Volume 82 — Kentucky Reports

<p>Appellants, trustees of Belieview, made a contract with appellees for the-improvement of certain streets in that town. The latter agreed that, in any event, they would not look to the town for compensation. It. was afterwards decided that appellants had no power to make such a contract, and that the lot owners were not liable to pay for the work.</p> <p> Held— </p> <p>1. There is no implied promise on the part of appellants to pay for the-work, upon the ground that the lot owners never were liable.</p> <p>2. If the town is to he made liable by reason of its inherent power to improve streets, such power must exist with reference to all improvements for its benefit.</p> <p>3. Corporations can not be held liable upon implied promises by reason of benefits received.</p> <p>4. Pacts must be averred showing that the ordinance was made by appellants in conformity with their charter.</p>

Case 2 —EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. The Malaga Institution devise is manifestly too vague to be upheld.

Case 3 —TAXATION APPEAL FROM LOUISVILLE CHANCERY COURT. The power provided for in the act of March 29, 1882, is a sovereign power, unfettered and unlimited, save and except that it must be exercised for a public purpose and upon rules of uniformity.

Case 4 — EQUITY, MORTGAGE APPEAR PROM ERANKLIN CIRCUIT COURT. The description of the land in the mortgage to Dudley is amply sufficient The description of the debt is sufficient, although the amount secured is unliquidated, yet the mortgage will not bo vitiated. (Powell on Mortgages, vol. 1, 775; Jones on Mortgages, sec. 344.) The mortgage is of itself a specüilty, and it was for H. Blanton to assert his credits.

Case 5 — SUPERSEDEAS APPEAL PROM CAMPBELL CHANCERY COURT. Appellee's action is not such an action as can be maintained upon a judgment of a court of this State. The only- action that can be maintained is an equitable action to enforce its satisfaction. (Davidson v. Simmons, 11 Bush, 330; Civil Code, sec. 750; lb., 759; 14 Bush, 339.)

Case 6 — EQUITY APPEAL PROM GREEN CIRCUIT COURT. ' The proof clearly shows that appellant acknowledged the mortgage in the actual presence of her husband and in favor of him on account of his threats. No attempt has been made in this case to disprove any fact officially certified by the deputy clerk, and, therefore, the statute, sec. 17, ch. 81, Gen. Stat., has no application.

<p>Case 7 — HUSBAND AND WIFE</p> <p>APPEAL PROM CAMPBELL CIRCUIT COURT.</p> <p>Upon the issues presented in the pleadings it is manifest that unless the appellee affirmatively and successfully attacks the Hunter deed it must stand that the onus is upon the appellee. There is no doctrine better settled.</p> <p>Married women are authorized to execute deeds of conveyance in conjunction with their husbands, and, when made, are as effectual as if made by a feme sole. They must be considered for all purposes as the voluntary act of the feme covert, and effectual for all purposes until the contrary is shown by competent evidence. Inasmuch as the deed was made prior to See. 425 of the Civil Code, it has no application to this case. (Todd’s heirs v. Wiekliffe, 18 B. Mon.; Welles v. Woodward, 2 Bush, 217;. Phillips v. Phillips, 9 Bush; 78 Ky,,. 329; 10Bush,'574; Coolley Sed., 870:-285.)</p> <p>The pleadings and evidence show that the deeds through which appellant claims title to and an interest in a portion of appellee’s estate were-procured by fraudulent coercion, with-the intent of using the legal-advantages secured through them, and for the purpose of holding that estate to his individual uses.</p> <p>Section 425 of the Civil Code is clearly applicable to this case, and the-judgment of the circuit court compelling appellant to re-convey all they lands obtained by him from her. (Civil Code, secs. 425, 837; General Statutes, sec. 6, art. 3, chap. 42; Phillips v. Phillips, 9 Bush, 184; Williams v. Gooch, 3 Met., 488,. 499; Harding v. Alden, 9-Greenleaf, 140; Rogers v. Rogers, 3 Met., 365; Sedgwick on Statutes , 2d edit., p. 309; Kent’s Com., vol. 1, p. 455; Berthelemy v. Johnston, 3 B. Mon., 91; Bishop on Marriage and Divorce, 6th edit., vol. 1, sec. 697; Wilson v. Bull, 10 Ohio Reports, 250; Darlington’s. Appeal, 86 Penn. St., 512; Myer’s Code, sec. 748; Hughes v. Shreve, 3 Met., 548; Chi. R. Co. v. Dunn, 548; White v. Steam Tug, 6 Cal., 462; Johnes v. Johnes, 3 Dow, 15; West v. West, 2 Mass., 223; Cabell v. Cabell, 1 Met., 328; Todd’s heirs v. Wiekliffe, 18 B. Mon.., 908; Stiles v. Stiles, 14 Mich., 72; Pry v. Pry, Paige, 461.</p>

<p>1. Money received from tbe United States Government cannot while being transmitted to the pensioner be taken for his debt, but after it comes to his possession it may be subjected.</p> <p>2. The conditions made by the act of Congress make it clear that the money was intended to be protected no longer than specified.</p> <p>3. The claim of exemption upon the ground that the property sought to be subjected was occupied as a homestead cannot avail, because the property was purchased after the debt was created.</p>

Case 9 — EQUITY APPEAL PROM KENTON CHANCERY COURT. The gift, until the deeds were executed, passed no right, either legal or equitable. The consummation of the gift by conveyances being after the mortgage had been executed and delivered, did not affect the validity thereof, because the verbal gift being void, and the donees looking to the donor all the time for the title through the deeds, could not and did not claim adversely, and the property ivas liable for his debts.

Case 10 — TRUSTEES APPEAL PROM ADAIR CIRCUIT COURT. iThis suit was originated by the executors. They came into court to be advised as to their duty. The question whether the conditional devise was valid was certainly a doubtful one, and one which they could not be expected to decide at their own risk. They are not to be held responsible for an erroneous judgment. (Perry on Trust, see. 928; 1 Met., Mass.

<p>Case 11 — CONSTRUCTION OB' WILL</p> <p>APPEAL PROM OLDHAM CIRCUIT COURT.</p> <p>The will is void for uncertainty.</p> <p>If the Trustees of Lagrange Common School District be meant they have no power to receive the money. (Sec. 14, art. 1, eh. 18, Gen. Stat.; U. S. Bank v. Norvell, 2 Mar., 104; Buckner v. Cromie, 5 Bush; 3 Mylán & K., 257; 1 Tenn. Red., 260; 21 Eng. Law and Eq., 508; 17 Howard; U. S. S., 389.)</p> <p>The will is void as against the statute concerning perpetuities.</p> <p>Where there are two classes of trustees claiming, and there are no means of determining which class is meant', the devise is void for uncertainty (2 Redfield on Wills, 385; 3 East, 172; 2 O. M. and R., 638; 2 Red-field on Wills, 408, 386; 4 Page, 271; Sess. Act. approved Feb. 23, 1874; Gen. Stat., 852; 17 Howard, 389; 7 Yesey, 86; 3 Redfield on Wills, 497; 2 lb., 574; U. S. Bank v. Norvell, 2 Mar., 108; Gen-Stat., sec. 1, art. 7., ch. 18.)</p> <p>The General Statutes, chap. 13, sec. 2, provide that no charity shall be defeated for want of a trustee, or other person in whom the title may vest. It is not material as to whether the Trustees of Lagrange School District shall expend the fund in the direction devised by the testator or not. Some one must do it, and appellants can not be prejudiced thereby.</p> <p>The devise is not void for uncertainty. (Moore v. Moore, 4 Dana, 358; Cromie v. Louisville Orphans' Home, 3 Bush, 372.) The devise is clearly for the education of poor white children in the Lagrange district. Wherever a devise is intended for colored children it must be so expressed. (Sec. 7 of Act approved February 23, 1884, entitled Common Schools for Colored Children, Gen. Stat., 885.)</p>

<p>Case 12 — PRACTICE</p> <p>APPEAL FROM BOURBON CIRCUIT COURT.</p> <p>A forcible entry is a breach of the peace. (2 Bl., book 4, 148; "Wharf. Com. Law, 428.)</p> <p>The court erred in overruling appellant’s motion to have appellee’s witnesses separated. (Civil Code, 601.)</p> <p>The law was properly given by tlie court below.. (Tribble v. Erame, 7 J J. Mar., 599.)</p> <p>Sec. 001, Civil Code, is not mandatory.</p>

CASE 13 — CONTESTED ELECTION APPEAL FROM METCALFE CIRCUIT COURT. 'The disqualification against appellee is that he had not resided in Metcalfe county one year next preceding, the election. That appellant has the right to contest appellee’s election is amply sustained by authority.

