against those in possession. Thei title to such land is in the heirs and they must be made parties to such a suit.</p>

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

<p>Appeals — J urisdiction.</p> <p>The court of appeals has no jurisdiction of an appeal taken from an order of the court which was not a final 'order.</p> <p>Final Judgment.</p> <p>A final judgment is one which finally determines the rights of the parties.</p>

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

<p>Mortgage — Husband and Wife.</p> <p>A voluntary conveyance to the wife will not defeat a creditor who took a mortgage from the husband after such conveyance, to secure a debt created before the conveyance was made.</p>

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

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

<p>Conveyance of Real Estate — Liability of Grantor.</p> <p>While there may be an implied agreement upon the part of a grantor who received the price to refund to the grantee the amount overpaid under the contract of sale, this obligation does not embrace a nominal grantor who joins in the deed but receives no part of the purchase-price.</p>

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

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

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

<p>Conveyance of Real Estate — Mental Capacity — Undue Influence.</p> <p>A father having mental capacity and where no undue influence is used upon him may legally convey the major portion of his real estate to one child to the exclusion of the other children.</p> <p>Executor De Son Tort.</p> <p>An executor de son tort is liable to the rightful representative of a decedent and not to the heirs or distributees. The claims of the heirs are postponed to the rights of creditors.</p>

<p>Mortgage — Preference of Creditor.</p> <p>A mortgage or sale of property not at the -time subject to the claims of creditors cannot be set aside at the instance of creditors.</p>

<p>Decedent’s Estates — Personal Property.</p> <p>The title of personal property of an intestate vests in his personal representative as soon as he qualifies and it becomes his duty upon appraisement to set aside to the widow or infant children articles of personalty exempted from distribution. The widow in such a case has no cause of action to recover property not thus set aside for her.</p>

<p>Attachment — Payment—Sale to Defraud Creditors.</p> <p>Where parties agree that the question as to whether the attachment should be sustained shall be submitted to the court .and parol evidence heard on the motion to dissolve, if it was irregular for the court to hear that branch of the case, the irregularity was waived by the agreement.</p> <p>Payment.</p> <p>One cannot pay his debts by offering to pay them, in horses at a price fixed on them by himself, and an offer to do so not accepted will not relieve the debtor or his sureties.</p> <p>Sale to Defraud Creditors.</p> <p>Where property of an insolvent debtor is sold by him to a creditor for one-third of its value, the fact affords some evidence that the sale was pretended and was to’ defeat his1 creditors.</p>

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

<p>Appeals — Practice—Duty of Appellant.</p> <p>An appellant filing a transcript of tlie record, in the clerk’s office of the court of appeals must endorse thereon or on a paper filed therewith the names of all thei parties, appellant and. appellee, and where he fails to do so and only one of the parties to< the action in favor of whom judgment was rendered, is named as appellee, who has only a nominal interest in the controversy, the appeal will be dismissed.</p>

<p>Mortgage — Foreclosure—Lien for Purchase Money.</p> <p>The owner of real estate cannot by mortgaging it defeat a bona fide claim for balance money when the creditor by express provision reserved a lien on such real estate.</p> <p>Parties to Action to Foreclose Mortgage.</p> <p>The legal title to real estate does not pass to a purchaser at judicial sale and conveyance where the holders of the legal title were not made parties in the case resulting in such judgment and order of sale.</p> <p>Assignee in Bankruptcy.</p> <p>An assignee in bankruptcy is not like an ordinary assignee who takes such rights as his assignor had, but he also represents the creditors of the bankrupt and is. entitled to enforce all their equities.</p>

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

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

<p>Sheriff — Liability for Money Collected.</p> <p>The sheriff and his bondsmen are liable for money collected by virtue of a writ placed in his hands with the penalty for failure provided by the statute, but when he collects money not upon a writ he and his sureties cannot become liable for a penalty by his failure to pay the money over. He is only liable for the money withheld.</p>

<p>Criminal Law — Admissibility of Evidence.</p> <p>Where the commonwealth in a criminal case has proven a part of a conversation, the defendant has a right to prove the entire conversation.</p> <p>Evidence of Threats.</p> <p>It is not error to refuse to allow the defendant in a criminal case to prove threats upon his life made by the deceased where there is no offer to prove that such threats were communicated to defendant before the killing.</p>

