Volume 9 — Kentucky Opinions

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

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

<p>Attachment — Indorser and Surety.</p> <p>The absence of principals from the state is a ground for an attachment against the property of an endorser or surety not absent from the state or participating in any fraud.</p> <p>Surety Liability:</p> <p>A surety undertakes to pay the debt of his principal and does it with the knowledge that the law will authorize an attachment against his property if his principal does any of the acts which the law declares shall authorize such a proceeding.</p>

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

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

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

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

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

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

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

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

<p>Husband and Wife — Creditors.</p> <p>Where the wife’s father gave her money with which to buy land and she kept the money until the day of the purchase, and then gave it to her husband to pay for the land, and he promised to have the deed made in her name, but instead took it in his own name, her right to the property is superior both in law and equity to -the claims of those who have credited the husband.</p>

<p>Attachment — Landlords.</p> <p>It is held that landlords suing out attachments are not held (under the provisions of R. S., p. 99) to the same strictness of proof as parties proceeding under the code of practice to secure ordinary debts.</p>

<p>Principal and Surety — Release of Surety.</p> <p>Wltere a surety on a note is induced by the representations of the holder and obligee in the note to believe that his name was torn off and he was no longer responsible, and these representations prevented him from obtaining indemnity or securing himself, he will be released upon such note, and the release of one surety on the note will also release the other.</p>

<p>Criminal Law — Instructions.</p> <p>Where the accused is charged with forgery of a note, he cannot be convicted of altering a forged note, and an instruction to that effect is erroneous.</p> <p>Indictment.</p> <p>An indictment is defective when it attempts to charge forgery but only charges in substance that the commonwealth accuses the defendant of the crime of forgery, by forging the names of John Glenn and Hilry Bell to a note. Such a charge fails to set out how the offense was committed, and no facts are pleaded from which it may appear that a crime has been committed.</p>

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

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

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

<p>Statute of Frauds — Lease Contract Not in Writing.</p> <p>An oral contract for the lease of a farm, made in October, 1874, for one year beginning January 1, 1875, and therefore not to he carried - into full effect within the period of one year from the making thereof, is within the statute of frauds and hence unenforciblé.</p>

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

<p>Administrator — Credits Allowed.</p> <p>An administrator wlio is a creditor of his decedent should not be allowed a commission for the collection of his own claim.</p>

<p>Trespass to Real Estate — Description.</p> <p>A petition is fatally defective which fails to describe the real estate upon which a trespass is charged so as to enable the defendant to know upon what land the trespass complained of was charged, and a judgment thereon with no better description is erroneous.</p>

<p>Life Insurance Policy — Increased Hazard.</p> <p>Where the holder of a life insurance policy after receiving it becomes so far in the habit of drunkenness that he is afflicted with delirium tremens, the policy is forfeited and there can be no recovery upon it.</p> <p>Verdict of a Jury.</p> <p>Where the jury return’s a verdict in the face of the uncontradicted evidence of a credible, intelligent and unbiased witness, such verdict is palpably against the weight of the evidence and the circuit court in such a case should sustain a motion for a new trial.</p>

<p>Failure of Proof — Peremptory Instruction.</p> <p>Where a cause of action is pleaded in a petition and no proof submitted to prove it the court should instruct the jury to find for the defendant.</p>

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

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

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

<p>Administrator — Payment of Claims.</p> <p>An administrator, who pays a claim after he is notified hy those interested in the'estate that the claim had been paid in full by the decedent and it turns out that such claim had been so fully discharged, is not entitled to any credit in his final settlement for the sum thus paid on account of said claim.</p>

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

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

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

<p>Alteration of Mining Lease.</p> <p>Where a written mining lease is executed and acknowledged hut is taken away and kept in the possession of the lessee for some time before being returned for record, and when returned it has been altered in material parts, so as to give possession of the land for agricultural purposes to the lessee, the lessor is entitled to take the possession of such land for such purposes.</p>

<p>Tenants in Common — Rights of Each.</p> <p>"When land is owned by tenants in common no one owns particular portions thereof, but each owns an undivided interest in all; and a right of action for cutting timber on the land is joint and a partition between the owners does not retroact so as to give a right of action to one against another for cutting timber on the part allotted to him where the cutting took place before partition.</p>

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

<p>Administrator — Distribution—Guardian and Ward.</p> <p>Where one is administrator of an estate and also guardian of one of the minor heirs and distributes money to one of the heirs knowing that such'heir is indebted to his ward and .such debt is lost to his ward, he is liable to the ward for his negligence in failing to withold such money.</p>

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

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

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

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

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

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

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

<p>Guardian and Ward — Liability of Surety on Guardian’s Bond.</p> <p>A surety on a guardian’s bond cannot escape liability by taking the ward’s property to indemnify him against loss on account of his suretyship.</p>

<p>New Trial — Newly Discovered Evidence — Evidence.</p> <p>Where an answer sets up that the services sued for were not worth more than a certain sum and that such services had been paid for under such issues, evidence is not admissible showing an accord and satisfaction, and a new trial should not be granted on account of newly discovered evidence of an accord and satisfaction.</p>

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

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

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

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

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

<p>Liability of Guarantor on Note.</p> <p>Tbe legal effect of a contract of a guarantor on a note is that the grantor will pay the note, if the maker does not, and when the maker fails to pay at maturity the guarantor may be sued upon his undertaking.</p>

<p>Husband and Wife — Divorce—Dower.</p> <p>The husband has no. right to money paid his wife as the value of her right of dower by the judgment of the court, and when he is required to pay his wife money in and during the pendency of a divorce suit between them, he cannot recoup such payment by being allowed to take money paid to his wife as dower when his land at the suit of creditors is sold..</p> <p>Relinquishment of Dower.</p> <p>The refusal of the wife to relinquish dower cannot enure to the husband’s benefit.</p>

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

<p>Assault and Battery — Survival.</p> <p>An action for damages on account of an assault and battery does not survive, but dies witli tbe party injured.</p>

<p>Contracts — Consideration.</p> <p>The mere agreement by a creditor to release a debt or a part of a debt is not binding for the want of'consideration, but when the creditor, by reason of a new contract, obtains additional indemnity or security and in consideration of that fact releases a part of his demand such release-can be enforced.</p>

<p>Criminal Law — Jeopardy.</p> <p>Where the accused in a criminal case is placed upon trial before a jury sworn to try the issue raised by his plea of not guilty to a valid indictment, his acquittal is a complete bar to a further prosecution, but the accused should plead former acquittal instead of moving for his discharge.</p>

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

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

<p>Will — Construction of Will.</p> <p>Where a testator directs his executors to invest certain moneys bequeathed to named legatees “in some safe investment yielding interest, * * * that the executors shall exercise their best judgment in making the investment”, it was held that such executors could invest such money in real estate improved and such as will yield an income.</p>

<p>Sale of Personal Property — Warranty.</p> <p>Where there is a sale of hogs coupled with a warranty that such hogs are sound and free from disease, if at the time of the sale the hogs were inoculated with infectious or contagious disease, the warranty was false, although the disease may not have been in active operation at that time.</p> <p>Warranty in Sale of Hogs.</p> <p>Where in the sale of a lot of hogs there is a warranty that they are free from disease, the warranty extends to the lot of hogs; and the fact that the disease was infectious or contagious and was lurking in some of the hogs making up the lot is sufficient to support the verdict.</p>

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

<p>Criminal Law — Misjoinder of Offenses.</p> <p>Where an indictment improperly joined three offenses, the misjoinder is a good ground for demurrer, but the commonwealth’s attorney should in such a case be allowed to elect which charge he would prosecute and which he would dismiss.</p>

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

<p>Criminal Law — Indictment—Discharge of Defendant to Testify.</p> <p>Where two or more persons are charged in the same indictment and the court believes that the evidence as to one of such persons is insufficient to put him on his defense, the court must, on the motion of either party desiring to use such defendant as a witness, order him to be discharged and permit him to testify. Such order is an acquittal of such defendant and a bar to another prosecution.</p>

<p>Criminal Law — Obstructing Highway.</p> <p>The non-user for thirty or forty years and use of another line of road well marked and defined and Worked by the overseers is sufficient to establish the fact as between the commonwealth and the defendant that the road used was the county road, and there being evidence of these facts the defendant was entitled to an instruction presenting such- defense.</p>

<p>Criminal Law — Indictment—Unlawful Assembly.</p> <p>It is necessary to state in an indictment the acts constituting the offense, and not mere conclusions of the pleader, and to charge an unlawful assembly it was necessary to allege that the parties charged assembled with the intention to aid each other, and to charge the thing intended to be done so that the court might judge whether it was unlawful.</p>

<p>Right to Use River — Navigable Stream.</p> <p>Where the owner of the land on both sides of a stream which has been declared navigable has maintained a mill dam across it for forty years, and the legislature provided that the act declaring the stream navigable should not be so construed as to interfere with the use of the owners of the mill and dam, it is held that he has a right to remove logs of others lodging upon and injuring such dam and thus protect his property.</p>

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

<p>Criminal Law — Keeping Tippling House.</p> <p>A person indicted for keeping a tippling house and acquitted on the charge, may on the same trial be found guilty of retailing spirituous liquors within one mile of a church during divine service, but he cannot be convicted for more than one of the inferior offenses.</p>

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

<p>Appeal — Failure of Appellant to File Brief.</p> <p>Where the correctness of a long and complicated master’s report on accounts is involved in an appeal, this court, without the aid of a brief from the appellant, will not read and consider the long record to see if it can find errors upon which to reverse in favor of a party who neglects to present the grounds upon which he asks relief.</p>

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

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

<p>Suit in Equity to Collect Debts — Contents of Petition — Attachment.</p> <p>Where a creditor seeks in equity to enforce the collection of a debt he must allege that he has recovered a judgment in person against the defendant whose property he seeks to attach, that the judgment is unpaid, that he has caused execution to issue on his judgment directed to the county where the judgment was rendered or in which the defendant resides, that the execution was placed in the hands of the proper officer while in force, and that it had been returned by the officer indorsed, in substance, no property found.</p> <p>Exhaustion of Legal Remedy.</p> <p>A plaintiff in a court of equity seeking to attach property or effects of his creditor must show that he has exhausted his ordinary legal remedy for collecting his debt.</p>

<p>Taxes — Mode of Enforcing Collection of Taxes in Louisville.</p> <p>The city charter of Louisville prescribes a specific mode for the collection of taxes and the sale of real estate, when necessary, and the mode prescribed excludes all other modes.</p>

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

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

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

<p>Criminal Law — Instruction.</p> <p>In a criminal case it is error for the court to instruct the jury to consider all the facts and circumstances which the court has permitted as evidence “a.nd which may be satisfactorily proved.” It is the duty of a jury to consider all the facts and circumstances which the proof tends to establish whether they were satisfactorily proved or not.</p>

<p>Vendor’s Lien.</p> <p>Where in a conveyance of real estate the deed states the amount of the purchase money remaining unpaid the vendor has a lien upon such land for the unpaid purchase' money, and the acceptance of a note for the amount is not a waiver of the lien.</p>

