Volume 88 — Kentucky Reports

Case 1 —PETITION ORDINARY — APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. By legislative acts in 1868, and a lease from the State to appellant in pursuance thereof, the appellant acquired, for a valuable consideration, a vested contract right to use the line of navigation of Green river, and to navigate that river for thirty years.

<p>Case 2 — PETITION ORDINARY —</p> <p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. When bond is executed and injunction obtained in a State court and the action transferred to the United States Court, where tho injunction is dissolved and the petition dismissed, the obligees in the bond may recover thereon in the State court. (Revised Statutes of U. S., section 64G.)</p> <p>2. In order to entitle the obligees in tho bond to recover, it is not necessary that the United States Court should have assessed the damages. (Civil Code, section 295; Crawford v. Woodsworth, 9 Bush, 745; Logsdon v. Willis, 14 Bush, 183; High on Injunctions, section 1657; Bein v. Heath, 12 How., 368; Russell v. Earley, 105 U. S., 446.)</p> <p>3. The obligees in an injunction bond may be a class, in which case they may sue on the bond, although not individually mentioned therein. (Newman’s Prac. and PL, 104; Harris’ Adm’r v. Tichenor;' 3 Mon., 196; Evans v. Hendricks, 1 J. J. M., 436; Steele v. Steele, 4 Mon., 112; 3 Robinson’s Prac., p. 6, 7, 8, 352, 354; Lamb v. Yico, 6 M. & W., 467; Kiestied v. State, 1 Gill & S., 231; Sundreland v. Marine Ins. Co., 16 Ad. & El. N. S., 939; Brooks v. Lewis, 13 N. J. E., 214; Huff v. Hutchinson, 14 How., 586; Sioux City & D. W. Ry. Co. v. C., M. & St. P. Ry. Co., 27 Eed. Rep., 770.)</p> <p>4. An appeal without supersedeas does not suspend a decree. (Slaughter House Cases, 10 'Wal.; Hovey v. McDonald, 109 IJ. S., 160; Leonard v. Ozark Land Co., 115 U. S., 465; Rule 93, Supremo Court, U. S.; Williams v. Pains, 48 Tex., 144; 2 Southwestern Rep., 200; Civil Code of Ky., section 747; Rev. Stat. of IT. S. section 1000.)</p> <p>5. An order dismissing a bill in equity is a final order, and an interlocutory order dissolving an injunction becomes final when the case is dismissed. (Civil Code, section 368; Offutt v. Bradford, 4 Bush, 413; Rodman v. Eorline, 2 Met., 372; Watts v. Sanders, 10 B. M., 375.)</p> <p>6. A final order is conclusive on parties as to points decided until reversed, and a supersedeas does not suspend, but merely prevents its execution. An appeal granted upon condition is ineffectual until the condition is complied with. (Freeman on Judgments, sections 328, 432, 602; Hovey v. McDonald, 109 U. S., 160; Board v. Gorman, 19 Wall, 661.)</p> <p>7. The remedy for illegally suing out an injunction is upon the bond, and the parties injured may proceed against the sureties therein, and the plaintiffs in the injunction, whether they signed the bond or not. (Hall v. Eorman, 83 Ky., 505.)</p> <p>1. On the dissolution of an injunction in the Eederal Court, the parties in whose favor the dissolution is had, must, in order to recover upon the bond, have an assessment of damages under the direction of the court. ■ (Rev. Stat., IT. S., 714; Elmore v. Grymes, 1 Pet., 469; Hipp, &c., v. Bobin, &e., 19 How., 271; Russell v. Earley, 105, IJ. S., 437.)</p> <p>2. On the dissolution of an injunction before hearing, or on hearing on the merits, there is no right of action on the bond for the injunction while an appeal is pending from a decree on the merits, on a bill where the only relief sought is an injunction. (Wood v. Laylack, 3 Met., 193; Sprigg & Stepp v. Beson, 12 B. M., 553; Slaughter House Cases, 10 Wall, 273; Hovey v. McDonald, 109 IT. S., 160; Leonard v. Ozark Land Co., 115 IJ. S., 465.)</p> <p>3. An injunction bond is for the benefit only of such as are denominated defendants to the bill.</p>

<p>Case 3 — PETITION EQUITY —</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>1. So much of the answer as was made á cross-petition against the plaintiff and her children having been dismissed, the judgment reforming the deed was unauthorized.</p> <p>2. The children of appellant were necessary parties to the action so far as it sought to reform the deed, and should have been brought before the court.</p> <p>3. The appellee’s remedy, if any, was by hn original action and not by cross-petition. (Civil Code, section 95; Crabtree v. Bank’s Adm’r, 1 Met.)</p> <p>4. The evidence does not support the judgment reforming the deed. To authorize such a judgment, the mistake must be clearly established. (Mattingly v. Speak, &c., 4 Bush, 316.)</p> <p>1. The children were not necessary parties. It could not be known until the trust was established that they would have an interest. (Civil Code, sections 28 and 92; Piner v. Clay, 17 B. M., 645; Johnson’s Heirs v. Chandler’s Heirs, 15 B. M., 589.)</p> <p>2. If there was a defect of parties it was waived by a failure to make any objection to the proceeding upon that ground.</p> <p>3. The evidence supports the judgment.</p>

Case 4 — PETITION EQUITY — APPEAL FROM LOUISVILLE CHANCERY COURT. 1. In order that the court may have jurisdiction to sell the land of an infant at the suit of the guardian, it is necessary that the infant be made a defendant. (Walker v. Smyser, 80 Ky., 020; Civil Code, secs. 489, 498.) 2. The court has no jurisdiction to decree the sale of lands of the infant when a portion thereof is in another county than that in which the suit is brought.

Case 5 —INDICTMENT— APPEAL FROM ALLEN CIRCUIT COURT. On an application by the accused for a change of venue, it is not neces-, sary to accompany the application with the affidavits of two credible witnesses to the effect that the accused can not have an impartial trial. (Gen. Stat., chapter 12, article 4, section 1, Johnson v. Commonwealth, 82 Iiy., 119.)

<p>Case 6 — PETITION ORDINARY —</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>It was error in the court to allow appellee’s attorney to formulate the verdict.</p> <p>As the court could have entered the judgment from' the verdict -returned, it was not prejudicial to allow appellee’s attorney to draw the verdict to conform to what the judgment would have been if entered by the court.</p>

<p>Case 7 — CONTESTED WILL —</p> <p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. If the marriage of Mrs. Stewart revoked her will, it was revived by her repeated acknowledgments and declarations of it as her existing will after the marriage; the will being wholly in her own handwriting, and she having full power to make a will during the marriage. (Porter v. Eord, 82 Ky., 191.)</p> <p>2. The cases of Maxwell’s will, 3 Met., 101, and Dougherty’s will, 4 Met., 25, were cases of papers that wore to become wills only upon contingencies. And the case of Phaup’s will, 14 Grattan, 332, is not in point, because the will there required two attesting witnesses, and it was never reattested nor reacknowledged before both of the attesting witnesses.</p> <p>3. The marriage, the marriage contract, and the will were all parts of one transaction, and by the marriage contract Mrs. Stewart was to retain and dispose of her property as her own, free from any interest of her husband, and with full power to make a will. Her husband assented to the validity of this will, and, in effect, agreed that this will should stand unrevoked by the marriage, and it was delivered for safe-keeping after the marriage, on the same day, and with the husband’s approval. The statutes declaring that marriage shall revoke all wills, except those executed in pursuance of powers, and that no revoked will shall be revived, except by the re-execution thereof, are not applicable to such a ¿ase; and the will of Mrs. Stewart, not being within the reason of those statutes, was not revoked by the marriage. (Osgood v. Bliss, 141 Mass., 474; Taylor v. Raines, 7 Modern Reports, 148; Logan v. Bell, 1 Common Bench, 872; Case of "Ward’s Will, 70 Wisconsin, 257.)</p> <p>1. A will once revoked can bo revived in no other way than by re-execution or by a codicil. (Gen. Stat.. chapter 113, section 11; Maxwell v. Maxwell, 3 Met., 101; Phaup v. Wooldridge, 14 Gratt., 332; Dougherty v. Dougherty, 4 Met., 25.)</p> <p>The ease of Porter v. Eord, 82 Ky., 191, is unlike this case, and does not justify the construction given it by counsel for appellants.</p> <p>2. The statute does not make the marriage a presumptive revocation which may be rebutted by proof of a contrary intention, but it makes it operate es inatanti as a revocation. (Gen. Stat., chapter 113, section 9 ; Brown v. Olark, 77 N. Y., 369; McAnnulty v. Mc-Annulty, 120 111., 26; Blodgett v. Moore, 141 Mass., 75; 5 J. J. M., 471-73.)</p> <p>3. The will can not be uphold as' the execution of a power, as the testatrix disposed of her own property by the revoked will. Besides, the power relied on was limited to a will made after marriage, while the will in controversy was made before marriage. (Hodsden v„ Staple, 27 B., 684; Hodsden v. Lloyd, 2 Brown’s Oh’y Cases, 534.)</p> <p>The statute construed by Osgood v. Bliss, 141 Mass., 474, is less comprehensive than ours, and the facts in the two cases are different.</p> <p>1. As the point upon which this court reverses the judgment was not relied on by the appellants upon the hearing of the appeal, and was not discussed or considered, a reargument should bo ordered.</p> <p>2. The statute is peremptory. No evidence, however convincing, can be received to rebut the conclusive legal implications of revocation arising out' of the subsequent marriage. (Gen. Stat., chapter 113, section 9; Nutt v. Norton, 142 Mass., 242; Brown v. Olark, 77 N. Y., 373; McAnnulty v. McAnnulty, 120 111., 126; 5th ed. Jar-man on Wills (Bigelow’s), vol. 1, pp. 128-9; Williams on Executors, Perkins’ ed., vol. 1, p. 239.)</p> <p>The statute was not, in this view, an innovation upon Kentucky practice. (Sneed v. Enings’ Ex’r, 5 J. J. M., 471.)</p> <p>3. Limitations upon the power to make wills, and conditions looking to their revocation, invade none of the rights of the citizen. (Moore’s Trustee v. Howe’s heirs, 4 Min., 201.)</p> <p>4. The reasoning of the opinion, based as it is upon the consent of the husband to the will in controversy, leads to the conclusion that the will should, at all events, be proved only as a will of personalty. (Yates’ Will, 2 Dana, 217.)</p> <p>5. The statute was not made alone for the benefit of husbands and wives. It was intended to serve a public purpose, and any party having a sufficient interest may insist upon its enforcement.</p> <p>6. The antenuptial contract neither confirmed nor adopted, nor attempted to revoke, the will then in existence. Nor does it evidence a purpose upon the part of the contracting parties to withdraw the will from the operations of the public law.</p>

Case 8 — PETITION EQUITY — APPEAL FROM SHELBY CIRCUIT COURT. When the power is not conferred by the charters of corporations there can be no consolidation of the corporations without the consent of all the stockholders in both companies, notwithstanding an act of the Legislature authorizing the consolidation by the consent of a majority of the stockholders in each.