<p>Damages — Railroad Company — Independent Contractor — Measure of Damages.</p> <p>A railroad companj? is not liable for damages on. account of tbe manner in which, its contractor performs work resulting in injury to others, but where it contracts with a contractor that he should enter upon the lands over which it owned the right of way, it being necessary to do so that the fence should be removed, both the company and the contractor are liable for injuries sustained by another resulting from the removal of the fence.</p> <p>Measure of Damages.</p> <p>One cannot plant a crop in an uninclosed field and hold the railroad company liable for its destruction because it had violated its contract in failing to fence in said field.</p>

<p>County Revenue — Collection from Sheriff.</p> <p>Before a, suit can be maintained against the sheriff and his bondsmen for failing to pay over revenues collected for the county a demand from the official entitled to receive them or an order relative thereto by the county court must he made.</p> <p>Demand Before Suit.</p> <p>Until there is a demand made on a county sheriff by one authorized to make it requiring him to pay over county revenues collected by him and until he has failed to comply therewith, no cause of action can arise against him and his bondsmen.</p>

<p>Real Estate — Adverse Possession — Husband and Wife.</p> <p>A person having entered into possession of real estate by virtue of bis wife’s title cannot assert adverse possession as against bis wife or ber beirs.</p>

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

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

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

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

<p>Vendor’s Liens — Pleading.</p> <p>When purchase-money remains unpaid at the time land is conveyed the grantor has no' lien on the land unless it is stated in the deed what part of the purchase-money remains unpaid.</p> <p>Pleading.</p> <p>A petition to enforce a vendor’s lien on real estate is fatally defective which alleges only that a lien exists in plaintiffs favor. This is a mere conclusion.</p>

<p>Former Adjudication.</p> <p>■Where plaintiffs right to hold a bank liable for conversion was fully adjudicated in the federal court, a court of competent jurisdiction, and there was judgment against Him, he cannot Have the same issue adjudicated in the state court. The judgment of the federal court not appealed from is conclusive.</p>

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

<p>Sheriff May Maintain Trover for Conversion of Personal Property.</p> <p>A sheriff who levies an execution upon personal property may maintain trover for its conversion.</p>

<p>Husband and Wife — Sale of Wife’s Real Estate.</p> <p>A mortgage of the wife’s land, she holding a general estate, to secure the debt of her husband, executed jointly by herself and husband, is valid.</p> <p>Description of Property in Judgment.</p> <p>A judgment decreeing the sale of real estate in a mortgage foreclosure must contain a reasonably accurate description of the real estate sufficient to enable the master to identify the land he was directed to sell, without searching the records.</p>

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

<p>Contract of Married Woman Void as to Her, Binding on Other Signers.</p> <p>While a contract of a married woman, such as under the statute does not bind her or her estate, is void as to her, it is valid upon persons who sign it, not under disability.</p>

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

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

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

<p>Mandamus — Adequate and Complete Remedy.</p> <p>Mandamus cannot be resorted to when plaintiff has appropriate legal remedy, complete and adequate.</p>

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

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

<p>Real Estate — Title by Adverse Possession.</p> <p>Where one has been in the undisturbed possession of real estate by actual inclosure for more than fifteen years prior to the beginning of an action against him for such land, claiming it as his own, his title cannot be defeated.</p>

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

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

<p>Distress Warrant — Landlord and Tenant — Pleading—Exemption.</p> <p>Where a distress warrant is issued at the instance of a landlord against the goods of his tenant, and pleading by the tenant is defective which avers that at the time of the levy and sale he was a bona fide housekeeper with a family and that the personal property seized and sold was by law exempt from seizure and sale under a distress warrant, the pleader should have stated what number or quantity of each character of personal property levied on he owned at the time of the seizure so that the court might determine whether the property taken was exempt.</p> <p>Exemption.</p> <p>A contract not to claim the benefit of the exemption is executory and does not bind the appellee.</p>

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

<p>Bill of Exceptions — Practice.</p> <p>Unless a rejected pleading is made part of tbe record by bill of particulars or order of tbe court tbe clerk bas no right to copy it in a transcript and .it will not be considered by tbe appellate court.</p>

<p>Wills — Resisting Probate of Wills — Expenses Incurred.</p> <p>An ©xecutor wbo bas in good faitb attempted to sustain a will is entitled to bis costs out of tbe estate.</p>

<p>Attorney’s Fees — Promissory Notes.</p> <p>Conditional contracts inserted in the body of promissory notes to pay attorney fees if legal process is resorted to to collect the note are not enforeible.</p>

