Volume 80 — Kentucky Reports

Case 1 — INDICTMENT APPEAL FROM SCOTT CIRCUIT COURT. No brief. No brief. The instructions given by the Circuit Court are, by order of the Court of Appeals, reported.

Case 2 — EQUITY— APPEAL FROM UNION CIRCUIT COURT. No title passed by the decedent’s sale of the corn crop; for when the agreement was made it was in an entirely different condition from that in which it was tube delivered. It was also at a different place from that at which it was to be delivered. The cases referred to by appellees’ counsel are those in which no injury could result to creditors.

Case 3 — EQUITY— APPEAL FROM DAVIESS CIRCUIT COURT. The point of difference is as to the scope and legal effect of the discharge in bankruptcy granted to Carter & Fisher, and the individual members thereof. It is clear that appellee cannot have assets as ¿ member of the firm of Wm. Fisher & Bro., and yet be discharged from the debts of the firm. (67 Mo., 140; 24 Am. Rep., 17; 1 Bank.

Case 4 — ORDINARY— APPEAL FROM BOURBON CIRCUIT COURT. 'The General Statutes expressly recognize a letting on the shares as a renting. (Sec. 1, art. 5, chap. 66.) The life-tenant is not an owner, and, of course, his interest ceases at his death, and 'eo instanti the interest of the remainderman takes effect.

Case 5 — EQUITY— APPEAL FROM MADISON CIRCUIT COURT. The order of the Madison county court of October, 1876, is in conflict ’ with the original and amended charter of appellees. The subscription ordered to be made by the county judge is invalid. The county court or judge cannot issue bonds of the county under the order set forth in the agreed case herein. The order of revocation was valid.

Case 6 — EQUITY— APPEAL PROM LOUISVILLE CHANCERY COURT. The execution of the deed of assignment by Barnum was a voluntary abandonment bf the proposed compromise. To convey Ms estate away is incompatible with the agreement. (Burrill on Assignments, sec. 298.) The trustee is bound by the terms of the deed of trust. Under that deed nothing less than full payment can he worked out. No bond of indemnity provided for in section 435, Civil Code, was required.

Case 7 — INDICTMENT— APPEAL PROM HARRISON CIRCUIT COURT. The court erred in admitting the evidence showing that Conrad was at the depot when deceased arrived; and should have admitted.the proof as to appellant’s statements to witnesses immediately before the killing. Erred in refusing to give the old fourth instruction, which submitted all the facts and circumstances to the jury on the question of self-defense. The fourth instruction given by the court is error.

Case 8 — EQUITY— APPEAL PROM MADISON COURT OP COMMON PLEAS. 1. Inasmuch as Arnold had been made defendant to the original petition, and process executed upon him, he was already in court, and it was neither necessary nor proper to take out process upon the amended petition, which set forth-that Arnold claimed a debt against decedent’s estate of $9,000. ' 2.

Case 9 — ORDINARY— APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. The court erred in its instructions, and in refusing those asked for by appellant. Appellee is not in any reasonable sense a housekeeper. His housekeeper was not his, and his connection with- her was. simply adulterous. The son was not born in wedlock. It can hardly be presumed that he who openly violates law can successfully appeal to its protection as a debtor.

Case 10 — ORDINARY— APPEAL PROM WARREN CIRCUIT COURT. 'The Warren quarterly court had no jurisdiction of the appeal, and its judgment was void. The remedy sought by appellees upon the appeal bond is not authorized by the Code. Section 444 of the Code makes no provision for appeal bonds. (3 J. J. Mar., 377.) If will be observed that both of the objections of appellant are based upon purely technical grounds.

Case 11 — EQUITY— APPEAL FROM BUTLER COURT OF COMMON PLEAS. APPEAL FROM BUTLER CIRCUIT COURT. Inasmuch as appellant’s cross-petition disclosed an equitable cause of action against appellee, it was the duty of the circuit court to take cognizance of it (Civil Code), although the original petition was not transferred with it. (Civil Code, sec. 372.) The order transferring the answer and cross-petition was made upon appellant’s motion, and he cannot complain of it.

Case 12 — EQUITY— APPEAL FROM UNION COURT OF COMMON PLEAS. There was no privity between either John or George Payne'and appellant. The principal had the right to revoke the agreement, and reclaim from his surety the money deposited. There is no trust created in favor of appellee by virtue of the agreement between the principal and his surety.

Case 13 — ORDINARY— APPEAL PROM CHRISTIAN CIRCUIT COURT. We submit that this suit is brought upon a verbal contract for leasing the house and lot to appellant for two years, and it comes within the •inhibition of the statute. It is not a suit for use and occupation. The averment that the house was used and occupied by appellant does not authorize a finding as to the value of the property for the lesser time charged.

Case 14 — EQUITY— APPEAL FROM DAVIESS CIRCUIT COURT. Those infants who were over fourteen when the order of revivor was executed upon them, are clearly barred by appellant’s judgment in the former suit; and the same rule applies to those under fourteen,, whom process was served upon, who failed to sue .within twelve months after they arrived at age. Margaret Story is the only one who can by any possibility be entitled to recover.

Case 15 — EQUITY— APPEAL FROM BUTLER CIRCUIT COURT. The execution of the mortgage by Ferrell in contemplation of insolvency to appellee created a trust in him for the benefit of his creditors. A payment to appellees by the mortgagor enured to their benefit.

Case 16 — EQUITY— APPEAL FROM LOUISVILLE CHANCERY COURT. The guardian is entitled to the custody of his wards as well as of his wards’ estate. That the infants removed out of the city is not their act, but the act of the guardian. The residence of the guardian, •and hot that of the ward, must fix the situs for taxing personal property.

<p>1. An answer to a suit upon a promissory note, averring that it was obtained by fraud, misrepresentation, and covin, without specifically setting forth the facts constituting the fraud, presents an issuable fact, and a reply must he made to it. ' ■</p> <p>2. And so if the answer was that the note was executed without any consideration.</p> <p>8. The motion of appellant that the court render judgment for him, notwithstanding the verdict against him, should have been granted, because no reply had been made to either paragraph of his answer.</p> <p>■4. Neither sections 114 nor 134 of the Code have any application to the case.</p> <p>5. The court erred in setting aside the verdict for'tlie purpose of enabling appellee to file a reply. It was too late.</p>

Case 18 — ORDINARY— APPEAL FROM CHRISTIAN CIRCUIT COURT. The effect of the contributory negligence of appellee cannot be avoided, unless it be shown that appellant, after becoming aware of the perilous situation of appellee, could, by the use of ordinary care, have prevented the injury. Appellee’s reply fails to deny that he had full knowledge of the defect in the platform, and he sets forth no ■good reason why he fell into it. The instructions were error.