Case 9 — PETITION EQUITY — APPEAL FROM FRANKLIN CIRCUIT COURT. 1. Courts of equity will not enjoin the collection of a tax upon the mere ground of irregularity in the assessment. (Bennick v. Curry, 3 Ky. Law Bep., 156; note to Holland v. Mayor, &c., of Baltimore, 69 Am.

Case 30 — PETITION EQUITY — APPEAL NROM CARROLL CIRCUIT COURT.

<p>1. Taxation op corporations — -Under chapter 92 of the General Statutes (old edition), the stockholders in corporations were required to-list and pay taxes on their stock in every case in which the corporation itself was not expressly required to report and pay tax; and where the stockholders were required to list and pay tax on their-stock, the corporation was not liable for tax on its property. And it is immaterial whether the stockholders had or not listed their stock for taxation, as required by the statute.</p> <p>In this case it is held that the stockholders in appellant, and not the corporation, itself, were, under the statutes as they existed during the years (1875 to 1882) for which the tax is sought to be imposed, required to list their stock for taxation, and, therefore, the property of appellant can not be taxed.</p> <p>2. Construction of statute — The provision of the “Auditor’s Agent Act ” making it the duty of the Auditor’s agent, when any person has failed to give in his list or a proper list of his taxable property, to give information of the same to the county Court, and making it the duty of the court to assess the property, etc., not being penal in its nature should be construed not strictly, but in such manner as to accomplish the purpose of its enactment, and effectuate the intention of the Legislature.</p> <p>3. Taxation — Demand—In order to justify the proceeding under that section, it is not necessary that there should have been a demand by the assessor upon the tax-payer to give in his list of property for taxation.</p> <p>4. Practice — Objection waived — Appellant can not, in this action to enjoin the collection of the tax, make the objection, even if sufficient, that the information upon which this proceeding against it was based was not in writing, for, having faile'd to make the objection before the county court, it must bo regarded as waived.</p>

<p>1. Death of devisee before making of will — Where a devisee, whether he be a sole devisee or one of a class, is dead at the making of the will, or thereafter dies before the testator, leaving issue who survive the testator, such issue takes the estate devised as the devisee would have done if he had survived the testator, unless a diiferent disposition is required by the will; and extrinsic evidence is not competent to show the testator’s intention in that respect.</p> <p>Following certain special bequests, was this provision in a will: “ The remainder of my estate I desire equally divided between the children of my brothers and sisters, except in the case of my two living sisters. I desire the portion going to their children go to my sisters or sister, as the case may be.” A son of one of the brother's of the testator had died before the making of the will, leaving a son, who seeks by this action to recover the share of the estate his father would have received if living at the death of the testator. Held— That he is entitled to recover.</p> <p>2. Overruled case — The case of Sheets v. Grubbs, 4 Met., 339, is overruled.</p>

Case 13 — PETITION EQUITY — APPEAL PROM MENEPEE CIRCUIT COURT. 1. The court erred in requiring plaintiffs to elect whether they would prosecute the first or second and third paragraphs of their petition. 2. The plaintiffs having the legal title, and being in possession, it was proper to make as many persons parlies to their bill as have adverse claims.

Case 14 — PETITION EQUITY — APPEAL PROM OHIO CIRCUIT COURT. Where the plaintiff dismisses his action without receiving any thing from the defendant, the attorney for the plaintiff has no lien for his fee, and can not look to the defendant.

Case 15 — PETITION ORDINARY — APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. When the husband receives from the wife personal property owned by her at the time of the marriage, and exempt from execution because she was a house-keeper with a family at the time of marriage, he is not liable to the extent of the value of the property for her debts contracted previous to the marriage. (Gen. Stats., chap. 52, art. -2, sec. 4, Louis v. James, 9 Ky.

Case 16 — PETITION EQUITY — APPEALS FROM LOUISVILLE LAW AND EQUITY COURT. 1. The intention of the testator, to be gathered from the entire will, must govern its construction. The law favors that construction of a devise which will cause the interest to vest, and not to be contingent. (Williamson v. Williamson, 18, B. M., 374; Roberts v. Brinker, 4 Dana, 571; Grigsby v. Breckinridge, 12 B. M. 630.) 2.

Case 17 — PETITION EQUITY — APPEAL PROM BOURBON CIRCUIT COURT. A devise to a person “ and her bodily heirs ” of a tract of land, and a devise of another tract “to dispose of as she wishes,” gives a life estate in the first tract, and an absolute fee in the second. “ Bodily-heirs” in such connection is used in the sense of children.

<p>Case 18 — PETITION EQUITY —</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>No action can be maintained'to set-aside a conveyance for fraud» and to subject the property to a demand purely legal, until there has been judgment and return of “no property.” (Napper v. Yager, 79 Ky., -243; Evans v. Reay, 3, Ky. L. R., 493; Vaneev. Campbell, 3 Ky. L. R., 449; Barton v. Barton, 80 Ky., 212; Martz v. Pfeifer, 80 Ky.,'600:)</p>

<p>Case 19 — PETITION EQUITY —</p> <p>APPEAL PROM PENDLETON CIRCUIT COURT.</p> <p>To defeat the application of the doctrine of lis pendens, the lis pendens purchaser must allege and prove an unreasonable delay in the prosecution pf the action.</p> <p>The doctrine of lis pendens does not apply to a purchaser from one who is not a party to the action, and does not apply when there is unreasonable delay in the prosecution of the action.</p>

Case 20 — PROCEEDINGS AGAINST DELINQUENT TAX-PAYER — APPEAL FROM MARION CIRCUIT COURT. 1. A rule against a receiver of a court to show cause why he does not list for taxation, funds in his hands as such receiver, is unauthorized by the statute, and such funds are not subject to he listed for taxation. (General Statutes, chapter 92, section 20, article 4, section 4.) 2. The fund in court was not subject to taxation, because the owners thereof did not reside in that county.

Case 21 —CAVEAT— APPEAL PROM ESTILL CIRCUIT COURT. An instruction is erroneous that requires the jury to look to the pleadings to ascertain facts as proved or admitted. (Tipton v. Triplett, 1 Met., 570; Alland v. Smith, 2 Met., 297; Mickey v. Commonwealth, 9 Bush, 595.) To allow an amendment to a pleading when in the furtherance of justice and a correct determination of the rights of the parties, is within the discretion of the trial court, and not a reversible error.

<p>Case 22 — PETITION EQUITY —</p> <p>APPEAL PROM ROWAN CIRCUIT COURT.</p> <p>The only authority for supplying lost records is in chapter 72, General Statutes. The party seeking to supply such record must make affidavit that there is no authenticated copy of the record in. existence known to him.</p>

<p>1. Wills — Depositions of attesting witnesses. — Section 31 of chapter 113 of the General Statutes, as to the manner of taking depositions of attesting witnesses to wills, applies alone to the court in which the will is offered for probate, and not to depositions taken to be us'ed in the circuit court upon appeal from the court of probate.</p> <p>2. Exceptions to depositions — Continuance.—But if a commission had been necessary to take the depositions of the attesting witnesses in this case, yet as exceptions were not filed to the depositions until after the commencement of the trial, the court, having sustained the exceptions, should have granted a continuance upon the application of the propounded of the will, and not have required them to submit to a judgment against them.</p> <p>3. Same. — While exceptions to depositions which go to the competency of the witness, or to the relevancy or competency of the testimony, may be filed at any time during the trial, no other exception can be regarded unless it be filed and noted on the record before the commencement of the trial and before or during the first term of the court after the filing of the deposition.</p>

Case 24 — PETITION EQUITY — APPEAL FROM WHITLEY CIRCUIT COURT. A patent issued to a person who was dead is void, and conveys no title to his heirs. Where a patent issues to one who is dead, his heirs take the land. '(Gen. St., p. 711; Taylor v. Fletcher, 7 B. M., 82; Clark v. Jones, 16 B. M„ 126.)

Case 25 — PETITION ORDINARY — APPEAL FROM MARION CIRCUIT COURT. Where the claim is for punitive damages it should be left to the-jury to say whether they will give punitive damages. (L. & N. R. R. Co. v. Brooks, 83 Ky., 139.) An opinion of this court rendered on a former appeal is the law of this case and not subject to review or modification on the second appeal. (LeGrand v. Baker, 6 Monroe, 243; Mason v. Mason, 5 Bush,; 193.)

<p>1. Bankruptcy — Attachments.—Under the bankrupt law, if an attachment from the State court was levied as many as four months before the filing of the petition in bankruptcy, the lien created by such levy continued, notwithstanding the filing of the petition in bankruptcy.</p> <p>2. Same. — If a creditor of the bankrupt had a lien by attachment or otherwise for the security of his debt, and he filed his debt in the bankrupt court, and asked that it be allowed and pro-rated as an unsecured claim, without apprising the assignee of the existence of his lien, he thereby waived his lien. But this waiver was for the benefit of the assignee as a trustee for creditors, and not for the benefit of the bankrupt; and if the assignee chose to waive his right to the attached property by failing to appear and assert it, the attaching creditor had the right to enforce his lien, which the court properly-allowed him to do in this case.</p> <p>3. Same — Fraudulent conveyances. — ."When the debtor, prior to the bankrupt proceedings, had executed conveyances with the design to defraud his creditors, the title to the property thus conveyed passed ' to the assignee in bankruptcy for the benefit of creditors, as if no such conveyances had ever been executed.</p> <p>4. Judicial sales — Judgment.—As the land sought to be subjected in this case consisted of separate tracts, lying in two different counties, it was error to order a sale of the land in gross, without reference to the fact whether it would be necessary to sell it all to pay the debt, interest and costs. The court should so amend the judgment as to direct the sale of said land by the tract, and only so much thereof as will be necessary to satisfy the debt, interest and cost.</p>

Case 27 — PETITION EQUITY — APPEAL FROM DAVIESS CIRCUIT COURT. 1. Real estate put into a partnership as capital stock, becomes partnership property, and is subject to the debts of the partnership. (Devine v Mitchum, 4 B. M., 489; Galbraith v. Gedge, 16 B. M., 633.) 2. A partner has a lien upon partnership property, as against the other partners, for advances. (Cromwell v. Sandige, 8 Dana, 273.)

<p>Case 28 —MOTION—</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p>

Case 29 — PETITION ORDINARY — APPEAL FROM KENTON CIRCUIT COURT. 1. The amount in controversy upon this appeal is $5,700, and, therefore this court has jurisdiction. 2. The peremptory instruction asked by appellant should have been given. The trespass was not the immediate or proximate cause of the fire. The flood was an “ act of God,” for which no one can be held responsible. 8. The court has no right to give an instruction to which all parties object. 4.

Case 30 — PETITION EQUITY — APPEAL PROM CAMPBELL CHANCERY COUR1 The effect of redeeming property sold to satisfy a mortgage debt is to give the debtor credit by the amount for which the property sold, and to leave the mortgage lien in force against the property for the remainder of the debt.

Case 31 — PETITION EQUITY. — APPEAL .PROM MARION CIRCUIT COURT. The use of a way as a private passway for the statutory period of fifteen years, gives the user the right to it by limitation, and to defeat the claim, the owner must show that the use was permissive only.