<p>Pleading — Petition on Promissory Note — Averments Necessary.</p> <p>In declaring upon a promissory note the pleader must set out the material stipulations of the promise and its breach, and a failure to do so will not he cured hy filing the note as a part of the petition.</p>

<p>Bankruptcy — Effect of Discharge — State Court’s Power.</p> <p>A discharge in bankruptcy granted by the district court of the United States, exonerates the person discharged from the payment of debts and the state court ,has no power to set aside or disregard it. If the discharge was procured by fraud, the federal court alone can give) relief.</p>

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

<p>Usury — Disaffirmance and Recovery Back.</p> <p>One who has paid usury may disaffirm and maintain an action to recover it hack, hut is under no obligation to his creditors to exercise such right.</p> <p>Assignee’s Right to Recover Back Usurious Interest.</p> <p>Before an assignee can reach and -recover back usurious interest paid by the assignor, it is necessary for him to show that his assignor has elected that such right shall be enforced.</p>

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

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

<p>Resulting Trusts.</p> <p>Since the passage of the Act of July 1, 1852, it devolves upon a party ashing the aid of a court of equity to enforce a resulting trust to show, by appropriate averments, that it is not within the operation of the general provisions contained in § 20, hut belongs to one or the other of the classes excepted in § 22, otherwise the relief cannot he granted.</p> <p>Pleading.</p> <p>Averments in a pleading to enforce a resulting, trust are insufficient when they amount to no more than that the defendant purchased the real estate for plaintiff and took conveyance to himself, which may he true and not result in a trust.</p> <p>Conveyance to Defraud Creditors.</p> <p>A contract fully executed, founded in a fraudulent purpose to cheat creditors, is valid against those who, as volunteers, claim under one of the parties to the fraud.</p>

<p>Principal and Agent — Authority of Railroad Engineer.</p> <p>General authority conferred by a railroad company upon its chief engineer to make contracts for its construction gives such agent no power to contract with the owners of mines- to construct switches or branch roads to such mines.</p> <p>Proof to Establish Agency.</p> <p>Statements and letters of the agent are not admissible in evidence to establish the agency.</p>

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

<p>Exemption of Housekeeper.</p> <p>A bona fide housekeeper with a family residing on his mortgaged land is entitled to homestead exemption in the absence of a valid release or waiver of the homestead right according to the provisions of the statute.</p> <p>Mortgagor Entitled to Exemption.</p> <p>A person entitled to a homestead exemption is entitled to have set apart for him land upon which a house is located unless such house and appurtenances exceed in value! $1,000.00 and if they do he isi entitled to $1,000.00 in money out of the sale of the property.</p>

<p>Wills — Sale of Real Estate by Executor.</p> <p>When a -will directs the sale of real estate but names no one to make it, the executor1 has the power to do so.</p> <p>Sale of Real Estate to Pay Debts.</p> <p>An executor! is only authorized to sell real estate when directed by the will to do so or when it becomes necessary to pay debts and the personal property is not sufficient for such purpose.</p>

<p>Guardian and Ward — Irregularities in Proceedings for Sale of Ward’s Realty.</p> <p>Mere irregularities in the proceedings to sell the ward’s real estate, if not detrimental to the ward, will not effect the purchaser’s title.</p> <p>Sale of Ward’s Real Estate.</p> <p>The failure of a guardian or committee of an infant, idiot or lunatic to give bond will render the sale of its real estate void.</p>

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

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

<p>Partnership — Fraud—Contract.</p> <p>Where there is fraud in a contract vitiating a part of it, it will vitiate the whole contract, and a party cannot hold on to a part of a contract and repudiate such part as he may select.</p> <p>Contract of Firm.</p> <p>Where in a partnership contract it is stipulated that either party may sell his interest in the partnership to any purchaser who is satisfactory to the other, and does so to one who is satisfactory but the remaining partner for the fraudulent purpose of extorting money from the partner desiring to sell refuses to consent to the sale, he is guilty of a breach of the contract, and the other partner is entitled to recover from him such damages as he sustains by the refusal.</p>

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

<p>Husband and Wife — Divorce—Wife’s Real Estate.</p> <p>Where l’eal estate is purchased from the earnings of the husband and by his consent and direction is conveyed to the wife, he is not entitled to such real estate upon the granting of a divorce to the wife, where the wife has not been guilty of fraud in procuring the conveyance.</p>