<p>Case 19 — EQUITY—</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>Brief withdrawn.</p> <p>The court properly compelled appellant to elect as to which cause of action it would prosecute. The petition purports to state a cause-of action against several persons, when in fact four distinct suits, must he brought. Appellant does not keep a “tavern,” a house of public or private entertainment, and it did not make any agreement for compensation. The orphan was taken as a matter of charity,, and no recovery can he had. (Art. 3, chap. 106, Gen. Stat.)</p>

<p>Case 20 — EQUITY—</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>It is clear that if Mrs. Hall had the absolute fee in the property devised,, , and could vest a purchaser with the title, there could be no estate in remainder in the appellees. Therefore no estate in remainder passed to the appellees.</p> <p>We maintain that B. M. Hall, holding a fee-simple title to the estate devised, and having made an indefinite devise of it to his wife, the fee passed to her, and any subsequent instructions to her contained in the will, affecting her absolute power of disposition, are void, as-completely void as if the testator had devised the lands to his widow and her heirs, clogging the fee with conditions and limitations not sustained by the statute. (4 Leigh, 408; 4 Kent’s Com., 270; Red-field, 2 vol., 659; 16 Johnson, 587; 21 Maine, 289; 52 N. H., 270;. Collins v. Carlisle, 7 B. Mon., 14; Carroll v. Carroll, 14 26., 637; 1 N. J., 136.)</p> <p>We contend that the testator intended to give to his wife a life-estate,, with power to sell and reinvest; hut he imposed a trust'for the benefit of her children in what should be undisposed at her death. The words for her separate use and benefit are not intended to preclude the remaindermen, but to create a technical separate estate. (4 Peters, 86; Carroll v. Carroll, 12 B. Mon., 64; Collins v. Carlisle, 7 26., 14; Rev. Stat., vol. 2, 227; 2 kStory’s Equity, sec. 1384; Schouler’sDomestic Relations, 195 ; Griffith v. Griffith, 5 B. Mon., 117; Brown v. Alden, 14 B. Mon., 150.)</p>

Case 21 — EQUITY— APPEAL PROM OWEN CIRCUIT COURT. 1. The allegation that a married woman had made a, sale of her real estate necessarily implies that she had made and acknowledged a written conveyance. A verbal contract of sale is utterly void. 2. The possession of a vendee by executory contract is that of the vendor, and no lapse of time will bar him.

Case 22 — EQUITY— APPEALS PROM BATH COMMON PLEAS COURT. 1. The 103J acre tract was owned and held by Matilda Stone and Charles. Stone by a joint deed, and upon the husband’s death the, widow, as survivor, was seized in fee-simple of the whole. Before the Bevised Statutes, a conveyance to husband and wife constituted an estate by the entirety, which neither could sever. (Elliott v. Nicholls, 4 Bush, 455; Bogers v. Grider, 1 Dana, 243; Babbitt v. Scroggin, 1 Duv., 274.) 2.

<p>1. The conveyance of the land by appellant to his brother, Joshua McKee, to pay a preexisting debt, was in contemplation of insolvency, and with the design to prefer him as a creditor.</p> <p>'2. A surety being “a person interested” may, under the statute, maintain his action against his principal who seeks to prefer another creditor than the person to whom the surety is bound.</p> <p>■3. And the assignee of the surety who assigns to him'all of his property for the payment of his debts is properly joined as plaintiff.</p>

<p>Case 24 — EQUITY—</p> <p>APPEAL PROM MONTGOMERY CIRCUIT COURT.</p> <p>1. The action is brought not upon the account but upon a new promise to pay it. The suit is not within the statute of limitations. (Oarr v. Robinson, 8 Bush, 274; Truesdale v. Anderson, 9 lb., 277; Hieronymus v. Mayhall, 1 lb., 296.)</p> <p>2. There can be no doubt that the conveyance to Rebecca Evans is voluntary, and fraudulent as to preexisting creditors of her husband. He paid for the land, and directed that the deed be made to her. (Miller v. Desha, 3 Bush, 212; Lowry v. Fisher, 2 Bush, 70; 7 lb., 217; lb., 337; lb., 585; 4 Met., 143.)</p> <p>3. The court erred in suppressing appellant’s deposition.</p> <p>1. The action should have been brought upon the new promise (if any was made) to pay the amount. 'Being upon the account, it is barred by the statute of limitations. (Carr v. Robinson, 8 Bush, 274; Trues-dale v. Anderson, 9 Bush, 277.)</p> <p>2. Mrs. Evans’ land cannot be subjected to the payment of this debt under the statute, even if it be valid and subsisting, and the case is not made out to subject it at common law. (Marshall v. Marshall, 2 Bush.)</p>

Case 25 — FORFEITURX- APPEAL FROM HARDIN CIRCUIT COURT. 1. The statute requires that all demands against decedent’s estates shall be verified. 2. The object of bail in misdemeanors is only to secure compliance with the judgment. (1 Duv., 244.) 8. Inasmuch as a defense was made, and the defendant found not guilty, no judgment should have been rendered upon the forfeited bond. 1.

Case 26 — INDICTMENT— appeal from mercer circuit court. 1. The facts set forth in the indictment are not sufficient to show a public nuisance. If any nuisance at all, it was private, and therefore not indictable. (13 Bush, 389.) 2. The court should have confined the Commonwealth to the day alleged in the indictment. , : 3. Appellants are not a corporation, either by Ohio or Kentucky statutes.

<p>1. The crossing of a turnpike by appellant’s trains at the rate of from fifteen to twenty miles an hour, without sufficient warning, is a public nuisance.</p> <p>2. Where a nuisance is public, endangering the community by the careless and incautious exercise of a hazardous business, the contributory negligence of any, or, indeed, all the community, furnishes no defense to the injury to the public.</p> <p>3. Evidence offered as to the absence of casualties on other roads conducted in a more populous community, and at crossings more generally used than the highway in question, was properly excluded.</p>

<p>Case 28 — INDICTMENT—</p> <p>APPEAL FROM GRAYSON CIRCUIT COURT.</p> <p>'The indictment is insufficient. It is not the duty of a railroad company to keep in repair public highways at points where the railway crosses it. That duty is devolved upon the surveyor of roads in each county along the line of the railroad. An averment that the company is incorporated is material; it is not made. (18 Penn. State Bep., 68; Commonwealth v. Dudley, 3 Met., 222; Wool on Ways, 4 Law Lib., 158; Commonwealth v. White, 18 B. M., 492; 1 Duv., 90; Crim. Code, secs. 157,175.)</p> <p>1. Although the indictment does not allege that the railroad belongs to. - appellant, it does aver that appellant willfully neglected to keep in repair the crossing indicated.</p> <p>2. It is the duty of appellant, unless relieved by a statute, to keep its, crossings in repair. It controls the height of its track, and must keep the crossings with regard to public convenience. (74 N. Y.,. 302; 31 Ohio, 338; 07 111., 118.)</p>

Case 29 — EQUITY— appeal prom greenup circuit court. 1. The wife of the mortgagor Tong having failed or refused to join with him, he retained his homestead in the land. 2. The homestead is not subject to the debts of Tong, and undoubtedly he had the right to sell and convey it to any person; and inasmuch as it was exempt from debts, the question of consideration is with him and not with his creditors. 3. No estate of any kind was derived by appellants from Wm.

Case ' SO — EJECTMENT— APPEAL PROM GRAVES' CIRCUIT COURT. 1. A commissioner’s deed can convey no title except when made in pursuance of a judicial proceeding. 2. The case terminated in the United States Court in 1844, and no step to obtain a deed was taken until 1873. It was too late, and .the proceeding was barred by limitation.

Case 31 — EQUITY— APPEAL FROM OWEN CIRCUIT COURT. 1. No objection was made to the judge of the election while it was being conducted, and the appellees are now estopped from objecting. 2. An irregularity in conducting an election will not affect it nor prevent the imposition of the tax in question. •3. When a majority of all the qualified voters voted for the tax, and the judge being impliedly accepted by them, the court will not inquire into the manner of his appointment.