Case 14 — WILL APPEAL PROM CAMPBELL CIRCUIT COURT. The paper in contest was procured by the undue influence of the appellee, and the jury should have so decided, even if the true relation which existed between the parties had been known to the testator at the time of its execution.

<p>Case 15 — INSUKANCE CO.</p> <p>APPEAL PROM FRANKLIN CIRCUIT COURT.</p> <p>1. The 1 ‘ not for the incorporation and regulation of life insurance companies” is unconstitutional. The act relates to more than one subject, and the title does not express its object.</p> <p>2. This association, viz.: “ The Mutual Eeserve Fund Life Association ot New York,” is not a life insurance company, and its agents, therefore,, are not bound to procure a license.</p> <p>3. The association is by the act of the General Assembly, approved March-6, 1876, exempted from the operation of the general life insurance-laws of this Commonwealth. 14 Ind., 259; 24 lb., 296; 34 Texas,. 49; 14 Minn., 525; 15 C. B., 365; 3 Mirrivals, 17; 4 Otto, 462;, The People v. The Mut. 0. & A. A., of Bath, N. Y.; 94 Pa. St., 481; 26 Ohio, 19; 9 Yosey., 399; 9 Ith., 173.</p> <p>1. The Mutual Reserve Pund Life Association, of New York, instead of' being purely a benevolent and charitable association, contains every-requisite of a life insurance company. An examination of its charter, ■ by-laws, and constitution, together with the form of policy adopted by it, clearly establishes the proposition.</p> <p>2. The act for the incorporation and regulation of life insurance companies-is constitutional. It relates to but one subject, and that is.life insurance.</p> <p>3. Insurance Laws Ky., secs. 37, 38, 42; Bliss on Insurance, vol. 4, Marshall on Insurance, vol. 1, folio 1; Selden, N. Y. Rep., 228; 105 Mass., 149; 160 Bolton; 73 Maine; 6 Mo. App. Rep., 163; 23 Kansas, 499; Paul v. State of Virginia, 8 Wall Phillips; Cm-Bridge Co., 2 Met., 221.</p>

<p>1. The consideration stated in the deed is a promise to convey the property in contest to Mrs. II., to settle controversies between her and her husband, and this recital being equivalent to an agreement to convey to-her, the deed will be construed in view of that object, so as to carryout the contract of the partios.</p> <p>2. The word ‘ ‘ and to both tlie profits thereof to the use of the said Marion Sophia and her heirs,” construed to pass the fee-simple to-Mrs. H.</p>

Case 17 — CHANGE OE VENUE APPEAL PROM L' 9AH CIRCUIT COURT. 1. The court erred in refusing appellant’s application for a change of venue upon the ground that he could not obtain a fair trial in the county of Logan. 2. The preponderance of evidence is clearly in favor of the change. 3. The amendment of April, 1880, makes no change as to the duty of the court. It is the duty of the court to determine from the evidence whether appellant is or not entitled to the change.

Case 18 — LIMITATION APPEAL PROM BALLARD COMMON PLEAS COURT. 1. The Legislature evidently had a purpose in passing the statute of limitations, and that purpose was to shorten the time on which certain actions for the recovery of real estate should bo brought. 2. By all previous statutes of limitation in regard to land, the existence of disabilities had the effect to prevent their running until they were removed. 3.

Case 19 — SEPARATE ESTATE APPEAL PROM LOSAN CIRCUIT COURT. 1. The ante-nuptial contract between appellee, then Mrs. Inman, and Perry, was duly executed and acknowledged. 2. The agreement operates to create a separate estate in Mrs. Perry in the property previously owned and held by her as her general estate. .3. The property being separate estate, is liable for the debt of appellee, Mrs. Perry, contracted for her benefit.

<p>1. Instructions for special findings by the jury in criminal cases are not authorized by the code.</p> <p>'.2. The jury should be required to find every fact necessary to conviction to exist beyond the influence of a reasonable doubt.</p>

Case21 — -RESCISSION APPEAL PROM DAVIESS CIRCUIT COURT. 1. If the appellant was entitled to a specific execution of the contract the-court erred in dismissing the petition. 2. If to locate a depot on the land conveyed means to build and maintain a station for the reception and discharge of freights and passengex-sthen there is a consideration, and appellees ought to be compelled to discharge tlieir contract, or it ought to be annulled..

Case 22 — GUARDIAN AND WARD APPEAL PROM MARION CIRCUIT COURT. 1. Appellee has been guilty of gross neglect as guardian. 2. He neither compelled the executor of Phillips to settle his accounts, annually as the law of Missouri requires, nor did ho so much as examine any settlement, or see what his wards were entitled to until May, 1870, five years after the executor qualified.

Case 23 — ESTOPPEL APPEAL PROM JEFPERSON COURT COMMON PLEAS. No brief. 1. Having conveyed the exchanged property to another, appellant is estopped to claim the property in controversy. 2. Appellant’s claim is barred by the statute of limitations. Gossom v. Donaldson, 18 B. Mon., 239; Medlock v. Suter, 80 Ky.

Case 24 — JUBISDICTION APPEAL FROM BRECKINRIDGE CIRCUIT COURT. 1.This proceeding in equity acts upon the person of appellee, to restrain him from again selling the land conveyed by him and wife to appellant.

Case 25 — SPECIAL JUDGE appeal from bourbon circuit court. 1. TlA objection to'the special judge did not come too late. 2. The statute does riot authorize the election of a special judge for the, term. . _ . 3. Appellee, as the successor of Harp, can not maintain this action upon the-deed or covenant relied upon. It does not run with the land. Const.

Case 26 — ORDINARY APPEAL PROM JEFFERSON COMMON PLEAS COURT. 1.

<p>Case 27 — PATENT</p> <p>APPEAL PROM MARTIN CIRCUIT COURT.</p> <p>No brief in the record.</p> <p>1. The territory included within the patent boundaries is reasonable in size and well fixed in shape. Nothing of the sweeping and indiscriminating lines appears here. All of the land excluded or excepted from the grant are definitely identified and capable of exact location by following the lead of the words used in the patent; both the names of the •owners and the area of each tract excepted being given. Drath v. Bamsey, Hardin, 34; Craig v. Cooper, lb., 386; Madison v. Owens, Litt. Sol. Oases, 281; 10 Coke; 67 B., vol. 5, 368; 4 Howard, 376; Brown’s Legal Maxims, 238; Preston on Conveyancing, 41; 2 Wilson, 73; 5 B. & 0., 106; 2 Saunders, 96; 4 Bas. At., 508; 11 Peters, •589; 13 Grattan, 589; 3 Johnson, 378; 10 B. Mon., 144; 11 Peters, •557; 1 Shepperd-Touchstone, 79; 4 Johnson; 4 Johnson, 378; 4 Bacon’s At., 524; 1 Tenn., 330; 1 Wall., 215; 7 Cranch, 618; 17 Howard, 545; 11 lb., 279; 3 Head, 48; 7 Heiskill, 719; Stewart v. Bolt, MS. Op., Oct., 1876; Sears v. Bryant, MS. Op., June, 1872; 3 Bolt., 121; 12 Bush, 381; 5 Haywood (Tenn.), 189; 7 Mon., 82.</p>

<p>Case 28 — INDICTMENT</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>1. The court erroneously allowed appellee to cross-examine Susan Johnson as to matters not even referred to in her examination-in-ehief, and-which would, under any circumstances, be incompetent, and then . erred in allowing appellee to contradict her answers by Nichols and Barnett.</p> <p>2. This contradiction had -the double tendency to destroy the credit of the witness and to prove as substantive facts what she said to them, when no such facts were proved. Starlde Bv., 200; 14 Bush, 357.</p> <p>1. There was no error in allowing appellee to prove the statements of Susan Johnson -inconsistent with her answers upon cross-examination.</p> <p>t2. The whole tenor of witness’s testimony was to establish want of malice. Appellee’s effort to attack her was unsuccessful as the verdict showed, and, therefore, if it was error, it was not to appellant’s prejudice. "Whart. Crina.Ev., section 481; Commonwealth v. Goersen Crim.Law Mag., March, 1884, page 258; Bishop’s Crim. Law, section 999; Champ v.-Commonwealth, 2 Met., 17; 3 Bush, 532; section 340, Criminal Code as amended by act of March 4, 1880.</p>

<p>Case 29 — INDICTMENT</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>No brief.</p> <p>No brief.</p>

Case 30 — GAMING APPEAL PROM OWEN CIRCUIT COURT. 1. Appellee, as the wife of Evan Settle, the loser in the game described in the petition, has no legal capacity to sue for the recovery of the money lost by her husband at gaming. A married woman can not sue alone on any action other than as provided by the statute. 2. This is not an action between herself and her husband. 3. It is not an action concerning her separate property. 4.

