Volume 81 — Kentucky Reports

<p>1. A banking corporation being the creature of the statute, has only the power conferred by its charter.</p> <p>2. It has never been held by this court that the implied power to buy and sell real estate exists in favor of banks, except for the purpose of obtaining buildings in which to transact their legitimate business.</p> <p>3. There is nothing in this case to show that the purchase of the real estate by appellee was made in pursuance of an express power conferred by its charter, and not being necessary for the transaction of their business of banking, the sale to appellee by the Bank of Kentucky is void.</p> <p>4. An act of the general assembly, passed during the pendency of litigation, to have a retroactive effect in favor of one of’ the litigants, is an invasion by one department of the state government of another, and is unconstitutional.</p>

<p>1. The contract between appellant and the testator, the checks, letters, &c., wholly or partially in the hands of the latter, his bank accounts, and amendment to the city charter in his handwriting, are competent evidence upon the issue of capacity to make a will.</p> <p>2. The opinions of witnesses not experts as to the mental capacity of the testator are relevant, if they knew him and had an opportunity of observing him. The weight and value of such opinions are for the consideration of the jury.</p> <p>3. This court will not reverse upon the'ground that leading questions have been asked of a witness whose answers bear the impress of truth.</p> <p>4. The fact that appellee, Mrs. Foote, testified, should be treated as an election by her to exclude her husband, she being the meritorious cause of action.</p> <p>5. Influence obtained by proper persuasion and argument, or by mere appeals to the affections, is not undue influence in a legal sense.</p> <p>6. But influence obtained so as to enable a party to destroy the free agency of the testator, is such as the law condemns as undue influence.</p> <p>7. Capacity to make a will exists where the testator has mind and memory sufficient to understand that he is selecting the persons whom he desires to have his property, to know his property, and the objects of his bounty.</p> <p>8. There is no error in either giving or refusing instructions.</p>

<p>Case 3 — EJECTMENT</p> <p>APPEAL PROM GARRARD CIRCUIT COURT.</p> <p>1. The court sustained the demurrer upon the ground, among others, that limitation barred appellants’ recovery. Limitation cannot he taken advantage of by demurrer. Such a plea is a mere personal privilege.</p> <p>2. Appellant had no right of entry as tenant in remainder until her mother’s death, which took place less than three years before the institution of this action.</p> <p>3. Even if the suit of Kennedy v. Bridges is a bar, I maintain that, being a matter of estoppel, it can only be taken advantage of by answer.</p> <p>4. Appellee contends that the judgment should not fee set aside because-the chancellor cannot place the parties in statu quo. If the judgment be void, as I maintain, this question can cut ho figure in this case, and the chancellor must disregard it. (Myers’ Civ. Code, secs. 161, 421, 579; Crutcher v. Trabue, 5 Dana, 82; Iiieronymous v. May-all, 1 Bush, 510; Rankin v. Turney, 5 Bush, 556; Board v. Jolly, lb., 86; May’s heirs v. Hill, 5 Lit., 312; Boone v. Dyke’s leg-., 3 Mon., 537; Doe v. Proper, Cowp., 217; Miller v. Shackelford, 3 Dana, 296; Davis v. Tingle, 8 B. M., 541; Williams v. McClannahan, 3 Met., 424; Nunnally v. White, lb., 588; Myles’ ex’r v. Myles, 6 Bush, 237; Turman v. White’s heirs, 14 B. M., 540; Burns v. Ray, 18 B. M., 403; Belly v. Moore, 1 Dana, 236; Birney v. Richardson, 5 Dana, 425; King v. Morris, 7 Dana, 273; Edwards v. Woolfolk, 17 B. M., 380; Givens v. Peak, 1 Dana, 225; Mattox v. Helm, 5 Lit., 185; Arnold v. Arnold, 17 Pick., 4; Ferrer’s Case, 6 Coke, 7; Cleaton v. Chambliss, 6 Rand., 86;, Clark v. Young, 1 Cranch, 181; Kendall v. Talbott, 1 Mar., 321; Thomas and wife v. Hite, 5 B. M., 593; Birch, &c., v. Funk, 2 Met., 545; Thompson v. Clay, 3 Mon., 362 Miles v. Collins, 1 Met., 310; Bruce v. Burdett, 1 J. J. Mar., 86; 14 B. M., 633; Gray v. Roberts, 2 Mar., 208; Edwards v. Coleman, lb., 250; Jones’ adm’r v. Commercial Bank of Kentucky, 78 Ky., 423; Timberlake v. City of Newport, Ky. Law Rep., July, 1880; Estill v. Clay, 2 Mar., 500; Moore v. Farrow, 3 Mar., 43; Blight v. Banks, 6 Mon., 205, Hynes v. Oldham, 3 Mon., 266; Green’s heirs v. Breckinridge’s heirs, 4 Mon., 541; Taylor v. Watkins, 4 B. M., 568; Clay v. Marshall, 5 B. M., 273; Ruby v. Grace, 2 Duv., 540; Long v. Montgomery, 6 Bush, 395; sec. 2, art. 1, oh. 63, 2d vol. Rev. Stat., p. 123; Roberts v. Stowers, 7 Bush, 296; Newcum v. Newcum, 13 Bush, 546 ; Bustard v. Gates, 4 Dana, 437; Ray v. Mcllvoy, 1 Mar., 546; Banta’s heirs v. Calhoon, 2 Mar., 168; Downing’s heirs v. Ford, 9 Dana, 391; Benningfield v. Reed, 8 B. M., 104; Jones v. Maginity, 3 Dana, 426; Collard’s heirs v. Groom, 2 J. J. Mar., 486; Shropshire v. Reno, 5 Dana, 584; Holtzclaw v. Blaekerby, 9 Bush, 40; Kerr v. Bohaimon, 1 B. Mon., 87; Sugden’s Vendors, 237-243; 1 Greenleaf’s Evidence, sec. 530; Hackley’s ex’r-v. Swigert, 5 B. Mon., 87; Kane, &c., v. Pilcher, &c., 7 B. Mon., 651; Foster v. Grigsby, &c., 1 Bush, 94; Bigelow’s Estoppel, 25; Brownfield, &c., v. Dyer, &c., 7 Bush, 508; Freeman on Judgments, sec. 117.)</p> <p>1. The record shows that appellant was a party to the suit of her mother for dower against Kennedy in 1842, and she is concluded thereby unless, under the provision of the Code, she sued after she arrived at twenty-one years of age.</p> <p>2. When appellant instituted her first suit she was twenty-eight years of age, and although she was an infant when the dower suit was brought, and married in infancy, the two disabilities of infancy cannot be added together.</p> <p>3. She is concluded by the judgment against her in the former suit. (2 A. K. Mar., 208; 1 J. J. Mar., 256; 2 A. K. Mar., 350; 14 B. Mon., 633; 4 Bibb., 85, 1 Met., 609; 3 Mon., 361; 1 Duv., 282.)</p>

Case 4 — EQUITY APPEAL FROM WARREN CIRCUIT COURT. It is proved beyond controversy that appellee Hise never occupied the land claimed by him as a homestead until after it was sold under appellant’s execution against him. It was then too late to claim a homestead.

Case 5 — EQUITY APPEAL PROM ZCENT0N CHANCERY COURT. 1. Neither the city of Covington nor Shillito are entitled to any judgment. The process against appellant was only constructive, and they are bound to make proof of their demands. 2. Tlio powers of attorney executed by appellant, authorizing plaintiff’s attorney to enter her appearance, are void.

Case 6 — EQUITY APPEAL FROM LOGAN CIRCUIT COURT. The homestead exemption law of Kentucky gives to a joint tenant no exemption. In the language of the statute, the dwelling-house and appurtenances must be owned by the debtor. (Gen. Stat., oh. 38, art. 13, sec. 9; Thompson on Homestead Exemptions, 181, 182, 189; 6 Allen, 430; 101 Mass., 421; 5 Cal., 245 ; 20 Wisconsin, 580; 14 Bush, 385.) 1.

<p>Case 7 — EQUITY</p> <p>APPEAL FROM LIVINGSTON CIRCUIT COURT.</p> <p>No brief.</p> <p>No brief.</p>

Case 8 — EQUITY APPEAL PROM BOURBON CIRCUIT COURT. 1. The questions involved in this case have already been decided In the ease of Moore, &c., v. McDowell, &c., MS. opinion, May 25, 1882. 2. This court held in that case that the charter of Flemingsburg was legally adopted by^ a vote of the majority of the qualified voters of that town; and being adopted, the tax was properly imposed upon appellees. The act known as the new charter of Flemingsburg never went into effect — 1.

Case 9 —ORDINARY APPEAL FROM METCALFE CIRCUIT COURT. 1. Improper evidence was permitted to go to the jury. 2. The deed from Tinsley’s heirs to Twyman should not have been admitted. (Morehead & Brown’s Stat., 457.) 3. The second instruction is error. The court erred in refusing instruction No. 9. (Fox v. Hinton, 4 Bibb, 559.) 1. It is plain that this court cannot, upon the face of the bill of exceptions, ascertain what is the purport of instruction No. 9. 2.

Case 10 —ORDINARY APPEAL EROM IIENRY CIRCUIT COURT. 1. The bonds contain no recitals of the power by which they were issued, or that there had been a compliance with the power that authorized their execution. 2. Municipal bonds which contain no recitals are not unimpeachable in - the hands of bona fide holders for value. 3. Such bonds are not commercial paper. 4.

<p>Case 11 — MOTION TO DISMISS</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>No brief.</p>

Case 12 — EQUITY APPEAL FROM MADISON CIRCUIT COURT. 1. The principle is clearly established that the wife may relinquish her inchoate dower to third persons in the manner prescribed by the statute, but a relinquishment directly to her husband is not binding upon her. 2. A feme covert can only dispose of her interest in land in the mode fixed by the statute. Without such conformity the act is void. (Kennedy v. Ten Broeck, 11 Bush, 211; 14 Barb., 536; Wells’ Sep. Prop.

Case 13 — EQUITY APPEAL FROM WOODFORD CIRCUIT COURT. 1. The answer of appellant is, in substance, “that the said Cora Phillips received from the estate of her grandmother, Mary C. Bowles, the warrantor of the title to the land, estate and property much more in value than the value of the land claimed herein.” 2. The court should have overruled the demurrer to appellants’ pleading. (Mershon v. Morshon, 9 Bush, 638; Bigelow on Estoppel, 269; Bouv.

<p>1. The act, entitled “ An act to authorize the construction and mainte- . nance of a court-house in Campbell county,” approved April 17th, 1882, is constitutional.</p> <p>2. The object of the act is tlie building of a court-house, and all the various sections of the act having a direct, connection with the subject-matter expressed in the title must be regarded as necessary to carry into execution the legislative intent.</p> <p>3. The power to appoint commissioners was necessary to accomplish the purpose in view.</p> <p>4. The creation of the district is not repugnant to the title because the district embraced a smaller territory prior to the act.</p> <p>5. The commissioners to receive the taxes and apply them to the building of the court-house cannot he regarded as district officers within the provision of the constitution forbidding the creation of any office the term of which shall he for a longer time than four years.</p> <p>6. Although the duties of these commissioners may continue for four . years; and even longer, it does not violate any constitutional provision.</p>