<p>Mandamus — Petition—Demand.</p> <p>A petition asking for a mandate against a city to remove an obstruction in a street is insufficient wliicb fails to allege that the proper authorities of said city bad been applied to to remove said obstruction and refused to do so.. An application to the city attorney is not sufficient, for removing obstructions from streets is not one of the duties of city attorneys.</p>

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

<p>Principal and Agent — Ratification of Agent’s Act.</p> <p>A principal with full knowledge of all the facts is bound at the earliest reasonable moment to disavow the unauthorized act of his agent; otherwise in a case where a third person may sustain loss the act will become his own.</p>

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

<p>Fraud in Sale of Real Estate.</p> <p>Fraud is never presumed, but must be proved, and the burden is on one charging fraud to prove it.</p> <p>Warrant of Title.</p> <p>One who accepts a deed to land and has it recorded, in the absence of fraud or mistake, must test his title if it is disputed and be unsuccessful before he can come back on his vendor, and then must recover, if at all, on the breaches contained in his deed of warranty.</p>

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

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

<p>Bail Bond — Surrender of Prisoner.</p> <p>One who has signed a bail bond is not discharged from liability thereon by surrendering the prisoner to the sheriff, when such surrender is not accompanied with a certified copy of the bail bond as required by the statute.</p>

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

<p>Interest — Laws of Foreign State.</p> <p>When in a suit interest claimed does not exceed the rate allowed by our statutes, it is not necessary for the creditor to aver and prove the laws of the place of the contract. If by those laws the contract is usurious, that fact must be set up by the defendant as a defense.</p>

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

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

<p>Fraudulent Conveyance — Equity.</p> <p>In order to maintain an action in equity to set aside a fraudulent conveyance it is required that the creditor shall have a judgment at law and a return of nulla bona upon his execution. This is true whether the grantor or his estate is the defendant.</p> <p>Practice — Parties Defendant.</p> <p>In an action to set aside a fraudulent conveyance, after the death of the grantor, it is necessary to join as defendants the heirs and personal representatives, or if such representatives are not joined it must be alleged there are none.</p>

<p>Proof of Title to Land.</p> <p>To make out title to land sold on execution it is necessary to exhibit both the judgment and execution.</p>

<p>Estimating Value of Services — Rule.</p> <p>When courts or jurors are called upon to estimate values they may do so from their personal and private knowledge of such values.</p>

<p>Damages in Ejectment by Force.</p> <p>Where an officer holds a writ to dispossess an occupant of real estate, but before the service of the writ the owner by his employes tore out the windows and doors of the house in which plaintiff resided, and that, too, in the winter time, such oWner is liable in damages for such trespass.</p> <p>Void Writ.</p> <p>Where the transcript on appeal does not show that any judgment was entered on a verdict giving plaintiff the right of possession of real estate, a writ of possession thereon is void and acts done under it amount to a trespass, and the occupant of such real estate is entitled to recover for such trespass.'</p> <p>Forcible Detainer.</p> <p>Right of possession is the gist of the action of forcible detainer, and a verdict and judgment for restitution is a complete bar to suit for acts done in the prudent execution of the writ.</p>

<p>Public Officer — Presumptions from Actions.</p> <p>When it is the duty of a public officer to make a return showing what he did in the performance of a duty, his return is prima facie evidence of its own truth, but his return is not evidence of any other fact, and does not prove that he had authority to act.</p>

<p>Suit on Auditor’s Bond — Evidence not Admissible.</p> <p>When in a suit against the sureties on an officer’s bond it is sought to hold them liable with their principal, the acts of the principal constituting the breach of his bond must be shown, and not what the principal said in reference thereto long after the alleged breach, such statements of the principal are not admissible as evidence against the sureties.</p>

<p>Officer Failing to Settle and Perform Duty in Making Collections.</p> <p>Where it is .sought to recover from an officer money collected by bim as suck, or a breach of kis duty in not making collections, tke plaintiff must aver facts, and not kis conclusions from facts.</p> <p>Petition.</p> <p>In a suit against an officer for failing to pay over fines collected, tke petition must set out in detail tke fines tkat had been collected; and if it is sought to hold him liable for failure of duty in collecting fines, the petition must aver facts showing a breach of .duty in failing to collect.</p>

<p>Husband and Wife — Lien Note Against Husband.</p> <p>Where the wife pays off and takes up a lien note held against her husband, using'her own money for such purpose, she may retain the lien as a lien note against her husband; and his creditors are in just as good a position as if said note were still held by the original payee.</p>

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

<p>Vendor and Vendee — Sufficiency of Petition by Vendee.</p> <p>When a vendee sues to enforce a contract he must aver performance on his part, and show compliance with the conditions precedent by him to be performed or allege facts showing a sufficient excuse for not having done so.</p>

<p>Petition on Note — Exhibits.</p> <p>A petition to collect a note must state by its own allegations a good cause of action, and the absence of material allegations in a pleading cannot be supplied by the exhibits referred to by the pleader.</p> <p>Excessive Interest.</p> <p>No judgment can be legally rendered for interest at ten per cent, when there is no averment that defendant agreed in writing to pay ten per cent, interest on the debt.</p>

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

<p>Criminal Law — Plea of Former Conviction.</p> <p>Where there are two indictments against the accused, the first charging him with stealing a horse from J. B. Simpson in October, 1872, and the other with stealing the same horse from J. B. Simpson in December, 1874, and he is tried and convicted on the second charge, such conviction is a bar to a prosecution under indictment No. 1.</p> <p>Time Stated in an Indictment.</p> <p>The time when an offense is charged to have been committed is not material except to show that it was committed before the finding of the indictment, except where time is an ingredient in the offense, and hence proof that one stole a described horse in October, 1872, or in De- . cember, 1874, would warrant the conviction of the accused under either one of two indictments.</p>

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

<p>Final Judgment.</p> <p>A judgment by a court of competent jurisdiction is not only final a? to all matters determined by it; but is also final as to every other matter incident to the cause which the parties might have put in issue.</p> <p>Former Trial and Judgment Pleaded as a Defense.</p> <p>A former decree in equity between the same parties and for the same subject, even if it be only a judgment of dismissal, is a good defense when pleaded by either party.</p>

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

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

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

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

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

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

<p>Arrest of Judgment.</p> <p>The only ground upon which a motion in arrest of judgment can be sustained is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court.</p> <p>Rape.</p> <p>In a rape case the age of the female determines the punishment, and if she be under twelve years of age, neither force nor the want of consent is an essential element of the offense, but when force and want of consent are both proved, a case of rape is made out, whatever may be the age of the female.</p>

<p>Breach of Contract — Recovery of Damages — Set-Off.</p> <p>Where there is a contract for the sale of chattels, and a note is given and the contract is breached by the vendor, the damaged party may plead facts showing his damages as a set-off to a suit on said note.</p> <p>Election of Remedies.</p> <p>Where a contract for the sale of chattels is broken, the injured party may elect to sue for the contract price or for damages sustained by him by reason of the breach of contract.</p> <p>Measure of Damages.</p> <p>When a contract for the purchase of goods is broken by the vendor, the vendee may set-off the amount of difference between the price to be paid for the goods and what they were worth.</p>

<p>Suit on Officer’s Bond — Release of Sureties.</p> <p>Where in a suit on an officer’s bond, one surety has been released pursuant to the provisions of a statute, such a release will not have the effect to release other sureties.</p> <p>Sheriff’s Failure to Return Execution.</p> <p>A sheriff is not excused from making his return on an execution by showing diligence in endeavoring to collect. No matter what his diligence may have been he and his sureties are liable unless it may be shown that the execution defendant was without property in the county subject to seizure under the execution.</p> <p>Pleading.</p> <p>In a suit against a sheriff and his sureties on his bond, the defendants cannot prove that a failure to return an execution was the result of accident or oversight, when such a defense, if it be one, has not been pleaded.</p> <p>Sheriff’s Liability.</p> <p>Where executions come into the hands of the sheriff and he failed without a reasonable excuse to return them within thirty days after the return day, he and his sureties are liable for the amount thereof and thirty per cent, thereon, unless the execution defendants had no property in the county out of which any part of the executions could have been made.</p> <p>Measure of Damages.</p> <p>When a sheriff and his sureties are sued on account of the sheriff’s failure to return executions, an instruction is erroneous which directs the jury, if they find for the plaintiff, to add interest on the sums named in the executions.</p>

<p>Deed Procured by Fraud.</p> <p>A conveyance to an attorney procured by fraud from his client may be set aside.</p> <p>Attorney and Client.</p> <p>Where in a suit by a client against her attorney for an accounting and for rents, and to be relieved from a contract and conveyance made to her attorney, induced by his fraud, such client proves facts sufficient to create in the mind of the court a strong suspicion of unfairness, the contract will be set aside or the attorney be decreed to hold in trust for his client, unless he shows clearly that the contract was fairly made and is free from oppression and injustice.</p>

<p>Rescission of Contract.</p> <p>When, a suit is brought to rescind a contract and the court cannot place the parties in status quo because the land exchanged had been sold, the only equitable adjustment is to require the vendor of such land to pay back the value of the land.</p>

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

<p>Will — Construction.</p> <p>Where a testator devises a life estate to his widow and provides that after her death the one-half of his property then remaining shall be divided between his brothers and sisters, the law will give such brothers and sisters the one-half of the estate after the payment of the debts owing by the widow at the time of her death.</p>

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

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

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

<p>Criminal Law — Indictment.</p> <p>Where an indictment is not indorsed “a true bill” and signed by the foreman of the grand jury, it is not properly presented nor found, and should be quashed or dismissed.</p>

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

<p>Criminal Law — Sale of Goods by a Pedlar.</p> <p>A conviction for selling lightning rods as a pedlar cannot be sustained where the evidence show's that pursuant to an agreement the defendant furnished and put up lightning rods for one man only, on one building, and does not show whether such rods were sold at defendant’s store or elsewhere.</p>

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

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

<p>Criminal Law — Sufficiency of Indictment.</p> <p>An indictment, to be good against a motion to quash, must contain a statement of the alleged offense with reasonable certainty and distinctness, such as will apprise the accused of the facts intended to be proved against him.</p> <p>Joining Offenses.</p> <p>But one offense can be embraced in a single count of an indictment, and only such offenses as may be joined should be included in a single indictment.</p>

<p>APPEAL FROM SHELB.Y COUNTY COURT.</p>

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

<p>Assignment — Duty of Trustee.</p> <p>It is not the duty of a trustee to hear and determine the rights of a creditor of a trust estate, and the court has no authority to determine such a cause when the creditor of the estate is not a party to-the claim asserted against him by one of his creditors.</p>

<p>Practice — Fraudulent Purchase — Pleading.</p> <p>Where one is sued for purchase money of a mill, h'e may plead and rely on the fraud of the vendor in making the sale hy setting up a counterclaim for damages.</p> <p>Measure of Damages.</p> <p>Where the purchaser of a mill is sued for the purchase money, hut sets up, hy way of counterclaim, fraud in the vendor in making the sale, and establishes the same, his measure of damages consists of the cost of repairs to make the property what it was represented to he, and the fair rental value of the mill for the time he was necessarily prevented from running it.</p>