Case 31 — WILL APPEAL FROM KENTON CIRCUIT COURT. 1. A paper purporting to be a last will and testament, written and signed by a married woman (having no separate estate and not acting under a power), is not her will. The paper does not, after the termination of her coverture, become her will by a declaration that she has made a will or by an obliteration of a portion of the writing. Gen. S'tats., chap. 113, secs. 2, 4, 5, 10, and 11;.

<p>Case 32 — PLEADING</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>1. The claim of the Architectural Works rests upon the ability of the appellee, Buckley, to maintain his judgment, unless the court shall be of opinion that appellant, Mrs. Harris, was indebted to Buckley at the time she was notified of the intention of the Architectural Works to rely upon its material mens’ lien.</p> <p>2. There being .no express control averred or proved, it was competent to take the evidence of an expert as to the value of the work.</p> <p>3. The proof authorizes the conclusion that Buckley has been fully paid.</p> <p>1. There is and can be but one issue in this case. Appellants admit the work set out in the petition, and say they paid him (Buckley) for it.</p> <p>2. Therefore the only issue is that of payment, and payment being denied, it devolves upon appellants to prove it. This they have not done Buckley in his cross-appeal is clearly entitled to the full amount claimed by him.</p> <p>■ 3. His account is proved, and no semblance of payment is shown. Gen. Stats., see. 6, chap. 7; Civil Code, sec. 126; Harris v. Hay, 15 B. Mon., 628; Wood v. Wells, 2 Bush. 197; Frances v. Frances, 18 B. Mon,, 57; 2 Met., 551; Miller v. Hall, 1 Bush, 232.</p> <p>1. The answer of appellants clearly admits that the work was done and materials furnished, but say they paid Buckley therefor. The only issue is payment, and the attempt of appellants to sustain the plea is a complete failure.</p> <p>'2. As to the alleged payment by appellants for Buckley, the proof is that if paid at all it was done voluntarily and without the consent or request of either Buckley or appellees. Searcy v. Eeardon, 3 Bibb., 529; Gardner v. Towery, 3 Litt., 426; Lucas v. Mitchell, 3 Mar,, 247; Conway v. Bank IJ. S., 6 J. J. Mar., 132; Oder v. Elliott, 10 B. M., 315; Gen. Stats;, chap. 70, secs. 1,5, and 6.</p>

Case 33 — DEED—FEME COVERT — APPEAL FROM CARROLL CIRCUIT COURT. 1. The deed from appellant not having been lodged for record within eight months from its date is, as to her, void. Rev. Stats., l'vol., p. 283; Applegate v. Gracy, 9 Dana, 215; 6 Bush, 552; Burton v. Shot-well, 13' Bush, 284; Eord v. Gregory, 10 B. Mon., 180; Einley v. Spratt, 14 Bush, 227. 1.

Case 34 — RAILROADS—NEGLIGENOE APPEAL PROM MARION CIRCUIT COURT. 1. The probf shows without controversy that Howard was on appellant’s track at eleven o’clock at night, and at a point where no county road passes, and where appellant’s have the exclusive right to their track.. Ho was a trespasser, and appellant’s can not be held in damages, Unless it be shown that the managers of the train knew he was upon it, and knowing it, took no means to prevent his death. 2.

<p>1. An action was instituted against a defaulting bank cashier and several sureties. During the pendency of the suit, one of the sureties, "W., died. The suit abated and was not revived. The other sureties having paid, after the statute would have run as between the original obligee and "W., his personal representative can not have contribution against W.’s executors.</p> <p>2. A surety who has paid a judgment can not enforce contribution against his co-surety, if, when the debt was paid, the statute of limitations ran as between the original obligee and the co-surety or his executor.</p>

<p>1. The collection of a part of. a debt on renewal notes that were forgeries as to the surety, but binding on the principal, does not release the surety on the note conceded to be bis, until the old notes had been surrendered and the new notes accepted by the obligee.</p> <p>2. It is error for infants to defend by a guardian ad litem, when the record shows that they have a statntory'guardian, summoned as su’ch.in the case.</p> <p>3. It was not necessary that appellee should have a return of “ no property found ” to enable him to go into a court of equity. His demand was of equitable cognizance originally, and being properly in court, it was the duty of the Chancellor to afford him entire relief</p> <p>4. Oral testimony may be adduced in an issue out of chancery.</p>

Case 37 — BILLS OB EXCHANGE APPEAL FROM LOUISVILLE CHANCERY .COURT. An accommodation indorser of commercial paper, to be held liable-thereon, must be given due notice, if it dishonor and protest; and a notice to one,to whom such indorser has made an assignment of the larger portion of his estate ior the benefit of his creditors, will not bind the indorser. (Parson Contracts, volume 1, 277; 5 Leigh, 54; 1 Smith’s Leading Cas> s, 73; Daniel Nego.

Case 38 — INDICTMENT APPEAL PROM MARION CIRCUIT COURT. The instructions asked for by appellant were under the “sliding scale, allowing the jury to find the appellee guilty of robbery or grand larceny. The court erred in refusing to so instruct. (Whart. Crim. Law, section 802; Crim. Code, sections 262, 263.)

<p>Case 39 — SHERIFFS BOND</p> <p>APPEAL FROM JEFFERSON COMMON PLEAS COURT.</p> <p>1. It was clearly competent to prove by parol that the person who seized appellant’s property was recognized by the sheriff as his deputy, and that the person had frequently executed process by the direction and authority of the sheriff. (Grayble v. Broman, A. K. Mar., 191.)</p> <p>2. Appellee, having acted upon the notes and affidavit of appellant in demanding indemnity, is estopped from denying the sufficiency of the affidavit. (Section 218, Myers’ Code.)</p> <p>1. If appellant has no just claim to the property in contest, she can have no claim to damages against the sheriff for taking it. (Civil Code, Section 218.)</p> <p>2. The affidavit nowhere states that the appellant was entitled to the possession of the property.</p> <p>3. The court properly refused to permit appellant to file the amended petition offered. When issue was joined with her upon her allegation that she had the right to sue by reason of a judgment of the Louisville Chancery Court and proof had been taken, it was then too late for her to set up a matter which she might have presented at any time after the first issue joined.</p>

<p>Case 40 — VACANCY, ELECTION</p> <p>APPEAL FROM JEFFERSON COMMON PLEAS COURT.</p> <p>1. The “ next regular election ” means the next August election.</p> <p>2. Where a clerk is appointed to fill a vacancy until his successor be elected, it means that he shall hold until the next August election, and. if an election is not held on that day, he shall hold until his successor-is elected at the next August election afterward. (G-raham-v. Luckett,. 6 B. Mon., 146; Constitution, article 6, sections 6 and 7, chapter on. Elections, pages 385 and 386; Covington v. McNicldes, 18 B. Mon.,. 286; - Constitution, article 3, sections 9 and 18, article 4, sections 7, 13,. 26 and 35, article 2, section 31, article 6, section 7; Cate v. Boss, 2: Duv., 245; Leeman v. Hinton, 76., 38; Stevens v. Wyatt, 16 B. Mon.,. 542.)</p> <p>1. The words, next regular election, in section 7, article 6, of the Constitution, mean the next August election, in due course for the filling of' the office mentioned in said article.</p> <p>2. Article 6, of the chapter on Elections, of the General Statutes, is constitutional, and is a complete exer.cise of the power conferred, upon the Legislature by section 7, article 6, of the Constitution.</p> <p>3. Appellant occupies the position of a stranger, having neither the-title to nor possession of the office, and no right to question that of' his adversary. (Debates, Const. Convention, pages 402, 1099, 1123;: Constitution, article 3, sections 15 and 18. article 4, sections 7, 26 and 13 article 6, section 8,-article 8, sections 22 and 26; 2 Duv., 24; Cooley Const., section 208; Collins v. Henderson, 11 Bush, 74; 16 B. Mon.,. 850; General Statutes, chapter 33 article 6, section 1; 5 Bawle, 75; 2 Stewart, Ala., 231; Brightley’s Leading Cases on Elections, 286; 9' Penn. Stat., 513; 6 Cal. 26; 11 76., 49; 14 76., 180; 10 Bush, 691; 13'-76., 218; 8 76., 447; 9 Dana, 573; Cooley’s Const. Lim., 73, 74, 163,. 182; Code Practice Sections 480-483; 3 Met., 211.)</p>

Case 41 — INDICTMENT APPEAL prom green circuit court. 1. The court should have sustained the demurrer to the indictment because more than one offense is charged. 2. The taking of the silver dollar is one offense; the talcing of the warrant of arrest is another. 3. A continuance should have been granted in order to obtain the evidence of John Lisle who was a competent witness.