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

<p>Commercial Paper — Indorsement.</p> <p>The effect of indorsing a bill or note is a conditional contract on the part of the indorser to pay in case of the acceptor’s or maker’s default, provided proper and prompt measures be taken to fix the liability of the indorser by making demand and giving him notice of the default.</p> <p>Days of Grace.</p> <p>The presentment and demand necessary to make an indorser of a bill or note liable must be made on the last day of grace. If made after the last day or before the last day only, such indorser is discharged.</p>

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

<p>Recognizance Bond — Validity.</p> <p>Where a recognizance bond does not show that the principal therein was in custody charged with a public offense, it fails to show any consideration for its execution and is invalid.</p> <p>Consideration.</p> <p>A recognizance bond, unlike ordinary contracts, does not import a consideration.</p>

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

<p>Divorce — Jurisdiction.</p> <p>The court of appeals has no jurisdiction of an appeal from a judgment granting a divorce, hut i't has jurisdiction of an appeal from so much of the judgment' as dismissed appellant’s petition and denied her petition for alimony.</p> <p>Alimony.</p> <p>The wife is not entitled to alimony when a divorce has been granted to her husband and denied to her.</p>

<p>APPEAL PROM JEFFERSON COURT OF COMMON PLEAS.</p>

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

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

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

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

<p>Assignment for Benefit of Creditors — Disbursements by Trustee.</p> <p>When a trustee for the benefit of all the creditors sells the property and without giving notice of any kind to the creditors, pays out all of the proceeds to some of them and nothing to others, he and his sureties are liable to such omitted creditors.</p> <p>Duty of Trustee to Give Notice to Creditors.</p> <p>It is the duty of a trustee to ascertain who the creditors are and to give them such reasonable notice by publication or otherwise before distribution as to enable the creditors to present their claims.</p>

<p>Landlord and Tenant — Lease—Covenants.</p> <p>Where premises are leased by written lease for two years, and the lessee and others sign a covenant that the lessee will pay the rent for the first year, such other persons are not liable for the defalcation during the second year.</p>

<p>Criminal Law — Amendment.</p> <p>An indictment can only be found and presented by a grand jury and no amendment can be allowed.</p> <p>Warrant.</p> <p>A warrant in a criminal case may be amended.</p>

<p>Attachment — Garnishment.</p> <p>After the service of a garnishee notice on a person indebted to a defendant, such garnishee may legally pay to such defendant the amount of its indebtedness in excess of the sum demanded by plaintiff from the defendant.</p> <p>Garnishee.</p> <p>The service of a notice on a garnishee defendant when he is irn debted to the defendant does not amount to attaching a specific fund nor does it constitute a lien on the fund. It merely prevents the garnishee from paying 'the fund to the defendant, and if the garnishee be* comes insolvent, the plaintiff is only on an equal footing with other creditors.</p>

<p>New Trial — Newly Discovered Evidence.</p> <p>Where one suffers judgment and prior thereto had made no diligent search for a receipt, he is not entitled to a new trial because since the trial he has found the receipt.</p>

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

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

<p>Corporations — Bond for Costs — Dismissal of Action.</p> <p>A suit brought by a corporation in this state must be dismissed when it fails to give bond for costs before commencing the suit.</p>

<p>Appeals — Practice—Bill of Exceptions.</p> <p>Where a pleading offered for filing is rejected it will not be a part of tbe record unless made so by a bill of exceptions or order of tbe court.</p>

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

<p>Promissory Note — Husband and Wife.</p> <p>A debt contracted before tbe marriage between tbe parties is extinguished by tbe marriage.</p> <p>Divorce.</p> <p>Where a debt between tbe parties has been satisfied by their marriage it cannot be restored to tbe wife when a divorce is granted to her.</p>

<p>Dower — Fixing Value of Dower.</p> <p>Where the widow has a dower interest in a house and lot which not being susceptible of being partitioned has to be sold, her interest shifts to the proceeds of sale and it is error for the court to fix the value of her interest before sale.</p>

<p>Wills — Subscribing to Will.</p> <p>A will must be subscribed by the testator at the close of the writing and is invalid where a vacant page of paper or more is left above subscription, but a will signed at the close but in which a blank: page or a large part thereof is left in the middle of the instrument is prima facie valid.</p>

<p>Sheriff — Service of Process — Judgment.</p> <p>A sheriff or his deputy has no power to serve civil process out of his county and when he does so his return is not proof of service.</p> <p>Judgment.</p> <p>A judgment entered without the service of process, where there is no appearance by the defendant to the action, is void.</p>