<p>Building and Loan Associations — Usury.—The provision in the charter of a building and loan association that “ no dues, premiums, interest or fines that may accrue to the association in accordance with its charter, shall be deemed usurious, and the same be collected as other debts,” is partial legislation, and, therefore, unconstitutional, in so far as it authorizes the recovery of more than the legal rate of interest upon money loaned.</p> <p>In this action by appellant (the charter of which contains such a provision) against appellee, one of its members, to recover money lent, it is entitled to recover only the amount lent with the legal rate of interest, and not the amount authorized by its charter in the way of premiums, fines, etc., which would amount to many times the ■ legal rate of interest.</p>

Case 33 —PETITION— APPEAL PROM HARRISON CHANCERY COURT. 1. Parties sureties on a renewal note can not plead usury paid on the original note to which they were not parties. (1 B. M., 321-2.) 2. The acceptance of a new note, with new parties, in lieu of an old note, is a novation, and the statute of limitations against the recovery of usury paid on the old note, begins to run at the date of the execution of the new note. (Smith v. Young, 11 Bush, 393.) ■3.

Case 34 — PETITION EQUITY — APPEAL PROM KENTON CHANCERY COURT. 1. The rule is, that property abutting on a street and peculiarly benefited by its construction, shall be assessed in proportion to its frontage. (Dillon on Municipal Law, vol. 2, sec. 616; Cleveland v. Wick, 48. Ohio Stat., 303.) 2. When property is taken for the public use of building a street, it is not necessary to first make payment to the owner of the land taken. It is sufficient that it be secured to him.

<p>1. Descent — Lien—Equity—Surety.—Land descended to heirs with an execution lien upon it for a debt for which one of the heirs was primarily bound, the ancestor being merely surety in the debt. In a suit by the heirs for a division of the land the execution creditor asserted his lien', and the chancellor ordered that the land allotted to the heir who was primarily liable for the, execution debt, be first subjected to its payment. Held — That this was proper. The fact that the creditor could not have directed the sale of some particular portion of the land presents no'reason why the chancellor can not do so in order to prevent litigation and hardship. The ancestor, the surety, could have maintained an action to compel the principal to discharge the debt„or to subject his property first to its payment, and there is no reason why the rule should not extend to the heirs of the surety, when, as between them and the principal debtor, their property is secondarily liable for the debt.</p> <p>2. Homestead. — "Where property has come to a debtor by descent he may be entitled to a homestead therein, although the debt to which it is sought to be subjected was created prior to the time at which he received the property, but as the property in controversy here descended with the lien upon it, as against that lien the heir is not entitled to a homestead.</p>

<p>Evidence. — In this action against a railroad company to recover for an injury to the plaintiff, a boy about fourteen years old, alleged to have been caused by a-defective platform, by means of -which the plaintiff was thrown under a moving train and crushed, it was not competent for the defendant to prove that the plaintiff was in the habit of jumping on moving trains at that place, and had been warned of the danger. The plaintiff having testified positively that the injury was caused by his stepping on a rotten plank in the platform, and being thrown under the train, and his statement corroborated by convincing circumstances, such testimony was not competent either to impeach the plaintiff or to show that the injury was caused by his negligence.</p>

Case 37 — PROCEEDING TO CONDEMN LAND — APPEAL PROM PENDLETON CIRCUIT COURT’. In a proceeding to condemn land for the use of a turnpike company, a formal petition as prescribed in the Code for civil actions is not necessary.

<p>Case 38 — PETITION ORDINARY —</p> <p>APPEAL PROM MARION CIRCUIT COURT.</p> <p>In ejecting a passenger for disorderly conduct, a railroad company must use reasonable precaution for the passenger’s safety, and if the passenger is in such a drunken condition as to he unable to take care of himself, the company will he liable for injury resulting from putting him off at a place where his condition necessarily exposes him to the danger of being injured by other trains of the company. (L. 0. & L. R. R. Co. v. Sullivan, 81 Ky., 624.)</p>

<p>Case 39 — PETITION EQUITY —</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>1. Mr. Smith’s actions show conclusively that he did not intend to charge his sick, troubled and needing daughter for his services as trustee from 1882 to his death on April 20, 1887. This is shown by the fact that while he deducted regularly each four months his commissions from the income of the infant children, he made no charge or deduction from his daughter's income, but sent it to her to spend entire, and without notifying her that there was any accumulating claim reserved in his favor. • When one thus performs a service for another with no intention at the time to charge for it, his administrator can not (as he could not) afterwards convert the act of affection or benevolence into a pecuniary obligation against the donee. (James v. O’Driscoll, 2 Ray (S. Car.), 101.)</p> <p>2. If it were shown that Mr. Smith, during the latter part of the time, sometimes expressed an intention (not in the presence or to the knowledge of his daughter) to some day claim for those commissions unclaimed in the past, such evidence would be incompetent against her. And his actions in continuing thereafter to send her the entire income, with no explanation as to commissions not being deducted, or that they would afterwards be claimed, show stronger than words that his real and fixed intent was not to charge.</p> <p>3. The fact that it turned out, after his death, that Mr. Smith was insolvent did not create in his administrator a right to reverse his accounts, and claim these past commissions. The creditors of an insolvent have no right to compel him to charge for his labor. He has the right to work for nothing, although he may owe debts and be insolvent. (Abbey v. Deyo, 44 New York, 347; Johnson v. Silsbee, 49 New Hampshire, 544.)</p> <p>4. The will of H. D. Newcomb, under which Mr. Smith acted as trustee for his daughter, provided that the trustee should pay to her the net income, which it defined as the income which remains after paying all taxes and charges, and that neither she nor the trustee should in any way encumber or anticipate said income or any part thereof. It was the duty of the trustee, if he intended his commissions to be a “charge,” to deduct them at the time; and to allow the trustee, after paying over to her for years what he treated as, and led her to believe to be, the net income, to afterwards unexpectedly present such a claim for accumulated back commissions as will absorb six months’ or a j'ear’s income to pay it, would be to anticipate and encumber that future income, and would be an unallowable violation of the will. It would be the same in principle and result as if he had taken out commissions each time, and then loaned them to her as an advancement and encumbrance upon her future income. (In re Brittell, 2 De Gex & Jones, 79.)</p> <p>1. A postponement by a trustee of a charge for services is not a gift of the services nor an estoppel against a subsequent charge therefor. (Phillips v. Bustaed, 1 B. M., 349; Greaning v. Fox, 12 B. M., 190; Fleming v. "Wilson, 6 Bush, 611; Clark v. Anderson, 10 Bush, 103.)</p> <p>2. There should be positive evidence that the trustee waived his right to compensation before the court should disallow the claim.</p> <p>3. The inhibition against incumbrances and anticipations contained in the bequest does not apply to this claim.</p>

Case 40 — AGREED CASE. — APPEAL FROM PULASKI CIRCUIT COURT. There is no unconstitutional inequality of the burdens of taxation, when a tax is levied upon all the citizens of a county for road purposes, and an additional tax upon the inhabitants of a municipality within the county for the improvement of the streets of the municipality. (Railroad Co. v. City of Louisville, 4 Bush, 481; 9 B. M., 339; L., 0. & L. R. R. Co. v. Commonwealth, 10 Bush, 48; 5 Bush, 229.)

Case 41 — PETITION EQUITY — ,APPEAL PROM DAVIESS CIRCUIT COURT. Upon the failure of a bidder to execute bond, the commissioner may again offer the property for sale. The bidder does not acquire any right by his bid unless he perfects it by then and there executing bond. 1. As the amount in controversy is less than one hundred dollars, and the title to land is not involved, no appeal lies. 2.

Case 42 — PETITION ORDINARY — APPEAL PROM LOGAN CIRCUIT COURT. 1. The offer to enter upon the performance of a protracted undertaking, and a refusal, entitles the party offering to perform, to recover only the actual damage suffered.

Cash 43 — PETITION EQUITY — APPEAL from henry circuit court. The clerk has no authority to appoint a guardian because the affidavit made by the attorney fails to state that the plaintiff was absent from the county. The infants were, therefore, not before the court, and the judgment as to them is void. (Civil Code, section 550.) The affidavit required by' section 38 of Code may be made by the party or his attorney, whether the party is in or out of the county.

Case 44 — PETITION ORDINARY — APPEAL FROM OWEN CIRCUIT COURT. 1. Such an obligation as that sued on is the personal joint and several undertaking of those signing. (Frank v. Roberts, &o., 1 B. M., 204; Pack v. White, 78 Ky., 243.) .2.

Case 46 — PETITION EQUITY — APPEAL PROM LOUISVILLE CHANCERY COURT. An error in the pleadings and judgment as to the quantity of land directed to be sold, may be corrected on application of the parties interested, although more than sixty days had expired since the entry of the erroneous judgment. Appearance to the amended petition having been entered, no process was necessary. (Richards v. Richards, TO Bush, 619; Elliott v. Ketchum, 14 Bush, 289; Bacon v. Bills, 6 Ky.

<p>1. Railroads — Negligence.—■Where a railroad track crosses a public highway on a trestle, it is the duty of those in charge of a train approaching the crossing, to give some timely warning of its approach for the protection of those who may be riding or driving on the highway, that thej1' may secure themselves against injury by reason of the frightening ofjjheir horses, and the question as to whether or not the failure to give such warnings is negligence should be left to the jury.</p> <p>2. Same. — As the injury to plaintiff in this case was the result of her own negligence in not looking in the direction of the approaching train, which she could have seen for a distance of several hundred yards if she had looked, a peremptoi'y instruction to find for defendant was proper.</p>

<p>Case 47 — PETITION OEDINABY —</p> <p>APPEAL FROM -WARREN CIRCUIT COURT.</p> <p>1. Whatever may have been the law anterior to the adoption of the present Code, now in all actions upon contract any cause of action in favor of a defendant, itself founded upon contract, may be pleaded as a set-off, and this whether the damages are liquidated or not. (Civil Code, sec. —; Stevens v. Able, 15 Kan.; Beed v. Jeffries, 16-Kas.; Pomeroy on Bemedies, secs. 796, 798; Eversole v. Moore, 3 Bush; Bliss on Code Pleading, sec. 383.)</p> <p>2. But even if this is not the general rule, it certainly applies where there-is an equity in favor of the defendant, such as the non-residence or insolvency of the plaintiff. (Tribble v. Taul, 7 Min.; Taylor v. Cromwell, 4 Met.; Green v. Campbell, 2 Jones, Bq., 446; Chamberlain v. Stewart, 6 Dana, 32; Jobson-v. Pearce, 12 N. Y., 156; 3 Pomeroy’s Bq., secs. 411, 419.)</p> <p>1. A pleading which asserts a counter-claim or set-off is in the nature of a new action, and should be as certain, specific and full as if it were a petition. (King’s Bx’r v. Goddard, 8 Ky. Law Bep., 150.)</p> <p>2. Only such damages as ordinarily and in the natural course of things might fairly be expected to result and have resulted from the wrongful acts can be recovered, and such damages must be the proximate, natural or necessary consequence of the act. (Woods Mayne on Damages, p. 68, sec. 53 and notes, and cases cited in notes on pages 69, 70 and 71; 47 Am. Dee., p. 578; 48 Am. Dec., pp. 59 and 387; Daniel v. Ballantine, 23 Ohio St., 532.)</p> <p>3. The appellants’ claim is not available, either as a counter-claim or a set-off . It is not good as a counter-claim, because it does not arise out of the contract sued on, and is not connected with the subject of the plaintiffs’ action. It is not good as a set-off, because it does not arise upon a contract. (Civil Oode, sec. 96; Newman’s Pleading, pp. 580, 583, 584; 4 Met., 175; Waterman on Set-off, p. 154, secs. 133, 134, 137; Shropshire v, Conrad, 2 Met., 143; Littell v. Shockly, 4 J. J. M., 246; Jenkins v. Bichardson, 6 J. J. M , 441; Williams v. Gilchrist, 3 Bibb., 49; Nolle v. Thompson, &c., 3 Met., 121.)</p> <p>The rights both of set-off and counter-claim depend upon the Code.</p>

Case 48 — PETITION ORDINARY. — APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. One sued and answering to the merits, can not subsequently plead ■ that there was a misnomer, and • interpose the statute of limitations that would not have availed at the time of the first answer. (Heck-man v. L. & N. R. R. Co., 9 Ky. L. R., 297; Sherman v. Proprietors •of C. Riv.