Case 42 — PLEADING, SLANDEB APPEAL PROM HANCOCK CIRCUIT COURT. 1. The reasoning of this court in the case of Horton v. Bonner, 6 Bush,. 596, taken in connection with subsection 4, section 113, Civil Code of' Practice, settles this question. 2. The pleas of not guilty, and justification, are totally inconsistent. One. or the other should have been stricken out. (Civil Code, subsection 2. and 4 to section 113; Myers’ Code, subsection 4, section 125.) 1.

<p>Case 43 — INDICTMENT, WAREHOUSEMEN —</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>1. Neither the warehouse act nor the factor’s act are repealed by the General Statutes. It is immaterial whether the bank obtained a good title- or not. If the paper is a warehouse receipt or other voucher, and was issued with felonious intent, the offense is complete.</p> <p>2. Admitting that the receipt showed that the tobacco belonged to one of' appellee’s customers, still, under the act of 1880, called tbe ‘ Eactor’s Act,” appellee is liable. The revision of the General Statutes did not-undertake to embrace in chapter 29 all the law of crimes and punishments. (Cochrane v. Ripy, 13 Bush, 495; General Statutes, chapter 25, “ Roads;” Jb., 33, “ Elections;” lb., 47, “ Gaming;” Ib., 52, “Husband and Wife;” lb., 81, “Office and Officer;” lb., 84, “Peddlers;” lb., 85, “Penitentiary;” lb., 89, “Public Buildings;” lb., 94, “Roads;” Ib.r 102,“ Small-pox;” lb., Ill, “Vagrants;” Ib„ 112, “ Weights and Measures 10 Bush, 340; 8 Howard, 384; 1 Smith’s Leading Cases; Lick-barrow v.-Mason, 4 Bush, 334; 2 Dillon, 284; 11 Ohio St. Rep., 317.)</p> <p>1. Applying tbe rule laid down by this court in the case of Cochran v. Ripy, 13 Bush, 495, it is impossible, under the averments of the indictment, to bring appellee within the ambiguous provisions of the eighth section of the act. And inasmuch as the statute will not be extended by construction to enlarge property rights or personal obligations for a very much more potent reason, it will not be enlarged to create crimes and inflict infamous punishments.</p> <p>2. Neither under the warehouse act nor the factor’s act has appellee committed any criminal offense. (17 Wisconsin, 382; 4 Bush, 385; 10 lb.. 470; 4 T. B. Mon., 485; 9 Bissell, 396; 11 Bush, 553; 6 Missouri App. Cas., 172; 11 Wisconsin, 333,> 43 lb., 280; 11 Otto, 559; 13 Bush, 4S8; Bisber & Simmons’ Law. of Produce Exchange, sections 168, 169, 170.)</p>

Case 44 — CONTRACTS APPEAL PROM KENTON CHANCERY COURT. 1. The work was for the general benefit of the whole city. . .2. The proceedings of the city council are defective, in that no reference was made to the committee on law and the city attorney before the contract was awarded. In the strict construction of their extraordinary assessing powers, this defect renders void the whole proceeding. ‘8. An assessment must wholly stand or fall as made.

Case 45 — INSURANCE APPEAL FROM LOUISVILLE CHANCERY COURT. No brief. The appellant undertook to insure the life of Sugg Port in the sum of ten thousand dollars ($10,000) in consideration of an annual premium note of one hundred and ninety-four dollars (the interest upon which must be paid annually in cash at the date of the annual premium), and of quarterly cash premiums of seventy-two dollars and ten cents ($72.10).

Case 46 — RESCISSION APPEAL FROM LOUISVILLE CHANCERY COURT. 1. It is an elementary rule that every man is presumed to know the origin of his own title. 2. It is absolutely clear that appellee’s title is not what he represented it to be. It is equally clear that the lot conveyed is partly in a public street when conveyed to appellant, and. therefore, the title conveyed is defective.

<p>Case 47 — DURESS</p> <p>APPEAL PROM JEFFERSON COMMON PLEAS COURT.</p> <p>1. Fraud may be shown and made available at law as well as in equity. (Tribble v. Oldham, 5 J. J. Mar., 141.)</p> <p>"2. The appellee has neither pleaded nor proved a ratification. (Kerr on Fraud and Mistake, 296; 300 lb., 189; Story’s Eq. Jur., section 239; 16 Md., 468; Dessaw’s Eq., volume 4, 651; Wait’s Actions and Defenses, article 5, 470; Pomeroy’s Eq., volume 2, section 964.)</p> <p>3. The pretended ratification was obtained by duress. (Lightfoot v. Wallis, 12 Bush, 498; Adams Express Co. v. Noel:, 2 Duv., 564.)</p> <p>4. The court below had no right to give to the jury a peremptory instruction. There was ample evidence for appellant upon the issue. (Thompson v. Thompson, 17 B. Mon., 29; Underwood v. Shakers, 11 Bush, 276 ; Civil Code, section 341.)</p> <p>5. When a tender is pleaded it must be proved. (2 Mar., 148; 5 Mon., 373; 1 Mon., 195; 3 Bibb, 267 ; Parker v. Cole. 2 J. J. Mar.) The law will not permit an unconscionable advantage to be taken of another’s pecuniary distress. (Adams Ex. Co. vs. Nock; 2 Duv., 564; Lightfoot vs. Wallis, 12 Bush, 498 )</p> <p>1. The court was correct in giving to the jury a peremptory instruction for appellee. The evidence authorized it. (10 Wall, 604; 22 lb. 116-120; 107 U. S., 1C2; Chiles v. Booth, 3 Dana, 566; 94 U. S., 284; 85 Penn.Stat., 82; 91 Tb.. 200; 4 L. R. Exch. Oases, 38; 8 El. and Bl., 262; 13 C. B., 915; 3 C. B., U. S., 148; 101 U. S., 18.)</p> <p>2. Whatever claim appellant had or could have against appellee for injuries complained of in the petition, he released it to appellee. (Kerr on Fraud and Mistake, 190, 290; Taylor v. Patrick, 1 Bibb, 169; 1 Burrill's Law Die, 496 ; Bl. Comm., volume 1, page 131-137; 4 Dessasure’s Bq , 651; S. 0. Co., 16 Md., 456.)</p>

<p>Case 48 — PLEADING, PRACTICE</p> <p>APPEAL FROM WEBSTER CIRCUIT COURT.</p> <p>1. The averments of the petition are wholly-insufficient. Whatever may be the defenses offered by appellant, the defects in the petition are not waived by failing to demur to it.</p> <p>'2. On the merits of the case no judgment should have been rendered for appellee.</p> <p>■3. It is clearly the province and the duty of this court to reverse the judgment, because of the insufficiency of the petition. (Hill v. Barrett, 14 B. Mon., 83; Murphy v. Estis. 6 Bush, 533; Louisville and Portland Canal Co. v. Murphy, 9 Bush, 527.)</p> <p>1. The question as to the sufficiency of the petition is for the first time made in the Superior Court.</p> <p>2. The objection having so been made, the only question is: Does the record state facts sufficient to sustain the judgment of the circuit court?</p> <p>8. The authorities sustain the affirmative of the proposition. (1 Chitty’s, Pleadings, pages 337, 528, 671, 673; Riggs v. Maltby, 2 Met., 88; L. & P. Canal Co. v. Murphy, 9 Bush, 522 ; Escott v. "White, 10 lb., 169;. Barb. Dig., pages 1163, 1165.)</p> <p>4. Appellant answered the petition, and the record shows that every necessary fact was proved to authorize the verdict and judgment. The-defect in the petition was thereby cured. (Benjamin on Sales, 2 ed., 315, 317; 6 Dana, 48; 14 B. Mon., 332; 7 Bush, 231; 2 Oh. PI., 90, 137; 9 Bush, 527; 2 Met., 90; 7 B. Mon., 327; 4 J. J. Mar., 29; Civil Code, subsection 5, section 116.)</p>

Case 49 — VENDOR’S LIEN APPEAL FROM HARRISON CHANCERY COURT. 1. It can not be questioned that the note assigned by Day to appellant was- and is a lien upon the land conveyed by Day to appellee, Roberts. 2. Appellant. Aslibrook, was, as is clearly shown, no party in any way to revising the lion. 3.