<p>Case 15 — EQUITY</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>1. B. F. Avery, or his successor, B. F. Avery & Sons, first adopted and used as distinguishing marks on plows the word “ Pony,” the letters “A O,” “B O,” and “0 O,” and the numerals “1,” “2,” “3,” and “ 8.”</p> <p>2. Plows so made and branded became known to the public as Avery’s plows. These brands became a part of the trade-mark or trade indicia of Avery, and he is entitled to pi'otection in their use upon like jorinciples as where the trade-mark itself is taken or dismembered.</p> <p>3. The appellees coveted the trade and reputation of Ayery, and abandoned their brands and adopted the same brands as Avery, and on plow's made in almost exact imitation thereof.</p> <p>4. These imitation plows, when sold to jobbers, did not have Meikle’s name on them, but the names of the jobbers were stencilled thereon-</p> <p>5. Plows so made and branded, having the exact similitude of Avery’s plows, could readily be sold to ordinary purchasers as and for Avery’s plows, and were so sold.</p> <p>6. If the plows so made and branded are likely or liable to deceive ordinary purchasers, or oven the heedless and unwary, equity will enjoin such use. (Glenny v. Smith, 11 Jurist, 964; Coats v. Holbrook, 2 Ind. Ch. R., 586; Croft v. Day, 7 Beav., 84; Swift v. Day, 28 How. P., 206; Gorham Co. v. White, 14 Wall., 527; Singer v. Wilson, 24 Eng. R., 284; Lawrence Manufacturing Co. v. Lowell Hosiery Mills, 129 Mass., 325; Coleman v. Crump, 70 N. Y., 578; Walton v. Crowley, 3 Blatchf., 447; Franks v. Weaver, 10 Beav., 297.)</p> <p>7. It is not necessary that the imitator should copy the name of the original maker. Relief will be granted if the special indicia which have become known as denoting A’s goods are copied or simulated on like goods in such a way as to mislead purchasers. (Amoskeag Manufacturing Co. v. Spear, 2 Sand. S. C., 599; Gillott v. Esterbrook, 47 Barb., 455; Boardman v. Meriden Britannia Co., 35 Conn., 402.)</p> <p>8. But conceding that none of the names, letters, or numerals are trademarks, yet the relief prayed should be granted, because their use by appellees is for a fraudulent purpose. Even geographical names, when applied by a trader so as to become known by the designation, cannot be employed by a rival trader to effect a fraudulent purpose. (Watherspoon v. Currie, 5 H. L., 508; Newman v. Alvord, 49 Barb., 5SS; 10th Jur., N. S., 550.)</p> <p>9. Courts of equity will enjoin the use of a man’s own name when such use is employed for a fraudulent purpose. He will not be prohibited from using his name, but the maimer of its use will be regulated. (Thorley’s Cattle Food Co. v. Masson, 42 L. T. Rep., N. S., 851.)</p> <p>10. It is not necessary that there should be an invasion of a technical trade-mark to obtain relief. If tlie same name or indicia are copied in sucli a way as to induce persons to believe that they are dealing with the person who has given the name or indicia reputation, equity will give relief. (Knott v. Morgan, 2 Keen, 213; Croft v. Day, 7 Beav., 84; Lee v. Iialey, 5 L. Ik, Ch. App., 101; Lea v. Wolff, 13 Abb. Pr., N. S., 389.)</p> <p>11. It is sufficient if the court is satisfied that there was an intent on the part of appellees to palm off their goods as the goods of Avery. (McLean v. Fleming, 6 Otto, 245.)</p> <p>12. Even if the wholesale buyer is not misled, but the small retailer or the consumer is, the right of action exists. (Dixon Crucible Co. v. Guygenheim, 2 Brews., 321; Clark v. Clark, 25 Barb., 76; Brooklyn White Lead Co. v. Massury, 25 Barb., 416.)</p> <p>13. Courts of equity will not only'protect the use of a trade-mark proper, but along with it all other insignia by which a trader may see fit to mark his goods. (Singer Manufacturing Co. v. Brill, Sup. Ct. Cincinnati, 1880.</p> <p>14. Abandoning their own brands, and adopting those of a rival upon imitation plows, is a fact showing that they regarded it a thing desirable to be done in and of their piratical purpose. (MeAndrew v. Bassett, 10 Jurist, N. S., 550.)</p> <p>15. Whether there be property in a mark or not, a rival cannot use it for the purpose of deception. (Perry v. Truefitt, 6 Beav., 66.)</p> <p>16. Even when there is no trade-mark or label, courts of equity will interfere if there is a fraudulent intention of palming off one’s goods as and for those of another, and such intention is being carried into execution. (Morgan Sons & Co. v. Troxell, Cox M. T. M. C., No. 674; Sawyer v. Horn, 1 Feb. R., 24; Shaw Stocking Co. v. Mack, 12 Feb. R., p. 707; Hostetter v. Adams, 10 Feb. Ik, 838; Lawrence Manufacturing Co. v. Lowell Mills, 129 Mass., 325; Humphreys v. Wenz, 14 Feb. R., 250.)</p> <p>17. The letters “HH” (Ransom v. Bentall, Codd. DL, 163), the letters “ L L” (Kinahans v. Bolten, 15 Irish Ch. R., 75), the letters “XXX” (Cook v. Starkweather, Cox M. T. M. C., 221), and the numerals “303” (Gillott v. Esterbrook), “2340” (Boardman v. Meriden Britannia Co.), “830” (Shaw Stocking Co. v. Mack), “523” (Lawrence Co. v. Lowell Mills), and “ 1,” “2,” “ 3,” and up to “35” (Humphrey v. Wenz), were in each case used for a fraudulent purpose, and their further use prohibited.</p> <p>18. The nine plows of Avery present nine pictures, all with the same coloring, and all having like symbols, but each known to the public by a distinct name or mark. The nine plows of Meikle also present nine pictures. Compare them, and we find that each is a fae simile of some one of the plaintiffs’. Put them together, and instead of eighteen distinct pictures, we have nine pair. The picture must he broken. The fraudulent purpose is apparent.</p> <p>19. The remedy at law is riot adequate for the protection of trade reputation, and equity has always taken jurisdiction in proper eases. (Blo- , field v. Payne, 4 JB. & A., 410; Leather Cloth Co. v. American Leather Cloth Co., Cox A. T. M. C., 688; Stone v. Carian, Cox T. M. C., 116; Thompson v. Winchester, 19 Pick., 214.)</p> <p>20. In each case of infringement of trade-mark or trade reputation, the relief to be granted must depend upon the peculiar circumstances of that case. (Gilman v. Hunnewell, 122 Mass., 150.)</p> <p>21. In this case the defendants copied the plows and brands of plaintiff for the purpose of selling their plows as Avery idows, and for the purpose of appropriating the established trade of Avery, and the relief prayed should be granted, even if the plaintiff have not the exclusive right to use those brands and indicia. (Kinney v. Basch., 16 Am. L. Reg., N. S., 596.)</p> <p>22. The appellees have been guilty of unfair and illegal competition in trade. Their conduct has been immoral, their methods and devices fraudulent, and they have been intentionally practicing deception upon the public, and pirating upon the trade and trade reputation of the appellants. In such cases the chancellor never fails to restrain the wrong-doer by injunction, and compel him to render an account. (Brown on Trade-marks, sec. 535; Moses v. Sargood, Oox M. T. Mt 0., No. 636; Braham v. Bristow, 1 II. & M., 447; Abbott v. the Bakers, &c.', Cox M. T. M. 0., 213.)</p> <p>1. The symbols, No. A O, and “ Pony,” and B O, and 0 0, which are put on these various plows, are understood by the trade as indicating both the quality and size of the plow, and upon none of them, whether made by appellants or appellees, or any of the six or eight other manufacturers, is there anything else which indicates either quality or size. The sizes No. A O, and No. B 0, for instance, are so nearly the same that the man who makes them cannot tell by looking at them, one from the other. lie must put something on them to distinguish them, or measure their dimensions. By actual measurement, the plows will be found to differ one half of an inch in the cut of the share, and the larger one is numbered No. B 0, to show that it is eight inches wide across the point and mold-board, and the still larger size is numbered No. 0 0, to show that it is a plow of eight and one half inches cut. The catalogues of all the manufacturers of these plows, all their price lists and circulars, explain these numbers in the same way. They have No. P O, No. A 0, No. B 0, No. C 0, No. Pony, to indicate the several sizes, and explain the cut of each plow. These catalogues, these advertisements, . which are circulated by the hundreds of thousands, and all communications between the manufacturer and dealei’, and consumer and dealer or manufacturer, refer to these letters as the only means of making known the several sizes of the steel plows. In ordering the plows, the dealers or consumers give the sizes desired by the numbers. They do not order one-horse steel plows, or two-horse steel plows, or small one-horse steel plows, but No. A O, or No. B 0, or Pony, or No. P O, and the orders are understood as well as if given in the fully-expressed form.</p> <p>2. The appellants’ claim to the. exclusive right to the use of the phrase, “keep all taps screwed up ” upon plows, is not less untenable than their claims which have already been noticed. In the nature of things, such a phrase cannot be a trade-mark, and it must be the , appellants’ trade-mark on their plows in order that they should have the exclusive right to use it upon them. This phrase has a meaning, of course, and that meaning is plain. It is put upon the plows because, in their construction, taps are used, and it is essential that they should he kept tight, and it is deemed important to impress this fact on those who use them. The meaning is gathered by every one and is remembered, but the exact words are not. Some of the witnesses say the phrase is, “keep the nuts tight,” others, “keep the bolts screwed up,” or some equivalent phrase. No one looked to this stenciled expression to see who made the plow, and it was not, in any man’s mind, connected with the origin of the plows. It lacks all the qualities of a trade-mark. I saw the other day on a box of salad-dressing the words, “ keep in a cool place,” and on a box of ■ fragile goods the words, “handle with care.” Could it be said that either expression was a trade-mark? As was said in a California case, Lucy v. Ealkenburgh, Cox’s Trade-mark Cases, 459, if such directions could become trade-marks, “ the vender of medicines who first files liis label with the usual instructions, ‘ to be taken before eating-,’ 1 to be taken before going to bed,’ ‘ to be well shaken before taken,’ and so on to the end of the catalogue, may acquire an exclusive right, to all the usual instructions which must necessarily accompany medicines, and thereby monopolize .the trade.”</p> <p>3. In Gillott v. Estorbrook, Cox, 350, one of the questions was as to the right of the defendant to use the same words of caution on his label that were used by the plaintiff on the boxes of pens. The plaintiff claimed that he was entitled to the exclusive use of the phrase of caution, as an indication of the origin of his goods, and also of the words stating that the pens were manufactured under the superintendence of the maker-. The court said : “ I see no legal reason why the defendants may not print upon the labels which pass lengthwise nearly around the boxes in which their pens are put up, the superscription, ‘these pens are manufactured under It. Esterbrook & Co.’s own superintendence,’ notwithstanding this language (except the name of the manufacturer) is the same as that employed by the plaintiff upon his labels, and is a close imitation thereof in size, color, and form of label. It would otherwise create a monopoly, not only in the sale of a particular kind of manufacture, more potent than a patent would confer, but a monopoly in the use of words in our language by one man against the rest of the world, which public policy would not tolerate.”</p> <p>The Law in Begard to Besejiblances.</p> <p>4. When a label and package of a peculiar color and description have become associated with the manufactured article of a person, so as to form the whole or part of his trade-mark, a copy of the label or package, with differences which are merely colorable, although the name of the manufacturer so copying is attached to the label, will not be permitted, because purchasers may be taken not to look so much at the name of the maker as at the form and color of the package. The copying of that which signifies to the public who the maker is, is, in fact, copying his trade-mark; and, in many instances, the form and color of the package, or thé peculiar printing, are all that has been used to distinguish the article from the product of other manufacturers. Upton on Trade-marks states the proposition in this form: “That the name and address of the manufacturer, used by him as a trade-mark, may have , added to and connected with it some peculiar devices, vignette, emblem, symbols, forms, or figures adopted as auxiliaries to the name and address, in declaring the true origin and ownership of the merchandise, and a wrongful violation of such a trade-mark may be accomplished even though the name of the original manufacturer be omitted, and that of the imitator be substituted, by such an imitation of the peculiar device, vignette, emblem, symbol, form, color, or figure alone as indicates a design, and is calculated to mislead and deceive the public as to the origin and ownership of the goods.”</p> <p>5. Applying this principle the courts have, in many instances, restrained parties from using packages, boxes, or bottles, or labels which were palpable imitations of those used by another manufacturer and designed to mislead and-deceive the public and calculated to accomplish that purpose. Any number of cases may be read sustaining this principle, where the matter in controversy was a box of pills, or of blueing, or a bottle of patent medicine, or of some fanciful compound for toilet use, or some other small package. In these cases the labels, or packages, were small, and the differences between the original and the imitation could only be observed upon careful examination.</p> <p>The Facts as to tiie Public being Misled and Deceived.</p> <p>6. The appellants’ witnesses who testified that they were misled into buying Meikle plows when they wanted Avery plows, swore that they were deceived by seeing either “AO” or “ P 0” on the Meikle plows, and mistook those having the latter letters on them for the Avery “Pony” plow; there were no persons misled by the numerals on the cast-iron plows, or by the phrase “ keep all taps screwed up.” Such persons as these are not intended to be protected by the law. How could any protection be given to such stupidity? They are men going about with their eyes shut, who do not see, or will not see, that which would prevent even their own stupidity from misleading them. They blindfold themselves, and then complain that they cannot see.</p> <p>7. Not one of these witnesses misunderstood the information which the defendants’ name on the plows was intended to give; all that could read admitted that if they had looked at the name they would have seen that the plow was made by Thomas Meikle & Co. Ordinary attention would have enabled even these witnesses to distinguish the plows.</p> <p>8. The chancellor who is asked to enjoin in such a case as this, is not compelled to listen to any evidence as to the effect of the marks of which complaint is made. He may judge for himself of the effect and of the probabilities of the public being misled, and in many cases the courts have acted upon their judgment, unassisted by testimony. In this instance the appellants were not willing to trust their case to the opinion the court might have, upon an inspection of the plows, as to their being calculated to mislead and deceive the public, but endeavored to give the case the color arising from multiplied instances of deception. On the 23d February, 1880, three weeks after this action was begpn, the appellants sent word to all their agents to hunt up evidence for them, and started out on the road three of their traveling men, charged especially with the'prosecution of the hunt for people who had been misled or deceived by appellees’ marks'into buying Meikle for Avery plows. One of these three made no report; another reported, but found no witness, and a third worked up a small slip of country in North Alabama. No other agent in the broad expanse of the southern country makes any report of any man who has been misled. The people inhabiting this region are the public whom appellants seek to protect; but, after all the effort made, none of them are found to need protection, except the thirteen men in North Alabama. One of the three traveling men went into that section in February and March, and prepared the land and sowed the seed, and in May, June, and July, after the same man and the industrious attorney of appellants passed through the region, going from house to house and farm to farm, and gathered the crop, and the result of their labors was, that thirteen persons, white and black, were found who had been deceived and misled by A O and P O on the Meikle plows since the suit was commenced. Not a man, either in Alabama or elsewhere, was misled before the action was brought. The appellants supposed that the public needed protection, but the public were not such asses as was imagined. Such testimony is of no value, and, as an English judge said in a similar case, the court will not regard evidence of persons who were misled after the suit was begun. We know how easy such evidence is induced.</p> <p>9. It is not the use of these figures and these letters that is the origin of this suit. They had been used by other persons 'for years after the Averys first commenced using them, and never a complaint made in regard to the use. They were used by numbers of manufacturers competing with them in the south, to indicate just what they indicate when found on Avery plows — the size and quality. No one ever heard of any trouble about that use. But when the manufacturer came into the trade who offered goods equal to theirs in every respect, goods, therefore, which could come into direct competition with theirs, then, for the first time, an outcry was made that their trade-mark was being violated — that illegal competition was practiced. The appellants did not stop before bringing their suit to see whether anybody had been misled. They assumed, from the very fact that these numbers were there, and that Thomas Moilcle & Co. were doing a large trade, that people were misled.</p> <p>10. It will not do to restrain the common law rights of people on such pretexts as these. It will not do for the court to act in violation of the rights of merchants. It will not do for this court to grant an injunction saying that a man shall not use that which everybody has a right to use, that which is used simply to give information to the people, which is for their benefit — not to mislead them, but only to show them that here is something of the same character as that with which you are acquainted, and of the same size as that with which you are acquainted. It has been said that the whole south is looking to this case. Well, they may; but the whole south is not looking for the maintenance of Avery’s monopoly. That declaration, if true, shows that the people to whom these plows are sold, these people for whom they are made, know the difference between them; that they are not misled as to them; and if they are looking at all to this case, they are hoping" that the monopoly will not be established, but that these plows may come to them as they come now, to take the place, in many instances, of plows which are sold to them at figures far beyond their worth. To that extent the people may look, but whether the people look or not, this court will decide according to the law.</p> <p>11. The chancellor gave to this record a most careful examination, after a discussion of the law and facts, extending through many days, marked by all the power, ingenuity, and research of which the counsel engaged were capable, and the luminous opinion which he delivered, will be unchallenged for its accuracy of statement and soundness of learning. He found no justification for the wholesale charges of fraud and deception so recklessly made by B. E. Avery & Sons, and was entirely clear in his conclusion that any person of ordinary care-can, even on casual inspection, easily distinguish the Meilde from; the Avery plows. (Oandee v. Deere, 54 Ills., 439; Amoskeag Manufacturing Company v. Spear, 2 Sandford, 599; Manufacturing Company v. Trainor, 101 U. S., 54; Stokes v. Landgraff, 17 Barbour, 608; Gillott v. Esterbrook, 47 Barbour, 455; Boardman v. Meriden Britannia Co., 35 Conn., 402.)</p> <p>12. Words of direction for the use of a manufactured article, as “keep all taps screwed up,” cannot be trade-marks. (Lucy v. Falkenburgh, Cox’s Trade-mark Cases, 459; Gilman, etc., v. Hunnewell, 122 Mass., 149; Gillott v. Esterbrook, Cox, 350.)</p> <p>13. If persons of ordinary understanding purchasing the articles, paying that attention which such persons usually do, would not be misled, resemblance is not such as would be enjoined. The court will not interfere for the sake of heedless persons. (Bradbury v. Beeton, Coddington’s Digest, sec. 905; Partridge v. Men'ck, Cox, 75; Swift v. Dey, Cox, 323; Blackwell v. Crabb, Coddington, sec. 374; Blackwell v. Wright, 73 North Carolina, 310.)</p>