<p>Will — Decedent’s Estate.</p> <p>Where a testator directs his executors to sell all his personal estate and collect all debts due him, and out of the proceeds pay his debts and fully settle his estate, and also provided that if the personal estate should be insufficient the deficiency was to be made up by an equal charge on his devised real estate, he meant that the payment of the general legacies was to be made out of such personalty, if possible, but if not, out of the devised real estate, and under the statute, §§ 5 and 25, Chap. 21, Rev. Stat., the devisees of the real estate must contribute to pay the general legacies, the same as they would be required to pay the debts of the decedent.</p>

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

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

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

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

<p>Corporations Borrowing Money — Estoppel.</p> <p>• Where a corporation is formed to construct a turnpike road, which road it was provided should be built by the money raised by stock subscriptions, but which proved insufficient for that purpose, and the directors order the president to borrow money and execute a note, which is done, which action is thereafter ratified by the board, such corporation is liable for such borrowed money.</p> <p>Estoppel.</p> <p>A corporation which has borrowed money and used the same in completing its turnpike, is estopped from showing its non-liability to repay such loan.</p>

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

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

<p>Appellate Procedure.</p> <p>One appellee cannot prosecute a cross-appeal against another, and the attempted cross-appeal will he dismissed.</p> <p>Contract of Lunatic.</p> <p>The contract of a lunatic whether express or implied will he upheld when not tainted with fraud and when it results to his benefit and advantage.</p>

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

<p>Trusts — Trustee—Conveyance.</p> <p>Where á trust exists, and the trustee is entitled to force a .conveyance of property from the husband to the trustee for the benefit of the wife, and the husband himself becomes trustee, he may lawfully convey or have conveyed to him as trustee of his wife.</p> <p>Evidence of Judgment.</p> <p>While the record of a judgment is the best evidence of i'ts existence, a party, by not objecting, may waive the production of the best evidence and consent that its existence and contracts may be proven by secondary evidence.</p>

<p>Removal of Sheriff — Record Made by the Court — Clerk’s Certificate.</p> <p>Where the clerk certifies on appeal that the copy of the orders of the court is a full and complete copy of all the orders made in a cause, and since they could not be orders until signed by the judge, the Court of Appeals will assume that the clerk’s certificate is correct, and that such orders were duly signed.</p>

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

<p>Criminal Law — Wagering.</p> <p>Where one bets on the result of an election, and that one candidate for office will receive a greater number of votes than another, and the election is held, such action is an offense punishable by the laws of this commonwealth.</p> <p>Selection of Grand Jury.</p> <p>Where the court neglects to appoint jury commissioners to select grand and petit jurymen the marshal of the city court of Louisville, under the direction of the court, may legally summon a grand jury.-</p> <p>Deputy Marshal.</p> <p>The deputy marshal has the same power under the order of the court to summon a grand jury that the marshal has.</p> <p>Elections in Louisville.</p> <p>An election for mayor for the city of Louisville is an election held under the laws of the state.</p>

<p>Bankruptcy — Claim Against Bankrupt.</p> <p>One bolding a claim against a bankrupt cannot purchase property at the trustee’s sale and credit the amount of the purchase on his claim.</p> <p>Claim Secured by Mortgage.</p> <p>Where one has a claim secured by mortgage against property of a bankrupt, he may prove his claim in the bankrupt court, and have the property sold in such manner as that court might have directed.</p>

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

<p>Arbitration — Contents of Petition.</p> <p>The terms of a submission to arbitration should be stated in the plaintiff’s petition, to enable the court trying the action on the award to see whether the arbitrators have decided matters not submitted to them.</p> <p>Petition on Award.</p> <p>A petition on an award should set out so much of the terms of submission, with sufficient certainty, as to show that the award made is within the terms of submission, and when it fails to so state, it will be held insufficient.</p>

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

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

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

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

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

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

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

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

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

<p>Cities — Power Over Streets.</p> <p>The city council has no power to deprive itself, by contract, of the power to regulate the reconstruction of railways made necessary by changes in the character of pavements. It has the power independently of any contract with a railroad company to make reasonable and proper regulations as to the improvement of streets upon which railroads are built, and may change the grade of such streets, where necessary, for the public convenience.</p>

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

<p>Conveyance of Real Estate — Description.</p> <p>Where a description in a deed runs to the Kentucky river, it will be construed to mean to low water mark of such river.</p> <p>Unrecorded Deed.</p> <p>Whether a wife has joined in the execution of a deed or not, if such deed is never recorded it is void as to the wife.</p>

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

<p>Action for Damages — Negligence.</p> <p>Where those operating cars on a railroad track observe a person on the track, who appears capable of taking care of himself, and far enough in advance to have ample time to get off before the car can strike him, the operators have a right to presume that he will leave the track in time to avoid injury, and will not be chargeable with negligence if they act upon such presumption, resulting in injury to the person on the track.</p>

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

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

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

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

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

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

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

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

<p>Judicial Sales — Usurious Interest.</p> <p>One who- buys property at a commissioner’s sale may resell the same to the original owners at any price that may be agreed, upon, and where it is agreed that the purchasers from the buyer at commissioner’s sale shall pay to him the price paid by him, and 25 per cent interest for the time, such a contract is not for usurious interest, but is a consideration for the sale.</p>

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

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

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

<p>Execution and sale — Parties to a Suit.</p> <p>Where land has been conveyed by the owner before judgment or execution against him, and the grantee is not a party thereto, a sale of such land upon execution to satisfy such judgment is void and conveys no title.</p>

<p>Appeals — Motion for New Trial.</p> <p>Tlie Court of Appeals has no power to reverse a judgment on account of the giving of an instruction excepted to, where the error in giving such instruction was not assigned as a ground for a new trial.</p>

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

<p>Criminal Law — Indictment.</p> <p>Where there are two counts in an indictment, one charging larceny and the other for receiving stolen property knowing it to have been stolen, and a general demurrer is entered to the indictment, it is not error to overrule the demurrer if either count is sufficient.</p> <p>Sufficiency of Indictment.</p> <p>An indictment for receiving goods, knowing that they were stolen goods, is insufficient where it fails to aver that such goods had in fact been stolen.</p> <p>Indictment for Larceny Must Name the Owner of the Stolen Property.</p> <p>A charge in an indictment that the property stolen was the property of Fry, Marsh & Kinney will sustain a conviction where the proof shows that such parties jointly owned such property.</p>

<p>Trustee of an Express Trust — Appointment of Successor.</p> <p>Where one is appointed trustee by a will to hold property and pay over the interest thereon to a designated person, and resigns as such trustee, the court has power to appoint a new trustee to carry out the trust.</p> <p>Statute of Limitations.</p> <p>Wliere a trustee of an express trust is required by the trust to take and hold property and pay the interest received thereon to a named person, and executes a bond for the faithful performance of his duties, but converts the trust estate to his own use, and dies, the person appointed to succeed him may bring an action on said bond to recover the estate. In such case the cause of action never accrued to the beneficiary of the trust so as to enable her to recover the principal, and for this reason the statute of limitations cannot apply to bar the right of recovery.</p>

<p>Sale to Defeat Creditors — Pleading Against a Garnishee Defendant.</p> <p>Where a suit is brought to set aside a conveyance of real estate alleged to have been made to defraud a creditor, and the person receiving such conveyance is sued as garnishee as a regular defendant, the plaintiff must state a cause of action; and if the cause is that the garnishee defendant is indebted to plaintiff’s debtor, the petition must set up the facts showing such indebtedness — a mere conclusion of law is not sufficient.</p>

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

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

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

<p>Criminal Law — Horse Stealing — Jurisdiction of Circuit Court.</p> <p>Where one steals a horse in one county the circuit court of that county-has jurisdiction of the offense.</p>

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

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

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

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

<p>Ejectment — Evidence of Title.</p> <p>Possession is evidence of title. It may be explained away by evidence, but in the absence of all other evidence the fact of a plaintiff in ejectment having been once possessed of the land will be sufficient, prima facie, to authorize a recovery against an intruder on that possession.</p> <p>Proof of Former Possession.</p> <p>Where proof of former possession in an ejectment suit establishes a prima facie right of recovery it follows that plaintiff must recover unless the defendant can show a better title in himself or outstanding in another.</p> <p>Color of Title.</p> <p>One having color of title cannot be ejected by a plaintiff who is himself without title, but who relies solely upon his former possession.</p>

<p>Title by Prescription — Adverse Possession.</p> <p>While adverse possession of real estate under claim of ownership based on a colorable title may ripen into a good title, one who enters as tenant under another cannot hold adversely to the rightful owner.</p> <p>Estoppel.</p> <p>One buying possession from a mere squatter, who has no claim of title, is not estopped from disputing the title of his grantor, where such purchaser bases his title upon some other fact.</p> <p>Possession as Evidence of Title.</p> <p>Possession is prima facie evidence of title, and one who asserts title against one in possession has the burden of showing title in himself.</p>

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

<p>Pleading — Promissory Note.</p> <p>A complaint on a promissory note is insufficient to support a judgment when it fails to aver an indebtedness or a promise to pay on the part of a defendant.</p> <p>Pleading Conclusions.</p> <p>In a complaint on a promissory note it is pleading only a legal conclusion to aver that the defendant executed his note.</p> <p>Necessary Averments.</p> <p>A plaintiff, in order to recover on a note, must aver in his pleading that the defendant is indebted to him or owes him something and has promised to pay it.</p>

<p>Pleading — Set-Off.</p> <p>Where a judgment is pleaded as a set-off, the court will look to the pleadings to see what was in issue; and whatever might have heen adjudged to the parties on the pleadings, if sustained by proof, is conclusively settled by the judgment whether any evidence was offered or not.</p> <p>Former Adjudication.</p> <p>In case the trial court considers a set-off well pleaded or considers it not well pleaded and did not decide against the party pleading it, on the ground that his pleading was bad, the plea of former adjudication is properly sustained.</p>

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

<p>Married Women — Dower Release.</p> <p>A married woman, who joins in a mortgage on her husband’s real estate thereby divests herself of dower therein the same as if she joins in a deed conveying such property. Her right to dower in mortgaged property where she has joined in the mortgage is subject to the rights of the mortgagee.</p>

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

<p>Partnership — Liability of Partners.</p> <p>A member of a partnership may bind his firm to pay for articles such as the firm deals in where he buys in the firm name, although as between the partners he has no such right. If he buys in his own name such articles as the firm deals in and turns them into the firm, the seller may hold the firm for the price.</p> <p>Ratification.</p> <p>A ratification of a purchase made by one member of a firm presupposes the purchase in question to have been done without competent authority from the firm. If one member of the firm contracts in the name of the firm, although he then had no authority to bind his co-partners, they may, by ratifying it, become bound as if the partner who made the contract had possessed authority at the time to make it.</p>

<p>Injunction — Confirmation of Sale.</p> <p>One who bids in real estate at a judicial sale bas no right to cut and remove timber on the land before such sale is confirmed, and may be enjoined from doing so.</p>