Case 50 — TftADE-MAKK APPEAL PROM LOUISVILLE CHANCERY COURT. 1. It is the mischief to another’s business by using his signs and marks by which his business and goods are known that should be prevented by the Chancellor, and it is not necessary to show that the offending-party knew that the signs and marks he adopted belonged to-another. 2. Appellant’s business was injured by appellees’ assuming the name of the “ Tower Palace.” 3.

<p>Case 51 — DESCENT, WARRANTY</p> <p>APPEAL PROM HENRY CIRCUIT COURT.</p> <p>1. It is error to adjudge in favor of Hiatt’s heirs against appellant, because-there has been no eviction of Hiatt’s vendees, and therefore no liability from his heirs to any vendee, immediate or remote. (1 Dana, 254; 4 lb., 255; 5 J. J. Mar., 425; 1 Litt., 395; 1 Mar., 390; Sneed, 37;. 11 B. Mon., 365.) '</p> <p>2. Appellant sold the land as commissioner of the Henry Circuit Court. Jo Ella’s part of the land was not sold by him. He sold the entire-tract of land as commissioner, as he was ordered to do, and in no case-can he be liable.</p> <p>3. There is no averment in the pleading of appellees, the.Hiatts that they have recovered any estate from their ancestor. "Without this, they cannot be liable for a br’each of warranty to any vendee. "(10 Bush, 240; 3 Dana, 485; 7 J. J. Mar., 353; 16., 254; 5 16., 109; 4 16 , 566;. 2 16., 189; 1 16., 348.)</p> <p>1. If (as is true) appellant, Massie, recovered the whole of the' purchase-money from Hiatt, he ought to be accountable for it in some way. If Crawford and his wife recover their interest in the land, then appellant should pay to appellees the value thereof, inasmuch as their ancestor has warranted the title to his vendee.</p> <p>2. Splitting up of controversies into numerous suits is not favored in. equity.</p> <p>3. In case the judgment is in favor of appellee, Crawford, then it is clear that the judgment obtained by appellees, the Hiatts, should also be-affirmed (Collins v. Champ, 15 B. Mon., 122; 1 Story Eq., section 64; Harrison v. Fleming. 7 Mon., 539; 6 Mon., 330.)</p> <p>1. We insist that all the court could do upon the petition of Massie, as guardian of Sarah and Mary Stapleton, was to order the sale of that, which the infants, had they been adults, could have sold themselves, without the intervention of the court. Hot being a party to the proceeding, Mrs. Crawford can not bo affected by it. As to her, it is void. - ■ .</p> <p>2. Posthumous children, under the common law, as well as the statute, inherit as though they were living "at their ancestor’s' death. (Kent’s Comm., 4, volume 408; Bev. Stat., chapter 30, section 7; 23 111., 611.).</p> <p>3. There is not a single element Of an estoppel in this case. By no act of' appellees have Kalfus or DéJarnette been in any degree prejudiced. (Bigelow on Estoppel, 369.)</p>

<p>1. A widow is not entitled to dower in land unless her husband, while they were married, was beneficially seized of it.</p> <p>2. A guardian authorized by will to sell the land devised to his male ward, executed a bond and received from the vendee.the purchase money. Afterwards the ward married and died, leaving a widow. She can not have dower in the land because the guardian had disposed of it. and, at no time since the sale was the husband beneficially seized of it. )</p> <p>3. Although the deed following the authority'to sell, described the guardian as executor alone, the reference in the deed to the will gave notice of the authority.</p> <p>4. The recitals in the deed that an executory contract had been made are competent to show it, inasmuch as appellant joined in them.</p>

Case 53 — FORFEITED BOND APPEAL PROM BOURBON CIRCUIT COURT. ■The question in this ease is that the Governor remit the forfeiture except upon the conditions and exceptions named in the pardon. One of the-exceptions named was commissions. What commissions? There were none except as would accrue after judgment, and the court erred in not allowing commissions, because these were excepted in the. pardon.

Case 54 — NEW TRIAL 1. It is contended by appellee th>»t the discovery of the evidence relied upon was necessarily made during the February term, 1879; that the August term, 1879, intervened; that the petition was filed February 14, 1880, and, therefore, was filed during the February term, 1880, which commenced the second Monday in that month. It is manifest that the word “ term ” and the words “ second term,” as used in section 344, Civil Code, mean full terms of the Court.

<p>Appellant having been found guilty of manslaughter, moved for a new-trial upon the ground that the verdict of the jury was obtained by lot. The motion was overruled.</p> <p>1. Held — This court has no revisory power to act upon the alleged error. The jurisdiction of this court is limited and does not include the error complained of.</p> <p>2. The opinion of this court in Paducah and Elizabethtown R. R. Co. v. The Commonwealth, 80 Ky., 148, is overruled.</p>

<p>Case 56 — TAXATION</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>1. The license tax now in existence in the city.of Louisville, is imposed under the provisions of section 96, of the city charter of 1870. (Lucas’ Charter and Ordinances, page 44.)</p> <p>2. It is the settled policy in Louisville that a tax on merchandise shall be-. in the form of a license tax only.</p> <p>3. The error of the court below is upon the notion that .the special acts in-regard to the school board, the two railroad debts of the city, and the-reconstruction of ways, were special laws, and, therefore, not to-be treated as impliedly repealed by the general assessment law of 1882. (Cooley on Taxation, 165; Ordinance of 1882; Lucas’ Charter and Ordinances, April 25, 1881.)</p> <p>1. Acts subjecting property to the payment of a special tax are not repealed by an act exempting the same property from the payment of municipal tax. (12 Hush, 422, Courtney v. Louisville; 8 Bush, 610, City of Henderson v. Lambert; 5 Bush, 225.)</p> <p>2. The act of April 8, 1882, is for the purpose of regulating the assessments, and re-assessments for municipal purposes, and does not take from the council its implied power to make assessments under acts of the Legislature, commanding the levy and collection of special taxes for purposes not municipal. (Acts of 1881-82, page 338; Charter Amendments, City of Louisville, 1881, pages 103, 23; Charter and Ordinances, City of Louisville, Lucas, section 60, section 80, page; 56; Acts, 1870 volume 1. page CGO; Public School Laws, City of Louisville page 84, section 174, Acts of 1879, volume 2, page 274; 4 Bush, 255, Barret v. Henderson.)</p> <p>8. Exemptions must bo strictly construed. (Cooley on Tax., page 146.)</p> <p>4. To require the merchant to pay license for the privilege of doing business, and taxing his merchandise, is not double taxation. (Cooley on Tax., 886; Charter and Ordinances, Lucas, section 96, page 240.)</p>

Case 57 — ROADS APPEAL PROM ALLEN CIRCUIT COURT. .1. The report of the viewers admits that there is damage to appellants, but states that the advantage of the road will make up for damage. It fails to show the conveniences and inconveniences which will result to the appellants as well as the public. ’2. It fails to show the terminus. It is not fixed by any visible object. (6 B. Mon., 118; 14 lb., 422; 3 Met., 186-7; lb., 69.) 1.

Case 58 — INSURANCE APPEAL FROM LOUISVILLE CHANCERY COURT. The change upon the boohs of the Presbyterian Mutual Assurance Fund is in violation of their charter, and void.