Case 16 — MOTION APPEAL FROM BOYD CIRCUIT COURT. 1. The court erred in holding the mill and fixtures to be realtju 2. The mill and machinery is easily removed without injury. It was not attached to the soil. 3. The intention to make the mill a part of the realty must appear affirmatively, and such intention must be proved by those claiming that it is realty. (Gron.

Case 17-EQUITY APPEAL PROM WASHINGTON CIRCUIT COURT. Without a bond, and the necessary privy examination of married women, the sale is void. There is no exception to the general rule when tlie real estate is worth more than one hundred dollars.

<p>Case 18 — EQUITY</p> <p>APPEAL PROM MASON CIRCUIT COURT.</p> <p>1. Where A conveyed to his children living, and such others as might thereafter be born to him, to take effect upon his death, upon the birth of any subsequent child during the life of A, the estate in futuro vests in him. (Turner v. Patterson, 4 Johns., 61.)</p> <p>2. If tlie existence of a claim can be ascertained by an inspection of the record, there is no estoppel. (7 Casey, 381; 93 U. S.)</p> <p>3. As long as there is a life estate in existence, adverse possession cannot bar the remainderman. (Angelí on Limitations, sec. 371.)</p> <p>4. A voluntary conveyance, followed by a subsequent one for value, is not pet' se fraudulent. (Enders v. Williams, 4 Met., 346.)</p> <p>5. Mere allegation of tlie evidence of a fact which is a bar to a.n action, does not supply the want of an averment of that fact. (8 Bing., 116.)</p> <p>1. A voluntary conveyance is presumptively fraudulent against subsequent purchasers for a valuable consideration without actual notice, and the presumption of fraud is so strong as to impose the onus that it was ma,de in good faith upon the party claiming under it. (Enders v. Williams, 4 Met., 346.)</p> <p>2. The pleadings and proof show that Winter, after having made the voluntary conveyance to his children, conveyed the same land to Pepper for a full consideration. It is neither alleged nor proved, that Pepper or appellee had actual notice of the voluntary conveyance. (Davis v. Tingle, 8 B. -Mon., 542.)</p>

<p>Case 19 — EQUITY</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>No brief.</p> <p>No brief</p>

<p>Case 20 — EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>1. The language used in the deed to Mrs. Magill creates in her a separate estate. (Guishaber v. Hairman. 2 Bush, 321; 2 Story’s Equity Juris., sec. 1382; 2 Roper on Legacies, * pp. 1414, 1415; -v. Lyne, 1 Younge, 562; 1 Bishop Law of Married Women, sec. 828; Ex parte Ray, 1 Madd. Ch., 119; Adamson v. Armitage, 19 Vesey, 416; Lind-sell v. Thacker, 12 Simons, 178; Lamb v. Milnes, 5 Vesey, 517; Rich v. Cockrill, 9 Vesey, 377; Wills v. Sayers, 4 Madd. Ch., 409; Pritchard v. Hines, 1 Tur. & Rus., 222; Stanton v. Hall, 2 Rus. & Mil., 175; Tyne v. Hope, 2 Atkins, 561; Hutchinson v. James, 1 Duvall, 76; Plathaway v. Yeaman, 8 Bush, 395.)</p> <p>2. Separate estate cannot be mortgaged for husband’s debts. (Hirschmanv. Brashear, MS. Opin., Law Rep., April, 1881; City of Paducah v. Duke, MS. Opin., Law Rep., April, 1881.)</p> <p>3. The debts sued upon are not the wife’s, because evidence thereof not signed by her, nor were they given for necessaries, nor was credit given her. (General Statutes, 519; Gatewood v. Bryan, 7 Bush, 511; McMahon v. Lewis, 4 Bush, 138; Pelle v. Cole, 2 Met., 253; Bergin v. Forsythe, 17 B. M., 556; 12 B. M., 91; 2 Met., 253; Robinson v. Huffman, 15 B. M., 82.)</p> <p>4. All the old debts were paid, and this novation being intended as a payment by the parties, the court will so treat it. (Sheehy v. Manderville, 6 Cranch, 264; Dowhey v. Hicks, 14 How., 249; Letcher v. The Bank, 1 Dana, 84; Rudy v. The Bank, 2 Bush, 331; Story on Promissory Notes, secs. 404 and 438; 2 Greenleaf on Evidence, sec. 519.)</p> <p>5. There was no subrogation. (Joyce v. Joyce’s adm’r, 1 Bush, 476; Hunter v. Richardson, 1 Duvall, 248; Veach v. Wiokersham, 11 Bush, 263; Bridge Co. v. Douglas, 12 Bush, 714; Dixon on Subrogation, pp. 11, 167, 168.)</p> <p>6. Commissions wore usury. (Payne v. Newcomb, Supreme Court of Illinois, Chicago Legal News, 1881 (delv.), 103; Lloyd v. Colston, 5 Bush, 590; 14 Bush, 214; 2 Peters, 537; sec. 4, art. 2, ch. 60, Gen. Stat., 565; Gist v. Smith, 78 Ky., 368; Rudd v. Planters’ Bank, 70 Ky., 513; Aaron v. Mendel, 78 Ky., 427.)</p> <p>1. The real estate embraced in the mortgage is not separate estate. (Petty v. Malier, 14 B. Mon., 247; Bowman v. Sebree, 2 Bush, 115; Johnson v. Ferguson, 2 Met., 508.)</p> <p>2. The ease of Hirschman v. Brashear, MS. Opin., Feb., 1881, does not apply to this case.</p> <p>3. The wife can charge her separate estate, and subject it to sale to pay debts contracted by her and her husband. (15 B. M., 327; Lillard v. Turner, 16 B. M., 376; Gen. Stat., ch. 52, art. 4, sec. 17.)</p> <p>4. There was no illegal charge of interest.</p>

Case 21 — INDICTMENT APPEAL FROM MEADE CIRCUIT COURT. 1. There never can be a larceny without a trespass. (Jlishop on Crim. Law, vol. 2, sec. 808; Greenleaf on Evidence, vol. 3, sec. 161.) 2. Possession of some sort must be in the prosecutor. (Wharton on Am. Law, sec. 1818; Bishop on Crim. Law, vol. 2, secs. 828, 1003; The Spirit of Laws, book 6; ch. 2, Gen. Stat.; lb., see. 2, art. 11, ch. 29; 13 Bush, 719; Bac.