Case 49 — PETITION EQUITY — APPEAL PROM BOONE CIRCUIT COURT. 1. A homestead right attaches where land is held under title bond as in case of an absolute conveyance. (Griffin v. Proctor’s Adm'r, 14 Bush, 571.) 2. Homestead right is not lost by temporary removal. Its existence is determined by actual occupancy at the time it is sought to be subjected.

<p>Case 50 — INDICTMENT —</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>An indictment for obtaining money under false pretenses must allege ownership in the person from whom it is obtained; and if that person be a married woman, there can be no conviction, as she can not hold and own the money, her possession and ownership being that of her husband. (3 Ohitty’s Crim. Daw, 998; 2 Roscoe’s Crim. Ev., 675, 865; Sill v. Regina, 16 English L. & B., 375; Thompson v. People, 24 111., 60; Ladd v. State, 17 Florida, 215; State v. Lathrop, 15 Vt., 279; State v. Smith, 8 JBlackf., 489; Commonwealth v. Van Tuly, 2 Met., 4; 2 Wharton’s Crim. Law, sec. 1827; 2 Russell on Crimes, p. 88; 2 East’s P. C., 652; McBride v. Commonwealth, 13 Bush, 337.)</p> <p>In an indictment for obtaining money by false pretenses, it is not necessary to allege, nor is it necessary to prove, that the person from whom it is obtained is the owner. (Crim. Code, sec. 128; Commonwealth v. Van Tully, 1 Met. 1; Gen. St., chap. 29, art. 13, sec. 2; 2 vol. Wharton’s Crim. Law, secs. 2139, 2160; Crim. Code, sec. 340; Rutherford v. Commonwealth, 78 Ky., 639; McBride v. Commonwealth, 13 Bush, 337.)</p>

(Jase 51 — PETITION EQUITY — APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. Tile question of the right of the contractors to use Bowling Groen stone, should have been determined upon the contract as written, and therefore, the evidence relating to that question ivas incompetent, and while the question was withdrawn from the jury by the instructions, the incompetent testimony was left to have its full weight in exciting the prejudice and warping the judgment of the jurors. 2.

Case 52 — PETITIONS EQUITY — APPEALS PROM HARDIN CIRCUIT COURT. 1. One who lends to the occupant of a homestead money, which is applied to pay therefor, is not entitled to subject the homestead to its repayment without an antecedent agreement to that effect. (Griffin v. Proc- . tor, 14 Bush, 573.) 2. A vendor, having a homestead interest in land, may successfully assert it, although his conveyance be set aside for fraud at the suit of a creditor.

Case 53 —MOTION— APPEAL FROM TAYLOR CIRCUIT COURT. The homestead exemption does not attach unless the debtor owned and occupied the premises as a homestead prior to the creation of the debt. (Eisher v. Hunt, 81 Ky.; Brown, &c., v. Martin, &c., 4 Bush, 47; Gen. Stats., section 16, article 13, chapter 38; Fant v. Talbott, 81 Ky., 25; Carter, Fisher & Co. v. Goodman, 11 Bush, 228.) 1.

<p>Case 54 —INDICTMENT—</p> <p>APPEAL PROM CAMPBELL CRIMINAL COURT.</p> <p>1. An indictment for housebreaking and larceny, under section 4, article 5, chapter 29, Gen. Stats., in which there is a failure to state that the taking was with the intention to deprive the owner of his property, and to convert it to the use of the person taking, is essentially defective on motion in arrest of judgment. (Ward v. Commonwealth, 14 Bush, 234.)</p> <p>2. An entry into the cellar of a dwelling-house, having no internal communication with the dwelling, without breaking or removing a fastening, does not constitute the offense of breaking into a dwelling-house. (Bishop on Statutory Crimes, sec. 282; Commonwealth v. Bruce, 79 Ky., 560.)</p> <p>An indictment that follows the language of the statute is good, without further description of the offense.</p>

Case 55 — PETITION EQUITY — APPEAL PROM LOUISVILLE CHANCERY COURT. 1. Held: that even in the absence of any statutory provision, a court of equity can make a sale for partition, and pass the title free of an inchoate right of dower, by compelling the married woman to join with her husband in a transfer of her inchoate right. (Jackson v. Edwards, 7 Paige, 389.) 3.

Case 56 — PETITION EQUITY — APPEAL PROM HENDERSON CIRCUIT COURT. 1. The commissioner had no more authority than an ordinary auctioneer as to the acceptance or rejection of a bid. ( Grotenkemper v. Achtermeyer & Co., 11 Bush, 226.) 2. The commissioner had no right to resell after he had knocked down the property to Head, and therefore the court had no right to confirm the sale.

Case 57 —INDICTMENT— APPEAL PROM^OLARK CIRCUIT COURT. 1. Upon the proof afforded by the record alone in the first case, the plea of former acquittal was, as matter of laiv, conclusively sustained, and the jury should have been told to so find.

Case 58 — PETITION ORDINARY — APPEAL PROM PAYETTE CIRCUIT COURT. 1. A shipper who stipulates that a package sent by express does not exceed in value a certain sum, and pays for transportation upon such basis, is estopped, in case of loss, to allege a greater value. (Hart v. Penn. R. It. Co., 112 U. S., 331; Belger v. Dinsmore, 51 N. Y., 166 ; Lawson on Contract of Carriers, sections 86, 88; Adams Express Co. r. Nook, 2 Duvall, 562.) 2.

<p>Case 59 — CONTESTED WILL —</p> <p>APPEAL FROM OWEN CIRCUIT COURT.</p> <p>1. Where a will offered for probate appears to have been properly executed, it is the duty of the court to submit it to probate. The court has no right to inquire whether the testator had the right to dispose of the property devised. The law will restrict the. operation of the will to such property as the testator had the right to devise. (Mitchell and Wife v. Holder, &c., 8 Bush, 363.)</p> <p>2. The estate disposed of by the will offered for probate in this case was separate estate which the testatrix had the right to dispose of by will. To create a separate estate, all that is required is a manifest intention to invest the property in the wife to the exclusion of the husband. (Petty v. Malier, 14 B: M., 246; Hutchinson v. James et al, 1 Duv., 76; Hathaway v. Yeaman, 8 Bush, 392; Shackleford, assignee, v. Collier, 6 Bush, 149; Bank of Louisville v. Gray, 8 Ky. Law Rep., 664; Meguiar, Yancey & Co. v. Wilson, 9 Ky. Law Rep.; Caldwell v. Perry, 6 Ky. Law Rep., 97 ; Turner v. Short, 9 Ky. Law Rep., 866; Morgan v. Chiles, 7 Ky. Law Rep., 306; Southerland v. Southerland, 5 Bush, 591; Trail v. Trail, 7 Ky. Law Rep., 306; Martin’s administrator v. Donaldson, 5 Ky. Law Rep., 253.)</p> <p>3. A married woman has the power to dispose of her separate estate regardless of how it was created. (Gen. Stats., chapter 113, section 4; Idem, chapter 52, section 15; Trail v. Trail, 7 Ky. Law Rep., 306.)</p> <p>4. A liberal construction should be given to the statute conferring on married women the right, in certain cases, of disposing of their separate estate by will with a view to effectuating the manifest objects of the law. (Hiram of color, &c., v. Griffin, ho., 8 Bush, 262; Tyler on Infancy, and Coverture, 471; Reeves’ Domestic Relations, chapters 11 and 12; Redfield on "Wills, part 1, section 3.)</p> <p>1. Mrs. Brown liad no power to dispose of her estate by will. (Gen. Stats., chapter 52, article 4; Idem, chapter 113, section 4.)</p> <p>2. Before the will of a married woman can be admitted to probate, facts must be proved which prima facie authorize it. (Molly Yates’ Will. 2 Dana, 215; Kelly’s devisees v. Kelly, 5 B. M., 369.)</p> <p>3. A husband may permit his wife to set apart the proceeds of her general estate to her own separate use, but his intention to do so must be manifested by a distinct act unequivocal in its nature. (Penn v. Young, 10 Bush, 628.)</p> <p>4. .Verbal ante-nuptial contracts in reference to the property of the wife-are within the provisions of the statute of frauds. (Potts v. Merritt, 14 B. M., 326..)</p> <p>.1. A married woman can not make a valid will except of estate secured to her separate use by deed or devise, or in the exercise of a written power. (Gen. Stats., chapter 113; 2 Stat. Laws, 1537.)</p> <p>2. The bank stock was not separate estate, even in the ordinary sense. (Harris v. Harbison, 9 Bush, 397.)</p> <p>8. An ante-nuptial verbal contract is within the statute of frauds. (Potts v. Merritt, 14 B. M., 407.)</p>

Case 60 — PETITION EQUITY — APPEAL PROM BATH CIRCUIT COURT. 1. To make a levy upon land effectual, the sheriff must go upon the land and there indorse his levy, or must notify the defendant in the execu- , tion of the particular property upon which he proposes to levy. (Mc-Burnic v. Overstreet, 8 B. M., 304.) ’ 2. An oral contract, in regard to the sale of land, is voidable only by the parties to the contract.

Case 61 —INDICTMENT— APPEAL PROM TAYLOR CIRCUIT COURT. The defendant by failing to object to the discharge of the first jury waived his right to a trial by that jury, and can not now claim that the discharge of the jury operated as an acquittal.