<p>Arnold conveyed to Bárbaro a lot of ground by metes and bounds, among other lines, running back sixty-five feet to a ten-foot alley.. Afterwards, Arnold conveyed to Mrs. Boyd the adjoining lot, including the alley. There had been no dedication of the alley for public purposes.</p> <p>1. Held — The recitals of the deed to Bárbaro are sufficient to estop A., the' grantor, from denying the use of the alley to Bárbaro and his vendees;; but as to Mrs. Boyd and her grantees, being strangers to the first conveyance, there is no estoppel, and they hold the title to the uller.</p> <p>2. A mere reference in a deed to an intended way, in the absence of an express grant, will not pass the way.</p>

<p>Case 60 — INDICTMENT</p> <p>APPEAL EBOM CUMBERLAND CIRCUIT COURT.</p> <p>1. The jury was improperly selected.</p> <p>2. R. N. Spencer, who prosecuted under the appointment of the court, had been previously employed to prosecute appellant, and did prosecute him before the court of inquiry.</p> <p>-3. The court erred in refusing to admit the indictment and bench-warrant against Poore, and in refusing to permit testimony as to his bad character.</p> <p>4. The court erred in giving instruction number two, because there is no evidence upon which to base it.</p> <p>•6. Instruction number three, in regard to the reckless handling of his gun, is error. It tells the jury that if the shooting was accidental, yet if done by defendant in the recklessly careless handling of a deadly weapon, they should find him guilty of manslaughter. (Connor v. The Commonwealth, 13 Bush, 718.) .</p> <p>6. Several others of the instructions, palpably number six, are misleading.</p> <p>7. The court failed to instruct as to all the law applicable to the case.</p> <p>8. Erred also in failing to instruct as to involuntary manslaughter. (7 Bush, 327.)</p> <p>1. In no event could the sheriff of Clinton county authorize a citizen of that county to go into Cumberland county and execute any writ directed to him as sheriff of Clinton county.</p> <p>'2. Appellant was a trespasser from the beginning.</p> <p>:3. The killing was the result of a reckless and culpably careless handling of bis gun.</p> <p>•4. The instructions substantially embody the law of the case.</p>

Case 61 — BANKS APPEAL EROM LOUISVILLE CHANCERY COURT. 1. The charter of the hank provides that, exclusive of amounts due depositors, the debts of the hank should not exceed the amount of its paid-up capital. The paid-up capital was $543 9P0. 2. Appellees either knew of the disregard of section 16 of the act, or they did not; and were grossly negligent about the management of the hank. 3.

Case 62 — CONSTRUCTION OR DEED appeal from mercer circuit court. It is clear that the words of the habendum in the deed to “ Y. and his heirs and assigns, forever, with covenant of general warranty,” create a fee-simple ; but when there is added to the clause quoted, “ during his natural life,” the clauses are irreconcilable, and the latter should be rejected. (Blackstone, book 2, page 380; Washburn Real Prop., volume 3, pages 436, 437, 439; 40 Vermont, 23; Shep.

<p>II. The administrator of a person who has been willfully and maliciously killed can not maintain an action for damages against the person killing him, nor the person causing it to be done.</p> <p>'.2. The statute in regard to the killing of another by willful neglect, etc., has no application to this case.</p> <p>:3. There is no statute of the State authorizing the action.</p>

<p>1. The act of the General Assembly of March 17. 1876, authorizing the taxation- of turnpike roads for county purposes, is constitutional.</p> <p>2. It can not be supposed that the Legislature did not intend, by the term “property,” to include the interest of a company in a turnpike road, and that it only referred to the small amount of property they owned outside of the road. This is unreasonable.</p>

Case 65 — PLEADING, ABBITBATION APPEAL EROM TRIGG CIRCUIT COURT. 1. A cross-petition is defined by the ninety-sixth section of the Civil Code.. 2. A defendant is allowed a counter-claim against the plaintiff, but is not. allowed, in any ease, to make his answer a cross-action against the. plaintiff, as was done in this case. 3. The court erred in its judgment upon the law and facts of the case. 4. The court called attention to a pleading to which an amendment was-refused.

<p>A corporation known as the “Great American Píre Extinguisher" was organized, each member subscribing for four hundred shares of stock of the value of 51 JO each, but paying therefor only $1,500.00. The-, articles of incorporation provide that the highest amount of liability ■ of the corporation shall in no case exceed 515,000.00.</p> <p>1. Held — As between the corporation and a creditor, the latter could compel the payment of the entire stock, if necessar}^ to satisfy his demands.</p> <p>2 But if a member of the corporation, of necessity knowing the purport . of the articles of incorporation, contract debts beyond the limits of' the articles of incorporation without the consent of the stockholders,. and pay said debts, he can not recover such debts beyond the limit fixed in the articles.</p> <p>3. The only case in which he could recover would be upon the ground that. the stockholders unanimously agreed to the creation of the debt.</p>

<p>1. It was a common law rule that a sale by a testator, after the making of his will, of land devised by it, or of a chattel bequeathed by it, was a-revocation of the devise, or an ademption of the legacy; and this rule prevails by statute in this State, unless the devisee or legatee is an lieir of the testator.</p> <p>2. The burden of proof is upon the party claiming against a will to show that the testator intended a revocation of his will by selling the property.</p> <p>8. The mere sale of the land did not create the presumption that the testator so intended. Other evidence must be produced.</p>

Case 68 — TRUSTS APPEAL FROM TOUISVILLE CHANCERY COURT. 1. After all trusts are executed, the trustees must convey as the cestui que trust directs. 2. A trustee can not hold a dry legal title for the purpose of casting a shadow upon the estate of the cestui que trust. 3. A restraint against, alienation, where there is neither forfeiture nor remainder over, is void and so is a similar restraint against the creditors of the cestui que trust. 4.

Case 69 — INDICTMENT APPEAL FROM JEFFERSON CIRCUIT COURT. 1. The appellant was entitled to a new trial by reason of surprise caused by his own witness, Kenedy, testifying on the trial differently from what he had sworn to on the application for bail, and from what appellant had every reason to expect. '2. It was not his fault that the witness so testified, nor was it his fault that the witness’ intention so to do was withheld from him.

<p>Case 70 — NEGLIGENCE</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>1. The preponderance of the proof shows that the employe had turned the gas entirely from the house and cellar.</p> <p>2. The fifth instruction is error. It makes appellant responsible for all injury that may have been caused by any persons who “tampered” with the key. (Landes on Negligence, 7; Smith’s Leading Cases, volume 1, 484.)</p> <p>3. The other instructions are misleading and erroneous. (70 Penn. Stat., 89, 86; 8 Harris, 171; 10 Wright, 192; 11 East, 60; Eederal Reporter,. 591; Barry v. Smith, L. R. Com. Pleas, volume 4, 325; Bartlett v. Boston Gas-light Go., 122 Mass; Robinson v. Webb, 12 Bush, 464;, 110 Mass., 348.)</p> <p>It is a settled rule that where'one unlawfully or negligently leaves a dangerous instrument in a public place where it is liable to cause an injury, the fact that the immediate cause of the accident was the intervening act of a third person, does not prevent the persons injured from recovering from the persons who left the dangerous thing there. (Thompson on Negligences, volume 2. 1088, 1089, 1090; Burrows v. March Gas Co., 5 Exchequer, 67; 106 Mass., 458; Law Rep., 3 Queen’s Bench Div., 377; 4 British Law Rep.; 4 Com. Pleas Div., 325; 2 Met., 122; 2 Bl. Rep., 891; 5 M. & L., 198; 5 Carr & Payne, 192; 3 Dana, 43; 9 Dana, 195; 122 Mass., 218; 13 Bush, 407; 14 lb., 485; 78 Ky.„ 475; 11 Bush, 512.)</p>

<p>■E. 0. conveyed, a tract of land to W.,' in consideration that he would pay the former’s debts.</p> <p>1. Held. — The vendor can not, after the creditors have accepted, release W., the vendee, from liability on the promise.</p> <p>2. That the party, for whose benefit a promise is made to another-, may maintain an action upon such promise against the party who has made it,. has long since been settled.</p> <p>3. The creditors have a hen upon the land for the payment of their debts.'</p>

Case 72 — REVENUE, DELAY APPEAL PROM CLINTON CIRCUIT COURT. The sale hy Bristow of the land can not defeat a claim for taxes. (Gen-Stat., chapter 92. article 1, section 2; 77a, article 9, section 11. page 739.) Both the sheriff and the purchaser under the sale for taxes knew that Bristow had left the State. If Barring-in ever had any lien on the land, he lost it long before he made his levy.

Case 73 — JUDGMENT, JURISDICTION APPEAL FROM HENRY CIRCUIT COURT. 1. The three attaching creditors of Paul utterly failed to comply with material and substantial requirements of the law. The court had no jurisdiction. 2. It has time and again been held that the remedy by attachment is a harsh one, and every provision of the law must be implicitly complied with. The result is that the circuit court had no jurisdiction, and no power to adjudge the sale of Paul’s land.