Oáse 32 — ORDINARY— APPEAL PROM MEADE CIRCUIT COURT. 1. The court should have sustained appellant’s motion for a nonsuit. 2. The facts iu no sense authorize a verdict against appellant. (Hautbi v. Roberts, 3 J. J. Mar., 298; Parker v. Jenkins, 3 Bush, 587; Mc-Kibben v. Baker, 1 B. M., 122.) 3. The court erred in giving the instructions to the jury. -4. The verdict of the jury was not signed when delivered. 5.

Case 33 — EQUITY— APPEAL PROM GRAVES CIRCUIT COURT. 1. Appellee’s petition shows no cause of action. 2. It was the duty of appellee to ascertain, by proper inquiry at the-clerk’s office of the Graves county court, the amount of liens upon the land he desired to purchase. Bailing to do this, he made his. purchase at his own risk, in so far as appellant is concerned, and cannot recover against him. (Eaker v. West, MS. Opin., 1879.) 1.

Case 34 — ORDINARY— APPEAL FROM DAVIESS CIRCUIT COURT. Although the cause was submitted to the court for a trial of law and fact, no motion for a new trial nor grounds were necessary. (Union Ins-Go. v. Groom, 4 Bush, 289; Blakey v. Johnson, 13 lb., 202; McHugh v. Schuylkill, 67 Denn. St., 391.) 1. The judgment is abundantly sustained by the evidence. (Miller v. Hughes, 1st A. K. Mar.; Saufley v. Howard, 7 Dana.) 2.

Case 35 — INDICTMENT APPEAL PROM MONROE CIRCUIT COURT. The averment of bad faith is made in the indictment, and this is all that was necessary. 1. The indictment does not charge that the prescription given by appellee was plainly written or printed, and is therefore bad on demurrer. 2. It is not the policy of the law to interfere with the professional duty of physicians, and the statute should be strictly construed.

Case 36 — ORDINARY APPEAL PROM HENDERSON CIRCUIT COURT. I. The judgment against appellant was rendered upon the ground that the receiver could not institute a suit against him without an express order of court to that effect. 2. As surety on the bond, appellant is released by Revised Statutes, chapter 97, sections 12 and 14. . 3. Either party to the suit pending in the Henderson circuit court might have sought and enforced the collection of the note at any time it fell-due.

Case 37 — EQUITY appeal from warren circuit court. 1. The purchase was made by appellant, was made in good faith, and in. ignorance of the fact that appellee had no power to convey the land to him. « 2. She represented to him that she was advised by her attorney that she-, could convey it, and appellant believing her statement, in good faith paid for and accepted the conveyance. 3.

Case 38 — ORDINARY APPEAR FROM TRIGG CIRCUIT COURT. The allegation of insolvency in the petition, not coupled with any other averments, amounts to nothing. Appellees should have averred that they instituted suit at the first term of court after the notes matured; that judgment had been obtained, execution was issued, and a return of nulla bona was had thereon.

<p>Case 39 — BAIL BOND —</p> <p>APPEAL FROM CHRISTIAN CIRCUIT COURT.</p> <p>The Commonwealth had jurisdiction of the offense, and having assumed the power to try the defendant for counterfeiting, she cannot after-wards he divested of it by the United States authorities assuming jurisdiction of the same offense. (Commonwealth v. House, 13 Bush, 679.)</p> <p>1. At the time the bail bond was forfeited the principal, John H. Overby, had been arrested by the United States authorities, and was in their custody upon the identical charge made against him by the Commonwealth.</p> <p>2. Inasmuch as appellee was prevented from surrendering his principal, his obligation ceased. (Commonwealth v. Terry, 2 Duv., 383; Same v. Webster, 1 Bush, 616; Kirby v. Commonwealth, 1 !&., 114; Rev. Stat. U. S., 2d ed., chap. 12, sec. 711; art. 6, Constitution U. S.; 5 Howard, 447; 14 LA, 21.)</p>

<p>1. Without a judgment and return of “no property found,” and without-attachment under any of the grounds authorized by the Civil Code, appellees had no right to go into a court of equity to set aside an. alleged fraudulent conveyance in order to subject the property to a demand purely legal.</p> <p>2. But appellant having made an issue upon the averment of fraudulent. conveyance, and tried the case without any objection by demurrer or otherwise, it is now too late to raise the question in this court.</p> <p>3. The conveyance is fraudulent as to creditors.</p>

Case 41 — MOTION TO DISMISS APPEAL PROM LINCOLN COURT OF COMMON PLEAS. 1. The appeal was granted by-the court below, and appellant failed to file his assignment of errors and schedule within ninety days after the appeal was granted. (Sec. 737, Civil Code, sec. 737a.) 2. The judgment is not final. The appeal before the court was granted by the clerk of the Court of • Appeals, and sec. 737, Civil Code, has no application.

Case 42 — EQUITY APPEAL PROM KENTON CHANCERY COURT. 1. The act approved February, 1874, to amend the charter of the city of Covington, is intended to discourage this class of suits. 2. If the action be not to recover taxes illegally or erroneously collected, we fail to comprehend what character of action it is. •3. The act is a public act, and need not be pleaded.

<p>1. An honest belief in the truth of the statements of the assured, when not material to the risk, although untrue when made, should not avoid a policy of insurance.</p> <p>:2. It is contrary to the intent of the parties and subversive of the good faith and fair dealing that should enter into and form a part of every insurance contract, to avoid it because of any trivial misrepresentation not material to either party.</p> <p>3. It is evident that the parties were looking to the facts material to the risk, and not to minute statements of the ages of ancestors or their nationality.</p> <p>4. The puipose of the act of February 4th, 1874, was to bring the representations and warranties of the assured within its provisions, and to ¶ prevent the assured from losing his indemnity, either upon a repre-. sentation or warranty not fraudulent nor material to the risk.</p> <p>5. So much of the opinion in the ease of the Farmers & Drovers’ Ins. Co. v. Curry as expresses opposite views to this is overruled.</p> <p>6. Although the assured removed from Louisville to Mississippi, against the terms of the policy, yet, as the appellants, by their agent, recognized his removal and continued to receive the premiums upon the policy up to the death of the assured, they are estopped from demanding its forfeiture.</p>

<p>1. When a proceeding is instituted upon a return of “ no property ” to ‘ subject property specifically described, no attachment levy is necessary to give a lien against the prpperty..</p> <p>2. Section 442, Civil Code, was not intended to interfere with such liens, hut to aid a court of equity in subjecting property to the satisfaction of an ascertained debt where a discovery is necessary.</p> <p>•3. It was error to refuse appellant the right to file his petition claiming the property in controversy.</p>

Case 45 — ORDINARY APPEAL PROM PIKE CIRCUIT COURT. 1. The debts sued upon might have been proven in the bankrupt proceeding. A promise to pay before the bankrupt is discharged is not enforceable. 2. The first cause of action asserted is barred by the bankrupt’s discharge, and if any provision was made after his discharge, it is barred by limitation.