<p>1. Judicial sales — Final order. — A judgment confirming a report of saléis a final judgment, which the court, after the term at which it was rendered, can not vacate or modify, unless it be for some one or more of' the causes mentioned in section 518 of the Civil Code; and if any one of the causes mentioned in sub-sections 4, 5, 6, 7 and- 8 of that section is relied on, the party seeking to set aside the judgment must proceed by petition.</p> <p>2. Right to set aside order of confirmation. — The fact that the plaintiffs attorney did not attend the sale, owing to the failure of the commissioner to comply with his promise to notify him of the time of sale, and that by reason of his absence the land did not bring as much as plaintiffs’ debt, was a casualty sufficient to defeat the confirmation of the sale; but the plaintiffs, having failed to appear and oppose the confirmation, can not now have the judgment of confirmation set aside upon that ground, unless prevented by unavoidable casualty from appearing and opposing; the confirmation, which does not appear.</p>

Cask 63 — PETITION ORDINARY — APPEAL prom warren circuit court. 'The particular form of the writing sued on being directed and consented to by the defendant to get plaintiff’s money, and the money having been obtained by reason thereof, the plaintiff is entitled to recover. The facts being admitted by the demurrer, the quantum of evidence is not the question to be decided.

Case 6d —INDICTMENT— APPEAL PROM .1 EPPERSON CIRCUIT COURT. 1. The beating and cruel treatment of one’s child may cause under the law such a heat of passion as to reduce a homicide to manslaughter. (12 Coke, 87; 1 Hawk., 125; 2 Croke, 296; 1 Hale, 453; 1 East, 237; t Blackstone, 449; Bey v. Harrington, 10 Cox, C. C. 370; Nicholas v. Commonwealth, 11 Bush, 586; Guffee v. State, 8 Tex.

Case 65 — PETITION ORDINARY — appeal from MASO» CIRCUIT court. 1. A conveyance by the husband alone, in 1818, of the wife’s land, and possession thereunder by the purchaser for more than thirty years after the death of the wife, gives good title by limitation. (Gen, Stat., chapter 71, article 1, section 4; Conner v. Downer, 4 Bush, 681; Medloek v. Suter, 80 Ky., 101; Bransom v. Thompson, 80 Ky., 387; Mantel v. Beal, 82 Ky., 122; Bradley v. Burgess, 10 Ky. Law Rep., 701.) 2.

<p>1. Criminal law — -Liquor traffic — Prescription by physician. — A statute making it unlawful for a physician to prescribe whisky, unless the person for whom it is prescribed is actually sick, and it is “ absolutely required as a medicine,” is not violated if the person for whom the whisky is prescribed is actually sick, and the physician, after a full and fair investigation of the disease, believes in good faith that his patient actually requires the whisky as a medical remedy.</p> <p>'2'. Same. — Where such a statute is enacted in order that laws against the sale of liquor, as a beverage, may not be evaded under the guise of a medical prescription, it is constitutional; although it would be unconstitutional if construed to require the physician to act upon his peril, and to make him liable to punishment for a mistake as to the necessity for such a remedy, although he may have acted in perfect good faith after a full and fair investigation.</p> <p>3. Burden of proof.- — It is no objection to such a statute that it casts the burden upon the physician to show that the whisky was needed as a medicine by the person for whom it was prescribed, as such a provision simply declares a well-known rule of evidence.</p> <p>4. Same.- — In all statutory crimes it is competent for the Legislature to say that the proof by the Commonwealth, of any material fact or circumstance that shows a prima facie case of guilt, shall be sufficient to cast the burden upon the accused.</p>

Case 67 — PETITION EQUITY — APPEAL PROM MARION CIRCUIT COURT. 1.A banking institution, not a party to an action, can not be compelled to produce its books for the inspection of a party to the action who has no interest in them as a depositor. (Smith v. Manon, 7 Mon., 236 ; Civil Code, section 528; Dickerson v. Talbott, 14 B. M., 66 ; 1 Green on Ev., 559-60, volume 3, section 305.) 1.

Case 68 — PETITION ORDINARY — APPEAL PROJI GRANT CIRCUIT COURT. 1. The refusal of the judge to vacate the bench is a reversible error, although appellant went to trial without making any further objection to the jurisdiction of the court. (Turner v. Commonwealth, 2 Met., 621.) 2. The. statute providing the mode in which the regular judge of a circuit court may he required to vacate the bench is not in violation of the constitution.

Case 69 —MANDAMUS— APPEAL PROM SHELBY CIRCUIT COURT. 1. The clerk of a county court can not give license to retail spirituous liquors, nor receive money therefor, until the license has been granted by the county court, whether the selling is to be done within the corporate limits of a town or elsewhei’e in the county. (Gen. Stats.; chapter 92, sections 1 and 10, article 5; Gen. Stats., chapter 92, section 11, article 2.) 2.

<p>1. Judicial sales — Setting aside sale. — Where the statute regulating the manner of conducting judicial sales has been disregarded in making a sale, and the debtor has been prejudiced thereby, it is the duty of the court, upon exceptions filed to the commissioner’s report, to set aside the sale, although made in strict conformity to the judgment, as the court, notwithstanding the judgment, has complete control over the mere manner of conducting the sale until the report of sale has been confirmed.</p> <p>.2. Same. — It was error to sell a large body of land as a whole without first offering it in parcels, and this irregularity, connected with the inadequacy of price, was sufficient to entitle the debtor to have the sale set aside upon exceptions to the report, although the commissioner followed ■the judgment of the court in making the sale. And the fact that the sale was conducted under the supervision of counsel on each side is not sufficient to estop the debtor.</p> <p>8. Rights op purchaser as to costs. — Where the purchaser resists an effort to set aside the sale, and is unsuccessful, he should pay the costs incurred upon the trial of the exceptions as any other litigant. If he does not resist the effort to set aside the -sale, he should be allowed his ordinary costs incurred as a bidder.</p> <p>The. court, in this case propei’ly refused to allow the purchaser an ■attorney’s fee as part of his costs incurred upon the trial of the exceptions.</p> <p>4. Overruled case. — The case of Bgard v. Cbearnly (1 Bush, 12) overruled.</p>

<p>Case 71 — PETITION ORDINARY —</p> <p>APPEAL PROM NELSON CIRCUIT COURT.</p> <p>1. Where the two defenses, “non est factum,,” and “no consideration,” are presented, it is error to require the plaintiff to introduce all his evidence as to both issues in chief.</p> <p>2. It was error to refuse to allow plaintiff to testify in rebuttal as to the-consideration of a note after evidence by defendants’ witnesses of conversation with plaintiff as to the consideration.</p> <p>3. On an issue of the genuineness of handwriting, other writings are competent in evidence only when their genuineness is established to the-satisfaction of the trial judge, and that they were written before any controversy arose as to the genuineness of the writing in dispute, and notice previously given to the opposite party of the intention to offer in evidence and an opportunity given to inspect. (Civil Code, section 604,}-</p> <p>4. Spurious writings are never competent in evidence on such issue. (McAllister v. McAllister, 7 B. M., 270; Hawkins v. Grimes, 13 B. M., 264; Northern Bank v. Buford, 1 Duvall, 339.)</p> <p>1. It is competent on the cross-examination of a witness, who testifies to the-genuineness of a signature, to test the value of his evidence by submitting for his opinion both genuine and simulated signatures. (Green-leaf on Ev., volume 1, sections 446, 576.)</p> <p>2. For .the purpose of refreshing his memory, a witness may refer to written memoranda made by himself. (Greenleaf on Ev., volume 1, section 436.)</p> <p>3. The burden of proof being on plaintiff in one of two issues, he is com- ' pelled to offer in chief all of his evidence as to both. (Civil Code, section 317.)</p> <p>4. A plaintiff is not competent to testify in his own behalf in reference to-transactions with one who is dead, so as to bind the decedent’s estate. (Civil Code, section 606.)</p>

Case 72 — PETITIONS EQUITY — APPEALS PROM CHRISTIAN CIRCUIT COURT. 1. The cx-parte proceedings relied upon as conferring upon appellant the rights and powers of a single woman are not sufficient for that purpose, as the record fails to show the state of facts, either by allegation or proof, which the statute requires.

Case 73 — PETITION ORDINARY — APPEAL FROM M’CRACKEN COURT OF COMMON PLEAS. 1. The Paducah Water Supply Company being a public agent may be compelled by law to deal with all persons, without discrimination against any. For every unlawful act, resulting in injury, there is a remedy.

<p>Cash 74 —MANDAMUS—</p> <p>APPEALS PROM CRITTENDEN CIRCUIT COURT.</p>

<p>Case 75 — PETITION ORDINARY —</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>1. An agreement by a railroad company with the owner of land to construct a crossing is a covenant running with the land and passes by a conveyance of the fee, and the owner of the fee only can bring an action for breach of the contract. (2 Washbume on Real Propex'ty, p. 263; Ky. Cent. R. R. Co. v. Kenney, 82 Ky., 154; Easter v. L. M. R. R. Co., 14 Ohio St., 48; 1 Smith’s Leading Cases, 141; Coke on Littleton, 18 Sec.,12;. 2 Bl. Com. 241; Leake’s Digest of Land Law, 62 ; Gent v. Harx’ison, Johnson, 517; Bateman v. Hotchkiss, 31 Beavan, 486.)</p> <p>2. In actions ex contractu the measure of damages is the amount that it will cost to carry out defendant’s agreement. (Sedgwick on Measure of Damages 210, 344; Wood’s Mayne on Damages, sec. 12; I. B. & W. Ry. Co. v. Koons, 5 North-eastern Rep., 549; Logansport, C. & S. W. Ry. v. Wray, 52 Ind., 578; Taylor v. North Pacific R. R. Co., 56 Cal, 317 ; Lawton v. Fitchburg, R. R., 8 Cushing, 230.</p>

Case 76 — PETITION EQUITY — APPEAL PROM OWEN CIRCUIT COURT. 1. A judgment in an ordinary action can not be modified by an order in an equitable action, except for a defense arising or discovered subsequent to the rendition of judgment in the ordinary action. (Civil Code, sec. 17.) 2: A defense that could have been pleaded in an action before judgment is not afterwards available.

Case 77 — PETITION EQUITY — APPEAL. PROM WIXITLEY CIRCUIT COURT. As appellant did not unite in the deed of assignment executed by her husband, she can not he deprived of her homestead. 1. The appeal should be dismissed, as it is prosecuted upon a partial transcript and no schedule was filed in time. (L. & N. R. R. Co. v. Brice, 83 Ky., 210; 7 Ky. Law Rep., 180.) 2.