<p>Case 74 — JURISDICTION</p> <p>PPEAL PROM LOUISVILLE CHANCERY COURT.</p>

Case 75 — FEME COVERT RECORDING MORTGAGE APPEAL FROM LOUISVILLE CHANCERY COURT. 1. Section 20, chapter 24, Conveyance, does not apply to mortgages, as they are specially exempt. 2. If the purchaser had notice (as undoubtedly he had in this case), the mortgage need not be recorded to ail'ect him.

Case 76 — BASTARDS APPEAL PROM CAMPBELL CHANCERY COURT. 1. The statute provides that the husband shall take the whole surplus of a deceased wife’s personal estate. A bastard child can not inherit any of his mother's estate, as against the lawful husband. 2. There is no proof of any gift whatever.

Case 77 — EVIDENCE APPEAL PROM WARREN CIRCUIT COURT. 1. The instruction complained of in effect tells the jury that, notwithstanding appellants’ denial, the presumption arising from the fact of mailing a letter to appellants must prevail, unless it is overthrown by satisfactory evidence that the letter was not so received. In fact that appellants must prove a negative. 2.

Case 78 — REVENUE, CORPORATION APPEAL PROM BOURBON CIRCUIT COURT. 1. The fourth section of the amendment to appellant’s charter, approved March 3, 1861. constitutes a contract between the Commonwealth and appellant. 2. The whole amount of capital stock of the Covington and Lexington Railroad Company, and not the present amount of the Kentucky Central Railroad Association, constitutes the basis of taxation. 3. The Ky.

<p>1. An action is brought in the Hardin County Court, under the Civil Code,-, chapter 15, title 10, by one joint tenant against another, to have divi-*sion of a tract of land.</p> <p>2. The persons who claim under the same title are the only necessary parties.</p> <p>3. Those claiming adversely are not necessary parties.</p>

Case 80 — ATTACHMENT, BAE APPEAL PROM CLARK CIRCUIT COURT. \We contend that the suing out of the attachment without sufficient cause, and the vexatious and malicious attack upon the character and sensibilities of appellant constituted two distinct legal injuries, for which the law has provided separate modes of redress. In the former case .an adequate remedy is aforded in the bond required to be executed by ■an attaching creditor.

Case 81 — CORPORATION, TRUSTS APPEAL PROM CAMPBELL CHANCERY COURT. 1. Carriole and other appellees were directors of the street railway company when they bought the bonds of the corporation at sixty cents and sold them at from seventy-five cents to a dollar. 2. Whatever of profits they made, they must in equity account for. ,3.

<p>A warrant of arrest was issued in Anderson county, directed to the sheriff of Marion for appellant’s arrest. He was arrested and imprisoned in the latter county.</p> <p>1. Held — The suit for false imprisonment was properly brought in Marion county.</p> <p>2. There was no proof against appellees, Ripy and Cohen.</p>

<p>Case 83 — HOMESTEAD</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>'The court below erred in refusing to-appellants a homestead in their father’s land upon the ground that their mother was dead. (Gen. Stat., chapter 38, article 13, section 14.)</p> <p>The homestead act had for its sole object’ the protection of poor debtors and tln-ir families. As between the heirs themselves, it is wholly inoperative.</p>

Case 84 — DEED, OONSTIWOTrON APPEAL PROM NELSON CIRCUIT COURT. 1. To make a lair construction of the deed from D. B. Merrifield to his son, we must look to the relation of the parent and the burden resting upon the father to make to his son a fee-simple gift of the land. 2. There is no trust created by the deed, and it will -be seen that Mrs. Merrifield is no party to it.

Case 85 — CONTRIBUTION— APPEAL FROM WARRE' 01.1 UIT COURT. 1. A co-suroty who has executed his individual note in discharge of the common obligation, and has afterward received and accepted his note as a present from the creditor, can not demand contribution from his co-surety. 2. It is well settled that contribution is founded not upon contract, but upon principles of equity. 3.

<p>1. Tho common law obligations of a railroad company to a connecting line are the same as to reception, transportation and delivery of freight as those existing between a railroad company and an individual shipper.</p> <p>2. Whatever rights beyond those belonging to a natural person, claimed by one company against another, must be found either in the charters of tho companies or arise from contract.</p> <p>3. The claim made by appellant to the use of appellee’s track with its engines and ears is, if granted, destructive of appellee’s franchise.</p> <p>4. Appellant Inis no more right to require appellee to stop its cars at the junction of the two roads than an individual would have to require appellee to stop at the point nearest his residence."</p> <p>5. Nor can appellant run its cars over appellee’s road without its consent.</p>

<p>Case 87 — INDICTMENT</p> <p>APPEAL FROM NELSON CIRCUIT COURT.</p> <p>;i. The court erred in permitting appellee to read a part of a letter written hy appellant. He was entitled to have all of it read.</p> <p>2. The instruction is error. Rape is the crime charged. The proof did not sustain it, and, failing to make out the case, the court should have directed the jury to find for defendant. (Crim. Code, section 126; lb., 263; section 3, article 4, chapter 29, General Statutes.) .</p> <p>The offense of which appellant was convicted is included in the offense ■ with which he is charged. (Orim. Code, section 264.)</p>

Case 88 — SPECIAL AND GENERAL VERDICTS APPEAL PROM CHRISTIAN CIRCUIT COURT. 1. At the conclusion of the evidence, appellant requested to direct the jury to find a special verdict only. The court refused the motion. 2. The court, however, on motion of appellant, instructed the jury to return a special finding of the facts in answer to seven questions propounded by the court.

Cáse 89 — SURETY APPEAL PROM HENDERSON CIRCUIT COURT. When the claim of the Commonwealth was satisfied by the sureties of the sheriff, the debt then changed from a public debt to a private obligation, springing from the promise which the law implies. (6 Mon., 642; Johnson v. City of Louisville, 11 Bush; sections 17 and 20, article 11, chapter 92, General Statutes; 3 B. Mon., 425; 2 Caine,, 747.)

Case 90 — EBAUDULENT CONVEYANCES APPEAL PROM EDMONSON CIRCUIT COURT. 1. The court below erred in giving a judgment against the administrator of Anderson ior any sum. '.2. There should have been a judgment for the administrator for the full amount of all moneys collected by appellee, Merideth, with interest. There could be no lien in favor of appellee, imiess he was, in good faith, holding the property as trustee and making his expenditures for his cestui que trust. '■3.

<p>Case 91 — TRUSTEE. INTEREST</p> <p>APPEAL PROM BARREN CIRCUIT COURT.</p> <p>1. It was error to render judgment against appellant for any sum of money whatever.</p> <p>2. It was error to render judgment against appellant for the alleged amount in his hands, according to the report of the commissioner with biezzzzial rests.</p> <p>-3. The court should have' allowed appellant a credit of $1,200, paid to Jewell for Holman. There was no failure to pay, and, therefore, izzterest to any amount, is error.</p> <p>1. The whole proof, including the evidence of James G. Page, shows that there is a large balance due.</p> <p>2. It is the duty of a trustee to make the trust fund profitable, and if they use it for their own benefit, the interest should be compounded. (13 Bush, 307; Huffaker & Shy v. N. Bb. Monticello, 13 lb., 044; Commonwealth for &a. v. Williazns, 14 lb., 297; Greening v. Fox, 12 B. Mon., 187.)</p>

Case 92 — CONSTITUTION APPEAL PROM LOUISVILLE CHANCERY COURT. 1. The constitutionality of this charter does not seem to us to he open to question, both because similar grauts have been sustained, and because the charter can be maintained upon principle and authority. 2. Whatever the words ‘-exclusive separate public emoluments.;’ or the words “exclusive separate public privilege” may mean, they certainly do not include the character of grant we have in this ease.

Case 93 — HOMESTEAD, CREDITORS APPEAL FROM WARREN CIRCUIT COURT. 1. Appellant’s leaving her home was of necessity, and only temporary. Her tenant was on the land, and she intended to return as soon as she could. 2. Courts do not look with favor upon estoppels, and they are only permitted to operate to further the ends of justice. • 3. The homestead law has always been liberally construed, having for its protection the indigent and helpless.

Case 94 — WILL CONSTRUCTION APPEAL FROM JEFFERSON COMMON PLEAS COURT. 1. The will is conditional, and depended for its effect upon the testator’s. dying from home. 2. In all cases where there is either no preamble, and the close relation referred to exists between the conditional words and the words of devise, or there is both a preamble and an express condition in close-connection with the words,of devise, are cases of conditional wills.