<p>Case 22-ORDINARY</p> <p>appeal from letcixer circuit court.</p> <p>■1. The proof clearly shows that appellee only purchased 200 acres of land from Day, and appellee’s vendor only intended to convey him that quantity.</p> <p>2. The patent was issued by mistake, and it ought to be corrected.</p> <p>1. The metes and bounds fixed on the face of the patent must govern.</p> <p>2. Unless it is void upon its face, all its recitals must be taken as of record. The patent is not void, as all admit.</p>

<p>1. After the settlement of a partnership, and mutual receipts have been executed by each partner, one of the partners cannot attack the settlement for fraud or mistake unless the specific acts of fraud be averred, or the particular mistakes relied upon be distinctly set forth.</p> <p>2. A partner cannot require the chancellor to overhaul the entire partnership settlement upon a general averment that fraud and mistake occurred in obtaining it.</p>

Case 24 — EQUITY APPEAL FROM MARION COMMON PLEAS COURT. 1. The allegation is made that the award was obtained by fraud, and this is sufficient to compel an examination of the entire award. (1 Ch. PI., 570; Newman’s PL, 543; Whitehead v. Boot, 2 Met., 588.) 2. These frauds frequently consist of many minute facts that the statement would run into prolixity. 1. The charge of fraud must be specific, and point to every item the appellants object to.

Case 25-EQUITY APPEAL FROM NELSON CIRCUIT COURT. 1. The general rule is, that where a person laboring under any disability is in possession of the consideration, and desires to disaffirm the contract, he must make restitution. To obtain equity, he must do equity. If appellee desired to hold the land, she should pay the purchase-money. This she has neither offered to do nor even suggested.

Case 26 — EQUITY APPEAL FROM MASON CIRCUIT COURT. 1. The petition fails to aver that appellee had obtained a judgment and execution and return of nulla bona. 2. There is a complete failure to show any fraud whatever. 3. The cases cited by appellees are not in point. 4. The dictum of Judge Williams in Martin v. Martin, 5 Bush, 41, does not support the judgment appealed from. 5. The petition does not show a cause of action. 1.

<p>1. “ The guardian having executed bond, which is approved, is hereby appointed special commissioner to receive the purchase-money from the master commissioner when collected, and reinvest the same in productive real estate,” &c.</p> <p>2. The bond is an undertaking to the infant that her guardian will faithfully perform his duties, reinvest the proceeds, &c., &c.</p> <p>3. The guardian received the money, but failed to make the reinvestment. Held — It is immaterial whether the guardian received the money from the commissioner or the purchaser of the land. His surety is liable to the infant upon the bond.</p>

Case 28 — EQUITY APPEAL FROM TODD CIRCUIT COURT. 1. Fraudulent representations of a vendor as to the number of acres in a tract of land conveyed, where the vendor obtains the exact boundary bargained for, will not authorize a rescission of an executed contract, unless the deficit so far affects the whole subject-matter of the contract as that the chancellor can properly adjudge that the vendee would not, if he had been aware of the actual quantity, have made the purchase. 2.

Case 29 — ORDINARY APPEAL FROM MARION CIRCUIT COURT. 1. Although a nuisance be public, in its character and effect, yet, if an individual suffers injury therefrom in any manner peculiar to himself, or differently from others, he has his right of action. 2.

<p>Case 30-EQUITY</p> <p>APPEAL PROM HART CIRCUIT COURT.</p> <p>I. The appeal from the county to the circuit court was never effected. (Ky. Law Rep., April, 1881, Pryor v. Mayner, p. 253; sec. 734, Civil Code; ch. 2, sec. 725, Civil Code.)</p> <p>2. The notice for the, change of venue was insufficient, and the change erroneous. (Gen. Stat., sec. 2, art. 1, chap. 12; sec. 627, Civil Code; subsoc. 1, sec. 35, Civil Code; lb., subsec. 3; sec. 38, Civil Code; lb., sec. 32; lb., sec. 59; snhsec. 3, sec. 36, Civil Code; 9 Bush, 498; sec. 4, art. 1, ch. 12, Gen. Stat.; 1 Rodman, Kennedy v. The Commonwealth, 449; Gen. Stat., ch. 12.)</p> <p>3. The infants were not non-residents. (Schuler’s Domestic Relations, 312, 412; Forbes v. Forbes, 3 Am. Law Reg., O. S., 255; Munday v. Baldwin, 1 vol. Ky. L. R., No. 6, Dec., 1880; 14 B. M., 316; C. C., sec. 38; 18 B. M., 98; 3 Met., 469; 4 Met., 196; 4 Bush, 162; 7 J. J. M., 165; C ,T. J. Mar., 227; 7 B. M., 613.)</p> <p>4. The court erred in permitting both depositions of Eudosia G. Miller to be read. (Sec. 553, Civil Code; sec. 10, ch. 113, Gen. Stat.)</p> <p>5. It is incumbent upon the party asserting revocation to show the will again in the testator’s custody, or that it was destroyed by his directions. (Redfielrt on Wills, vol. 1, p. 328; Jarman on Wills, p. 158; Gaines v. Gaines, 2 A. K. Marshall, 190; sec. Ill, Gen. Stat. of Ky.; 4 Monroe 363; 5 B. M., 58; 2 Wm. Blackstone, Bibb v. Thomas, 1073; Smith v. Dolby, 4 Harrington, 350; Painter v. Painter, 18 Ohio, 263; Kent v. Mahaffey, 10 Ohio State Reports, 277; Spoomore v. Cables, 584; Finch v. Finch, 1 volume English Law Reports, 371; Sprigge v. Sprigge, 1 vol. Probate and Divorce Eng. Law Reports, 608.)</p> <p>6. A will being proved to have been made with all the legal formalities, is presumed to have existed until the death of the testator. (Jar-man on Wills, 1 vol., p. 145, side page 106; Redfield on Wills, 1 vol., pp. 318,319; Minkler v. Minlder, 14 Vermont, 127; Wolf v. Bollinger, 62 111., 368; Sugden v. Lord St. Leonards, English Law Reports, Prob. Div., 1875, 1876, p. 217.)</p> <p>7. Declarations of testator not evidence in this case. (Redfield on Wills, 1 vol., pp. 542 and 544, note to A, B, C, D, E, F, and G; Smith v. Fenner, 1 Gallison, 169, United States Circuit Court, Rhode Island, Story, Justice; Stevens v. Vancleave, 4 Wash. C. Ct. Reports, 262) Bushrod Washington, Justice; Gibson v. Gibson, 24 Mo., 234; Boylan v. Meeker, 4 Dutcher, 274; Staines v. Stewart, 8 Jurist, N. S., 440, English Probate Court; Shailer v. Bunstead, 99 Mass., 117; Dickey v. Carter, 44 Ills., 376; Reynolds v. Adams, Cin. Law Jour., No. 22, p. 437; Milton v. Hunter, 13 Bush, 168; Jackson v. Kniffin, 2 Johns., 31; Waterman v. Whitney, 1 Kernan, 157.)</p> <p>8. The court refused to properly instruct the jury. (1 Jarman on Wills, 158; Durant v. Ashmore, 2 Richardson, S. Car., 184; Minkler v. Minkler, 14 Vermont, 125; Jones v. Murphy, 8 Watts and Sergt., 275; Bruno v. Gray, Ga. Decisions, 136; Betts v. Jackson, 6 Wendell, 173; 3 Haggard Excl., 184; 4 Haggard Excl., 245; 1 Redfield, p. 306, 3d ed.; Hare v. Nasuytli, 3 Hagg., 192; Wynn v. ITeringham, 1 Cal., 638; 1 Redfield on Wills, 3d ed., 328, 330; note to Williams on Executors, 137; Jackson v. Betts, 9 Cowan, 208; Rodes v. Vincent, 9 Gill., 169; 3 vol. Starkie, p. 1715; 14 Bush, 447; 4 T. B. Monroe, 362; 5 B. M., 58.)</p> <p>1. All that is required to take an appeal in a will case is to file in the circuit, court the proceedings had in the lower court. No bond is required. (Jones v. Jones, &c., 3 Met., 268; Pryor v. Mizner, late MS. Opin.)</p> <p>2. All necessary parties were before the Hart circuit court, and the change of venue was according to law. (C. C., sec. 36; J6., secs. 57, 58, and 59; subsec. 3, sec. 36; subsecs. 5, sec. 59; subsecs.. 7, sec. 59; sec. 724, Bullitt’s Code; se6. 2, art. 1, ch. 12, G. S.; sec. 35, ch. 113, G. S.; sec. 37, elf. 113, p. 840, G. S.; C. C., sec. 630; Triplett v. Scott, 5 Bush, 82; 78 Ky., 449 ; 9 Bush, 503 and 504.)</p> <p>3. A will in the possession of a testator when last seen, and not being found after his death, the presumption is that he revoked it. (1 vol. English Law Beports, Probate and Divorce Decisions; 7 B. Mon., 414; 5 B. Mon., 63.)</p> <p>4. The will was not established according to law. (G. S., ch. 113, sec. 5; 7 B. Mon., 409; Howard v. Soward, 1 Duvall, 131; 3 Met., 268; 16 B. M., 112; 9 B. Mon.,'29; 3 Mon., 149; 14 Bush, 448 ; 2 Met., 450; 12 B. Mon., 622; 7 B. Mon., 408.)</p> <p>5. The court properly instructed the jury as to the meaning of the words “ custody ” and “ possession,” and the law of this case. (Holland v. Ferris, 2 Bradford’s Beports (Surrogate), 334; lb,, 284; Bedfield on Wills, vol. 1, p. 171, sec. 9; Lister v. Smith, 3 Swab. & Tristman, 282; sec. 28, ch. 113, G. S.)</p>

<p>1. An indictment charging that “ the defendant did unlawfully, feloniously, and maliciously, with intent to kill him, cut and wound one Philip Yeiser,” is sufficient under section 2, article 6, chaiiter 29, General Statutes.</p> <p>2. It is never proper to permit counsel, against objection, to state orally in the presence of the jury what rejected evidence would be. The jury could not properly hear it nor be governed by it.</p> <p>3. The court correctly gave and refused the instructions, except that the appellant was entitled to an instruction to the effect that the intent by him to kill must have existed at the time the cutting and wounding was done.</p>

Case 32 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The paramount jurisdiction of the general government over the Ohio ‘ river, under the authority to regulate commerce among the states, will no longer be disputed. This jurisdiction has been asserted and exercised at all times, and in every possible mode, demanded by the interests of interstate commerce. With this jurisdiction the state • cannot interfere. 2.

<p>1. A contract with the commonwealth arising out of the passage and acceptance of a charter must, by virtue of the act, invest the corporation with an absolute right of property, or confer such authority, . which, when exercised, vests the corporation with such interests as are of appreciable value.</p> <p>2. A special remedy given to a railway company for the condemnation of real estate may be repealed by a general act applying to all railroads. There is no element of a contract in the special remedy.</p>

<p>Case 34-ORDINARY</p> <p>APPEAL PROM LAWRENCE CIRCUIT COURT.</p> <p>1. The question is, whether a railroad corporation can, with impunity, destroy a county road.</p> <p>2. A town or county which is bound to keep a street or road in order, has such an interest therein as entitles it to an action for any injury thereto. (Pierce on Railroads, 252; 23 N. H., 83; 44 lb., 105.)</p> <p>The county of Lawrence, as such, cannot maintain an action against appellees. It has not the legal capacity to sue. (Commonwealth, for use Estill County, v. McFarland, 7 J. J. Mar., 208; Christian County Court v. Rankin, 2 Duv.)</p>

<p>Case 35 — EQUIT</p> <p>APPEAL PROM CALDWELL CIRCUIT COURT.</p> <p>1. The certificate of the clerk as to the acknowledgment of the mortgage . is not sufficient. It does not state that it was acknowledged before his deputy.</p> <p>2. It does not include the indorsement made by his deputy. (Sec. 13, art. 13, ch. 38, Gen. Stat.; sec. 22, ch. 24, Rev. Stat., p. 282; Gen. Stat., sec. 21, ch. 24; 1st vol. Rev. Stat., 285; secs. 38 and 39, ch-24, Gen. Stat.; Franklin v. Beeker, 11 Bush, 596.)</p> <p>Even if the certificate is an indorsement in the meaning of the act of 1854, still the recording of the certificate immediately after the deed,- and following it with the certificate of the clerk, is a substantial compliance with the act. It embraces all that is essential. (Barrett v. Shackleford, 6 J. J. Mar., 532; Gen. Stat., ch. 24, secs. 21 and 23; Franklin v. Beeker, 11 Bush, 595; McCormack v. Woods, 14 Bush, 79; 8 Wall., 513; 14 Texas, 293; Hilliard on Eeal Estate, 675; Hughes-v. McKinney, 5 Mon., 41; Mantz v. Bailey, 3 Dana, 111; Bank v. Portarían, 9 lb., 112; Gregory v. Ford, 5 B. Mon., 481; 3 Bush, 573.)</p>

Case 36 — INDICTMENT APPEAL ER0M SIMPSON CIRCUIT COURT. 1. The instructions of the court upon the question of self-defense are error. 2. To whom must the danger and the means of escape have been apparent? To the appellant or to the jury? Evidently to the appellant.