<p>Case 78 — PETITION ORDINARY —</p> <p>APPEAL PROM WARREN CIRCUIT COURT.</p>

<p>Case 79 — PETITION EQUITY —</p> <p>APPEAL PROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. The subject of the act under consideration is sufficiently expressed in its title. (Phillips v. Covington Bridge Co., 2 Met., 211.)</p> <p>2. The act does not violate that clause of the constitution which declares that all elections shall be free and equal. By preventing bribery, and by enabling the employe to vote his sentiments without fear of consequences, it greatly promotes freedom and equality in elections. (Commonwealth y. McClelland, 83 Ky., 693.)</p> <p>:3. The constitutional provision that in all elections by the people, or the Senate and House of Representatives, the votes shall be viva voce, refers to elections by that body of electors defined in the constitution as constitutional voters in general elections; and it does not apply to municipal elections which are held not by that constitutional body of electors, but by a different and more limited body of electors. (Johnson v. DeHart, 9 Bush, 043.)</p> <p>;4. The special provision of the constitution that the legislat ' all prescribe the manner of electing town and city officers, must b. .ead along with the general provision that in all elections by the people the vote shall be viva voce; and so read, the general provision should be held not applicable to municipal elections. (Buckner v. Gordon, 81 Ky., 666; Johnson v. De Hart, 9 Bush, 643; Standford v. AVingate, 2 Duvall, 440; City of Louisville v. Cully, 9 Bush, 323; Boyd v. Chambers, 78 Ky., 140.)</p> <p>5. The act in controversy, by making the vote inviolably free and secret, is intended to secure purity in municipal elections; to prevent the corrupt from buying votes, and the weak from being tempted to sell them; and to deprive the powerful employer of the means of coercing the votes of his dependent employes. It is in the line of advancing political thought in Europe and America; and is constitutionally valid. (Wig-more on the Australian Ballot System.)</p>

Case 80 —INDICTMENT— APPEAL FROM FRANKLIN CIRCUIT COURT. 1. In case of the plea of insanity the character and mental condition of the ancestors of the accused may be proved by hearsay, reputation and tradition. (Blaclcstone’s Com., vol. 3, p. 368; 'Wharton’s Criminal Evidence, sec. 232-3; Wharton’s Ev., vol. 1, sec. 190.) 2.

Case 81 — PETITION EQUITY — APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. The deed of an infant married woman is not void, but voidable only. (Phillips, &e., v. Green, 3 Mar., 11). 2. Such a conveyance may be ratified by the infant after arrival at full age, and slight acts of acknowledgment are sufficient for that purpose. (Phillips, &c., v. Green, 5 Mon., 345; Deason v. Boyd, l'Dana, 45; Middleton v. Hodge, 5 Bush, 478.) 3.

<p>1. Repeal op statutes. — The act of May 12, 1884, entitled “ An act to revise and amend the tax laws of the city of Louisville,” was only an amendment to the ordinary tax laws of the city, and not intended to repeal an existing charter provision authorizing extraordinary appropriations of money by the consent of the people expressed at the polls.</p> <p>2. Assessments por street improvements. — Where one portion of a city has improved its streets by taxing the owners of property bordering on the improvement, the same owners can not be taxed to improve the streets in another part of the city in like manner, as this would be unequal taxation; but where the contingency arises requiring an expenditure for the improvement of the great and principal thoroughfares of a city, it was never contemplated that the owner of property bordering on the improvement should incur the expense if it would result in the virtual confiscation of his property or the imposition of a burden unequal and unjust, and in such a case the city council may, when authorized by the charter, resort to a popular vote and obtain, by the consent of those to be taxed, the right to contract such a debt as is necessary to make the improvement.</p> <p>■ 3. Same — Ordinances.—It is not indispensable to the validity of an ordinance making such extraordinary appropriations that it should, in express terms, provide how and by whom the tax to pay the liability thus created shall be collected, although the charter provides that “provision shall be made in such ordinance to levy and collect an annual tax upon such estate within the city as may be designated by the council.”</p> <p>4. Same — Municipal bonds. — It is no objection to an ordinance providing for the issual of municipal bonds that it gives the mayor the discretion to sell the bonds at a lower rate of interest than that fixed in the ordinance if he can do so. Such a provision is not an unauthorized delegation of legislative power.</p> <p>5. Same — Principal and agent. — Where an agent protects the interest of his principal by making a better bargain than authorized, his action is to be sustained because for the interest of his principal.</p> <p>.6. Injunction. — A city tax-payer may enjoin the issiung of illegal bonds by the city, both for his own protection and for that of innocent parties .who may purchase them.</p>

<p>Right op dependant in criminal case to a continuance. — Where the' defendant in a criminal case makes a motion for a continuance at the same term at which the indictment is found, upon the ground that material witnesses are absent, the Commonwealth can not force him into a trial unless it admits the facts stated in the affidavit to he true, provided the affidavit shows the materiality of the testimony of the absent witnesses. And this rule applies, although the motion for a continuance is based upon the affidavit, of a person other than the defendant. But the court does not intimate an opinion as to the validity of the statute allowing the Commonwealth to force the defendant into trial in other cases upon the admission of the affidavit for a continuance as the deposition of the absent witness.</p>

Case 8á — PETITION'S EQUITY — APPEALS FROM KENTON CHANCERY COURT. 1. The orders of the county judge granting the attachments as prayed for in the petitions was a substantial, if not a literal, compliance with section 239 of the Code, as the clerk who issued the attachments could easily ascertain the correct amounts from the petitions, which he did. (Burnam v. Romans, 2 Bush, 191.) 2.

Case 85 —INDICTMENT— APPEAL FROM JEFFERSON CIRCUIT COURT. 1. The court erred in dismissing the first indictment and re-submitting the case to the grand jury. The dismissal was clandestinely had on a day when the case was not set for trial, and therefore the appellant had no opportunity to except, and can not be prejudiced by his failure to do so. 2. The appellant’s motion for a ehange of venue should have been sustained.

<p>Case 86 — AGREED CASE —</p> <p>APPEALS PROM LOUISVILLE' CHANCERY COURT.</p> <p>1. The legislature has thepower to lay out the district which nascaiiedParkland as a tax district, and to tax the inhabitants and iand within that district for local improvements; and the grading and paving of public highways through the district is a local improvement within the meaning of the decisions of this court in similar eases.</p> <p>In the Courtney ease (12 Bush) and all others of similar kind wherein it has been held that agricultural lands can not he constitutionally taxed for “municipal purposes,” there was an effort to apply the proceeds of taxation to the payment of the expenses of town government. Not so here. No part of this fund can be diverted from the one object of its creation — the improvement of these highways.</p> <p>2. The subject of the act is sufficiently expressed in the title. The enlargement of the limits of a town is pertinent to an act entitled cm act to amend the charter of the town. (Dillon on Mun. Oorp., sec.. 28; Swift v. Newport, 7 Bush, .37; City of Coving-ton v, Southgate, 15 B. M., 498; Courtney v. Louisville, 12 Bush, 420.)</p> <p>3. The notice of election was sufficient.</p> <p>1. The land of appellees is agricultural property and can not be taxed for uiunicipal purposes. (Oheaney v. Hooser, 9 B. M., 330, 348; Covington v. Southgate, 15 B. M., 491; Courtney v. City of Louisville, 12 Bush, 419; Preston v. Roberts, líi Bush, 578.)</p> <p>2. An act of the legislature can not relate to more than one subject, and that subject must bo expressed in the title; and, therefore, if the legislature proposes to make a tax district for the purpose of building roads into an agricultural country lying adjacent to, but not within, the boundaries of the town, it can not accomplish that object in an act the title to which is, an act to amend the charter of the adjacent, town, aud in which act there are provisions made for the municipal concerns of that town. (Pennington v. 'Woolfolk, 79 Ky., 20.)</p> <p>The cases of Henderson v. Lambert, 8 Bush, 607; Courtney v., Louisville, 12 Bush, 423; County Judge of Shelby County v. Shelby Bailroad Co., 5 Bush, 225; and McBerran v. Alloway, 14 Bush, 580, commented on.</p> <p>3. The act is unconstitutional as to the land in the de fa&to town of Parkland, as well as to that outside of it; for it can not be presumed that, if the attention of the legislature had been called to the fact that a very large part of this territory could not be subjected, it would have attempted to raise this large amount of money on the small remaining part.</p> <p>4. The e ection was not regular, because no sufficient notice was given of it as required by the statute.</p>

<p>Devise to widow for life with power to sell for support of herself and children. — A testator devised all his estate to his wife, “to he managed hy her as she may wish,” with the provision that if' she should marry again she should give secui-ity for the purpose of protecting the testator’s children, and should she remain unmarried, all the property at her death to he divided between the children. And lastly he appointed his wife executrix, with the request that she he permitted to qualify without giving security. Held — That the widow takes an estate for life or during her widowhood, with power to sell and dispose of all or any part of hoth the real and personal property that she may deem necessary for the support of herself and children ; and while she might have sold the real estate and passed a good title without the interposition of the court, yet having sought the aid of the Chancellor, he had jurisdiction in the interest of the infant children to prevent an injudicious re-investment or waste of the proceeds, though no power to prevent a sale hy her in person or-under order of court.</p>

Case 88 — PETITION EQUITY — APPEAL FROM MARION CIRCUIT COURT. 1. The parties being adults and laboring under no legal disability, a court of chancery had no power to sell real estate in which one held the fee, and the other a life estate, without the consent of both. (Oossom v. McFerran, 79 Ky.) 2. A contract, though within the statute of frauds, is good as a defense when executed in whole or in part. (Roberts v. Tennell, 3 Monroe, 247.) 3.

Case 89 — PETITION EQUITY — APPEAL PROM LINCOLN CIRCUIT COURT. :The following provision in a deed: “All of which land is hereby conveyed to the grantees excepting and reserving one-half acre of land of said tract, being the old family graveyard of grantor, together with the right of way to said graveyard, ’ ’ was an exception of one-half of an acre out of the land conveyed and a reservation of the right of way. So the title to the half acre did not pass by the deed.

Case 90 — PETITION EQUITY — APPEAL FROM HANCOCK CIRCUIT COURT. The rule that a judgment can not be collaterally questioned does not apply where the sheriff falsely returns the summons as served, when in fact there was no service of summons, and no knowledge of the pendency of the action. The return of an officer, acting within the scope of his authority, can not be collaterally questioned. It can only be questioned by direct proceedings against the officer for that purpose.

Case 91 — MOTION FOR APPEAL — APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1. This court should, upon the record as it stands, docket this appeal. Held: hold for another three years— that is, until the next regular election for members of that class.

Case 92 — PETITION EQUITY — appeal prom pranklin circuit court. .1. 'The legislature did not intend to confer upon school trustees the arbitary power to assess a tax upon the district without the consent of the people to he taxed. (Acts of 1885-6, vol. 1, p. 129, ai't. 3.) '2. The legislature not only has not conferred such a power upon the trustees, hut it has no constitutional authority to confer it. 3.

Case 93 — PETITION EQUITY — APPEAL PROM LOL'ISTILLE CHANCERY COURT. Any damage or suspension of a right* is a sufficient consideration for a promise; and an acquiescence, when a right is assailed by another, estops the one so acquiescing to assert the contrary, if an injury would thereby result to the person relying thereon.