<p>Sale of Real Estate — Possession—Estoppel.</p> <p>One who secures and holds possession of land under a parol contract to purchase, while so in possession is estopped to deny the title of one who thus contracts to sell to him and cannot set up a title acquired hy him while so in possession.</p>

<p>Sale of Real Estate by Parol — Possession—Lien for Purchase Money.</p> <p>A purchaser of real estate by parol who has been put into possession thereunder has a lien for the purchase price on the premises, on a rescission" of his contract not only as against his vendor but against the claim of a subsequent purchaser with notice of his prior purchase.</p>

<p>Insurance Policy — Arbitration.</p> <p>A written stipulation in an insurance policy that where a difference shall arise relative to the amount of the loss and there is no fraud suspected such difference shall be submitted to arbitration, does not require that any other question concerning recovery on the policy shall be submitted to arbitration.</p>

<p>Contracts of Married Women.</p> <p>A contract of a married woman, not entitled to transact a separate business, is void, but when sbe bas parted witb money or property by reason of sucb contract, ber husband must join her in an action to recover.</p> <p>Disability of Wife.</p> <p>A married woman, who bas not been empowered to act as a feme sole, bas no power to form a partnership witb others.</p>

<p>Appeal — Interlocutory Order.</p> <p>An order of tbe court directing a party to pay money into court is an interlocutory order and cannot be appealed from, but an order directing tbe money to be paid over to one of tbe parties is a final order and may be appealed from.</p>

<p>Bankruptcy — Appeals by Bankrupts.</p> <p>After one has been declared a bankrupt, he cannot prosecute an appeal from a judgment against him in the circuit court. The assignee in bankruptcy in such a case is the real party in interest.</p> <p>Discharge in Bankruptcy.</p> <p>A discharge in bankruptcy relieves a debtor against all claims that might have been proved against his estate in the bankrupt proceeding, but to be available the discharge must be pleaded.</p>

<p>Landlord’s Attachment.</p> <p>The right of an attachment secured by a landlord against his tenant depends on whether he has reasonable grounds to believe that his debt will be lost unless an attachment issues.</p> <p>Attachment.</p> <p>A tenant who is an attachment defendant is entitled to make any defense that is available to him in any other kind of an action.</p>

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

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

<p>Insurance Policy — Beneficiary—Creditors of Husband.</p> <p>Creditors of the busband bave no cause of action against a widow wbo bas received insurance money on a policy made payable to ber, purchased by ber busband.</p>

<p>Liability of Indorser on Note — Release of Indorser by Delay.</p> <p>When a holder of a note obtains judgment against the principal and delays nearly a month before issuing execution, such delay unaccounted for, will release one who' has assigned the note to the plaintiff.</p>

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

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

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

<p>Conveyance of Real Estate — Grantee Must Rely on His Warranty When Grantor Is Neither a Non-Resident nor Insolvent.</p> <p>One who has accepted the conveyance of real estate, in the absence of fraud and where the grantor is neither a non-resident nor insolvent, must rely on his warranty and cannot resist the payment of a note given for such conveyance even if the wife of the grantor has not relinquished her dower.</p>

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

<p>U sury — Forfeiture.</p> <p>Chapter 60 of the General Statutes, § 4, art. 2, provides that where usury is intentionally charged, the whole of the interest is forfeited.</p> <p>Penalty for Exacting Usurious Interest.</p> <p>The party desiring to have interest forfeited where usury is charged, must aver affirmatively that the illegal interest was intentionally charged and must sustain his averment hy proof.</p>

<p>Statute of Frauds — Contracts—Consideration.</p> <p>A parol promise to pay the debt of another, not reduced to writing, is not enforcible because of tbe statute of frauds, but a contract with a debtor founded • upon a valuable consideration to pay tbe debt wbicb be, tbe debtor, owes to tbe creditor is binding.</p> <p>Consideration.</p> <p>Where one person in consideration of tbe sale of another’s interest in a certain business, promises to pay off a debt of such other person and fails to do so and hence tbe vendor of such business interest is forced to pay tbe same, be may recover tbe amount from bis vendee, who agreed to pay such debt.</p>

<p>Slander — Instructions.</p> <p>When in defense of a slander suit the defense of justification is pleaded and relied upon, it is error for the court to charge the jury that if they believe the slanderous words were spoken they must find for the plaintiff unless they believe from the evidence beyond a reasonable doubt that the words spoken were true.</p> <p>Reasonable Doubt.</p> <p>It is not incumbent on a defendant in a slander suit to prove the truthfulness of the words spoken beyond a reasonable doubt.</p>