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

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

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

<p>Landlord and Tenant.</p> <p>A tenant at the expiration of Ms lease has a lien on the ground for his improvements, where they were erected by the tenant at the instance of the lessor 'with the express agreement that he was to pay for them at the end of the term.</p>

<p>Sheriff — Liability of Sheriff’s.Bondsmen.</p> <p>Where a sheriff has no authority to collect money, his sureties on his bond as sheriff are not liable for the sum thus collected. To render such bondsmen liable the sheriff must have collected the money in his official character by virtue of executions issued and delivered to him.</p>

<p>Promissory Note — Usury.</p> <p>The surety on a promissory note has the right to have all payments made on the note applied as credits.</p> <p>Practice.</p> <p>Where in a suit on a note the law and the facts are submitted to the court its judgment thereon is final, and may be appealed from without first making a.motion for a new trial; such preliminary step is only necessary in cases where trials have been had and verdicts rendered by a jury.</p>

<p>Husband and Wife — Homestead.</p> <p>Where a wife joins with her husband in a deed absolute on its face, but which is in fact a mortgage, she releases her dower, but such an instrument will not be a waiver of the homestead.</p>

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

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

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

<p>Attachment.</p> <p>Before a judgment creditor can successfully attach and subject the property of his judgment debtor to the satisfaction of his claim, he must have execution on his judgment and a return of no property found for such part of the judgment as the creditor seeks to have satisfied by his attachment.</p> <p>Judgment — Description of Real Estate Adjudged to be Sold.</p> <p>Where a judgment for the sale of real estate fails to describe the land adjudged to be sold, such judgment will be reversed.</p>

<p>APPEAL PROM BOWLING GREEN POLICE COURT.</p>

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

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

<p>Common Carrier — Liability of Express Company.</p> <p>Where in a suit against an express company for failure to deliver a parcel, the company offers no excuse for its failure to deliver the package, the court properly instructed the jum' to find for the plaintiff for the full value of the package.</p> <p>Burden of Proof.</p> <p>When a suit is brought against an express company for failing to deliver a package, and the failure is proved, the burden to show the terms of the contract fixing the value of such package is on the company, and when it fails to aver and prove such contract the plaintiff is entitled to recover the actual value of such package.</p>

<p>Statute of Limitations.</p> <p>The statute of limitations is a complete bar to an action to set aside a deed- for fraud, where the deed was made and delivered more than ten years before the suit was commenced.</p>

<p>Judgment — Adjudication.</p> <p>Where in a suit in equity the chancellor orders one of the parties to pay into court certain money for the use of the other party and the judgment and order is affirmed in this court, the matter is finally adjudicated and it is too late for- such defaulting party to further question the authority of the court to compel such payment.</p>

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

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

<p>Summons — Service of Process.</p> <p>A summons served against tlie councilmen of Uniontown will not require the Uniontown Board of Common Council to appear and answer.</p>

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

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

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

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

<p>Title of Real Estate by Prescription — Adverse Possession.</p> <p>Where patent to real estate is given in 1794 and there has been no possession or well established boundary under such patent, and one takes actual possession under a patent to him dated in 1852 and holds the same under a claim of title, and holds possession adversely and continuously for more than twenty years, he cannot be dispossessed by one claiming ownership under the older patent.</p>

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

<p>Real Parties in Interest — Assignee May Force Payment for Benefit of Creditors.</p> <p>There is no error in permitting a judgment to he enforced in the' name of the real parties in interest, or in authorizing an assignee to dispose of the property in controversy under the order of the court. Such assignee is entitled to coerce payment for the benefit of creditors.</p>

<p>Pleading — Sufficiency of Petition Declaring Upon Debt.</p> <p>A petition for compensation or for the value of services rendered, to be sufficient, must aver that the debt sued for is unpaid and that the compensation on account of services rendered, for which suit is brought, was rendered at the instance or upon the request of the defendant, or that he promised- to pay for them.</p> <p>Pleading in Assumpsit.</p> <p>It is a rule of pleading in assumpsit that a promise must be alleged, or in lieu of it facts from which the law will imply a promise, and that a pleading is bad which can only be supported by inconclusive deductions from the facts averred.</p>

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

<p>APPEAL» FROM HOPKINS CIRCUIT COURT.</p>

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

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

<p>Principal and Agent — Ratification by Principal.</p> <p>Where the cashier of a bank is directed by another bank to buy for it a note if he thinks the collateral offered is good, and he does think so and makes such purchase, and the note is not paid at maturity or at all, and the collaterals prove of no value, and the makers of the note become insolvent, where such note became due on November 1st, being in the hands of such cashier, who delivered it with the collaterals to the purchasing bank in December following, who received it, knowing all the facts and that the makers were insolvent and the collateral valueless, and did not at any time thereafter offer to return it or make any effort to collect it, such bank thereby ratified the action of its agent, the cashier, who bought the note for it, and cannot recover from such cashier or his bank on the theory that it had been misled by the purchasing cashier as to the sufficiency of the security, and thereby wrongfully induced to purchase said note.</p>

<p>Partnership — Trust Estates.</p> <p>Where a settlement is made between partners at a given time and profits are divided between them, the partnership not being indebted at the time, one partner may invest his money thus received in land for, his wife and children, and the same cannot be reached by creditors whose claims accrued after the date of said partnership settlement.</p> <p>Partnership Creditors.</p> <p>Where a partnership becomes indebted, and after such indebtedness is incurred one partner draws funds from the firm and improves or buys real estate for his children, such property may be subjected to the payment of such creditors.</p>

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

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

<p>Attachment and Garnishment.</p> <p>Where one summoned as a garnishee answers that the defendant is claiming from him a large sum of money, but as a fact he owes him nothing, the plaintiff by appropriate pleadings may litigate the question of whether such garnishee is indebted to the defendant, but where he fails to do so he is not entitled to a judgment against such garnishee.</p> <p>Judgment.</p> <p>No legal judgment can be entered against a garnishee, where proper pleadings are not filed and the issue tried against him.</p> <p>Garnishee — Compromise.</p> <p>When one is served with a summons as a garnishee, while answering that he owes the defendant nothing, he cannot he allowed to compromise with the defendant and pay him a less sum than he claims and thereby defeat attaching creditors. Whatever sum he agrees to pay in such compromise should he held for the attaching creditors.</p>

<p>Sunday — Note Signed on Sunday.</p> <p>A note signed on Sunday when neither the obligees nor their agent was present or had any knowledge that it had been signed on Sunday, was not thereby rendered void. ■</p>

<p>Change of Venue.</p> <p>A change of venue in a civil proceeding is allowable in cases triable by a jury, but where a ease is appealed from the county court to the circuit court, the questions open for consideration are to be tried by the court, and not by a jury, and therefore an application for a change of venue should be overruled.</p>

<p>Ejectment.</p> <p>A suit in ejectment is a legal- action and not one in chancery.</p> <p>Equity Jurisdiction.</p> <p>Confusion of boundary is a well established head of equity jurisdiction, but it is not every dispute as to boundary that confers jurisdiction on courts of equity. It is necessary that there should be some peculiar equity in the cause itself.</p>

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

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

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

<p>IDamages — Negligence.</p> <p>In case of damages caused by the wreck of a boat the owner is only liable where the wreck was caused by his own negligence or carelessness. Where the wreck is caused by the carelessness of an employe, the owner is not liable unless he was himself guilty of negligence in leaving such employe in charge of the steering oar.</p>

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

<p>Wills — Capacity to Make Will — Credibility and Weight of Evidence.</p> <p>Where the soundness of mind of a testator is involved in a trial the court has no right to instruct the jury as to what weight it should give certain classes of evidence. The jury alone is required to determine what weight it will give to evidence.</p> <p>Opinion Evidence.</p> <p>The test of the value of opinion evidence as to the soundness of mind, in cases where it may be admitted, must depend upon the knowledge the witness has of the facts necessary to form a correct opinion and the capacity of the witness to deduce right conclusions from the facts.</p> <p>Wills — Character of Attesting Witnesses.</p> <p>Evidence of the good character of attesting witnesses to a will is not admissible, where their character has not been assailed.</p>

<p>Bastardy — Liability of Bondsmen.</p> <p>Where a bond for the appearance of a defendant is not conditioned that he would perform the judgment of the court, the bondsmen are only held to the stipulations of the bond, and cannot be held liable on such bond because of the failure of the defendant to perform the judgment of the court.</p>

<p>Foreign Guardian.</p> <p>When a non-resident minor Pas no guardian in tbis state bis guardian, appointed and qualified according to tbe laws of tbe state where sucb minor resides, may, by petition to tbe county court having jurisdiction to appoint a guardian, be authorized to sue for, collect and remove any personal property of tbe minor, or otherwise act as a guardian appointed here.</p>

<p>Receiver — Railroad Mortgage.</p> <p>The validity and effect of railroad mortgages must he determined hy their respective charters, so far as they supersede general laws, hut the general laws will always he applied to the construction of general contracts, unless they are superseded hy special legislation.</p>

<p>Criminal Law — Homicide—Opinion Evidence.</p> <p>It is impossible to always prove by direct testimony tbe identity of a person or object, and witnesses in identifying a corpse are allowed to express their beliefs or give tbeir opinions as to such identity, or even to deduce inferences respecting the fact in question from other facts, provided these facts are within their personal knowledge.</p>

<p>Criminal Law — Drunkenness—Insanity.</p> <p>Tke mere fact tkat a person charged with crime had been an excessive drinker for a number of years is not such evidence of insanity requiring the court to instruct the jury on that subject, especially where the evidence showed that at the time of the commission of the crime such defendant was able to discriminate between right and wrong.</p> <p>Instruction — Self-Defense.</p> <p>Where there is evidence tending to show that the accused in a criminal case charged with cutting another was acting in self-defense, the court should instruct the jury on the law of self-defense.</p>

<p>Criminal Law — Instructions.</p> <p>In a case where the accused is indicted for malicious shooting and wounding another, and there were witnesses present, and all the evidence shows that the accused shot the prosecuting witness in the back without such witness even knowing of his presence, it is not error for the trial court'to refuse to instruct the jury as to the legal effect of crime committed under sudden heat and passion.</p>

<p>Railroad Company Franchise — Right of Property Owner to Recover Damages.</p> <p>Where the franchise of a railroad company gives it the right to operate its cars on a street on tram rails to he laid in the center of the street, and to run freight cars over the same only at night, hut it lays its track in the side of such street, using T rails instead of tram rails, and runs its freight cars both in the day time and night time, it is liable to a property holder who is effected injuriously and damaged in a way not sustained by the general public.</p>

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

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

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

<p>Attachment — Lien on Real Estate.</p> <p>One must establish his claim and that his adversary is indebted to him before he can successfully fasten an attachment lien on real estate.</p> <p>Evidence.</p> <p>When no demand is made on a claim for fifteen years, during all of which time the alleged debtor was solvent, and no explanation is given for such delay, it affords strong evidence of the non-existence of such claim.</p>