Case 37 — WILL APPEAL FROM JEFFERSON COMMON PLEAS COURT. 1. The court erred in instructing the jury to “ disregard all the evidence in reference to the ill-will or hatred of the testator towards A. O. Brannin, the maternal grandfather of appellants.” 2. We insist that the unnatural and unaccountable prejudice of the testator against Brannin should have gone to the jury as tending to show incapacity. (Tudor v. Tudor, 17 B. Mon., 314.) 3.

<p>1. Where the testimony of a witness given on a former trial is reproduced, the witness having died, testimony to the effect that the witness, subsequent to the former trial, stated that the evidence given by him on that trial was false, is not competent.</p> <p>2. Before evidence can be adduced to impeach a witness by proof of statements contradictory of what he has testified, he must be inquired' of as to such statements, with circumstances of time, place, and persons present, and the fact that the witness sought to be impeached is dead does not alter the rule.</p> <p>3. When the evidence of an accomplice is corroborated, he occupies the same attitude of any other witness so far as the methods of contradicting or impeaching him is concerned.</p> <p>4. Where there is corroborating evidence sufficient to permit the jury to consider the evidence of an accomplice, the jury are the sole judges as to what weight should be given to such corroborating testimony.</p>

<p>1. Under an act of the general assembly, the Livermore precinct, in McLean county, subscribed stock in the Owensboro and Russellville Railroad Company. The county judge is required to appoint a “collector of taxes so levied for said precinct.” He attempted and failed to find a collector. Appellees sought the aid of the circuit court to compel payment by the • tax-payers, and the court adjudged that payment be made through its receiver.</p> <p>2. Held — The power to levy or collect taxes is not one of the inherent powers of any judicial tribunal. The duty and the power is legislative.</p> <p>3. If, when the legislature fails to enact proper legislation, or to provide •the means of collecting taxes imposed, the judiciary may interpose, the theory of the government and the distribution of powers are destroj'ed.</p> <p>4. The chancellor exceeded his power in appointing a collector of taxes in the precinct, and in rendering judgment against the tax-payers.</p>

Case 40 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The attempt of the general assembly to confer upon appellee the exclusive privilege of erecting and maintaining gas works in the city of Louisville is as clearly a nullity as the attempt to give it the exclusive privilege of selling gas-light to the inhabitants of that city. 2. The conditions in the ordinance giving the consent of the general council to the use of the streets by appellant, are conditions subsequent.

Case 41 — EQUITY APPEAL FROM CAMPBELL CHANCERY COURT. 1. This is purely a contest between equities, and must be determined by rules well established. In cases of conflicting equities, the maxim is, that precedency in time gives the advantage in right.

<p>1. A commissioner and receiver of a circuit court will not be permitted to derive profit or benefit from the purchase of claims referred to him and in his hands for proof of debts and priority.</p> <p>2. I-Iis relation to litigants, whose claims are before him for action, is fiducial, and he will be held as a trustee for the benefit of those whose claims he has purchased for less than they are ascertained to he worth.</p> <p>3. Appellant Barrett having become the surety of appellee Hodge as receiver, after he purchased the claim, is not bound to appellant for the failure of the receiver to account to him. .</p>

Case 43 — EQUITY APPEAL PROM HENDERSON CIRCUIT COURT. 1. While it may be conceded that the sale of expectancies was void at common law, yet such sales, when fairly made for an adequate consideration, have always been enforced by courts of equity in England. 2. Even the naked possibility of an expectancy may become the subject of a contract of sale, and the contract will be enforced. 3.

Case 44 — LIBEL APPEAL FROM SCOTT COMMON PLEAS COURT. 1. The affidavit of appellee is not a privileged communication. No person has the right to voluntarily make such statements in regard to another. The affidavit is not made in confidence in the discharge of any duty, hut voluntarily offered.

Case 45-EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. As to the existence of the corporation known as the Heinig Manufacturing Company, there can be no question. The burden of proof is upon the appellees to show that it is not. 2.1 Section 17, chapter 56, General Statutes, entitled “Incorporated Com-I panics,” provides “that persons acting as a corporation under the I provisions of this act shall he presumed to be legally organized 1 until the contrary is shown.” 1.

Case 46 — ORDINARY APPEAL PROM m’cRACKEN COMMON PLEAS COURT. 1. The court erred in adjudging that this case is governed by chapter 97, Revised Statutes. 2. We maintain that the provisions of the Revised Statutes, chapter 63, article 4, control the case, and appellees are not released by limitation. 1. We earnestly contend that the appellant’s demand is barred by the statute of limitations.

<p>1. A married woman borrows money to pay for land which has been conveyed to.her as her separate estate, and, to secure the loan,.she, together with her husband, mortgages the land. Held — That she may bind her separate estate for the payment of the mortgage debt, or for the discharge of any debt that she may create for her own use and benefit.</p> <p>2. The mortgagee is not entitled to the rents of mortgaged property unless the deed includes them.</p> <p>3. A guardian will not be permitted to surrender to a mortgagee the right of his wards to rents of land. Such an agreement is void.</p>

<p>1. The provisions of the Revised Statutes applicable to this case do not alter the nature of character of a separate estate, the only effect of the statute being to regulate the manner of its use and the method of alienation.</p> <p>2. To create a separate estate at common law or under the statute, the language of the deed or devise must clearly manifest an intention to-place the property beyond the control of the husband. No specific-words are necessary to its creation.</p> <p>3. A separate estate may be created where the donee is discovert, to take effect upon her marriage. It may be made to extend to a particular coverture or any number of covertures, and that without regard to whether the will or deed under which the estate is held was executed before or during the coverture.</p> <p>4. There can he no such thing as a separate estate which is operative in the absence of a conjugal tie. The sole idea of such an estate is the exclusion of the husband’s control.</p> <p>5. The deed from Mrs. Price’s father to her husband in trust for her contains nothing to indicate an intention to exclude any future husband from his marital rights, and therefore creates no separate estate as ' against any such future husband.</p> <p>6. Although the deed from P. and his wife in trust, to A. created in Mrs. P. a separate estate, yet, as the estate was to take effect in the future;, it was destroyed by the conveyance to B., and from B. back to P. and wife) and it became Mrs. Duke’s, late Price’s, general estate, which,, under the statute, she could not dispose of by will.</p> <p>7. The judgment authorizing Mrs. Price to trade and act as a feme sole ceased to operate at the death of her husband.</p>

Case 49 — ORDINARY APPEAL PROM WARREN CIRCUIT COURT. 1. Neither the original nor amended answer avers that the services performed by appellee were accepted by the decedent in satisfaction of the note held against appellee by the decedent for $5,000. 2.

<p>1. Circumstantial evidence is competent to establish the fact that the person charged to have been murdered is dead. The production of the hody is certainly the best evidence of that fact; but this is not always possible.</p> <p>'2. The conclnsivenoss of circumstantial evidence to establish the fact, of death is for the jury, and not the court, to determine. The court is only concerned in seeing that improper evidence does not go to the jury, and that they are properly instructed in such cases.</p>

<p>1. The court properly submitted the issue of will or no will, as to each of the alleged wills, to the same jury.</p> <p>2. The method of introducing testimony to sustain or oppose both papers was properly fixed by the court.</p> <p>3. The devisees, Ray and Doom, were competent witnesses.</p> <p>4. There is nothing in the admission or rejection of evidence to materially prejudice the appellants.</p> <p>5. Many of the instructions asked for by appellants are abstractly correct, and would be applicable if the court were to determine the facts as well as the law; but, under our system, where the court fixes the law and the jury decide upon the facts, they are not applicable.</p> <p>6. If a nominated executor, wlien acting in good faith, and upon reasonable grounds, to secure the probate of a paper purporting- to be the will of a decedent, fails in his attempt, he is entitled, in addition to Ms taxable costs, to such incidental expenses, as counsel fees, and whatever other sums he has expended in the effort to obtain probate of the paper, to be paid out of the decedent’s estate.</p> <p>'7. The provisions of chapter 26, General Statutes, have no application to this case.</p>

Case 52 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The policy was executed for the benefit of the heirs of F. W. Weisert. 2. The authorities are uniformly to the point that where a policy is made for the benefit of the heirs of the assured, it is held to have the same’ effect as if the names of those wlio are the heirs of the assured were inserted in the policy. (1 Lea, Tenn., 454; (laugh v. St. Louis hint. Ins. Co., 88 111.; 52 Ala., 52; Iiohinson v. Duvall, 79 Ky.

Case 53 — EQUITY APPEAL FROM NICHOLAS CIRCUIT COURT. 1. The presumption is, that the testator knew the value of his estate, and knew that if he gave to his widow the furniture, the $14,000, and the notes executed to her, there would be absolutely nothing left for his children. 2. According to the recognized lexicographers, the word include means “to inclose; to surround; to comprise; to comprehend.” 3.

<p>1. The common law doctrine of reversions prevails in Kentucky.</p> <p>2. A conveyance to one for life, and then to the grantor’s heirs, creates a reversion in the grantor, and, upon the death of the life-tenant, the grantor may devise the estate as he pleases.</p> <p>3. There must be a delivery and an actual acceptance or assent before a deed becomes binding between the parties or valid as a deed.’ The mere execution of a deed, and its delivery to the county clerk, is not sufficient, unless directed by the grantee or afterwards assented to by him.</p> <p>4. The acknowledgment of a deed is a fact which may be proved to show delivery, but standing alone, it does not establish a presumption of delivery.</p> <p>5. Where the rights of third persons have attached, they cannot be destroyed by the subsequent acceptance and recording of a deed previously executed.</p> <p>6. A mere order sustaining a demurrer not followed by a judgment dismissing the pleading, or that part of it demurred to, is not final, and may be disregarded by the court in rendering final judgment.</p>

<p>Case 55 — INDICTMENT</p> <p>APPEAL JFR01I ADAIR (TRCCIT COURT.</p> <p>1. The court erred in refusing to allow the defendants to prove that they were “weak-minded.”</p> <p>2. It was error to refuse to instruct the jury that the defendants were; not guilty of murder unless they “ knew right from wrong, and had sufficient reason and power of control to govern their actions,” Hie proof authorizing such an instruction.</p> <p>3. The defendants were entitled to instruction on the question of self-defense.</p> <p>Weakness of mind is no excuse for crime. The question was, whether the defendants understood at the time of the killing the quality of . tlieir act, and knew right from wrong.</p>

Case 56 — EQUITY APPEAL PROM ALLEN CIRCUIT COURT. The devise to appellant is a specific devise, and the directions given by the testator show his purpose to set apart a certain tract of land to his widow, and that it should not be charged with any of his debts. It is certain as to the quantity of land devised and its location.

Case 57-ORDINARY APPEAL FROM MORGAN CIRCUIT COURT. 1. Patents like that issued to Amyx are numerous, and not of recent origin in this state. 2. It is certain to a reasonable intent. (Drake v. Ramsey, Hardin, 34; Craig v. Cogar, lb., 386; Yocum v. Renfro, 2 Mar., 395; 6 J. J. Mar., 191; Bush v. Jameson, 3 Bibb, 121; 2 Stat. Laws, 1021; Cain v. Elinn, 2 Dana, 500; 4 Randolph, 365 ; Jennings v. Whittaker, 4 Mon., 51; 3 Peters, 341; 2 lb., 237; Litt.