<p>Practice — Instructions.</p> <p>One failing to except to an order requiring liini to elect which of tlie causes of action lie will prosecute waives bis right to have this court pass upon the question.</p> <p>Duty of Counsel.</p> <p>Counsel should ask instructions upon such points as they desire, and when none are especially asked the court trying the cause has a right to assume that such as are given meets the views of counsel and upon an appeal this court will assume that the omission to give further instructions was assented to.</p>

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

<p>Release of Surety — Notice to Holder to Prosecute and Collect.</p> <p>When a surety has given notice to the holder of a note to sue and prosecute his suit to collect, on the failure of the holder to do so with reasonable diligence and in good faith such surety will be released.</p>

<p>Mortgage or Sale of Personal Property.</p> <p>The owner of personal property exempt from coercive seizure for debt may nevertheless sell it or mortgage it and such sale or mortgage may be enforced.</p>

<p>APPEAL FROM OHIO CRIMINAL COURT.</p>

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

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

<p>Limitations — Statute of Limitations a Defense — Pleading.</p> <p>The statute of limitations is a matter of defense and if relied upon must be pleaded by tbe defendant, and unless tbe petition shows on its face not only that the, action is barred by him but that the defendant is not within any of the exceptions mentioned in the statute, a demurrer will not be sustained to it.</p>

<p>Executions — Levy and Collection of Executions.</p> <p>When an execution is issued and a levy made by the sheriff but no effort made to sell the property in a reasonable time, the execution plaintiff should proceed against the sheriff and where such plaintiff fails to pursue such a remedy within a reasonable time, other creditors may refuse to recognize the first execution.</p>

<p>Suit to Quiet Title — Averment of Ownership.</p> <p>A petition to quiet title is good which avers title in an ancestor and that it was vested in plaintiff by his will.</p> <p>Statute of Limitations.</p> <p>The statute of limitations must be set up if relied upon, by plea and cannot be taken advantage of by demurrer where the only defect in plaintiff’s petition is that his cause is barred by time.</p>

<p>City Improvements — Contract.</p> <p>One wbo contracts witk the city has a right to do so upon the faith of the fact that its council had not disobeyed the law, and where the costs of public improvements made by him thereunder cannot be collected from property owners because of a faulty ordinance he can look to the city to pay him.</p>

<p>Mental Capacity of Defendant — Service of Process.</p> <p>Where a defendant before a suit was brought against him had been found to be of unsound mind and sent to the lunatic asylum and there' is no evidence that he was served with process or that a committee or guardian was appointed, it was error to render judgment against him.</p>

<p>Continuance of Action.</p> <p>Tlie action of tlie trial court in refusing a continuance will not be disturbed except for an abuse of discretion.</p> <p>Notes and Interest.</p> <p>Where the makers of a note agree to pay ten per cent, interest from date until the note is due there is no promise to pay such rate after due and the holder can only recover six per cent, interest after maturity.</p>

<p>Assignment of Personal Property.</p> <p>Where a bona fide assignment of personal property is made to a bank to secure a debt owing to the bank from the assignor, the bank bas tbe right to the proceeds of a sale of the property sold by a commission merchant as against the assignor or his creditors.</p> <p>Attachment by Creditors.</p> <p>Creditors who attach personal property in the hands of a commission man for sale that has been assigned to a bank as security for a debt, acquire but an equity by the seizure of the property, and the bank having an older equity under the assignment has a better right.</p>

<p>APPEAL PROM JEFFERSON COURT OF COMMON PLEAS.</p>

<p>Promissory Note — Alteration After Execution.</p> <p>Where a memorandum is made at the bottom of a note by one of the makers, below the signatures that “interest on this note 10 per cent.” it is not an alteration of the note and is no part of the note and the holder is entitled to recover the amount of said note according to the stipulations made in the body thereof, the added words being no part of said note.</p>

<p>Bill of Sale — Record.</p> <p>A bill of sale is not required to be recorded and if it is recorded is not notice to tbe public.</p> <p>Lien.</p> <p>Tbe lien retained in a bill of sale is good as between tbe vendor and vendee and tbe equity will be protected against tbe claim of any person not possessing a superior right.</p> <p>Rights of Creditor.</p> <p>Tbe creditor of one wbo bas executed a bill of sale to another, becoming such creditor after its execution, is of no greater dignity than that of tbe bolder of tbe bill of sale and is inferior in point of time, and where such creditor bas actual notice of tbe senior equity, bis claim is postponed to that of tbe bolder of tbe bill.</p>