<p>Real Estate Boundary — Evidence.</p> <p>Evidence of reputation is admissible to establish an ancient corner or boundary but it is not evidence of reputation for a witness to say that he ascertained from others that a certain point was a boundary. It is the province of the court and not of witnesses to weigh the evidence and draw conclusions, except where witnesses testify as experts, when they may sometimes give opinions on questions of fact.</p>

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

<p>Landlord and Tenant — Landlord’s Lien on Crop — Waiver.</p> <p>A landlord has a lien on his tenant’s crop, and an attempt by contract to secure a lien on a horse is not a waiver of. the statutory lien.</p> <p>Lien of Landlord.</p> <p>The fact that a landlord has contracted for additional security is not enough to show that he intended to waive a lien given to him by the statute.</p>

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

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

<p>Criminal Law — Homicide—Admissibility of Evidence.</p> <p>When an accused is on trial for murder an indictment against him for carrying concealed a deadly weapon is not admissible in evidence against him, and even if it were competent evidence for any purpose it should have been proved by the record and not by verbal testimony.</p> <p>Competency of Witness.</p> <p>Where two persons are jointly indicted for the same offense the statute provides that each shall be a competent witness for the other un- . less the indictment charges a conspiracy.</p> <p>Code of 1877 — Practice.</p> <p>A criminal trial held after January 1, 1877, should have been conducted in all respects according to the provisions of the Code of 1877, notwithstanding the offense may have been committed prior to that time.</p>

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

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

<p>Guardian and Ward — Ward Has No Preference Over Other Creditors.</p> <p>Where a guardian converts the money of his wards to Ms own use, such wards have no preference over other creditors in the collection of their claims out of the property, of such guardian.</p> <p>Settlement of an Estate Under- a Deed of Trust.</p> <p>In the settlement of an estate under a deed of trust for the payment of debts, where some claims of creditors are older and some younger than the homestead exemption law, there should be a pro rata distribution of all the debtor’s estate, except the homestead, among all the creditors, and if this fails to satisfy all the debts, those whose debts are older than such homestead laws are entitled to have a sale of the homestead in satisfaction of the balance due them.</p>

<p>Criminal Law — Evidence—Dying Declarations.</p> <p>In order to make a dying declaration admissible, the deceased must have believed, at the time it was made, that he was at the point of death. He must have been at the time without hope or expectation of recovery.</p>

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

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

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

<p>Sheriffs — Bonds and Duties of Deputy.</p> <p>It is the duty of the sheriff to collect and pay over the state revenue and county taxes due from the taxpayers of the county; and where he appoints a deputy, and such deputy gives a bond to his principal, conditioned that he will collect and pay over such revenues, and he fails to do so, it is no defense in a suit on such bond that the taxpayers from whom he had not collected were solvent, and required his principal to collect the same. The covenants of such deputy’s bond required him to collect the taxes, and where he failed to do so he and his bondsmen are liable on such bond.</p>

<p>Trustee — Removal Out of the State.</p> <p>A trustee who receives conveyance of real estate by an ordinary deed, upon trust for a third person, does not vacate his office as trustee by removing from the state.</p> <p>Set-Off.</p> <p>An account or other demand pleaded as a set-off must be stated so definitely that court may render judgment on the pleading.</p>

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

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

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

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

<p>Ante-Nuptial Contract — Creditor’s Rights in Property.</p> <p>Where a woman owns a store, and an ante-nuptial contract provides that it shall remain her property, and such store is conducted after marriage, the earnings of the wife under such a contract from the conduct of said store, as between her and her husband’s creditors, can be subjected to the debts of the husband. The equity of the wife can only extend to the value of the stock on hand at the time of the ante-nuptial contract.</p> <p>Husband and Wife — Creditors.</p> <p>When the wife undertakes to trade as a feme sole under an ante-nuptial contract, her services, or rather the profits made by her, are subject to the claims of her husband’s creditors.</p>

<p>ILien of Purchase Money — Waiver of Lien.</p> <p>The taking of security for the purchase money for land at most only creates a presumption of an intention to waive the lien given by the law.</p> <p>Lien Reserved in Deed.</p> <p>Where a lien for the balance of purchase money is reserved in the deed, the taking of personal security also is not a waiver of such lien.</p> <p>Waiver of Purchase-Money Lien.</p> <p>When a deed conveying real estate has not been recorded, the purchaser of the notes for the balance of purchase money, with no notice that a deed had been made or of what it contained, who surrenders such notes, taking new ones with personal security, and the debtor represents to him that the land is good for the debt, does not, by taking such security,' waive his right to hold also the lien for the balance of the purchase money of such land.</p>

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

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

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

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

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

<p>Trustee — Executor, Duties of.</p> <p>Where one was appointed as executor and also as trustee of some of the legatees, it became his duty as executor to ascertain the amount of the bequest to himself as trustee, and having done so it was his duty thereafter to hold that sum as trustee, and for a breach of such duty he and his estate are answerable, and a demand against him or his estate for such trust money is not a claim against the estate from which it came.</p>

<p>Purchaser of Real Estate — Duty to Protect Title.</p> <p>It is the duty of a purchaser, in possession of real estate, who bought with notice of an attachment lien, when he holds money due his grantor, to protect his title and possession hy using so much of the money then due his grantor as was necessary to satisfy such attachment lien.</p>

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

<p>Pleadings — Evidence.</p> <p>The facts constituting a cause of action or defense must be stated in the petition or answer, and facts not pleaded will be unavailing, although well established by the evidence. When an issue is not formed by the pleadings, evidence of facts is unavailable that would be potential if such issue were made.</p>

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

<p>Criminal Law — Evidence.</p> <p>It was error for tlie court to permit the prosecuting witness in a criminal case, who claimed to have been ravished by the defendant, to state to the jury what she told her husband, as to the alleged occurrence, the defendant not being present at the time.</p> <p>Cross-Examination of Witness.</p> <p>The defendant in a criminal case should be permitted by his counsel to fully cross-examine the prosecuting witness as to what the defendant did and said at the time of the occurrence of the offense, and it is reversible error for the court, on its own motion, to interfere with the cross-examination and to excuse such witness from answering the questions propounded to her; such a course was prejudicial to the substantial rights of the accused.</p>

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

<p>Cross-Appeals — Practice.</p> <p>A cross-appeal can only be prosecuted by an appellee against an appellant. Appellees cannot prosecute cross-appeals against eactL other.</p>

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

<p>Criminal Law — Robbery and Larceny — Instruction.</p> <p>Robbery and larceny are not degrees of the same offense. They a,re distinct offenses.</p> <p>Indictment.</p> <p>An indictment for robbery is good whether the notes charged to have been taken were lawful currency of the country or not. If such notes are of any value the party committing the offense is guilty.</p>

<p>Motion to Strike Out Parts of Petition.</p> <p>The refusal of the court to strike out parts of a petition under some circumstances is not such an error as will affect prejudicially the substantial rights of the defendant.</p> <p>Consideration of Church Subscription.</p> <p>The establishment of a church is a sufficient consideration to sustain a promise contained in a church subscription.</p>

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

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

<p>Officers — Neglect of Duty by Officers — Reduction of Salary on Account of Neglect of Duty.</p> <p>Under the state constitution which provides that it shall be the duty of the general assembly to regulate by law in what cases and what deductions from the salaries of public officials shall be made for neglect of duty in their official capacity, no legislation can be had by which the salary of a public officer can be lessened except for neglect of duty; and an act which provides for such deduction of salary, but which does not provide a way of ascertaining that he is neglecting his duty, is void.</p>

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

<p>Mortgage — Land Held in Trust — Proof.</p> <p>Where one takes a mortgage on a horse and some land to indemnify him from loss by becoming surety for others, and has to pay the debt, he may foreclose such mortgage; and where the mortgagors claim they were not the owners of the property when they executed the mortgage, but the proof fails to sustain their claim, such defense fails.</p>

<p>Appeal — J urisdiction.</p> <p>The Court of Appeals has jurisdiction of an appeal when the amount demanded either by the plaintiff or defendant is over fifty dollars.</p>

<p>Liability of Bail — Surrender of Principal.</p> <p>The obligation of one who acknowledged himself bound on a bail bond is that he will have his principal in court, and he cannot escape liability by showing that his appearance in court was prevented by his being lawfully arrested by the United States government.</p>

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

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

<p>Criminal Law — Coffeehouse Licenses.</p> <p>While county courts, pursuant to the act of February 17, 1866, were authorized to take bonds of coffeehouse keepers, such courts were not authorized to grant coffeehouse licenses.</p>

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

<p>APPEAL, FROM McCRACKEN COURT OF COMMON PLEAS.</p>

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

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

<p>Criminal Law — Indictment and Proof — Permitting Gaming.</p> <p>Where the defendant and another are charged with unlawfully suffering and permitting gambling to be conducted on premises in their occupation and under their control, and the proof shows that the defendant alone occupied and had controlled the premises, there can be no conviction.</p>

<p>Torts — Practice.</p> <p>After a defendant in a damage suit has filed his answer, he cannot then object that the action had been irregularly docketed. ■</p> <p>Pleading — Instruction.</p> <p>It is not necessary in a petition for damages to make an itemized statement of the injuries, and an instruction is not erroneous that the jury might consider as an element of damages the destruction of plaintiff’s rails, even though the petition did not specify the amount of damages he had sustained on this account, but did ask for damages on account of all the injuries complained of in the sum of $2,000.</p>

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

<p>Criminal Law — Indorsement of Indictment — Statute Directory Only.</p> <p>The failure to indorse on an indictment the names of the witnesses examined before the grand jury is no sufficient ground for dismissing the charge. The statute requiring such indorsement is directory only.</p> <p>Instructions.</p> <p>An instruction in a case where the defendant- was charged with suffering a named person, and others whose names were unknown to the grand jury, to drink and tipple in defendant’s tavern-house and on his premises more than was necessary, was held misleading which charges that if any of the persons named had been seen in defendant’s tavern drunk or in a state of intoxication the law presumes that they were made so- by drinking and tippling at defendant’s bar, and they should find him guilty unless they should further believe from all the proof that they obtained the liquor and drinks from other places, and if they shall so believe they should acquit. It is not incumbent on the defendant to -prove where persons drunk in his house got the liquor which caused their intoxication in order to escape the prima facie presumption that it was drunk in his house. It is enough if he proves that they did not get it or drink it in his house.</p>

<p>Husband and Wife — Creditors of Husband — Creation of Separate Estate.</p> <p>Tbe wife’s property, being tbe proceeds of ber labor or tbe result of ber business transactions, is liable for tbe husband’s debts. Tbe only way a separate estate may be created in tbe wife so as to permit ber to carry on a trade or use profits in ber own right is to follow tbe steps provided by tbe act of 1866.</p>

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

<p>Husband and Wife — Property Acquired by Wife.</p> <p>A husband may at any time exercise his marital right to reduce to possession the estate he has permitted and assisted his wife to acquire, and where she dies first he takes it as survivor, notwithstanding it had been his intention that she should hold, own and control it at her discretion; but where he does not exercise this right and has no creditors, after his death his personal representatives cannot defeat his intention and wish by making an election and exercising a right which vested in the husband alone, and which, from its personal character, could not survive his death.</p>