<p>1. One of the objects of the National Mutual Benefit Association is to relieve the necessities of sick and disabled members, or to confer charities, in the discretion of the directors, and for that purpose a permanent fund is provided by their charter.</p> <p>2. The other is to pay to the legal heirs or beneficiary of a deceased member such sum as may be realized from an assessment upon its members, and the fund, according to the charter, must be paid to the legal heirs or beneficiary of such deceased member.</p> <p>3. Throckmorton (the insured) could not, under the charter, sell and assign his policy of insurance so as to divert the fund from his legal heirs and beneficiary.</p> <p>4. It is essential to the validity of a policy of insurance, obtained by one person for his benefit upon the life of another, that the party so obtaining shall have an insurable interest in the life of the insured.</p> <p>5. The assignment of a policy of insurance to a party not having an insurable interest is as objectionable as taking out a policy in his name.</p>

<p>Case 59— EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>1. Appellees must show that they suffer some particular injury distinct from that sustained by the public in general.</p> <p>2. The injury must be real and substantial.</p> <p>3. The production of a mere inconvenience resulting from the exercise of trade is not sufficient to make that trade a nuisance. (Barnes v. Ilathorn, 54 Me., 124; 19 N. J., 294; 4 Eng. Law & Eq., 20; 20 N. J., 201; Louisville Coffin Co. v. Warren, 78 Ky.)’</p> <p>4. The nuisance and the injury must be clearly established. (Harris v. Thornberry, 7 Bush, 403; Dumesuil v. Dupont, 18 B. Mon., 800; Barr v. Stephens, 1 Bibb, 293; Cosby v. O. & R. R. R. Co., 10 Bush, 288; 2 Dana, 159; High on Injunctions, sec. 522; Wood on Nuisances, secs. 811, 812, 619, 792, 796, 798; Coke’s Inst., 560; Cliifcty on PI., vol. 1, 237; Gould’s PL, ch. 3, sec. 169; 5 Met., 8; 11 Hunyffi., 406; 6 Ind., 223; 40 111., 81; 57 Penn. St., 274; 11 Fla., 143; 5 Ga., 15; 1 Duvall, 255; 23 Mich., 448 ; 8 Ind., 494; 70 Penn. St., 415; 20-N. J., 599; 9 Paige, 575; Rolle’s Ab., 140.)</p> <p>1. The nuisance is clearly established, was caused by appellant, and its. abatement does not injure him.</p> <p>2. A slaughter-house, when carried on in or near a town or city or public place, is prima fade a nuisance. (Wood on Nuisances, sec. 504; lb., sec. 505; 9 Paige’s Ch’y, 575.)</p> <p>3. Coming to a nuisance is no defense, no matter how long it has been continued. (3 Barb., 159; 1 Eng. Law Rep., Equity Cases, 56; 8 Pliila. Rep., 10; 3 Rawle, 256; Greenleaf on Ev., vol. 2, 472; Ash-brook v. Commonwealth, 1 Bush; Wood’s Law of Nuisances, secs. 707, 710, 727, 524; Louisville Coffin Co. v. 'Warren, 78 Ky., 400.)</p> <p>4. It is not necessary to show that the odors are hurtful or unwholesome. (Wood on Nuisances, secs. 405, 496, 769, 505; 9 Paige’s Ch’y, 755; 3-Barb., 157 ; Hahn v. Thornberry, 1 Bnsh, 403.)</p>

Case 60 — PASSWAYS APPEAL PROM GRAYSON CIRCUIT COURT. 1. The court erred in ruling that the appeal should have been taken from the judgment of the county court in sixty days. 2. Appellant has one year to take his appeal. (Myers’ Code, sec. 20, omitted from new Code; Sess. Acts 1880, ch. 1525; Gen. Stat., ch. 94, art. 1, sec. 43; art. 2, sec. 10; lb., ch. 106, art. 1, sec. 8; lb., ch. 113, sec. 27.) 1.

Case 61 — EQUITY APPEAL PROM LYON CIRCUIT COURT. 1. The court erred in refusing appellants a judgment for costs. 2. Mrs. Bransom, being- an infant and a feme covert when she executed the power of attorney, it is void. 3. Mrs. Bransom was not seized of the land at her death, and therefore her husband had no curtesy in the land.

Cash 62 EQUITY APPEAL PROM UUTLISR CIRCUIT COURT. 1. The wife can only part with her title as provided by the statute. The consent of the husband has no significance. 2. The wife’s right of action accrues as soon as the husband attempts to dispose of her land.

<p>Case 63 —RULE</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>No brief.</p> <p>No brief.</p>

Case 64-ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. The court erred in its definition of ordinary care. It is evident that the care which an ordinarily prudent and careful man exercises in taking care of his family is not a proper test by which to determine whether or not he has been guilty of a social duty to a stranger. 2.

Case 65 — EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. L The capital stock in a corporation, and every other species of property that can he sold, can be mortgaged. (Jones on Mortgages, Personal Property, 94; Field on Corporations, sec. 110; 3 Paige, 361; Pendell v. Grooms, 18 B. Mon., 505; Copeland v. Copeland, 7 Bush, 350.) 2. In Price v. Price, 6 Dana, 107, this court held that such stock was real estate.

<p>Case 66 — EQUITY</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>No brief.</p> <p>The delivery by Mrs. Stephenson to her mother of all the evidences of the choses in action in her possession was all she could make, and is fully sustained by the authorities as a donatio causa mortis. (5 Bush, 594; Merriwether v. Morrison, 78 Ky., 572; 11 R. I., 266; 31 Mar., 1S5 ; 63 Maine, 364; Williams’ Ex’r, 691; Camp’s Appeal, 36 Conn., 88; 40 lb., 512.</p>

<p>Case 67 — EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>No brief.</p>

Case 68 — DOWER APPEAL EROM KENTON CHANCERY COURT. Appellee is bound by the terms of the deed of her husband and herself from the date of its record. (General Statutes, chap. 24, sec. 22.) Chambers having bought from James, the husband of appellee, and applied the consideration of his purchase to the extinguishment of the pending lien for the purchase money, in no case can appellee have any claim to dower.

Case 69 — INDICTMENT APPEAL FROM IIARDIN CIRCUIT COURT. It is clearly shown that appellant is under fourteen years of age, and not of sound mind. Being under fourteen years of age, the evidence of that nature, which is to supply age, ought to he strong and clear beyond all doubt and contradiction. (4 Bl. Com., 23.) The instructions are misleading. The whole (jase shows that appellant, although under fourteen, know th« criminal character of the act he committed.

<p>1. The notice required to affect an antecedent creditor of a voluntary conveyance is actual notice.</p> <p>2. Constructive notice, arising from the recording of thfe deed, is insufficient</p> <p>3. As the mere fact of recording a voluntary conveyance is not notice of its existence to a prior creditor, that fact is not evidence to prove the time of the discovery of the fraud, but only to prove its perpetration.</p> <p>4. The discovery of the fraud is not to be reckoned from the recording of the deed, but only from actual notice to the creditor of the fraud.</p>

<p>1. Error in requiring answer to be paragraphed is not available if both paragraphs do not constitute a defense.</p> <p>2. Composition under bankrupt act is no discharge of debt created by actual fraud.</p> <p>3. Acceptance of pro rata under composition forced upon creditor not joining in or agreeing to composition, operates as a credit only to that extent on the debt.</p> <p>4. In pleading composition it is necessary to allege the terms of composition, and that they were strictly complied with.</p> <p>5. Conjunctive denial is not good.</p> <p>6. A sale of whisky and delivery of second warehouse receipts to innocent purchaser without informing him of issual of former receipt to another person, constitutes actual fraud.</p> <p>7. It is immaterial whether the fact of issuing a previous receipt is wilfully or intentionally concealed. Such fact is material and should have been disclosed. Nor can vendor relieve himself from failure to disclose by an agreement with the holder of the first receipt which he construes to authorize the sale.</p>

Case 72 — INDICTMENT APPEAL FROM BRACKEN CIRCUIT COURT. The court erred in refusing to admit the evidence of Snodgrass and Smith in behalf of appellant. N0 conspiracy is sufficiently charged in the indictment. No conspiracy is proved by appellee. The court erred in refusing to instruct as to manslaughter. (Porst v. Hays, 9 B. Mon., 362; Thompson v. Commonwealth, 1 Met., 14; Hudson v. same, 2 Duv., 531; Jones v. same, lb., 554; Butler’s Grammar, 79; Harvey’s lb., 70; Crim.

Case 73 — CONTESTED LIBELOUS — APPEAL prom pike circuit court. The notice is sufficiently certain to put tlio eontestee in possession of the points of contest. That appellant is elected by eighteen votes is unquestionable. (Sec. 5, art. 3, chap. 33, Gen. Stat.; sec. 8, art. 7, chap. 33,Ib.; Soeman v.Hinton, 1 Duv., 40; Clark v. McKeape, 7 Bush, 529.) None of the specifications here sot forth in the notice state any issuable fact.

<p>Case 74 — EQUITY</p> <p>APPEAL FROM FLOYD CIRCUIT COURT.</p> <p>Tlie averments of the petition for a new trial are that the record of deeds in Eloyd county, and indexes thereto, were so mutilated, torn, and disfigured, that no reasonable amount of diligence could have discovered the deed which was necessary to make out the title. "Without indexes no deed could be found by any reasonable diligence.</p> <p>The court erred in dismissing the petition for a new trial. (Allen v. Perry, G Bush, 91; 7 B. Mon., 123; Repperdon v. Scott, 7 A. II. Mar., 152; Hayes v. Price, 4 Dana, 81; Denny v. Wiekliffe, 1 Met., 224.)</p> <p>1. Tliere is no averment giving any reason why Mrs. Smith did not, by herself or her attorney, examine the records of the Eloyd county court. The war had been over for seven years, and therefore that could not prevent a full examination.</p> <p>2. Denny v. "Wiekliffe is not in point. In that case “ the indexes to the deeds had been destroyed.” In this the averment is that there was no “general index.” The statute never required such an index, (3 Bush, 487; 6 Mon., 168; 1 Mar., 313; 6 Bush, 90; Hayes v. Price, 4 Dana, 81; Dickinson v. Trout, 8 Bush, 444; Allen v. Perry, 6 Jb., 85.)</p>

Case 75 — WILLS. PRACTICE APPEAL PROM MERCER CIRCUIT COURT. Every ground for a new trial fully set forth the error relied upon, except, perhaps, that which relies upon “ errors of law occurring during the trial.” As to the others, no real objection can be made. The court improperly pei’mitted several witnesses to detail the conversations and acts of one of the attesting witnesses.

Case 76 — INDICTMENT, MURDER APPEAL EROM PULASKI CIRCUIT COURT. The court erred in refusing to quash the indictment. One of the grand-jurors was substantially the owner of a grist-mill.

<p>Case 77 — MOTION</p> <p>APPEAL EROM EDMONSON CIRCUIT COURT.</p> <p>UPON MOTION TO STRIKE OUT BILL OE EXCEPTIONS EROM THE RECORD.</p> <p>1. The record does not show that the bill of exceptions was filed on or before the third day of the succeeding term.</p> <p>2. The court had no power to further extend the time for filing it after ■ having once extended it.</p> <p>AGAINST THE MOTION.</p> <p>We file the affidavit of Jno. M. Porter showing that the extensions were- • made with the express consent of the leading counsel for appellee; that he was actually instrumental in having the order of extension made.</p>

<p>1. The hoard of railroad commissioners are by the statute required to meet annually at the office of the auditor in Frankfort, on the 1st day of September in each year, for the purpose of equalizing the value of the property of railroad corporations.</p> <p>2. The same rate oí taxation for State purposes which is levied upon other ■ real estate in this Commonwealth is to be levied upon railroad properties. &c., by the said board.</p> <p>3. A railroad is a unit, and, as such, must be taxed.</p> <p>4. The object of the legislature is that no injustice may be done to railroad companies by subjecting their property to fragmentary assessments, subj ect to the revision of the supervising hoards oí each county through which the roads may run.</p> <p>■6. Such imperfect and fragmentary assessments can not produce such uniformity as is absolutely necessary to produce equality. No wiser provision could have been made than to place the valuation in the hands of a hoard of intelligent men selected by the executive of the Commonwealth.</p> <p>■6. It is only a question of policy with the legislature whether the property of railroad corporations shall be assessed by commissioners, and it is with the law-making power to say whether such assessment shall or not be final.</p> <p>7. The mode provided by the General Assembty for the assessment and taxation of railroads is not in conflict with the Federal constitution.</p> <p>8. The mode of assessing and collecting taxes is not in the nature of a judi- ■ eial proceeding. Revisory boards may be established and appeals allowed, hut they are matters of expediency, and can not be demanded as a matter of constitutional right.</p> <p>■9. The board of commissioners can only assess. The power to enforce the collection of taxes so assessed is in the Franklin circuit court.</p>

Case 79 — MORTGAGE APPEAL PROM LOUISVILLE CHANCERY COURT. The question is, whether the record ought not to govern, whether a record can Be impeached ? It is clear that no third parties are interested. Appellant shows a mortgage acknowledged and recorded according to the statute. The record of the clerk can not Be contradicted without an averment of fraud.