<p>Attachment.</p> <p>After the discharge of the first attachment and no new cause of attachment being shown, the issuance of a second attachment by the clerk is unauthorized and void.</p> <p>Dismissal of Attachment.</p> <p>The clerk cannot revise the ruling of the court dismissing an attachment by issuing another attachment upon the same record which the court had decided did not authorize it.</p>

<p>Homestead — Right of Non-Resident to Claim Homestead as Exempt.</p> <p>The right of a judgment debtor to a homestead only continues so long as he occupies or resides on the premises. When he has moved from the premises and to another state he cannot claim such exemption.</p>

<p>Judgment — Error in Judgment — How Corrected.</p> <p>An error of tlie clerk in entering a judgment may be corrected by tbe court at a subsequent term when there is anything in the record to go by, but when there is nothing in the record to amend by such judgment cannot be corrected upon the mere recollection of witnesses as to what took place in the court.</p>

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

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

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

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

<p>Duty of Officer.</p> <p>When an officer has it in his power to make matters pertaining to his duties plain, and fails from negligence, ignorance or design to do so, every fact left fairly in doubt should be construed against him, and in favor of those for whom he transacts business, and to whom he owes the duty to do it correctly.</p>

<p>Administrator — Decedent’s Real Estate.</p> <p>An administrator lias no control over tlie land of his decedent; such land descends to the heirs, and when one of the heirs is indebted to the decedent his interest in such land is liable to be sold to pay such indebtedness.</p> <p>Creditors of Heirs.</p> <p>Where there is personal property in the hands of an administrator, in which an heir has an interest, the creditors of such heir may subject it to their claims after such interest is charged with indebtedness due the estate from such heir; and if there is not sufficient personal property the creditors may have his interest in the real estate sold to pay their claims.</p>

<p>Mental Capacity — Evidence.</p> <p>The opinions of witnesses as to mental capacity are not entitled to much weight unless the facts upon which they are based are given.</p> <p>Joinder of Causes of Action.</p> <p>A suit to enforce the settlement of an administrator’s accounts cannot he joined with a suit to set aside a deed.</p>

<p>Slander — Implied Malice.</p> <p>While malice is an essential ingredient in slander, it will be implied from, the speaking of words falsely which import slander, unless they are spoken in the performance of some public or private duty.</p> <p>Misconduct of Jurors.</p> <p>The separation of the jury without the court’s consent is a misdemeanor, but it is not sufficient of itself to vitiate the verdict, especially where it appears that the separation took place after the verdict had been agreed upon.</p>

<p>County Bonds Issued to Build Railroad — Power of Legislature to Legalize.</p> <p>Where county bonds were issued to pay for stock in a railroad, but without legal authority, the general assembly has the power to legalize and make them valid.</p> <p>Funds of County from Sale of Railroad Stock May be Used to Build Jail.</p> <p>The surplus funds derived by a county from the sale of railroad bonds held by it may be devoted to the use of building a county jail.</p>

<p>Towns — Power of Chairman of Board of Trustees.</p> <p>In the absence of any power given to the chairman of the board of trustees of a town to bind the town by contract, no such power exists, and where he acts against the wishes of a majority of the board in attempting to make a contract his action is void.</p>

<p>Appeals — Causes Stricken from the Docket.</p> <p>Parties to a cause which is stricken from the docket upon the order of the court are out of court; the effect of such order is the same as if the appeal had been dismissed.</p>

<p>Levy of Execution — How Made — On Standing Corn.</p> <p>A levy of an execution may be made on corn not severed from the ground by the officer, going on each parcel of ground where the corn was and indorsing his action on the execution and signing it on the day he makes the levy. The levy puts the officer in constructive possession, and on the sale under such levy the purchaser is invested with title.</p>

<p>Levy on Property — Rights of Third Persons Claiming the Property.</p> <p>Where an officer levies on personal property claimed hy a third party he must appoint appraisers to appraise the property, and the claimant may refuse to give the required bond until the officer takes such action.</p>

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

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

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

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

<p>New Trial — Newly Discovered Evidence.</p> <p>One about to go into trial is required to make preparation and a diligent effort to discover and produce his evidence, and a new trial on account of newly discovered evidence will be denied where it is not shown that such evidence could have been discovered and produced at the trial by proper diligence.</p>