<p>Pleading — Practice.</p> <p>Where it is necessary that a claim sued for should he verified and it was not verified, objection should be taken thereto by rule before answer; and the objection cannot be made for the first time in this court.</p> <p>Costs on Appeal.</p> <p>The cost of one copy of the record on appeal, if procured from the clerk of this court by the successful party, may be taxed as costs, and the fee of the clerk, for making a copy for a party who has given surety for costs is “costs” within the meaning of his bond.</p>

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

<p>Officer’s Writ to Take Property — Where Property Delivered.</p> <p>Where an. officer has a writ to take possession of personal property the order of delivery may be directed to another county than that in which the action is pending.</p> <p>Writ — Protection of Officer.</p> <p>Where plaintiff executed a bond to the defendant and under a writ secures the possession of personal property, if he fails in his action the defendant may recover on such bond, but the officer who serves the writ is fully protected thereby.</p>

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

<p>Husband and Wife — Homestead.</p> <p>During the lifetime of the husband the wife has no such right to a homestead in his land,' as will authorize her to demand its allotment without the concurrence of the husband.</p>

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

<p>Wills — Construction—Advancements.</p> <p>Where one advanced to his son certain property and the son after-wards conveyed said property to his father to hold in trust for said son’s children, and at the death of said father by his will he appoints another as such trustee and directs said trustee that as the children of his said son became twenty-one years old or marry that their father and mother divide the property with them by the consent of the trustee and by the terms of said will, he further provided that “I will to my son, W. C. Jones, the tract of land on which he now lives'! containing two hundred and eighty acres, more or less, and a negro girl by the name of Jane. * * * Now all the foregoing property of land and negroes and other property, etc., I leave to the legal heirs of William and Polly, for which I charge him two thousand dollars,” it was held that the will gave to the heirs of W. S. Jones (his son) the property named in the clause of the will referred to, to the children of his son, W. .C. Jones, and charged two thousand dollars as an advancement to said son which sum should he deducted from other property inherited from said father, which was not disposed of by the will.</p>

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

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

<p>Mortgage — Conveying Absolute Title — Wife’s Dower and Homestead Interest Waived.</p> <p>Where a husband and wife unite in a mortgage by which they convey the absolute title, conditioned that the title will revert upon the payment of the debt the mortgage secures, such a conveyance deprives the wife of all interest, both dower and homestead.</p>

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

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

<p>Criminal Law — Conviction Pleaded in Bar.</p> <p>Where in a charge against a defendant for keeping a tippling house on a specified day, the commonwealth’s attorney asked the court to charge the jury that a selling at any time within the year constituted the offense, and the charge was given and the defendant convicted, the verdict and conviction may be pleaded in bar to a prosecution under another indictment for the same offense at another time during the same period covered by the court’s charge.</p>

<p>Corporation — Donation of Stock.</p> <p>A majority even of the members of a corporation have no power to make donations of its capital stock unless sanctioned by its charter.</p> <p>Sufficiency of Petition.</p> <p>The absence of a promise to pay renders a petition, in a quantum meruit count in assumpsit, bad.</p>

<p>Usury — Deed Held as Mortgage.</p> <p>Where pursuant to a judgment and execution one’s real estate is advertised for sale and a third party agrees to buy the property at such sale and hold it for the judgment debtor, and to convey it to him upon the repayment of the amount paid, with interest at ten per cent., such purchaser does not become the owner of such property, but holds a lien upon same, and .cannot collect ten per cent, interest on his claim because usurious. He is entitled to recover the sum advanced and six per cent., and to enforce his lien.</p>

<p>Conveyance to Defraud Creditors — Innocent Purchaser.</p> <p>One who is an innocent purchaser for value of real estate, and who has no notice or knowledge of the grantor’s intention to prefer one creditor over another, secures a good title, and one that cannot be questioned by creditors of the grantor.</p>

<p>Chancery — Judgment—Fees of Commissioner.</p> <p>The chancellor is not authorized to increase the claim of the creditor against the debtor by allowing two per cent, on the aggregate sum due.</p>

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

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

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

<p>Alteration — Burden of Proof.</p> <p>Where the paper sued upon shows on its face that the name of a person apparently an obligor has been endorsed, the alteration, if made by the holder, released the obligor. The burden is on the holders of the paper to explain the erasure or mutilation.</p>

<p>Rescission of Contract.</p> <p>When one purchased real estate verbally and his vendor refused to comply with its terms by an offer to convey, there should be judgment rescinding the contract.</p>

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

<p>Trust Estate — Deed of Trust.</p> <p>One who conveys to “A” a parcel of real estate in trust for “A’s” wife, and consents to look to “A” individually for the purchase money, and accepted his individual notes therefor, must abide by that arrangement, and cannot reach the trust estate. An assignee of such notes is in no better position than his assignor.</p>

<p>County Paupers — Recovery for Services to the Poor.</p> <p>The maimer in which charity is to he bestowed on the county’s poor is left to the county court, and there is no implied promise that the county will repay one who has expended money for the poor.</p> <p>Services Voluntarily Rendered.</p> <p>No allowance for services voluntarily rendered in the support of the poor by a citizen can be demanded as a matter of right from the county court.</p>

<p>Mortgage Liens — Other Creditors.</p> <p>Where a first mortgage lien is to secure the principal and interest at a given rate in a renewal of the notes, the parties thereto cannot, as against other creditors and lienholders, agree to an increase of the interest and thereby enlarge the debt.</p> <p>Lien of Taxes.</p> <p>The estate of the debtor is bound for the payment of taxes, and the officers paying them should be subrogated to the rights of the state or county.</p> <p>Collection of Taxes.</p> <p>In the collection of taxes the sheriff has no right to proceed against the land until the personal estate is exhausted.</p>

<p>Husband and Wife — Conveyance from Husband to Wife for Love and Affection — Creditor’s Rights.</p> <p>Where a husband, being indebted, voluntarily conveys his real estate to his wife for no other consideration than love and affection, his creditors have the right to subject such real estate to the payment of their claims.</p>

<p>Contract — Promissory Note — Sufficiency of Petition.</p> <p>The filing of the note or a copy thereof as a part of the petition will not obviate the necessity of setting out the promise or agreement. It is necessary to aver a promise or agreement to pay.</p>

<p>Exemption Against Execution.</p> <p>If an execution debtor has not a sufficiency of provision to sustain bis family one year, the officer collecting tbe execution must make up tbe deficiency of exempted property by setting apart to tbe debtor “so mucb of tbe live stock suitable for tbe purpose, and of tbe growing crop, if any, as may be necessary to supply it.” Held, that mules, borses, etc., cannot be taken out because unsuitable for food, and for tbe same reason tobacco, cotton and crops of tbat character cannot be claimed by tbe debtor.</p>

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

<p>Mistake of Acreage in Conveyance — Suit Against Grantors on Deficit of Land.</p> <p>Where persons who are endorsers for another receive conveyance of land from him to indemnify them on account of such indorsement compromise with the creditor by conveying the land to him and making payments, besides for a full discharge from such debt, and after this has stood more than ten years it is discovered that there- is a less number of acres than was thought to be in the conveyance, it is too late to correct the mistake in a court of equity, especially since the grantors received nothing for making the conveyance except the release of a part of them upon indorsements. •</p>

<p>Criminal Law — Lost or Stolen Indictment.</p> <p>"Where one is indicted for the illegal sale of liquors and the indictment is abstracted from the clerk’s office, and after one year such person is reindicted, and in the indictment it is stated it was to take the place of the missing indictment, it was proper to charge the jury that, if the offense was committed within one year prior to the finding of the first indictment, the accused was guilty.</p>

<p>Deed Construed to be a Mortgage.</p> <p>A deed absolute on its face may be shown to have been executed as a mortgage and to secure a debt.</p> <p>Direction of Sale of Land.</p> <p>It is the better practice for the court to direct the time and place of sales of real estate ordered by it; still the mere omission -to direct when the land should be sold is not a reversible error.</p>

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

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

<p>Suit to Settle Estate — Injunction Against Creditors.</p> <p>Where decedent died soon after he was served with a summons by a creditor, and no further steps were taken, and the executor brought a suit to settle the estate and procured an injunction against creditors bringing actions on their claims, it was the duty of such creditors to appear in the suit brought to settle the estate, and not otherwise; and the creditor who had procured service on decedent can take no other steps in the face of the injunction.</p>

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

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

<p>Jurisdiction — Judgment.</p> <p>Where a portion of the land in controversy is located in one county, the court in that county has jurisdiction to hear the cause.</p> <p>Rescission of Contract — Notice.</p> <p>When defendants are in possession of land as purchasers under an oral contract which they could not enforce, they were not entitled to notice to quit. They can be dispossessed only upon a rescission of the contract of sale.</p>

<p>Suit on Bond — Mandate of This Court Must be Followed by Trial Court.</p> <p>Where on appeal this court issues a mandate the lower court must iollow it.</p> <p>Surety on Bond.</p> <p>The discharge of a defendant from imprisonment on a bastardy charge because of his insolvency does not affect the liability of his surety on a bond.</p>

<p>Real Estate Entries — Patent from State.</p> <p>Where one improved, occupied and held land under the act of 1800 (2 State Law 941), and persistently claimed the same, but failed to pay for it and receive patent, he could do so under the act of 1819; and where such land was entered by and patented to another under the said act of 1815 such patentee secures no title because such act only authorized the entry of the “waste and unappropriated lands,” and the land was at that time appropriated by the former entryman, and was not waste land.</p>

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

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

<p>Suit on Judgment — Sufficiency of Petition.</p> <p>A petition on a judgment, to fie good, must aver tfiat tfie judgment or some part of it remains unpaid.</p> <p>Fraud.</p> <p>Where tfie note on wfiicfi a judgment is rendered was fraudulent, and tfie appellant is a party to it, fie cannot set up tfie fraud to resist an action in equity to enforce satisfaction of the judgment.</p> <p>Party Not a Party to Judgment.</p> <p>One not a party to a judgment is not estopped fiy it to set up and rely on tfie fraud wfiicfi originally infected tfie note upon wfiicfi judgment was entered.</p>

<p>Guardian and Ward — Purchase by Guardian of Ward’s Land.</p> <p>A ward may treat his guardian’s purchase of 'his land as- having been made for his benefit, and insist that the guardian hold it, and that his heirs hold it in trust for him; and this is true whether the purchase was for a fair consideration or otherwise. The guardian cannot purchase from himself.</p>

<p>Judicial Sale of Real Estate.</p> <p>Where the judgment ordering the sale of real estate describes the land to be sold and does not attempt to declare the number of acres, the commissioner cannot make it more specific by verbal representations at the time of sale. The purchaser is bound to take notice of the judgment, and there is no warranty of the number of acres sold.</p>

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

<p>Receivers — Appointment of Receiver.</p> <p>There is no statute authorizing the appointment of a receiver of funds belonging to the county. Where there is a balance found due from the sheriff after a settlement is made with him, it is necessary for the county court to appoint a receiver to collect the money.</p> <p>Bond of Receiver.</p> <p>It is the duty of a receiver to furnish a bond, and where he fails to do so the sheriff has no right to pay the money until the bond is given. He was not the receiver until he executed the bond.</p>