<p>Case 46 — CRIMINAL CASE</p> <p>APPEAL ERO7S EAYETTE CIRCUIT COURT,</p> <p>No brief.</p> <p>No brief.</p>

<p>Case 47 — EQUITY</p> <p>APPEAL PROM CHRISTIAN CIRCUIT COURT.</p> <p>We suggest that another construction of decedent’s will is, that the latter part constitutes an irrevocable limitation of the use of the property devised, an abandonment of which would operate as a forfeiture of the interests of, the devisees. o</p> <p>1. The general rule is, that if lands are given to a corporation for char- * itable uses, which the donor contemplates shall last forever, the heir can never have the land unless it be impracticable to execute the charity.</p> <p>.2. Appellees, under the will and the aid of the legislative act, with the consent of the congregation, had the power to convey. (Story’s Eq., • sec. 1178; Gen. Stat., chap.' 13, sec. 4; 5 Wallace', 134; 119 Mass., 1.)</p>

<p>Case 48 — ORDINARY</p> <p>APPEAL PROM CARROLL CIRCUIT COURT.</p> <p>1. The sheriff being estopped from alleging the validity of the levy, his sureties are also estopped.</p> <p>.2. The levy not being indorsed at the time, and not until after the death of the defendant in execution, is invalid.</p> <p>3. The alleged direction of the plaintiff on the execution to the sheriff to return to bis attorney for indorsement is not good because not in writing. (McBurnie v. Overstreet, 8 B. Mon., 304; Commonwealth, &c., v. Hart, 4 Bush, 64; Carlisle v. Wathen, 78 Ky., 365; Gen. Stat., chap. 38, art. 11, sec. 2; Myers’ Sup., p. 755.)</p> <p>.Although the sheriff did not fully set forth his levy at the time it was made, we think the authorities are clear that a levy on real estate may be shown by parol. The execution creditor ought not to be deprived of any right by reason of the sheriff’s failure to state his levy with particularity. (8 B. Mon., 303; 4 Bush, 66; 9 Bush, 166; 18 B. Mon., 521; 3 16., 25; 3 Dana, 152.)</p>

Case 49 — EQUITY APPEAL FROM FAYETTE CIRCUIT COURT. 1. The necessary construction of appellee’s charter requires that appellants should have had actual notice. 2. The term at which the verdicts were confirmed was not the next regular term, and the court, at the February term, 1880, had no authority to hear or confirm them. 3.

Case 50 — INDICTMENT APPEAL FROM JEFFERSON CIRCUIT COURT. 1. The act for the benefit of W. C. D. Whipps, approved April 27, 1880, upon its face confers a license to do that which the general law forbids. '2. It is the grant of an exclusive privilege. ■3.

<p>1. A payment by the obligor of a note, indorsed by the obligee to “the-Madison Bank of Richmond for collection,” to an unknown holder or stranger who had no right to collect it, is made at the obligor’srisk.</p> <p>2. If the note had been indorsed in blank, or been made payable to the bearer, the case would be different.</p>

Case 52 — ORDINARY APPEAL FROM JEFFERSON CIRCUIT -COURT. No brief. -1. The running and use of appellee’s trains on Sunday is absolutely necessary for the convenience of the community. The “Sunday Law ” never was intended to apply to common carriers. (09 Ind., 61;, 34 Penn., 398; 54 16'., 401; 24 16., 270 ; 6 Mass., 76; 4 Ohio, 572; 55 • Ga., 126; 23 Howard, 219; 24 16., 247; Crabb’s Rep., 208.) 2.

Case 53 — CONTEMPT APPEAL FROM JESSAMINE CIRCUIT COURT. 1. The rule against appellant was in violation of article 4, section 5, of the constitution, which requires that, the process shall be in the name of the Commonwealth of Kentucky. 2. There should have been an indictment. (Section 13, article 13, Constitution.) 3. It was error for the replevin bond to bear interest. 1. The statute does not require an indictment in this class of cases. 1 '2.

Case 54 — MOTION APPEAL FROM KENTON CIRCUIT COURT. 1. There is no law authorizing the proceeding against the tenants of the-execution debtor, and upon their motion the notice should have been quashed. 2. The court erred in refusing appellant a trial by jury. 3. The execution issued upon the replevin bond before it was due.

<p>Case 55 — ORDINARY</p> <p>APPEAL FROM WARREN COMMON PLEAS COURT.</p> <p>1. The court erred in refusing to permit appellant to file his amended-' reply.</p> <p>2. The statements made by. appellee to. appellant, and especially his promise to confess judgment upon the note in controversy during-the term of court then in session, were fraudulent, and given with the view of putting appellant off his guard, so that the statute should operate to release appellee as surety. The case of Kennedy v. Foster, 14 Bush, 479, is not in point. The period during which appellant was delayed by the fraud of appellee should be deducted from the¡ , time pleaded. (5 Bush, 579; Newman on PI. & Pr.,.715; Kennedy v. Foster, 14 Bush, 479; Bigelow on Fraud, 444; Dent v. McGrath, 3-Bush, 176; Warren v. Barker, 2 Duv., 156; Gill v-Carter, 6 J. J. M.,, 485; 13 Mich., 124.)</p> <p>1. It is clear that appellant, by his own negligence, failed to cause the-summons to issue until five days after the full period of seven years - had elapsed.</p> <p>2.- The demurrer being general, was properly overruled.</p> <p>3. The amended reply was properly rejected. (Gen. Stat., chap. 77, art.. 6, sec. 4; Walker v. Sayeres, 5 Bush, 579; Kennedy v. Foster, 14 Bush, 479; Trabue v. Sayre, lb., 129; Williams v. Rogers, 14 lb., 776.)</p>

Case 56 — INDICTMENT APPEAL FROM FAYETTE CIRCUIT COURT. ■1. It was the duty of the court to have instructed the jury in express . terms that, if they had a reasonable doubt that appellant was guilty, .he was entitled to an acquittal. And further, if they had a reason- ■ able doubt as to the degree of his offense, they must find him guilty ■ of the lower degree. (Sec. 23, Crim. Code; Mickey v. Common■wealth, 9 Bush, 597.) .2.

Case 57 — EQUITY APPEALS FROM LOUISVILLE CHANCERY COURT. No brief for appellant. 1. The Louisville chancery court has no jurisdiction to set aside or vacate the judgments of the Jefferson circuit court. .2. The settlement made by appellee as trustee of the jury fund for the circuit court is, when approved by the court, final, contains all the elements of a judgment, and can only be attacked in that court.

Case 58 — CAVEAT APPEAL FROM LIVINGSTON CIRCUIT COURT. It is clear that appellee entered under appellant as his tenant. He should not be allowed to turn against his landlord and hold against him. It is distinctly proved that the land upon which appellant entered is not covered by the patent of appellant, and his caveat .should be dismissed,

Case 59 — EQUITY APPEAL FROM CLARK CIRCUIT COURT. 1. The revivor was agreed upon, and the failure to enter it was a misprision which may and ought to he corrected. The power of amend- ■ ment is of the greatest antiquity. 2. A judgment in a matter of fact may be- amended.where it is the mis- ■ take of the clerk. 3. A more manifest fraud cannot be imagined' than for appellee to deny an agreement of his counsel on the scope of' his authority made with. his adversary.

Case 60 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. Appellee is a mere trustee, and the beneficiaries who hold the bonds, secured by the trust deed to appellee are not before the court in jmy way. The deed itself shows that the grantor is trustee oiily, and the ■ purchaser is bound to take notice of the nature and character of the trust.

Case 61 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. It is clear that appellee Nunes considered his property more valuable than the amount of his debts, and he intended to prevent his creditors from enforcing payment by ordinary process. :2. He had a double design: to pay his creditors and leave a surplus for . himself. The deed is, upon its face, fraudulent as to creditors. (Ward v. Trotter, 3 Mon., 1; 8 Dana, 247; 1 Sand. Cli’y, 8; II Cent.