Case 80 — REVENUE APPEAL PROM LOUISVILLE CHANCERY COURT. County taxes can not be enforced against appellant — ■ 1. Because of the strictly public functions performed by the corporation. 2. Because the ivater-ivorks at Louisville must be regarded as an entirety, and therefore can not be levied upon and sold piecemeal. 3. Because there is a statutory exemption from the tax. 4.

Case 81 — INDICTMENT APPEAL PROM BARREN CIRCUIT COURT. We insist that the indictment is insufficient, because it does not charge that the testimony alleged to he false was material to the issue then being tried. The verdict of the jury was against the evidence. 'The instruction of the court was error. (Gen. Stats., chap. 29, art. 8, sec. 2; Greenleaf Ev., sec. 189; Whart. Crim.

Case 82 — PRACTICE APPEAL PROM LOUISVILLE CHANCERY COURT. _A bill of exchange endorsed by the payee to the acceptor, after acceptance extinguishes the hill as regards the drawer. (Long v. Bank of Cynthiana, 1 Litt., 290; 4 Ark., 546; 2 Barn & Cress, 483; 7 Wait’s Acs. and Defs., 36; Smith Cont., 92; 1 Wm. S. Sander, 211; Smith & Pah, 15 B. Mon., 445; Emmons v. Overtoil, 18 lb., 650; 50 ÍT. Y., 158; 25' L. I., see. 4, chap. 244; Daniel Neg. Insts., sec. 480; 36 Eng.

Case 83 — SURETIES, RELEASE APPEAL PROM LOUISVILLE CHANCERY COURT. Appellant did not know that at the time the bond was executed Ryan, Carpenter & Co. were in arrears with appellant, nor did it know who were to become the sureties of Ryan until after the bond had been executed. If appellant did know that Ryan, Carpenter & Oo. were in arrears, it was under no obligation, unless inquired of, to communicate such knowledge to appellees. (2 Otto, 97; 18 Wis., 667; Home Ins.

Case 84 — HOMESTEAD APPEAL FROM POWELL CIRCUIT COURT. By the statute the homestead is not limited during the life of the husband, but by its express terms it is continued for the benefit of the widow and her children. If she have no children, or, having them, they die, still the homestead is continued to her.

<p>Case 85 — HOMESTEAD</p> <p>APPEAL PROM OHIO CIRCUIT COURT,</p> <p>No briefs.</p>

<p>Case 86 — BANKRUPT ACT</p> <p>APPEAL EROM LOUISVILLE CHANCERY COURT.</p> <p>The question on this appeal is, whether a cause of action not originating with the bankrupt, but ai-ising to the assignee in the course of his administration as assignee, is affected by the limitation of two years?</p> <p>Supposing that appellee entered upon the whole body of land on May 7, 1877, this hostile act was only one year and sixteen days before the assignee brought suit against appellee. Appellee is either a tortfeasor, intruding upon the premises after the title passed to the assignee, or he held under the assignee, and we maintain that the latter is the case. (Sedgwick on Const. Law, 395; 5 Humphrey, 395; 5 Maryland, 351; 1 Black, 469; 11 Pielc, 490; 5 Wall, 111; 1 Mich., 479; 2 Mass., 539; 42 Md., 407; 8 Otto, 252; 21 Wall, 342; 18 Bankrupt Beg., 473; 1 Woods, 168; 11 Ala., 932; 1 Otto, 516; 16 Bank Ky., 285; 2 Story, 648; 2 Curtis, 488;' 4 Dillon, 386; 13 Ala., 38; 20 lb., 753; 29 Me., 51; 2 Wall, 69; 4 Nat. Bank. Beg., 157; 3 Bobertson, 448; 12 Tiff,, 302; 39 N. Y., 302; 5 Blatchford, 54.)</p> <p>We think it clear that when the Newcomb-Buchanan Company claims to be the owner of the land sought to be sold, they are claiming an adverse interest to the lien thereon claimed by the assignee.</p> <p>The appellant's counsel fails to give any effect to the amendment of 1874, which makes the statute expressly applicable to suits for “debts.”</p> <p>Throughout all the cases referred to by appellant’s counsel it will bo seen that the broad policy of the statute was upheld as a statute of relief of “speedy administration.” (Bov. Slat. U. S.,1 secs. 5037, 5034, 5092, 5093, 4981, 5108, 5120; 11 Ala., 932; 5 Banlc. Reg., 253; 32 Maine, 245; 2 Story, 660; 2 Curtis, 488; 4 Dillon, 386; 2 "Woods, 115; 18 Bank Ky., 473.)</p>

Case 87 — CONVEYANCES APPEAL PROM LOUISVILLE CHANCERY COURT. It is shown without controversy that appellant paid and agreed to pay his father the full value of the land. The agreement made by the son to support his father and mother in addition does not indicate fraud as against creditors, nor does it in any case show any wrong intent either as to vendee or vendor.

Case 88 — EQUITY APPEAL PROM NICHOLAS CIRCUIT COURT. The court erred in adjudging that Mrs. Bullock had a life estate in the-land. She had an undivided ninth part, there being eight children. (Poster v. Shreve, 6 Bush, 522; Webb v. Holmes, 3 B. Mon., 404.' The proper construction of the deed is, if the children have any interest,. to give it to them in a body after the interest of their mother has - expired.

<p>Case 89 — EQUITY</p> <p>APPEAL FROM THE HARDIN CIRCUIT COURT.</p> <p>The claim is stale and the trust is denied. (McKnight v. Taylor, 1 How., U. S., 161; 18 Yesey, 286; Bettis v. Allen, 10 Bush, 40.)</p> <p>The trust being denied by the answer, and not established by the proof, the statute of limitation applies. (Buckner v. Patterson, Litt. Sel. Ca., 234; Johnson’s Oh’y, 69.)</p> <p>The slave had no legal existence. (Taylor v. Embry, 16 B. Mon., 340; Graves v. Allen, 13 lb., 190.)</p> <p>It is a well settled principle that courts of equity will hold limitation as a bar when the trust has been ended by a payment, and time is relied upon.</p> <p>But a mere declaration of payment, not brought home to the cestui que trust, can neither end the trust nor stop its continuance, nor bar the cestui que trust’s demand for a settlement. (3 Wheaton, 481; 3 Howard, 411; 3 Beters, 223; 16 Otto, 106; Thomas v. White. 3 Litt., 177; 2 Mar., 445; 7 Mon., 559.)</p> <p>' The decedent received the fund in virtue of a special act, and received it as trustee. (Sess.Acts, approved February 28, 1850.) The act was obtained by the decedent himself.</p>

<p>Case 90 — REVENUE</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>•Conceding that the amendment to the charter of the original company provides that the company “ shall be exempt from taxation till completed,” and they never completed the road, still I insist that appellees, the present company, are not permitted to appropriate to themselves this gracious provision.</p> <p>It was not in tho nature of a granted right to the original corporation, was not passed for five years after they had been enjoying their franchise under the original charter, and was at any time subject to repeal.</p> <p>Appellees, as purchasers of tho road, could not purchase the franchise. It was a personal privilege, and could neither he sold or transferred. (Evansville, Henderson & Nashville R. R. Co. v. Commonwealth, 9 Bush, 43.)</p> <p>Tho taxing power of the State is never presumed to bo relinquished unless •the intention to do so is plainly declared. (Philadelphia & Wilmington R. R. Co. v. St. Maryland, 10 Howard, 736; Bradley v. McAteo, 7 Bush, 667.)</p> <p>The act of 1878, General Statutes, 1252, taxing railroads, applies to this as well as to all other roads, and repeals the amendment relied upon.</p> <p>The first amendment to the charter of the Owensboro & Russellville Railroad Company relied upon was approved January 27, 1882, providing that the company shall be exempt from taxation till completed. The evident intention of the legislature is that the road, until completed, shall not be subject to taxation on account of its unfinished condition.</p> <p>The General Statutes, 957, provide that purchasers of railroads are entitled to “ all the franchises, powers, rights and privileges belonging to the old company.”</p> <p>But by an amendment to the charter, approved January 27, 1882, as an inducement to purchasers of the road, it is provided that the purchaser of the road shall have all the rights, privileges and immunities ' of the old company.</p> <p>Bouvier defines an “ immunity” to be an exemption from performing duties. Webster defines it to be an exemption from any charge or duty — an exemption from a tax. The purchaser buys the road under this inducement, and the Commonwealth can not refuse to discharge its contract. (Elizabethtown & Pad. R. R. Co. v. Commonwealth, 12 Bush, 233.)</p> <p>The General Statutes taxing railroads, although passed after the amendments relied upon, do not repeal them. (Commonwealth v. Cain, 14 Bush, 553; Thorp v. Adams, Law Rep., 6; Common Pleas, 125; 6 Iredell, 153; Nunes v. Wellicsh, 12 Bush, 364; 4 Ark., 410; Commonwealth v. Weller, 14 Bush, 218.)</p>

Case 91 — LIMITATION APPEAL PROM ERECKINRIDGE CIRCUIT COURT. It is the settled rule that a partial payment on a note, made before the statute of limitation begins to run, is prima facie an acknowledgment that the balance remains unpaid, and suspends the running of the statute prior to the date of the payment.

Case 92 — HOMESTEAD APPEAL PROM ROCKCASTLE CIRCUIT COURT. The petition of appellant avers that the debt of appellee existed prior to the erection of the improvements. Existing prior to the making of the improvements, appellee never having lived upon it as a homestead until after the improvements were made, the plain terms of the statute cuts appellee off from any claim to a homestead.

<p>1. Under subsection 7 of section 737, Code of Practice, if an appellant chooses to file a partial transcript of the record, he must file in the office of the clerk of the circuit court his assignment of errors and a schedule “showing concisely what parts of the record he wishes to have copied,” and must cause notice of the filing thereof to be served on the appellees.</p> <p>2. Railing to do this, the case will be dismissed.</p>

Case 94 — INDICTMENT APPEAL FROM MADISON CIRCUIT COURT. ‘The statute requires that the detention must be unlawful and against the will of the female. (Gen. Stats., ch. 39, art. 4, sec. 9.) The detention of a female might he unlawful and at the same time not against her will. 'The intention to have carnal knowledge of the female, being against her will, the detention with that intent must have been against'her will. (Evans v. The Commonwealth, 79 Kjr., 415.)

Case 95 — MANDAMUS APPEAL PROM BRACKEN CIRCUIT COURT. The skillful surgery which can separate “notice of application for such . order,” used in the last sentence of section 3 of act 7, 1876, from the words, “ and of sucli election whemordered,” so as to make one apply in one case and the other in all cases, would have separated the Siamese twins without causing death or pain. The act of May 3, 1880, is unconstitutional.

Case 96 — VENDOR’S LIEN APPEAL PROM CARTER CIRCUIT COURT. Appellant stands in the position of an assignor, and no excuse has been given for Pritchard’s delay in issuing execution. ■Counties have but one mode of paying their indebtedness, and.that is by allowance to be paid out of the county levy. That allowance was accepted, and appellee’s lien was lost by the acceptance.

<p>1. All extensions of time for presenting petitions for a rehearing, unless otherwise expressed, in the order, should be counted from the expiration of the thirty days allowed by law.</p> <p>2. Sunday should be excluded from the time granted by the court.</p> <p>3. Such motions must be made while the party moving has the right by law, or the permission of the court, to file the petition.</p>

Case 98 — EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The chancellor had no inherent power to sell lands because of indivisibility. 2. The requirements of the statute have noc been complied with. 3. No authority is given by the Code of Practice to sell real estate in a case like this. Because the Code confers no new rights. Section 491 does not authorize a sale unless it will subserve the interest of all parties. The case is not within section 490 of the Code.