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

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

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

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

<p>Husband and Wife — Divorce—New Trial on Newly Discovered Evidence.</p> <p>A motion for a new trial should not he granted on account of newly-discovered evidence of a questionable character, when the party could have discovered said evidence before by the use of diligence.</p>

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

<p>Purchase-Money Notes — Rights of Assignee of Purchase-Money Notes.</p> <p>One becoming assignee of purchase money notes takes them subject to any defense or set-off that the maker might have made against the assignor.</p>

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

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

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

<p>New Trial — Newly Discovered Evidence.</p> <p>A motion for a new trial on account of newly discovered evidence should be denied where due' diligence was not shown to discover such evidence before the trial.</p>

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

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

<p>Husband and Wife — Separate Estate of Wife — Marriage Contract.</p> <p>Where the wife has a separate estate in land at her death the husband will inherit, unless there is something in the antenuptial contract to prevent.</p>

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

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

<p>Suit Against County — Evidence.</p> <p>A judgment against the county for work and labor done in indexing books will be reversed where there is no evidence to prove that an order had been made by the circuit court directing the indexes to be made. The county court 'cannot be compelled to pay for them unless they were so ordered.</p>

<p>Judgment — Parties to Judgment.</p> <p>Only those persons who are parties to an action in which judgment is entered are bound by the judgment.</p> <p>Guardian’s Sale of Real Estate.</p> <p>Where a ward’s real estate is sold in pursuance of a judgment in a suit where only a part of the owners were made parties, it is erroneous to commit the purchaser to jail for contempt of court in refusing to pay the whole of the purchase money.</p>

<p>Clerical Misprision.</p> <p>When the clerk of the court, by oversight or inadvertence, has mistaken the true amount of uncontradicted exhibit filed in a suit, it will he regarded as a misprision and corrected on motion.</p>

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

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

<p>Homestead.</p> <p>When one owns land but has no residence upon it, but has built a house on his wife’s land and resides there with his family he cannot claim a homestead on his own land as against his creditors.</p>

<p>Principal and Surety.</p> <p>Where a note is given as evidence of a debt of A, upon which B was liable as surety, it follows as a matter of law that when C became bound for it by signing the note to the bank he became, as between himself and the original surety, the mere surety of the latter.</p>

<p>Legislative Grant to Public Library to Operate a Lottery.</p> <p>Courts have nothing to do with the policy of legislation, and where the general assembly passes an act to incorporate a public library and grants the. right to operate a lottery in connection therewith to aid in raising money to maintain it, the courts are not to decide the wisdom of such legislation, but are only required to construe such legislation in accordance to the legislative intention.</p>

<p>Bastardy — Bond—Liability of Bondsmen.</p> <p>A person accused of bastardy, wben arrested and brought before the .court, is required to give bond for bis appearance in the county court of the county in which the warrant issued, on the first day of the next term thereof, and to perform the judgment of said court, hut when a bond fails to bind the security for the principal’s performance of the judgment of the court, it only requires the surety to surrender his principal in execution of any judgment rendered against him, and by doing so the surety is discharged from all liability.</p>

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

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

<p>Sheriff’s Sale of Real Estate.</p> <p>The sheriff can only legally sell as much of the debtor’s land as will make his debt, interest and costs, and when he sells more he exceeds his authority, and such sale passes no title.</p> <p>Judgment in Setting Aside a Sale.</p> <p>Where a sheriffs sale of land on execution is set aside because illegal, but the purchaser pays his bid and had possession under his purchase, the court should adjudge that the interest on the money should be set off against the rent of the' land from the date of the purchase.</p>

<p>Judicial Sale of Real Estate — Description.</p> <p>A judgment ordering the sale of real estate must so describe the land as to enable the commissioner to discharge his duties without reference to any other papers in the cause, and when it fails to do so the judgment will be reversed on appeal.</p>

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

<p>Husband and Wife — Husband’s Marital Rights.</p> <p>The chancellor has no power after the husband has exercised his marital right and reduced his wife’s money to possession, and thereby made it his own, to divest him of his title for the benefit of the wife.</p> <p>Trust Estate in Lands.</p> <p>Where it is alleged by the wife that certain land was paid for in part with her money, and that her husband promised her to invest it in land, but does not allege that he promised to take the title in her name, or that he did take such title to himself without her knowledge or in violation of any trust or legal duty on his part, no trust was made out authorizing the court to adjudge the land or any part of it to the wife.</p>

<p>Practice — Duty to File Copies of Judgments and Executions When Same Constitute Basis of Claim.</p> <p>Where judgments and the executions and returns thereon are the basis of an action it is the duty of plaintiff to file copies thereof with his petition, and the defendant is not bound to search the records for them.</p>

<p>Partnership — Duty of Receiver — Debtors.</p> <p>When a receiver takes charge of partnership assets he should convert them to cash, and where one of the partners has taken money from the business or is indebted to the firm, he occupies the same position as other debtors, and should be proceeded against as other debtors are. It is error for the court to order him to pay into court such money, or pay his debt to the receiver, and to imprison such debtor for contempt up on his failure to pay such debt.</p>

<p>Bond for Costs.</p> <p>Where the law requires plaintiff to give bond for costs, but be fails to do so and no motion is made to require him to do so, and judgment is taken by default against one defendant and against another for a part of his debt, it is too late to move to dismiss the cause on account' of the failure to give bond; but the defendant who is still contesting a part of his debt may have the cause dismissed as to such debt. No bond for costs can be required after judgment.</p>

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

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

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

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

<p>Specific Performance.</p> <p>Where a contract for 'the sale of real estate correctly describes the land sold, and there was no fraud or false representations made to induce the sale, a court of equity will decree specific performance.</p> <p>Property Subject to a Right of Way.</p> <p>One who buys real estate by contract, knowing at the time that there is a private right of way over it, cannot refuse to perform his contract on account of such easement.</p>

<p>Discharge in Bankruptcy as a Defense.</p> <p>A discharge in bankruptcy is a complete defense to an action on a note.</p> <p>Amended Petition.</p> <p>The filing of an amended petition is the beginning of a new action, and a summons should issue to get jurisdiction of the defendant.</p>

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

<p>Street Assessment — Equality of Assessment.</p> <p>Wlien a street assessment extends back on the north side of the street 315 feet, while it only extends to a depth of 210 feet on the south side, the assessment is unequal; but since the city had no power to extend the assessment beyond the corporate boundary, and the assessment is as nearly equal as it could be under the circumstances, it is not illegal.</p>

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

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

<p>Appeals — Practice—Dismissal of Appeal.</p> <p>Where an appellant procures all of the record and papers in a cause to be copied in a transcript, and files it in the clerk’s office of this court before he is required to do so under the statute, such appeal will not be dismissed on motion of the appellee because filed too soon.</p> <p>Partition Fences.</p> <p>Adjoining landowners in maintaining a partition fence are each bound to keep up a lawful fence on their respective portions, and where one owner fails to do so, and his cattle break through and damage the other, such person so failing is liable for such damages if the other owner has maintained his portion of such fence.</p> <p>Pleading — Petition.</p> <p>It is not sufficient to aver in a petition for damages done by trespassing cattle, merely that plaintiff has kept up a good and lawful fence on his portion of a partition fence, but he should aver that he has continuously maintained such fence.</p>

<p>Suit on Sheriff’s Bond — Necessary Parties.</p> <p>The sheriff collects the public revenues, but before doing so must execute a bond payable to the commonwealth. This bond may be sued upon in the name of the commonwealth for the use of any person interested, and a suit cannot be maintained on such bond except in the name of the state for the use of such interested party.</p>

<p>Advancements — Specific Legacies.</p> <p>Advancements cannot be charged against specific and unconditional bequests.</p> <p>Construction of Will.</p> <p>While courts in construing a will seek to ascertain the testator’s intention, such intention must be found from the language used, and if possible the same effect must be given to every word in the will.</p>

<p>Suit on Sheriff’s Bonds — Sheriff’s Accounting.</p> <p>Where a sheriff executes a bond to account for the collection of the levy of 1863, and fails to pay over all the money collected by him, and executes a second bond to account for the collection of the levy of 1864, and the county keeps the account as a running account for both years, showing at the end of 1864 he failed to pay over about $1,000, and suit is brought on the bond of 1863 and a plea of payment filed, there can be no recovery on such bond when the evidence shows the sheriff, during 1864, paid on claims according to their seniority. The shortage, if any, must be held to have occurred in 1864, and hence the sureties on the bond of 1863 are not bound for it.</p>

<p>Taxation — Enjoining Collection of Taxes.</p> <p>It is the duty of the supervisors of the tax book to examine and correct it when it finds errors of the assessor, and where it substantially complies with the statute equity will not enjoin the collection of a tax upon the mere ground of irregularity in the assessment.</p>

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

<p>Wife’s Property — Separate Estate — Waiver by Husband of Marital Rights.</p> <p>So long as the wife’s choses-in-action have not been actually reduced to possession the husband may waive his marital right, and agree with his wife that it shall, when received, be held for her separate use, and such an agreement will be upheld and enforced.</p>

<p>Ejectment — Homestead.</p> <p>One owning a bouse and lot, but wbo does not reside in sucb bouse, is not entitled to claim an exemption as a homestead.</p>

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

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

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

<p>Liability of Assignors of Note — Pleading.</p> <p>Where a note .is made payable to A, who assigns it to B upon the the face of the transaction, A is bound to B as an assignor and not otherwise, and where B seeks to hold A as guarantor he must plead and prove facts showing that his contract was that of a guarantor.</p> <p>Contract of Assignor.</p> <p>Where a note is made payable to A, who assigns it to B, the assignor is bound to B, as an assignor, and before B can look to A it is incumbent on him to show that he had sued and prosecuted the maker of the note to insolvency, with legal diligence.</p>

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

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

<p>Husband and Wife.</p> <p>' Where the husband is the owner in fee of real estate, and procures from his wife some of the means with which he pays some of the purchase money, the wife can assert no claim as against creditors of the husband who became such on the strength of such ownership and without knowledge of any claim of the wife.</p>

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

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

<p>Criminal Law — Forgery—Indictment.</p> <p>An indictment for forgery, which does not aver that the writing was forged or that the defendant signed another’s name to the writing, hut alleges that the writing was signed without the authority of the person whose name is subscribed to it, is insufficient, the fraud being charged against the person who signed another’s name to a writing, and it not being charged that the defendant signed such name.</p>

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

<p>Husband and Wife — Set-Off.</p> <p>Where a husband is entitled to the use and possession of a farm belonging to his wife, and where such farm was charged with an annual payment of rent, which the wife was forced to pay, she may set off such amount against the claim of her husband assigned to another, because of his having been deprived of the use of such farm.</p>

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

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

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

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

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

<p>Pleading — Petition.</p> <p>A pleading must state facts, and not evidence, and wlien it pleads the evidence and not the facts it is bad .on demurrer.</p>

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

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

<p>Trespass — Possession of Land.</p> <p>When neither party to a suit for trespass can show that the land in question has been patented, and that he has a regular derivation of title from the patentee, the right to maintain a suit for trespass depends upon who first took actual possession of the land and continued to hold the same.</p>