<p>1. Appellants having made their demand upon the Auditor, coupled with the evidence that their claim was just under the statute, it was appellee’s duty to audit the claim.</p> <p>2. Chapter 71, title Limitations, is not applicable to this case. No limitation is therein prescribed as to such actions as this.</p> <p>3. The fund sued for is claimed by one department of the government and held by another. Limitation does not apply in favor of one against the other.</p>

Case 63 — EQUITY APPEAL FROM LOUISVILLE CHANCeÍy COURT. 1. Taking the allegations of the petition and the admissions of the-answer, it is clear that appellee has wrongfully taken into his possession a large amount of money and a note belonging to decedent’s estate. 2. The appointment of an administrator by the Jefferson county court by no means relieves appellee from his liability to decedent’s creditors.

Case 64—INDICTMENT APPEAL PROM LOGAN CIRCUIT COURT. Referred to Sparks v. The Commonwealth, 3 Bush, 116; Rutherford v. Same, 13 lb., 608; Farris v. Same, 14 lb., 362; 3 Greenleaf on Evidence, 112. Moved to dismiss the appeal upon the ground that the record was not' filed in this court within sixty days after appeal was granted.

Case 65 — INDICTMENT APPEAL PROM BOYE CIRCUIT COURT. 1. When it became apparent that Ellis, by his own evidence, was an accomplice, there being no proof to sustain him as to the murder and the circumstances connected with it, the court should, even without a motion, have directed the jury to render a verdict of acquittal. (Criminal Code, section 242.) : 2.

<p>1. The divorce obtained by the husband of appellant in Indiana determined the status of the parties, but does not by its own force affect the right to property in this state.</p> <p>2. But section 14, article 4, chapter 52, General Statutes, which is the same as the Revised Statutes, provides that “ a divorce bars all claim to curtesy or dower,” was intended to apply to all valid divorces where-ever obtained.</p>

Case 67 — ORDINARY APPEAL PROM CAMPBELL CIRCUIT COURT. .1. The principle of law is well established that discretionary powers vested by law in corporations are not subject to judicial control. .2. The power vested in the city council is one of sound judgment and discretion. (Act to' provide for'establishing county courts in Newport, approved February 26, 1863; Amendment to same, approved February 15, 1864; Laws of Newport, pp. 140,141, 145; Grant Corp., 34; Cooley’s Const.

Case 68 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The uniform ruling of this court has been, that no sale or transfer is. valid unless the thing or right or interest sold or transferred has a potential or actual existence in the vendor. A possibility is not-subject to sale or transfer. (2 Met., 129; Washburn on Real Property, 4th ed., vol. 2, pp. 549, 562, 590, 592; Bouv. Inst., vol. 2, 286; Shep. Touchstone, 321; Bac. Ab., tit.

Case 69 — EQUITY APPEAL FROM LAWRENCE CIRCUIT, COURT. 1. There is no prescribed bar or limit to an action for alimony. The wife is not required by the Civil Code to reside one year in the county • where the suit is brought in order to obtain alimony. '2. Neither time nor residence is any ingredient in the case. (Civil Code, secs. 420, 424, subsecs. 1, 2, and 3.) •3. The court erred in refusing the amendment offered charging adultery.

Case 70 — EQUITY APPEAL FROM DAVIESS CIRCUIT COURT. That Mrs. Hagan was a feme covert is no reason why judgment should, not have been rendered against her. Her coverture was not relied upon by plea, and therefore a personal judgment should have been obtained. (8 B. Mon., 441; 7 B. Mon., 293; 3 Bush, 660; 1 Met.,. 293; 1 B. Mon., 304; Hardin, 224; Myers’ Code, sec. 137 and 389.) 1.

Case 71 — EQUITY APPEAL FROM GREENUP CIRCUIT COURT. 1. The court erred in refusing to compel appellees Wilson, Andrews &- Co. to paragraph their petition. (Civil Code, sec.'U3, subsec. 3.) 2. The court should have compelled appellees to elect which cause of' action they would prosecute. 3. If the order awarding an issue out of chancery was correct, it was a flagrant error to set it aside and refer the case to a commissioner. 4.

Case 72 — INDICTMENT APPEAL PROM BELL CIRCUIT COURT. 1. The court failed to render any judgment in this case. The minutes of the clerk fail to show any definite orders of the court. Every thing is left to the clerk. 2. There is nothing of record to show that appellant has been convicted of any offense, and yet he is in the penitentiary. The record in this case is not one upon which a reversal can be had-The appeal should either be dismissed or the case affirmed.

Case 73 — EQUITY APPEAL FROM MONTGOMERY CIRCUIT COURT. 1. There is not the le'ast evidence of fraud either upon the part of the assignor of the notes or appellant Beatty, but the case is simply the giving by the debtor to his surety indemnity against loss. 2. The demurrer, to the petition should have been sustained, because • it does not aver that the assignment of the notes was within four months before Shultz filed his petition in bankruptcy. 3.

Case 74 — INDICTMENT APPEAL FROM JEFFERSON CIRCUIT COURT. ‘ The evidence of the outcry of persons indicating the parties supposed to be guilty was incompetent. (10 Bush, 576; 1 Greenl., 108; Roscoe’s Grim. Ev., 20 and 21; 1 Taylor’s Ev., 531; Mockabee v. The Commonwealth, 78 Ky.) The proof objected to was competent to show— 1. That the parties were liable to arrest. 2.

Case 75 — ORDINARY APPEAL FROM BRACKEN CIRCUIT COURT. .1. The instructions given by the court are erroneous. The evidence utterly fails to show that the county judge consented'to or authorized any erasure of any name upon the power of attorney. The court should have sustained the demurrer to the answers of appellees. (Jones v. Ins. Co., 2 Met., 58; Smith v. Moberly, Í0 B. Mon., 264; 14 Bush, 610.) ■ 2.

Case 76 — EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. Both appellant and appellee purchased with exact knowledge of the condition of the property they bought. 2. A common owner built both houses, and conveyed them with the appurtenances. 3. Appellee cannot deprive appellant of this easement, for without it her house will he destroyed. 4. Neither can appellee, under the pretext of obtaining light and air, ruin appellant’s house.

Case 77 — ORDINARY APPEAL FROM JEFFERSON CIRCUIT COURT. 1. The declarations of Fish, “I had until 10:10, A. M., to make Beards,”' are not admissible or competent as a part of the res gestx. 2. It was not made at the time the collision took place. 3. The statement was not made at the same time the instructions were-given. 4. The statement was made by Fish as the agent or servant of the-receiver. 5.

Case 78 — EQUITY APPEAL FROM GARRARD CIRCUIT COURT. . 1. That the deed between Jones and Gano did. not correctly state the contract hi reference to the debt due to appellee Higgins, as clearly pleaded and proved. 2. The sole object of the record of a deed or mortgage is constructive notice of its contents to all subsequent purchasers and mortgagees. (Jones on Mortgagees, sec. 557.) 3. The decision of the court below gives appellee, by substitution, what he is not entitled to.