Case 99 — EQUITY APPEAL JTROM LEE CIRCUIT COURT. It is distinctly averred that the persons named in the answer are the owners of, and in the actual possession of, the various tracts of land conveyed by appellee to appellant. The warranty as to possession is therefore broken. Appellant is not bound to wait for an actual eviction, nor to sue for possession. Appelle falsely represented to appellant that his title was good when he knew it was not the fact.

<p>'1. A writ of prohibition can not be granted merely to prevent an inferior tribunal from deciding erroneously, nor from enforcing an erroneous judgment or order.</p> <p>2. The remedy is by an appeal.</p> <p>.'3. The provision in appellant’s charter, which requires tolls to be reduced whenever it is ascertained that the road pays a greater dividend than the amount allowed by law, confers an implied power upon the Kenton County Court to determine not only the tolls collected and due the company, the cost of repairs, but also the amount of the original capital stock in the company.</p>

Case 101 — TAX SALE APPEAL PROM LOUISVILLE CHANCERY COURT. The Bevised Statutes did not authorize a sale of land for taxes due the-State, but the Genera Statutes gives the authority. (Gen. Stat., ch. 92, art. 8, secs. 14 and 17.) Neither of appellee’s answers aver that the sale of the lot in.controversy, for taxes due by Bachel Mendel, had not been recorded in the clerk’s-office of the Jefferson county court.

<p>1. The ground for a now trial, that the damages assessed by the jury arc-excessive, is not assigned for error, and can not he considered.</p> <p>2. That “ the court erred in overruling appellant’s motion for a new trial ” is too general to raise any question for decision.</p> <p>3. The error assigned, that the court refused to permit the conductor to-prove that he would not have put the appellant off the train if he had known he could not walk, can not he considered, because appel! ant, failed to make any avowal that the witness would so testify.</p> <p>4. Dor the same reason the error assigned that the court refused to permit appellant to prove that he was a dissipated man, will not be considered.</p> <p>5. "While the right generally of railroad companies to put off their trains. persons who refuse to pay their fare, when requested by the conductor, may he conceded, that right must he exercised with proper regard to the physical aud mental condition of the person, and also to the surrounding circumstances.</p> <p>6. A person refusing to pay his fare upon the demand of the conductor becomes a trespasser, yet to eject him from the train when he is in such physical or mental condition as that serious bodily harm may result from it, is culpable negligence, and is actionable,</p> <p>f. When the negligence of the defendant is the proximate cause of the injury, hut that of the plaintiff is remote, consisting of some act or omission not occurring at the time of the injury, the action can he maintained, although the plaintiff is himself not without fault.</p>

Case 103 — ASSIGNMENT, DILIGENCE APPEAL PROM BUTLER CIRCUIT COURT. It seems plain, upon equitable principles, that justice to the endorser requires the holder of the lien note to pass by the quarterly court (it having no jurisdiction to enforce the lien), and institute suit in the circuit court with the view of selling the land for the payment of the note. No brief.

Case 104 — NEGLIGENCE APPEAL FROM FRANKLIN CIRCUIT COURT. 'The petition not only charges wilful neglect in general terms, but goes on to specify and detail every fact that goes to make wilful negligence. ■The only question is, whether section 3 of chapter 57, General Statutes— title, Injuries to Person or Property — is operative.

<p>Case 105 — TRUSTS AND TRUSTEES</p> <p>APPEAL PROM THE LOUISVILLE CHANCERY COURT.</p> <p>So long as the trustee, under the will of the decedent, acts in good faith, and without fraud, he has the right, in his own discretion, to distribute ■ the whole or a part of each child’s portion of the fund, and his discretion, so exercised, can not be questioned or controlled by any court.</p> <p>The jurisdiction of the court over the discretion of the trustee, so long as-there is no fraud, is wholly excluded. (Perry on Trusts, vol. 2, sec. 511; II., secs. 508, 511; Hill on Trustees, 488, 490, 495.)</p> <p>The English cases only require an honest exercise of discretion on the part - of the trustee to exclude the control of the court. (6 Hare, 410; h Kay & Johnson, 603; 4 lb., 199; 11 Jurist N. S., 483; 3 Madd., 402; 5 lb., 426; Perry on Trusts, sec. 508; 21 Conn., 2; 3 H. L. cases, 195, 224; 125 Mass., 410; 25 Miss., 422; 20 Peck, 116; 9 lb., 461; Clark v. Anderson, 10 Bush, 99.)</p> <p>If the administration of a trust is brought within the jurisdiction of the court, a discretionary power may be required under the eye and direction of the court. (2 Perry on Trusts, sec. 511; 6 Hare, 410; 4 Eq., 661; 31 Beavan, 333; 1 L. R. App. cases, 428.)</p> <p>Courts can interfere by injunction, and prevent an abusive, fraudulent, or collusive or other improper exercise of a discretionary power. (2 Perry on Trusts, sec. 511; Berry v. Hamilton, 10 B. Mon., 135; Bolion v. Barrett, 79 Ky., 378; L. R., 7 Ch’y, 754; L. R., 4 Eq„ 661; 3 Stockton, 290; 2 Redfleld on Wills, 411.)</p> <p>Courts of equity will not permit a trustee, though invested with power absolute in terms, to exercise that power so as to defeat a clear and well-defined trust. (Bohon v. Barrett, 79 Ky., 378; 3 Stockton, 290; 2 lb., 305; Hill Trustees, 70, 491; 10 B. Mon., 129; 10 Eq., 26; 17 lb.,, 24; 7 Yesey, Jr., 486; 11 Poster, 352; 1 Dev. & Battle, 397.)</p> <p>The intention of the testator must govern, and must be carried into effect, though it may defeat a particular intent. (1 Tudor & White Lead Co., Eq., 599; 21 Me., 288; 2 Stockton Ch., 305.)</p> <p>When a trust has been created for the benefit of certain persons for life, with remainder over to others who are infants, the most absolute discretion in the matter of investments must be exercised under the eye of the court. (L. R., 10 Eq., 26; 7 lb., 26; 7 Yesey, Jr., 486; 34 Penn. St., 112; 11 Poster, 352.) •</p> <p>The rule in England and Kentucky is that trustees must invest in real or government securities. (2 Pomeroy Eq., secs. 1073-4; 2 Leading Case Eq., 1800, 1802; Smith v. Smith, 7 J. J. Mar., 238; Clark v. Anderson, 13 Bush, 111; Gen. Stat., ch. 48, art. 2, see. 19.)</p> <p>It was not the intention of the testator to put his children in close wardship, on short allowance, with the result of accumulating a large estate for the benefit of grand-children, none of whom were in existence when the will was made. .</p> <p>It was certainly not intended by the testator that the discretion vested in the trustee should be controlled by the court.</p> <p>It was given to the trustee to determine, by the exercise of his own judgment, whether the person to whom he paid money had capacity to transact business, or whether the necessity existed to aid him. The words, “ this discretion ought not to be controlled,” were intended to apply to the discretion to pay the children.</p> <p>The trustee is to exercise Ins opinion and judgment as to the existence oí a necessity, or the capacity to handle the money in business. (Perry on Trusts, secs. 507, 510; Hill Trustees, 711, 488, 495.)</p> <p>By the 15th clause of the will there are several alternative courses open to the trustee:</p> <p>1. To pay over, in Ms discretion, to any of the testator’s children, the whole or a part of their portion, as to him may seem proper.</p> <p>2. He may invest the property in real estate, to be held upon the trusts declared in clause 10 —that is, the annual income to the children, the remainder infer to the grand-children, the' whole charged with the wife annuity.</p> <p>He may use the profits in improving real estate held under the will, or he may invest the profits that to him may seem best.</p> <p>The allowances made to the guardians ad htem are too much. They set precedents which breed litigation without end. The United States supreme court, in Trustees v. Greenougli (105 M. S.), rehearsed similar evils attending the allowance of such fees.</p>

<p>1. The statute authorizing an appeal from the Superior court to the Court of Appeals does not allow any additional or different record to be used in this court.</p> <p>2. The statements of parties, schedules, and assignments of error, must be treated as part of the record within the meaning of the statute. No new assignment of errors will be allowed.</p> <p>3. It is the duty of the cleric of this court to require the tax to be paid before he grants the appeal; but if he fails to do so, and grants the appeal, it is no ground for the dismissal ot the appeal to the court.</p>

Case 107 — INDICTMENT APPEAL EROM MERCER CIRCUIT COURT. The proof clearly shows that appellant is insane, and therefore the jury should have found him not guilty. The burden of proof is upon the Commonwealth to establish every element to make out a case of crime against the accused. The presumption of the sanity of accused does not exist, and it is for the Commonwealth to > prove the fact of the sanity before ho can be convicted. The court erred in its instructions. (Orim.

Case 108 — CONSTITUTION, ELECTIONS APPEAL PROM CLARK CIRCUIT COURT. The qualifications prescribed by the constitution for voters at State elections do not apply to municipal elections. Every State and county officer holds under a constitutional tenure, and from governor down to constable the organic law creates the office, describes the functions, duties and liabilities of the incumbent, and fixes the duration of his term.

<p>1. The general rule as to ministerial officers is that if a process, whether a warrant for another or other process, is apparently regular and issues from a court having jurisdiction of the subject-matter, and the officer has no knowledge of any material irregularity or any illegality in the issuing of the process, he is protected in its execution; but the protection extends only so long as he acts in good faith in the discharge of his duty under the process. Beyond this he must answer as a private citizen for any oppression or wrong doing.</p> <p>2. The general rule applicable to justices of the peace, as to all judicial officers, is that where the officer has jurisdiction of the person and of the subject-matter he is exempt from suit by a private individual for damages so long as ho acts within his jurisdiction and in a judicial capacity.</p> <p>3. Chapter 2 of title 10, Criminal Code, makes no- provision for jailing or guarding one arrested on a peace warrant, but the authority to arrest, to try, and to require bond necessarily implies that the accused may be restrained of his liberty within a reasonable limit pending or preparatory to such an examination; and, by analogy to the provisions of the Code governing the postponement of an examining trial, it is discretionary with the magistrate whether he will commit the accused to jail or put him under guard.</p> <p>The defendant in a peace warrant was brought before a justice at 11:30 p. M. Saturday. Being at the time crazed with drink, and manifesting his dangerous character in the presence of the justice, that officer committed him to jail. In an action against the justice for false imprisonment it is held that he acted properly in committing the defendant to jail, as it was too late to try him before midnight, and the law does not require a justice to hold an examining court on the Sabbath, although he may do so; nor does the law permit such Sm' officer to try one who is temporarily incapacitated by drink to attend to or understand the charge preferred against him.</p>

<p>Case 110 — MANDAMUS</p> <p>APPEAL PROM ERANKLIN CIRCUIT COURT.</p> <p>No brief.</p> <p>The Trustees Frankfort Public School have the right to maintain this action. (Graham v. Maddox, 2 Met., 69-71; Act March 16, 1869, sec. 3, charter, p. 102; sec. 4, p. 103; Civil Code, sec. 25; C. C., sec. 477; Land’s Reports, 218; 1 Bibb, 533; 4 Bush, 491; 8 Bush, 106; 10 Bush, 570.)</p> <p>The mandamus should be awarded and the $271,574.17 collected from railroads from 1879 to 1883, inclusive, should be placed to the credit of the common-school fund. (I Bibb, 533; 5 Mon., 327; 7 Mon., 443; 6 Dana, 188; 3 B. Mon., 198; 6 B. Mon., 651; 1 Met., 538; 2 Met., 69-71; 4 Bush, 491; 8 Bush, 106; 10 Bush, 570; 7 T. Rep., 463; IT. Rep., 146; 11 Sol., 202; Moses on Mandamus, 197-198; Collins v. Henderson, 3 Ind., 452; 19 Wend., 56.)</p> <p>Clearly, if the tenth section of article 12, chapter 92, General Statutes, is in.conflict with the act passed April 3, 1878, entitled “An act to prescribe the mode of ascertaining the value of the property of railroad companies for taxation and for taxing same,” act 1878, vol I, p. 82, sec. 4, it is repealed, and the first section of chapter 92 is left in full force, levying the forty-five cents, twenty cents -of which is dedicated to common-school purposes. This act demonstrates our case.</p>