<p>Case 94 — PETITION ORDINARY —</p> <p>APPEAL FROM OWEN CIRCUIT COURT.</p> <p>1. The publication complained of is a libel and therefore actionable. (Odgers on Libel and Slander, 20, 22, 23, 24, 25; Duncan v. Brown, 15 B. M., 192; Shelton v. Nanee, 7 B. M., 128; Starkie on Slander, chap. 5, page 147; Hilliard on Torts, 237; Cooley on Torts, 206, 195, 220; Chitty’s Pleading, 632; Starkie on Slander, 202, 413; Townshend on Slander and Libel, sec. 45, note 3.)</p> <p>2. The words published in this case were actionable per se, and proof of' general damage is admissible upon the trial of the case. (Odgers on ' Slander and Libel, 313.)</p> <p>1. The publication complained of is not per se libelous for the reason that the charges of ungentlemanly conduct, etc., are made by A. E. Threlkeld on the premises laid down stating the misrepresentation, and these premises do not sustain his conclusions.</p> <p>2. Mo special damage is alleged, the allegations not being sufficiently specific.</p> <p>3. Where the proprietor of a newspaper inserts in his paper matter not of his own composition, but signed and vouched for by a stranger, it would seem that the doctrine of implied malice does not apply, and ' that the injured party should be remitted to his action against the author, unless it is averred that the publisher of the newspaper was in some way connected with the writing of the article, or that he procured its publication</p> <p>The demurrer to appellant’s petition was properly sustained for the following reasons:</p> <p>1. The appellees were summoned as individuals to answer the peti- • tion of appellant, and not as partners and publishers of the Owen Nows. (Townshend on Slander, 2d Ed., sec. 303, page 501; Eollcard’s Starkie on Slander, sec. 402, page 444; Cook v. Batchelor, 3 B. &P., 150; 2 East, 426; Brothwick on Libel, 174; LeEaun v. Malcolmsen, 1 Ho. of Lds. Cas., 637; 13 Law Times, 61; Eoster v. Lawson, 3 Bing., 452; 11 Moore, 360; Haythorn v. Lawson, 3 Car. & P., 196; Pecheil v. Watson, 8 M. & W., 391; 3 Wm. Sand., 117, 6th Ed.; Society of Solictors v. Robertson, Mor. 13, 935; Sherlock v. Beards-worth, 2 Min. Rep., 19; Smith v. Oi'oker, Oro. Oar,, 512; 28 II., 8 fol. 19; Dyer v. Shipp, 53 Devens Case.) •</p> <p>2. A joint action can not be maintained by appellant against the appellees, if sued as individuals and not as partners and publishers of the Owen News. (Townshend on Slander and Libel, sec. 119, page • 153; Oliitty on Pleadings, vol. 1, page 98; Thomas v. Ramsey, 6 • Johns., 26; 17 Mass. Rep., 186; Webb v. Cecil & Yaughn, 9 B. M,, ■ 198.)</p> <p>3. The petition does not allege that the injuries complained of, and > the damages sought to be recovered, have not been satisfied. (Towns- - Lend on Slander, sees. 119, 250 and 251; Boosey v. “Wood, 3 Hurl. & Col., 484; Lain'v. Applegate, 1 Starkie, 97; Yardren v. Brook, 2 Nev. & M., 835; O’Kessin v. Barclay, 2 Pa. St. R., 531; Morleyv. Newfain Township, 8 Barh., 653; King v. Warring, 5 Esp., 13; Eiffe v. Jacobs, 1 Jebb. & S., 257; 2 Greenleaf on Evidence, 321; Campbell v. Butts, 3 N. Y., 173; Hitchew v. Campbell, 2 W. Bl. R., 827; Thomas v. Ramsey, 6 Johns., 26; ‘.Brown v. Hirly, 5 Q. B. U. O., O. S„ 734; Webb v. Cecil, 9 B. Mon., 198.)</p> <p>4. The petition does not allege that the paper wherein and whereon the alleged defamatory matter was printed was ever issued from the press, or was ever delivered to, or came into the possession of, or was read by any person whomsoever, or that by any acts or act of the appellees, or either of them, said paper was so placed purposely or carelessly that its contents could have been, or might have been, read by any one, or that the paper was ever at any time out of the possession of the appellees, or either of them, or that the appellees, or either of them, ceased to have or to exercise absolute control of same. (Townshend on Slander, secs. 101 and 108; Eolkard’s Starkie Com., 27; 2 Starkie on Libel, 13 and 14; 1 W. Samuel, 132, note 2; Phillips v. Jansen, 2 Esp. Cas., 226; Hicks Case, Hob., 215; Rex v. Wigener, 2 Starkie Cas., 245; Eora v. Warren, 15 C. B. N. S., 806; Edwards v. Wooten, 12 Rep., 35; Clutterback v. Chaffers, 1 Starkie Rép., 471; Day v. Bream, 2 Moo. & Rob., 54; Holroyd, J., Rexv. Burdett, 4 B. & Aid., 143; Taylor v. Shurgingger, 2 Rep. Con. Ct., 367; Phila., &c., R. R. v. Quigley, 21 Heind, 202; McIntosh v. Mattingly, 9 B. M., 100; Hanning v. Bassett, 12 Bush, 362.)</p> <p>•5. The author’s name was, by the appellees, given at the time and place of the’alleged publication. (Trabue v. Mays, 3 Dana, 138; Robinson v. Harvey, 5 Mon., 519; Parker v. McQueen, 8 B. M., 18; 12 Rep., 132; Mon., 821; Crawford v. Mederlite, 1 Lev., 82; Davis v. Lewis, 7 T. R., 17; Churd v. Bridgman, 6 Missouri, 190; Woolwotli v. Meadow, 5 East, 463; Haynes v. Leland, 29 Maine, 233; Abrahams v. Smith, 8 Blackf., 95; Jones v. Chapman, 5 Blackf., 88; Crain v. Douglass, 2 Blackf., 85; Cumminford v. McAvoy, 15 111., 311; Johnson v. Lance, 7 Iredell, 448; Kelley v. Dillon, 5 Ind., Porter, 426; Townshend on Slander, note to page 326; Scott v. Peebles, 10 Min., 546; Larkins v. Tartar, 3 Sneed, Tenn., 681; Jones v. Clark, 1 Cid., N. C., 397; Beusclioten v. Yaple, 13 Hen. Pr. N. Y., 97; Starkie on Slander and Libel, see note 277.)</p> <p>•6. The defamatory words, as alleged in appellant’s petition, are not “per se” libelous, therefore special damage must be, but is'not averred. (Townshend, 345, 245; Starkie, 478 and 485; Squier v. Gould, 14 Wend., 159; Strange v. I-Iitchew, 12 Ind., 64; Roberts v. Roberts, 5 B. & S., 385; Kelly v. Huffington, 3 Or. O. C., 81; Birch v. Benton, 26 Miss., 5 Jones, 155; Johnson v. Robertson, 8 Porter, 486; Barnes v. Trundy, 31 Maine, 1 Red., 321; Bostwick v. Nicholson, Kirby, 65; Bostwick v. Hawley, lb., 290: Shipman v. Burrows, 1 Hall, 399; Harcourt v. Harrison, /i.,474; Geare v. Britton, Bull N. P., 7; Wilson v. Runyan, Wright, 651; Capel el al. v. Jones, 4 C. B., 259; Rawlings el ux. v. Norbury, 1 E. & E., 341; Eoulgor v. Newcomb, 36 L. J. Ex., 169, and2L. R. Ex., 327; Robbins v. Treadway, 2 J. J. M., 541; Hart v. Reed, 1 B. M., 168; Duncan v. Brown, 15 B. M., 193; Hume v. Arrasmith, 1 Bibb, 166; Logan v. Steele, 1 Bibb, 593; -Jones v. McDowell, 4 Bibb, 189; Barr v. Ganes, 3 Dana, 258; McNamara v. Shannon, 8 Bush, 558; Russell v. Wilsonj 7 B. M., 261; Walton v. Yancy, 5 Mon., 155; Mills v. Wimp, 10' B. M., 417; Wiley v. Campbell, 5 Mon., 396; Mills v. Taylor, 3-Bibb, 469; Jackson v. Weisiger, 2 B. M., 215; Morris v. Barclay, 1 Litt., 64; Phillips v. Wiley, 2 Litt., 153; Elliott v. Ailsberry, 2 Bibb, 473; Williams v. Greenwood, 3 Dana, 433; Walton v. Grant, Sneed, 68; Olay v. Barclay, Sneed, 67; Porter v. Hughey, 2 Bibb Harris v. Smith, 4B. M. 886; Brown v. Perrin, 6 Bush, 518; Jones v. McDowell, 4 Bibb, 188; Gill vs. Bright, 6 Mon., 131; Watson v. Hampton, 2 Bibb, 319; Martin v. Milton, 4 Bibb, 99; Gibbs v. Tucker, 2 Marshall, 220; Ramsey v. Thornberry, 7 B. M.,475; Beswick v. Chapel, 8 B. M., 486; Burkett v. McCarty, 10 Bush, 759; Caldwell v. Abbey, How., 530 ; Brite v. Gill, 2 Mon., 66 ; Barton v. Wharton, Ky. Law7 Journal, vol. 1, page 341.)</p> <p>7. The amended petition does not allege special damages, nor that the words complained of were spoken of and concerning plaintiff in reference to his profession or business. (Townshend on Slander and Libel, pages 97 and 298; Eolkard’s Starkie on Slander and Libel, margin pages 35 and 36, note; 1 Menee on Libel, 333; Sedgwick on Measure of Damages, page 652; Coving-ton Street Railway Co. v. Parker, 9 Bush, 459; Trimble v. Spiller, 7 Mon., 395; Tervilliger v. Wands, 17 N. Y., 54; Wilson v. Gout, 17 N. Y., 442; Alsop v. Alsop, 5 Hurl & Nor., 534; Bedell v. Powell, 13 Barb., 183; Townshend on Slander and Libel, page 80 and note; Townshend on Slandei- and Libel, pages 81 and 616 and note; Podwick v. Witteomb, 15. Jar., 778; 5 Eng. Law and Eq. Rep., 487; Erench v. Mil., 22 Ohio Rep., 50; Douglass v. Tinsey, 2 Wend., 354; Shipman v. Burrows, 1 Hall, 399 ; Sterry v. Eoreman, 2C. & P., 592; Tilk v. Parsons, 2 0. & P., 201; Barnett v. Allen, 1 Eost. & E., 126; King v. Watts, 8 C. & P., 614; Eolkard’s Starkie on Slander and Libel, sec. 450, page 484; Wilson v. Runyan, Wright, Ohio, 651; Bassett v. Elmore, 48 Barb., N. Y., 561; Hollins v. Muzzy, 30 Yt., 365; Cook v. Cook, 100 Mass., 194; Townshend on Slander, sec. 190, page 269; Eolkard’s Starkie on Slander and Libel, sec. 439; Robbins v. Treadway, 2 J. J. M., 541.)</p>

<p>Liability op executor eou acts op uo-executor. — In the ordinary administration of estates, one of two or more representatives is not bound for the acts of another, unless he had such facts before him as would have convinced one of ordinary prudence that the assets in the hands of his co-representative were unsafe or-being wasted; and even then an executor is not liable for the acts of his eo-oxeeutor whore the .latter has been vested with title to that part of the estate in his hands, and given unlimited power over it without consulting his co-executor.</p> <p>A testator directed that his mercantile business, in which was invested a large part of his estate, be continued by his son, who was partner with him-in the business, until the youngest of the testator’s •children should arrive at age, the profits of the business to bo ascertained and declared annually, and divided between the testator’s wife .and children. It was further provided that when the son should discontinue the business the testator’s interest should bo sold as his •executors might direct, and the proceeds divided as the profits were to bo divided. The son of the testator, the widow and a son-in-law qualified as executors. The mercantile business of the testator having .become-bankrupt under the son’s reckless management, the devisees .seek by this action to hold all the executors liable. Held — That the son who managed the business is alone liable. The devisees have no claim, moral, legal or equitable, upon his co-executors.</p>

Case 96 — PETITION EQUITY — APPEAL PROM BRECKINRIDGE CIRCUIT COURT. 1. The order confirming the report of the final settlement of the accounts of the surviving partner was a final order, and the court had no power over it after the expiration of the term at which it was rendered. (Freeman on Judgments, 2d Ed., sec. 12; Bondurani, v. Apperson, 4 Dana, 30; Beatty v. Beatty, 10 Ky. Law Rep., 72.) 2.