<p>1. An instruction that “the defendant, as a carrier of passengers for hire, was bound, as far as human foresight and care would enable it, to carry the plaintiff with safety, and that its obligation to the plaintiff did not cease until she had alighted and freed herself from defendant’s car, or until she had alighted and had reasonable time to free herself,” &e., &e., is erroneous.</p> <p>2. It requires the utmost care and largest foresight belonging to mankind as the measure of care which appellants, by their agent, was hound to exercise. ’</p> <p>' 8. The rule is that a carrier of passengers for hire must use the utmost care and skill which prudent men are accustomed to use under like circumstances.</p> <p>4. The first and second rejected interrogatories are immaterial, but the court might properly have put the third and fourth to the jury.</p> <p>5. The rule, under section 327, Civil Code, that when an answer to the interrogatory proposed would be inconsistent with, and destructive of, a general verdict, is imperative that the court shall direct the jury to find upon such issues as are embraced by the motion or interrogatory, hut the court may reject the form proposed by counsel.</p>

<p>T. The writing under which the separate estate is created expressly forbids the sale of the land until the youngest child of Mrs. Moore attains the age of twenty-one years.</p> <p>.2. The provision of subsection 1, section 492, Civil Code, referring to section 491, “ that no sale shall be ordered if forbidden by the deed, will, or contract under which the property is held,” is mandatory.</p> <p>3. The court will not sell land with such restrictions made by the donor.</p>

Case 81 — ORDINARY APPEAL FROM FAYETTE CIRCUIT COURT. 1. A party, by pleading to a counter-claim defective in its caption, under subsection 4, section. 97, Civil Code, waives the defect. (Cason v.. Cason, 79 Ky. Rep., 558; Whittington v. Roberts, 4 Mon., 174.) 2. The court erred in rendering judgment for appellee non obstante veredicto. 1.

Case 82 — EQUITY APPEAL FROM TODD CIRCUIT COURT. 1. The consideration of Taylor’s conveyance to appellee Terry, who was Taylor’s attorney in the suit of appellant against Taylor, was the conveyance by Terry to Taylor’s wife, of 240 acres of land in Missouri. 2. The petition charges that appellee Terry had knowledge of Taylor’s intent to defraud his creditors. The allegation is not sufficiently denied by Terry. 3.

<p>Peter Constans devised to his two sons, Louis and August, all his estate, “but they are to take the same subject to all my debts and liabilities and the bequests hereafter made, all of which are to be paid out of my estate.”</p> <p>1. Held — that Louis and August are residuary devisees after the payment of the debts of the devisor, and that his creditors have a prior lien in the distribution of the proceeds of the property so devised.</p> <p>2. A mortgagee whose conveyance is within the act of 1856, and operates .as an assignment of all the property of the mortgagors for the benefit .of their creditors, is not a purchaser in good faith, and it is immaterial whether or not he had notice of the mortgagor’s insolvency and intention to prefer him.</p> <p>3. The mortgagee Stitchenath did not waive his lien upon the estate of the devisor, P. Constans, for a debt due by him at his death, by accepting the mortgage from his sons to secure this debt as well as other debts due to him from the devisees.</p> <p>4. The renewal by the devisees of a debt for which Geisbauer was surety for the devisor, and which the latter was compelled to pay after the devisor’s death, did not operate as a waiver of the lien Geisbauer held upon the devisor’s estate, together with other creditors of the devisor.</p> <p>■5. The deed of assignment made by the two devisees after their act of insolvency passed no equity either to the creditors of the devisor or their own. It is of no significance whatever.</p>

<p>In 1858 Snead and wife conveyed a lot of ground to trustees “for the use and benefit of the colored members of the' Methodist Episcopal Church, South,” &c. In 1865 appellants withdrew from said church and “set up for themselves” as part of the “African Methodist. Episcopal Church of the United States of America.”</p> <p>1. Appellants having seceded from the former church, have no right to-the use of the property for any time whatever as against the members of the M. E. Church, South.</p> <p>2. The resolution of the general conference of the M. E. Church, South, advising that their trustees shall permit persons who join the African. M. E. Church of the U. S. to use their houses of worship, passes no-title and gives no rights to the latter.</p> <p>S. Property dedicated thus should, in good faith, be held for the use of the M. E. Church, South.</p>

Case 85 — ORDINARY APPEAL PROM CALDWELL CIRCUIT COURT. 1. E. W. Daniel having been once a joint holder and owner of the check, cannot, by assigning, his interest to another, render himself competent to prove the statements or declarations of Dudley made during his life-time. When Daniel is offered, Dudley was dead. :2. Although Dudley testified upon a former trial, yet his death renders Daniel incompetent to prove his statements.

Case 86 — ORDINARY APPEAL EBOSI GRANT CIRCUIT COURT. 1. The General Statutes, chapter 26, section 27, provides that “the party to whom a new trial is granted, upon payment of costs, shall, within forty days thereafter, pay the costs of the former trial,” &c. ■ 2. The rule in the construction of the General Statutes is, that they are to be liberally construed. (Gen. Stat., chap. 21, sec. 16.) 3.

<p>1. The mere existence of a controversy in regard to a boundary of land will not furnish ground for equity jurisdiction. There must be some peculiar case appealing to the chancellor,.or the,party will be remitted to .his legal remedy.</p> <p>2. A petition averring that defendants have trespassed upon plaintiffs’" land and slandered his title does not give a court of equity jurisdiction.- The remedy is purely .legal. . .....</p> <p>3. A petition to quiet title must be preceded by the establishment of plaintiffs’ title at law.</p>

<p>A note is assigned to be used by the assignee as a set-off, the assignor agrees that the assignee is to account for only so yiuch as he gets the benefit of in the suit.</p> <p>4. Held — A court of equity, where the rights of others than the obligor in the note intervene, will not sanction such a speculation by aiding the party making the venture to defeat a clear and acknowledged equity.</p> <p>'2. Such contracts should not be favored either by the chancellor or common law judge.</p> <p>3. Where the debtor is alone involved, the rule is different.</p> <p>-4. A judgment that a party is not to pay a sum adjudged against him “until further ordered” is not final.</p>

Case 89 — INDICTMENT APPEAL FROM KNOX CIRCUIT COURT. 1. The indictment is insufficient. 2. It was the duty of the court to instruct the jury to find appellant either guilty or not guilty, as the two alleged former convictions-were a matter sej)arate from the pending charge. 3. The fourth instruction is misleading, because it substantially tells. the jury that they must believe the evidence of the witness Eoley.

Case 90 — EQUITY APPEAL PROM KENTON CHANCERY COURT. 1. If appellees rely upon the admissions in the answer that a writing was executed, they'must take the whole statement as though they were making proof of an admission in pais, when, by well settled rules of evidence, they would .be obliged to take the whole statement or none. '2. Without presuming the existence of an antenuptial contract not proved, the judgment cannot be sustained. 3.

Case 91 — INDICTMENT APPEAL PROM PAYETTE CIRCUIT COURT. 1. The court erred in refusing a continuance to appellant. The fact that the witness is a non-resident does not change the rule nor the propriety of continuing the case. (Arch, on Crim. Prac.'and Plead.,. 5G8; Whart. on Crim. Law, vol. 3, sec. 3021; Morgan v. The Commonwealth, 14 Bush, 111.) 2. Appellant was entitled to stand on his bail and be free to attend to his case.

Case 92-EQUITY APPEAL PROM FRANKLIN CIRCUIT COURT. 1. The power of the county court to make assessments of property is clearly established. (Gen. Stat., 703; McCallister v. Commonwealth, 6 Bush, 581.) '2. The property in controversy is subject to taxation, and must be assessed to the owner or the person in possession thereof. (Gen. Stat., 718, 720, 721; 23 N. Y., 232; 21 Ind., 335; 27 Í6., 288; Cooley on Taxation, 540; Ky. Law Rep., Sep., 1881, p. 6.) • 3.