<p>A married woman residing in Louisiana has the right to bind herself, and' in this ease did bind herself, together with her husband, upon a promissory note. ' • ■ •</p> <p>1. Held — Although she could not so bind herself in this State, yet. inasmuch as the law of Louisiana authorized the contract, it must be enforced here.</p> <p>2. Comity between the States requires that such contracts be enforced as-though appellant was a feme sole.</p>

Case 96 — NEGLIGENCE, SPECIAL VERDICTS APPEAL PROM HARDIN CIRCUIT COURT. 1, The course adopted in this case of examining and cross-examining the jury, as to all matters of evidence was unknown to the ancient mode of trial by jury. 2. The authority for a special verdict is an innovation upon the common law, and the practice pursued of examining and cross-examining- the jury is unwarranted by the ancient mode of trial by jury, which is made sacred by the Constitution.

Case 97 — RAILROADS, CONTRIBUTORY NEGLIGENCE APPEAL FROM SHELBY CIRCUIT COURT. 1. The demurrer of appellant to the second paragraph of answer of appellee should have been sustained. 2. The motion of appellant to strike out the said paragraph should have been sustained. 3. There was proof conducing ¡to show willful neglect on the part of appellee, its agents and servants, other than the decedent himself. 4.

<p>'Two attorneys at law, who were partners, purchased a tract of land with partnership funds to secure a fee owing to the firm.</p> <p>1. Held — A creditor of S., one of the partners, cannot subject his interest in the land until the partnership debts are paid.</p> <p>2. The other partner, B., has his lien upon the land until all the debts of the partnership have, upon settlement, been satisfied.</p> <p>3. It must bo assumed that in all cases, unless a contrary intention be shown, the partnership real estate shall be treated as partnership assets, and therefore as personalty.</p>

<p>Case 99 — JOINT TENANT, LIEN</p> <p>APPEAL FROM MEADE CIRCUIT COURT.</p> <p>1. There is no legal or equitable reason why one joint tenant should have a lien upon the land of his co-tenant for rents collected by him.</p> <p>2. If a lion exist, it must he founded upon the doctrine of equitable liens. But such lion does not exist. There is no authority for it. (Nelson v. Clay, 7 J. J. Mar., 140; Graham v. Graham, (i Mon., 561; Coleman v. Hutchinson, 3 Bibb., 211 ; O’Bannon v. Roberts, 2 Dana, 54.)</p> <p>We maintain that there is no error in the judgment. Although no direct authority can he found upon the question, we think that upon equitable principles a lien exists m favor of a joint tenant against his co-tenant, who, without authority, rents the entire tract, and after collecting the rents refuses to account for the share of those not in possession.</p>

Case 100 — INJUNCTION, PATENT APPEAL FROM LIVINGSTON CIRCUIT COURT. 1. The Hillman survey of land we believe to be well identified. The Tennessee line fixes the boundary on one side, and it is as certainly fixed upon the other. 2. The agreement in this record settles the right of appellant. It is agreed that the land in controversy is within appellant’s boundary, and that he is the owner of the land. 3.

Case 101 — COUNTY COURTS, MANDAMUS APPEAL PROM BOONE CIRCUIT COURT. 1. A statute can only be repealed by an express provision of a subsequent act or by necessary implication. '2. Virtual repeals are not favored by the courts. (Commonwealth v. McCain, 14 Bush, 525; 3 Monroe, 80; 8 Bush, 609.) •3. If the Boone County Court acted judicially, it might be claimed that such was the result of its finding of fact. 4. But it acted in its ministerial capacity. •5.

<p>The court limited each side to five minutes in the argument of the case. Appellant, as the record shows, made no claim or statement that more time was necessary.</p> <p>Held — It is a matter ivithin the sound discretion of the court, and unless complaint be made at the time and longer time asked for, this court will not interfere.</p>

Case 103 — KEVENUE, CONSTITUTION APPEAL PROM LOUISVILLE CHANCERY COURT. 1. The Legislature can not levy taxes except it’be for a public purpose. 2. Taxation in aid of the Louisville Board of Trade is not for a public purpose. 3. The act of the General Assembly, approved April 23, 1873, relieving the Louisville Board of Trade from taxation, is unconstitutional and void.

<p>Case 104 — CONTRACT. ILLEGITIMACY</p> <p>APPEAL PROM GARRARD CIRCUIT COURT.</p> <p>1. Hiatt’s promise was based upon a legal and valid consideration. (General Statutes, 162; Schauber’s Dom. Rel., 384; 5 Dana, 45; Oro. Bliz,, 67; Selwyn on Measure Damages, 223; Parson’s Cont., book 2, page • 369.)</p> <p>2. The contract is not within the statute of “Frauds and Perjuries.” (4 Dana, 37; 9 lb., 69; 8 B. Mon., 423; Ohitty on Cont., 68; 19 Mass., ■ 868; 21 Wis., 415; 4 Md., 476.)</p> <p>3. The promise to pay the ?1,000 is not within the statute of “ Frauds.”' (26 Ala., 272; 31 Miss., 426; Sedgwick on Dam., 199; Ky. Law. Rep.,. October, 1883.)</p> <p>1. Every agreement should be so complete as to give either party his-action upon it.</p> <p>2. There was no right of action on decedent to enforce the alleged contract. He could not have secured the possession of the child by a writ of habeas corpus, if it had been taken from him by the mother.</p> <p>3. Such a contract as alleged is not enforceable. (Bour. S. D., title “ Con- • tract,” 17; Chitty on Cont., 17; 3 Wash., R. T., 306; Addison on Cont., section 18, 652; The People v. Mercien, 3 Hill (N. Y.), 644;. State ex rel. Mayno v. Baldwin; 1 Halst. on Chanc’y (N. J.), 454; Addison on Cont, section 13, note 1; 1 Pars, on Cont, 432 and note-“t,” 434; General Statutes, page 248, chapter 22, section 1, subdivisions 6 and 7; Chitty on Cont., star page 6®; 3 Pars, on Cont., 36, note “g;” Addison on Cont., section 212; Davenport v. Gentry, 9 B. M. 429; Berry, &c., v. Graddy. 1 Met., 557; Holloway v Hampton, 4 B. M., 46; 1 Parson on Cont., 235; Bour. Lo.. title “ Gift; ” William on Ex’rs, 1770; 1 Parson on Cont., 431; Clarke v. McFarland, 5 Dana, 46; Burgen v. Straughan, 7 J. J. M., 583; City of Covington v. Powell, 2 Met., 227; 1 Pars, on Cont., 455; 3 Id., 35, 38-9, 58, note “g; ” 6 Ind,, 258; 7 Dowling & Ryland, 30-3; 30 Ind.,, 242 ; 31 Alabama, 564; 19 Wendell, 405.)</p>

•Case 105 — PEDDLEBS, CONSTITUTION APPEAL PROM HENDERSON CIRCUIT COURT. 1. If a subject of any foreign nation should, without license, peddle wares made in Kentucky, or any other State or country, would the law, as amended, be void as to him? Or if a citizen of Kentucky or any other State should, without license, peddle goods which are the growth of a foreign nation, would he not be subject to the provisions of the .statute as amended ? .2.

<p>Case 106 — PRACTICE, POSSESSION</p> <p>APPEAL FROM BALLARD CIRCUIT COURT.</p> <p>1. Appellee entered under an executory contract, and thereby became a ■ quasi tenant. As long as appellee remained in that condition he can not plead an adverse title to his vendor.</p> <p>2. Although ihe possession has been held for more than twenty years, yet, if possession was taken under an executory contract, and the party going into possession looked to his vendor for title, his possession is-not adverse.</p> <p>3. It is clear that the judgment should be reversed. (6 J. J. Mar., 163; 5-Littell, 317; 4 Bush, 32; 1 J. J. Mar., 39; 1 Dana, 389; 18 B. Mon., 290; 4 B. Mon., 605; 6 Dana, 422; 1 B. Mon., 152; 6 Dana, 432; 6-Bush, 545; 11 lb., 200.)</p> <p>1. The vendee may openly and notoriously renounce'the title of the vendor and claim to hold adversely to him; and if, after having done so, he is permitted to remain fifteen years in possession (the vendee being free from disability), he will be protected in his possession.</p> <p>2. The motion for a new trial was not made within the time required and this court will only look to the pleadings in the case. (6 B. Mon., 369; 3 Mon., 48; 2 Ib.t 27; 5 J. J. Mar., 571; 18 B. Mon., 233; 1 Duv., 387; 1 Bush, 472.)</p>