Case 97 — AGREED CASE — APPEAL PROM PRAXKLIN CIRCUIT COURT. Where an officer, acting as an examining court, sits in more than one •case on the same day, he holds hut one examining court and is entitled to but two dollars therefor, and not to two dollars for each case. By the •change made in the wording of the statute by the act of 1886 it was not intended to return to the rule of payment by the case.

<p>1. Tax Sales. — The power to sell property for taxes is altogether stat- ■ utory, and must he strictly pursued.</p> <p>2. Same — pleading.—In an action by the original owner to recover the property from one to whom the purchaser at the tax sale has conveyed, the defendant must be treated as the purchaser at a tax sale bringing the action for possession, and he must, therefore, aver and prove that the steps necessary to a valid sale were taken, save so far as the plaintiff may, by doing so, relieve him of this necessity.</p> <p>3. Same. — It was unnecessary to aver in the answer that the property brought the full amount of the taxes. This is to be presumed, as otherwise it would have been the duty of the officer to have purchased for the State.</p> <p>4. Same. — Where the tax-payer is a non-resident of the county it is not necessary that the officer, before making a levy upon his property, should tender to him or his agent a receipt.</p> <p>5. Same. — A tax sale for anything more than is lawfully chargeable is a sale without jurisdiction, and, therefore, void</p>

<p>1. Pleading — Mistake in name. — In an action by some of the heirs oí. “ John ” Simms to obtain a sale of a tract of land which they alleged belonged to him at his death, the party in possession of the land, who was made a defendant, filed an answer denying that. “ Jack” Simms was the owner of the land at his death. Held — That the denials of the answer are responsive in such a way to the averments of the petition as to plainly show that by the “Jack” Simms named in the answer the pleader referred to the “John” Simms of the petition; and as no motion was made to make the answer more definite, it. should be treated as sufficient.</p> <p>2. Action to recover land — Pleading.—As the object of the action, so far as defendant in possession was concerned, was a recovery of the land, it was sufficient for him to merely deny title in the plaintiifs. It was not necessary for him to plead affirmatively and set up title in himself.</p> <p>3. Judgment not binding on parties not beeore the court. — The judgment dismissing the petition can not affect infant heirs who did not unite as plaintiifs, and who, although made defendants, were not before the court. Their rights were not determined.</p> <p>4. Return on summons by special bailiee. — The presumption in favor of the return of an officer upon process does not exist where the return is made by a private person as a special bailiff. There must be a substantially strict compliance with the statute in such a case.</p> <p>A return upon a summons in the ordinary form of an officer’s return, and not signed, is not sufficient as the return of a special bailiff, although followed by the jurat of an officer showing that it was sworn to by him. Such a statement can not be regarded as the affidavit of the special bailiff required by section 47 of the Code.</p>

Case 100 — PETITION EQUITY — APPEAL FROM BARREN CIRCUIT COURT. 1. In an action to enforce a lien for purchase money for land, when the contract is evidenced by title bond, the petition must allege that the vendor has good title and is able and willing to convey. (Mills v. Metcalf, 3 Littell, 421; Calvin v. Duncan, 12 Bush, 102.) 2. A lien on land is only an incident to the debt contracted by the purchaser, and can not be enforced unless both parties are competent to contract.

Case 101 — PETITION EQUITY — APPEAL PROM LOUISVILLE CHANCERY COURT. As this is a friendly suit to test the right of executors to sell and change investments of property held by them in trust under a will, counsel merely points out to the court the authorities bearing upon the question.

Case 102 — PETITION EQUITY — APPEAL FROM GREENUP CIRCUIT COURT. 1. The method of reaching the objection that an action is in the wrong court is hy motion to transfer and not by general demurrer. (Civil Code, sections 8 and 10.) 2. Where the remedy sought can be complete and adequate only in a court of equity, such court has j urisdiction to determine all matters, legal or equitable, that may be presented.

Case 103 — PETITION EQUITY — APPEAL FROM LOUISVILLE CHANCERY COURT. 1. To authorize an action quia timet the plaintiff must have legal title and! possession, and to recover must allege and prove both. (Barker v„ Warren, 6 Ky. L. R., 86; Kincaid v. Magowan, 6 Ky. L. R., 102; Wasliburn on Real Property, vol. 3, secs. 149, 150.) '2.

Case 104 —PETITIONS— APPEALS PROM ICENTOX CHANCERY COURT. 1. The collection of taxes can not be enforced by suit. If no property can be reached by distraint, or levy, or attachment, that is the end. (Johnson v. Louisville, 11 Bush, 527; McLean County v. Deposit Bank, 81 Ky., 254; Thompson v. Allen, U. S.) The remedies to enforce the collection of State taxes are full, ample and complete. (Gen. Stats., chapter 92, art. 9, section 8, p. 1073; Idem, pp. 1081, 1082, 1083.) 2.

<p>Decedents’ estates. — Money paid creditors under mistake as to solvency op estate. — A testator devised the principal part of his estate to his wife, with the request that she pay the debts of the estate out of the proceeds of a policy of life insurance made payable to her, and further providing that “after the debts are paid she will retain the amount of the estate to herself.’’ The widow qualified as one of the executors and proceeded to pay the debts out of the proceeds of the-insurance policy,until that fund was exhausted. The widow, fearing that the estate would prove insolvent, renounced’ the provisions of the-will in her behalf and claimed dower in all (he realty, and the estate having, in fact, proved insolvent, and the widow and her co-executors having resigned as executors, she now seeks by this action to recover of the creditors the amount, of insurance money paid them, upon the ground that it was paid under the belief that the estate would be perfectly solvent, and that she would be fully, indemnified out of the estate devised to her. Held — That, as the money was paid under a plain mistake of facts, and the status of the creditors has not been changed, the-widow is entitled to recover.</p>

<p>Case 106 — PETITION EQUITY —</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>1. To constitute adverse possession against a co-tenant there must be an ouster, and the adverse holding must be made known to the co-tenant. (Larman v. Huey’s Heirs, 13 B. M., 443; Riggs v. Dooley, 7 B. M., 239; Gill v. Fauntleroy, 8 B. M., 180; Young v. Adams, 14 B. M., 130; Gossom v. Donaldson, 18 B. M.,230; Wood on Limitation, sec. 266; Thomas v. Pickering, 13 Me., 337; Forward v. Dietz, 32 Pa. St., 69; Gill, &c., v. Dewitt, &c., 7 Ky. Law Rep., 387.)</p> <p>Proof of notice to the co-tenants of the adverse holding must be of a •clear and convincing character. (Glass v. Glass, 7 Ky. Law Rep., 437.)</p> <p>The taking of all the profits by the tenant in possession is not suffi•oient to indicate adverse holding. (Higbee v. Rice, 5 Mass., 351; ¡Bolton v. Hamilton, 2 W. & S., 294; Calhoun v. Cook, 9 Pa. St., 226; Chambers v. Pleak, 6 Dana, 426; 2 Cruise’s Digest, 3X81 Craise’S' Digest, 358; Starkie’s Evidence, vol. 2, 508-9.)</p> <p>The fact that the tenant in possession has mortgaged the entire property is not conclusive of adverse claim. (Wilson v. Calinshaw, 13 Pa. St., 276; Harmon v. Hannah, 9 Gratt., Va., 146.; Wood on Limitation, sec. 266.)</p> <p>The mere cutting of timber does not constitute an ouster. (Wood on Limitation, p. 560; Harmon v. Gardiner Hemp, S. C., 389; McPherson v. Seguine, 3 Dev., N. C., 153; Wait v. Richardson, 33 Vt., 190; Booth v. Adams, 11 Vt.., 156.)</p> <p>Payment of taxes is not evidence of adverse possession. (59 Iowa, 371.)</p> <p>Cases in which evidence was not sufficient to make out defense of' adverse possession. (Bryan v. City of East St. Louis, 12 111. App., 390; Flock v. Wyatt, 49 Iowa, 467; Barnes v. Byrne, 45 Iowa, 285;. Hume v. Long, 53 Iowa, 303; Alexander v. Wheeler, 69 Ala., 332.)</p> <p>2. The fact that appellants were slaves at the time the descent was cast, does not prevent them from now claiming as co-tenants. The fourteenth ■amendment to the constitution of the United States has forever done' away with all discrimination against the colored race on account of' their color or race. (Strander v. West Virginia, 10 Otto, 303; ex-porte Va., 10 Otto, 339.)</p> <p>1. The adverse holding by Jake from the death of his grandmother in 1852! . to the time the land was sold and conveyed from him by order of court in 1877, and the continued adverse holding on the part of the subsequent grantees, making in all more than thirty-three years, was of such notorious character that even though the appellants be placed on the footing of co-tenants the statute is bound to prevail. Proof of actual notice to appellants of the adverse holding was not necessary to enable appellees to avail themselves of the plea of limitation. (Farrow v. Edmundson, ,4 B. Mon., 606; Riggs v. Dooley, 7 B. Mon'., 239; Russell’s Heirs v. Mark’s Heirs, 3 Met., 4S.)</p> <p>2. Jake testifies that he was holding the land for himself and the other heirs, but this claim was never made by him until the land was sold, and the exceptions to his deposition should have been sustained as to these statements. He had no right to defame the title which he had always claimed. (Stemmons v. Duncan, 9 B. Mon., 351; Gatliff v. Rose, 8 B. Mon., 632; Merriwether v. Herran, 8 B. Mon., 167; Ring v. Gray, 6 B. Mon., 371.)</p> <p>3. The proof of heirship, is not of such convincing character as to justify the property rights of third and innocent parties being disturbed at. this late date. The burden was upon appellants of showing not only-descent, but descent from those capable of inheriting.</p> <p>4. The effect of the amendments to the constitution of the United States and of the statute of 1866 was not retroactive.</p>

Case 107 — PETITION- EQUITY — APPEAL PROM PLENIRG CIRCUIT COURT. 1. An inferior court having no jurisdiction to grant an injunction to stay proceedings on a judgment is not affected by section 285 of Civil Code requiring that such injunction shall be issued only by the court rendering the judgment. (Criminal Code, sec. 13, sub-secs. 5 and 6.) 2.