Case 93 — EQUITY APPEAL FROM DAVIESS CIRCUIT COURT. 1. The bank received the funds from the collectors of railroad tax in Daviess county. It held them as a depositary. It knew the purpose of the deposit. It knew that the funds deposited with it were to be devoted to the bonds of Daviess county, and not the bonds which had been wrongfully and fraudulently issued.

Case 94 — EQUITY APPEAL PROM KENTON CHANCERY COURT. 1. Under the common law there can he no doubt that, rents go to the-heir, and this rule is not changed by either the statute or Code. (Combs v. Branch, 5 Dana, 647; O’Bannon v. Roberts, 2 Dana, 54; Rank v. Hill, 8 Bush, 66.) 2. The Code of Practice is not a statute granting rights, but one defining; remedies for their enforcement. (Cook v. College, 9 Bush, 541.) 1.

<p>Case 95 — INDICTMENT</p> <p>APPEAL PROM WARREN CIRCUIT COURT.</p> <p>1. The court erred in the formation of the jury. (Crim. Code, secs. 190,. 191, 192.)</p> <p>2. Erred in instructions to the jury.</p> <p>3. The court certainly erred in permitting the cross-examination of Taylor and Jackson. (Crim. Code, secs. 281,199; Brady vs. Commonwealth, 11 Bush, 351; Kennedy v. Ib., 14 Ib., 354.)</p> <p>1. The court will see that Taylor was proven to he of bad character, and' not worthy of belief.</p> <p>2. The .testimony of Jackson amounts to nothing. Neither should be-shielded from contradiction by a convenient want of memory.</p> <p>3. There is no error in the instructions.</p> <p>4. No exception was taken as to the formation of the jury.</p>

<p>Case 96 — INDICTMENT</p> <p>APPEAL FROM NICHOLAS CIRCUIT COURT.</p> <p>X. The court gave an instruction with the modification that was not only in conflict with the law of self-defense, as set forth in the previous, instruction, hut assumed a state of case not warranted by the proof. (Bohannon v. The Commonwealth, 8 Bush, 482; Terrell v. Same, 13 lb., 257.)</p> <p>2. The indictment is defective. (3 Heiskill, 150; 5 Caldwell, 650; 1 Duv., 140; White v. Commonwealth, 11 Bush, 178; 1 Met, 503.)</p> <p>3. The Nicholas- circuit' court had no jurisdiction. . A change of venue' was ordered from Rowan county, which does not adjoin Nicholas. (Sec.'l, art. 4, chap. 12, Gen. Stat.; sec. 276, Crim. Code.)</p> <p>No brief.</p>

Case 97 — MOTION APPEAL FROM JEFFERSON CIRCUIT COURT. 1. The indictment charges appellant with robbery. The judgment was rendered on the 30th day of December, 1882. On the same day the execution of the judgment was suspended for sixty days, and time given till 28th October to file bill of exceptions. 2. The bill of excexitions was made a part of the record on the 28th October, 1882. (Crim. Code, sec. 336, subsecs. 4 and 5.) 3.

Case 98 — INDICTMENT APPEAL FROM BARREN CIRCUIT COURT. 1. In refusing the instruction asked for by the appellant, the court took from the jury the consideration of the evidence that appellant, if guilty of anything, was guilty of only an attempt to commit a rape. .‘2. He was entitled to have the jury instructed as to the degrees of the offense. (7 Bush, 93; 14 lb., 570.) No brief.

Case 99 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. Appellant Bridgford, as assignee for the benefit of Bowles’ creditors,’is a purchaser for a valuable consideration without notice. 2. There is no Us pendens as to any lien upon James Bowles’ interest in the undivided estate of his father. 3.

Case 100 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The selling of tobacco at auction at tobacco warehouses is a business-affecting the public interests, and appellees, in carrying it on, are-under duties and obligations, by common law and by statute, to carry it on in a way that is reasonable a.nd beneficial to the tobacco trade, and therefore they cannot discriminate or exclude buyers or-sellers, except on reasonable grounds. (1 Bl.

Case 101 — EQUITY APPEAL PROM M’CRACKEN CIRCUIT COURT. 1. That a majority of the qualified voters in Ballard county did not vote in favor of removing the county seat from Blandville to Wicldiffe is confessed by the demurrer. 2. In taking the vote, the judges of the election disregarded the provisions of the act of 13th April, 1880. The act of April, 1880, is unconstitutional and void. 4.

Case 102 — EQUITY ON MOTION TO DISMISS. APPEAL. APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The judgment appealed from is a decree in chancery, and not a judgment at law. 2. The whole of the appellants’ claim is not denied by defendants’ answer, and the whole of it must necessarily be allowed pro confesso. 3. The entire issues in the lower court were upon 'the counter-claims and set-offs of appellees.

Case 103 — ORDINARY ON MOTION TO DISMISS APPEAL. APPEAL PROM ERANKLIN CIRCUIT COURT.

<p>Case 104 — ORDINARY</p> <p>ON MOTION TO DISMISS APPEAL.</p> <p>APPEAL FROM KENTON CHANCERY COURT.</p> <p>No brief.</p> <p>No brief.</p>

Case 105 — ORDINARY APPEAL PROM LAWRENCE CIRCUIT COURT. 1. The bond sued upon was not taken at the term required by law. (Chap. 27, art. 2, sec. 4, Gen. Stat.) -2. Executed before the county levy was imposed, the bond is void. No brief in the record.

Case 106 — EQUITY APPEAL FROM NELSON CIRCUIT COURT. 1. That the land was purchased with partnership funds is proved by both of the parties, and there is nothing to contradict it. 2. If partnership .capital be invested in land for the benefit of the firm, oven though it may be a joint-tenancy at law, yet a court of equity will hold it a tenancy in common, and forming a part of the funds ¡of the partnership.

Case 107 — EQUITY APPEAR FROM FRANKLIN CIRCUIT COURT. 1. The facts averred in the petition do not set forth a cause of action. 2. The petition on its face, and the account filed, show that it is not: payable out of the treasury. The only question is, whether appellee is allowed by the statute two-dollars in each felony case in which he sits as an examining court, ■ or only two dollars per day, though he may preside at two or more, examining courts on the same day.

Case 108 — ORDINARY APPEAL FROM JEFFERSON CIRCUIT' COURT. The floor of the privy was, o£ course, covered. The averment is that appellee knew it was in an unsafe and dangerous condition, andappellee knew it, and failed to inform appellant’s father. Clearly ' she has her action for the injury she has sustained- (Addison on: Torts, chap. 4, sec. 2.) 1.

Case 109 — EQUITY APPEAL FROM CAMPBELL CIRCUIT COURT. 1. A conveyance from 'a..husband directly to his wife, without the intervention of a trustee, is void at law, and void in equity as against prior creditors. (Scarborough v> Watkins, 9 B. Mon., 545; Maramon v. Maramon, 4 Met., 87; 3 Mon., 34; 4 Dana, 141; 12 Bush, 459.) 2. An action by a surety against his principal is originally cognizable in equity. (7'Mon., 544; 3 B. Mon., 424; 10 16., 80; 2 Bibb, 274.) 3.