<p>Criminal Law — Horse Stealing.</p> <p>A defendant cannot be guilty of horse stealing if in fact the horse was owned by him.</p>

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

<p>Appeals — Amendment of Record.</p> <p>Where the record on appeal fails to show that any exception was taken to the giving of an instruction, it may be amended when there is something to amend by, but it cannot be amended where the defect can only be supplied from the mere recollection of the judge or the attorneys.</p>

<p>Attachment — Levy and Sale — Ownership of Property Sold.</p> <p>A plaintiff who causes an attachment to issue and causes property to be sold not belonging to the defendant, which property the purchaser is required to surrender, is liable to such purchaser for the money paid for such property.</p>

<p>Conveyance of Land — Bond for Deed.</p> <p>Where a bond for a deed shows a sale of land in gross and not by the acre, the vendor cannot in disregard of the written contract be allowed to show that it was verbally agreed that the purchaser should pay for the land at so much per acre. He is bound by his written contract.</p>

<p>Guarantor — Notice of Acceptance — Pleading.</p> <p>Where the petition fails to aver notice of acceptance of a guaranty, evidence cannot supply the place of such averment.</p>

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

<p>Life Insurance Policy — Representations to Procure.</p> <p>While an insurance company is not bound to pay on a policy that was procured by false representations made by the insured, it is bound when the evidence discloses that such representations were substantially correct and true.</p> <p>Evidence.</p> <p>Close neighbors and friends who have an opportunity to observe a person almost daily are in a better position toi state the condition of one’s health than those seeing the person infrequently.</p>

<p>Indemnity Bond — Release from Liability.</p> <p>Where one signs an indemnity bond as surety for another who signs an appeal bond, he has a right to expect the appellant to prosecute his appeal in good faith, and if the person holding the indemnity bond, by purchase or otherwise, so far alters the situation as to make it to his interest to have the judgment affirmed, the indemnity bondsmen would thereby be released as to him.</p>

<p>Life Insurance Policy — Failure to Pay Premium.</p> <p>When a life insurance policy provides that failure to pay a premium when due renders the policy void, and it is shown that such failure occurred, there can he no recovery on such policy.</p> <p>Burden of Proof.</p> <p>When in a suit on an insurance policy the company claims a forfeiture on account of a failure to pay a premium, the burden is on the plaintiff to show that the right to forfeit had been waived by the company, or that the agreement, if any was made, to extend the time of payment had been waived by the company.</p>

<p>Public Schools — Principal of a Public School.</p> <p>The principal of the public schools of the city of Paris is an employee of the state, and the money in the hands of the officers of said city for school purposes is public money held by the officers as agents of the state.</p> <p>Common-School System.</p> <p>The state has undertaken to maintain a system of common schools and this is a state system.</p> <p>Pay of Teachers — Attachment.</p> <p>The state must be allowed without interference by creditors to employ and pay teachers, and the amount due from the state to its teachers cannot be reached by attachment.</p>

<p>■Cost Bonds — Non-Resident Plaintiffs.</p> <p>The failure of a defendant to move to dismiss because no cost bond is filed amounts to a waiver of the right he has to have the action dismissed.</p>

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

<p>Attachment — Burden on Plaintiff.</p> <p>The plaintiff in an attachment suit must show that he had a subsisting cause of action when he commenced it, either by showing that his debt was due and unpaid or by showing that the grounds of attachment, or some one of them, existed.</p>

<p>Mental Capacity to Contract — Deed.</p> <p>The deed■ of an insane person is not necessarily void. Sucb deeds stand on tbe same ground with the deeds of infants, and courts should not set them aside only when justice requires it, and only then on terms just to all parties.</p>

<p>Promissory Note — Assignor.</p> <p>Where a promissory note not discounted by an incorporated bank, not being negotiable as well as payable in bank, one signing on the back thereof is only liable as assignor and cannot be sued until the maker of the' note has been prosecuted to insolvency.</p>

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

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

<p>Partnership.</p> <p>A partner in business does not cease to be, a partner by merely abandoning the partnership business.</p> <p>Fraud of Partner — Right of Creditors.</p> <p>A fraudulent collusion by partners with others to cheat and hinder creditors will give the creditors a right to the aid of a court of equity; and where one partner made a mortgage in fraud of the rights of the other partner and of the firm creditors, this gives the creditors a right to come into court and set up the lien of the defrauded partner and have themselves substituted to whatever lien such partner had.</p>