<p>1.' The indictment against appellees is under section 2, article 6, chapter 29, ^ General Statutes.</p> <p>2. It provides that if any person shall willfully and maliciously shoot at and wound another with an intention to kill him, so that he does not ! die thereby, &c., &c.</p> <p>3. Each act of shooting is a distinct offense, and if it is not a physical . impossibility for two persons to jointly commit the same act with .. the same weapon, fired by both at the same time, it would be so absurd that we can hardly presume the legislature intended to guard against it.</p> <p>•4. Conspiring and confederating to commit the offense is not punishable under the statute, inasmuch as there is no express provision in regard to it.</p> <p>• 5. Both cannot be indicted as principals, nor can either be indicted as an aider and abettor until the other is charged with commission of the felony.</p>

<p>Case 111 — EQUITY</p> <p>APPEAL FROM BALLARD COMMON PLEAS COURT.</p> <p>I. An act which suspends the statutes of limitation in favor of a certain officer, leaving all other citizens of the state bound by them, is unconstitutional.</p> <p>2. Such acts are violative of the first section of the bill of rights in the constitution.</p> <p>3. The case of Trimble v. Yaughan, 6 Bush, 545, has no application to this case.</p> <p>By nine different special acts of the general assembly appellee is authorized to distrain for his fee-bills,' as clerk of the Ballard circuit court, beyond the term provided for in the general law. I am unable to conceive of any constitutional provision, express or implied, prohibiting such legislation.</p>

Case 112 — EQUITY appeal from warren circuit court. 1. The agreement pursuant to which the deed was executed was not signed by'all the creditors. 2. The deed was executed, to hinder, delay, and defraud creditors, and was not drawn according to the agreement.

Case 113 — EQUITY APPEAL PROM SHELBY CIRCUIT COURT. 1. The acceptance of a legacy with a lawful charge is itself a contract on the part of the person accepting, and the conditions must all be performed, or the land descends to the heirs.

Case 114 — EQUITY THIS OPINION WAS SUSPENDED BY A PETITION FOR A REHEARING. APPEAL PROM LOUISVILLE CHANCERY COURT. 1. In a proceeding in a court to sell for reinvestment land held in trust for the separate use and benefit of a married woman during her life, with remainder over to her childreh, the children in esse at the time of such proceedings are necessary parties thereto. 2.

Case 115 — EQUITY APPEAL PROM MERCER CIRCUIT COURT. 1. By the terms of the conveyance appellant holds an estate for life in the land, with remainder to her children. :2. Her right to a homestead as against her creditors can hardly be questioned. In many of the states of this union a homestead is given in an estate for years only. Having a freehold estate, her right is fixed by the statute.

Case 116 — EQUITY APPEAL PROM MONTGOMERY CIRCUIT COURT. 1. Both of the deeds were executed the same day, and at the time they were executed A. H. Anderson was hopelessly insolvent. He owed twice as much as he could pay. Every fact in the case leads inevitably to the conclusion that the deeds are fraudulent. '2. It must be conceded that postnuptial contracts between husband and \yife are void at law.

Case 117 — EQUITY APPEAL FROM FAYETTE CIRCUIT COURT. 1. The owner of personal property wrongfully taken cannot maintain an action on contract as for goods sold and delivered to the wrong-doeri (2 Bos. & Pul., 554; 5 Pick., 285; 4 Gray, 103; 29 Ala., 332; 36 Ind., 73; 11 N. H., 246; 43 Ind., 536; 12Vt.,212; 3 Watts, 277; 25 Mich., 386; 43 Iowa, 187; 93 111., 265; Guthrie v. Wickliffe, 1 Mar., 83.) 2.

Case 118 — EQUITY APPEAL FROM MCCRACKEN COMMON PLEAS COURT. 1. The legislature has no power to authorize the city council of Paducah to assess and collect an ad valorem tax, and, in addition to that, three dollars special tax on property not used in any business, and which receives no more protection from the city by reason of the latter tax than it already had under the former. 2. The act is unconstitutional.

-Case 119 — ORDINARY APPEAL FROM FAYETTE CIRCUIT COURT. , 1. The legal presumption is that all instruments, in the absence of evidence to the contrary, are executed on the day they hear date. (1' Taylor on Ev., sec. 137; 2 Ex. Rep., 191, 6 lb., 716; 4 M. & W.,., 312.) 2. And that all erasures or interlineations on the face of a will are presumed to have been made after its execution. (71 E. C. &L., 748;-40 Eng. Ch. Rep., 136; 4 Moore’s Priv. Conn.

Case 120 — EQUITY APPEAL PROM KENTON CIRCUIT COURT. 1. Appellee Jenkins, desiring to test the validity of the judgment of the-circuit court, executed his covenant with his surety that he would satisfy and perform its judgment in case of an affirmance. The judgment has been affirmed, but no satisfaction made. The supersedeas unquestionably prevented the Boone county court from enforcing the collection of appellee’s pro rata from him, and now the demand is entirely lost. * 2.

Case 121 — EQUITY APPEAL FROM MERCER CIRCUIT COURT. THIS OPINION'1 IS PUBLISHED BY ORDER OF COURT. Under deed by husband to a trustee for wife and children, they all take 1 as joint tenants.

<p>Case 122 — EQUITY</p> <p>APPEAL PROM WARREN CIRCUIT COURT.</p> <p>1. The elements of the cause of divorce in this case are, that the treatment of the husband must be cruel and inhuman, it must continue six months, and it must indicate a settled aversion to the wife.</p> <p>2. The proof does not sustain the allegations of the petition; on the contrary, although the appellant was rough in his conduct, it is Shown, that he was kind to appellee.</p> <p>3. To adjudge against him a divorce was wrong; to take one third of his: estate for alimony is excessive, and by no means authorized by the-evidence. (Gen. Stat., chap. 52, art.-3, secs. 1 and 5; Boggess v. Boggess, 4'Dana, 308; Thornberry v. Thornberry, 2 J. J. Mar., 322; Griffin v. Griffin, 8 B. Mon., 121; Adams’ Eq., 137;.Bush v. Bush,, 37 Ind.; Am. Law Reg., N. S., vol. 12, p. 525; Fishli v. Fishli, 2 Litt, 337; 4 Litt., 251; Bence v. Pence, 6 B.- Mon., 499.)</p> <p>1. The brutality of appellant to his wife when she was sick and suffering is amply shown by the proof. In the natural course of his conduct, ' violence to her person is reached by appellant. The evidence clearly shows such conduct as made it absolutely impossible for her to live; with him.</p> <p>2. He is shown to be worth between fifteen and twenty thousand dollars, and, under all the circumstances, the alimony adjudged is reasonable. (Gen. Stat., title Husband and Wife; Quisenberry v. Quisenberry, 1 Duv., 198; Fishli v. Fishli, 2 Litt., 337; Pence v. Pence, 6-B. Mon., 499; Thornberry v. Thornberry, 4 Litt., 258.)</p>

<p>1. A contract to induce public officers to act partially or corruptly, or to bias them in the discharge of their duties, is against public policy and void.</p> <p>:2. Appellant, ah official of the city of Louisville, charged with the custody of the ordinance on the authority of which illegal assessments were made against citizens of that city, is forbidden by public policy to make a contract whereby, if enforced, he would receive money for the disclosures he made, and for services rendered against the interest of the city which employed him.</p> <p>.3. The contract partakes of maintenance. Although the agreement was before suit was brought, yet it was followed by the acts of appellant assisting appellees and their clients against the city of Louisville, under whose employment appellant was acting.</p>

Case 124 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. ‘The action is transitory. The seventy-eighth section,of the Civil Code applies to this case. By it we are not required to institute the suit in “some other county.” The sixty-ninth section relates merely to actions against a prisoner. The ground that the court has no jurisdiction of the defendant is waived, unless distinctly specified by special demurrer. ■ • ' 1. This action is brought in the wrong county.