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

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

<p>Acceptance of an Order.</p> <p>Unless one accepts an order drawn upon him no recovery can he had from him thereon. One who has not consented to do so cannot be compelled in an ordinary action to pay his debt to a third person, unless the whole of the debt is assigned.</p>

<p>Principal and Surety — Bond.</p> <p>A mere indulgence of tlie principal debtor never has tbe effect to release the surety on a bond, unless he has given notice under the statute, or the indulgence is so given as to deprive the creditor of the right to take legal steps at any time to collect his debt, and thereby to suspend the right of the surety to seek indemnity.</p>

<p>Heirs — Legal Heirs.</p> <p>The word “heirs,” or the words “legal heirs,” when used with reference to personal estate are generally construed as meaning distributees, or all those who under the law take the personal estate as the next of kin, or by reason of their relation to the deceased.</p>

<p>Guardian and Ward — Investment of Ward’s Money.</p> <p>A guardian has no authority to invest her ward’s money for merely speculative purposes, and when she does so, she and her surety become liable for all the consequences resulting from such investment.</p>

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

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

<p>Debt — Evidence of Debt.</p> <p>Where suit is brought to collect a debt, and a letter of the debtor is introduced, stating that “I am owing you an old debt, and would, like to know if I do (go into business), if you will press me for it, as my intention is to pay you,” it was held to be an express acknowledgment that the debt was then a valid and subsisting obligation, and also, an express declaration to pay it.</p>

<p>Landlord and Tenant — Execution of Writ of Possession.</p> <p>A delay in executing a writ of possession is a mere favor extended to the defendant, and is not an abandonment of a right to enforce the judgment.</p>

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

<p>Ejectment — Evidence.</p> <p>Where in an ejectment suit, an attempt is made to trace the source of title back beyond the-recollection-of any except very aged persons, a more liberal rule exists as to the introduction of documents than where the occurrences are of a recent date.</p> <p>Instructions.</p> <p>■ An instruction is erroneous which allows the jury to consider proof of waste in making up its assessment of damages, where there is nothing in the petition claiming damages, except such as resulted from the detention of the lands, and no issue was raised as to waste. ,</p> <p>Champertous Conveyance.</p> <p>A conveyance champertous at the time made is absolutely void, and ■ no change of circumstances will make' it available for any purpose or against any person.</p>

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

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

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

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

<p>Administrator’s Sale — Liens—Notice.</p> <p>Where at an administrator’s sale of a deceased tenant’s property the landlord notifies the administrator of his lien on such property, and buys the property at such sale, he is only required to pay that part of his bid which is in excess.-of his lien, where it is not shown that there is not sufficient other property to pay decedent’s funeral expenses.</p>

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

<p>Principal and Surety — Competency of Witness Against Executor.</p> <p>Where an executor sues a principal and hjs sureties on a note, and the sureties defend, Secs. 22 and 25 of Chap. 37, General Stat., render such principal incompetent as a witness against the executor, and this is true even if such principal is offered as a witness after judgment has been taken against him.</p>

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

<p>Assignment of Claims — Bankruptcy.</p> <p>Where one assigns portions of a claim to several persons named long before he is adjudged a bankrupt he can have no beneficial interest in such claims, and no interest passed to his assignee in bankruptcy.</p> <p>Practice — Assignment of Claim.</p> <p>Where the right of a plaintiff is assigned during the pendency of the action, it may be continued in his name, or the court may allow the name of the assignee to be substituted in the action.</p>

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

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

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

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

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

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

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

<p>Trustee — Purchase of Necessities.</p> <p>When a trustee holds an estate of about $30,000, upon which the income amounts to $2,400 per annum, it is not extravagant for the owner of such estate to purchase goods for her use amounting to $766, when such purchase is reasonably necessary for her comfort and enjoyment, and when she gave orders on the trustee for such sum he was justified in accepting and paying same.</p>

<p>Decedent’s Estates — Claim.</p> <p>Where an administrator has accounted to the estate for a claim owing to it and paid the money, when said claim is afterwards paid, the money belongs to the administrator personally.</p>

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

<p>Damages — Negligence.</p> <p>• When one contracts to dig and wall a well for the owner, and the owner agrees to handle the brick at the top of the well, and his employee in doing so acts carelessly and permits a brick to fall on and injure the contractor, who is in the well, the owner is liable in damages.</p>

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

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

<p>Life Insurance Company — Suit of Creditor Against Insurance Company.</p> <p>A mere creditor, whose claim has not been put in judgment against a life insurance company, cannot maintain an action to subject the company’s property to his claim and to the claims of others, and have such assets distributed. The most that he is entitled to is to have judgment on his debt, and the property of the company sold to pay it.</p> <p>Proceeding in Equity.</p> <p>A creditor who has reduced his claim to judgment in a court of law, before he can proceed in equity to subject equitable interests, must have execution on his judgment and a return of no property found.</p>

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

<p>Married Women — Contracts of Married Women.</p> <p>The contract of a married woman to buy land is void since sbe is not capable in law to make a valid contract. The court will release ber from sucb a pretended contract and permit ber to recover wbat sbe bas expended tbereon.</p>

<p>Criminal Law — Self-Defense.</p> <p>Where an altercation takes place on defendant’s premises, the defendant had the right to require the deceased to leave the premises, and on his refusal, to use such means as were necessary to make him leave, and if the deceased assaulted the defendant with a deadly weapon, or for the purpose of taking his life or inflicting great bodily harm, the defendant had a right to defend himself, and for this purpose to use such force as was necessary, or apparent to him to be necessary, to avoid the danger, and if in so doing he killed his adversary it is self-defense.</p>

<p>Criminal Law — Evidence.</p> <p>Where the only testimony against a defendant is an alleged confession made to an accomplice the evidence is very unsatisfactory, and the court should have instructed the jury to find for the defendant.</p>

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

<p>Criminal Law — Homicide—Indictment.</p> <p>An indictment is good which, charges that the defendant “did willfully, feloniously, and of his own malice aforethought, kill and murder his mother, Mrs. Stewart, by hitting her with a rock.”</p> <p>Instructions.</p> <p>In a criminal case the trial court should withhold instructions upon matters relating to the credibility of witnesses and the weight of evidence, or the rules by which the jury should be governed in passing upon either.</p>

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

<p>Damages — Negligence—Instructions—Burden of Proof.</p> <p>Where a suit is prosecuted against a railroad company for killing a horse, the defendant is liable for the damages, where the animal was injured or killed by the negligence or carelessness of those in charge of the train; and where the killing is admitted, the burden is on the defendant to prove that the killing was not caused by such negligence or carelessness.</p>

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

<p>Trustees.</p> <p>Trustees Lave a right to petition the chancellor to define their powers.</p> <p>Right of a Party — Jurisdiction.</p> <p>A person having an interest in property', not denied by any one, has no right to come into a court of equity to have the extent of his interest in and power of the estate defended by judgment, and in such a case the court has no jurisdiction to enter judgment.</p>

<p>Taxation — School Trustees — Power to Build School Building.</p> <p>Where the question of taxing a school district was submitted to the voters and they decided in favor of a tax to build a schoolhouse, and the trustees employ a person to build it and execute notes to him which are not paid, the school trustees may be mandated to levy taxes to pay such debt.</p>

<p>Criminal Law — Hog-Stealing—Impeachment of Witness.</p> <p>The defendant in a criminal case may, by evidence, show that a witness for the prosecution has a bad reputation for truth and veracity, and also that the general moral character of such witness is bad in the neighborhood where she resides.</p>

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

<p>Husband and-Wife — Mistake in Conveyance of Wife’s Real Estate.</p> <p>Where in the settlement of an estate real estate belonging to the wife and allotted to her was without her knowledge .or consent conveyed by the trustee to herself and husband, and the wife ascertains this fact only after several years and after her separation from her husband, a court of equity at the suit of the wife will reform the deed and deprive the husband of all interest in the property.</p> <p>Divorce — Residence of Wife.</p> <p>As a general rule the domicile of the husband is the domicile of the wife; but when the husband so mistreats the wife that she is entitled to be divorced from him, she has the right to abandon him and find a domicile of her own, and she may secure a divorce in the court having jurisdiction where her new residence is established.</p>

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

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

<p>Homestead — W aiver.</p> <p>The sale of a homestead and the appropriation of the proceeds to the purchase of other property, not exempt from seizure and sale for debt, or into a permanent interest-bearing investment, will be deemed and treated as a voluntary waiver of the benefit of the homestead exemption.</p>

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

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

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

<p>Criminal Law — Passing Counterfeit Money — Pleading.</p> <p>As against one indicted for passing counterfeit money, the court will not presume the existence of a law in a sister state authorizing the charter of banks and the issuing of paper money. Laws of a foreign state must be pleaded or proven. It must always be pleaded where the existence of the law is one of the essential elements of proof in determining the guilt of a party.</p> <p>Indictment.</p> <p>In a charge of passing a counterfeit bill, the indictment to be good must sufficiently identify the bill so that a conviction or acquittal will be a bar to another prosecution.</p>

<p>Levy of Execution.</p> <p>The sheriff has no power to make a levy on an execution in his hands after the date when a return is required by the law to be made thereof, but he may make a sale after return 'day, where the levy is made before return day.</p> <p>Levy and Sale.</p> <p>The sheriff holding an execution may make a levy thereon either on or before return day, and may legally make sale thereon after return day.</p>

<p>Criminal Law — Betting on Election — Evidence.</p> <p>In a charge against the accused for betting with another that a named person would not be elected county judge at the August election of 1874, the state, to convict, must prove not only that the accused made a bet on the election of 1874, but that he made the bet with the person named in the indictment, that the person named as running for judge would not be elected at the election of 1874.</p> <p>Proof.</p> <p>Where a person or thing necessary to be mentioned in an indictment in a criminal case is described with circumstances of more particularity than is required, those circumstances must be proven as alleged.</p>

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

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

<p>Lottery — Injunction—Act of March 16, 1869.’</p> <p>In an action by the attorney general against the board of councilmen of the city of Frankfort to enjoin the board from operating a lottery for the benefit of the city schools, it is held that the Act of March 16, 1869, authorizes such lottery, and the injunction was refused.</p> <p>Title of Act Sufficient.</p> <p>The eighteenth section of the Act of March 16, 1869, attempting to confer a lottery privilege, is not in conflict with Sec. 27, Art. 2, of the Constitution, which provides that “No law enacted by the general assembly shall relate to more than one subject, and that shall be expressed in the title.”</p> <p>Title of an Act to Amend.</p> <p>Under the title of “An act to amend and reduce into one the several acts in relation to the city of Frankfort,” the legislature may legally provide for raising the means by taxation, lottery or otherwise, for the education of the children of the city.</p> <p>Construction of the Constitution.</p> <p>The provisions of the Constitution should receive a liberal and not a technical construction, and no provision of a statute, relating to the subject expressed in the title of an act having a natural connection therewith, and not foreign to the same, should be deemed within the constitutional inhibition (Sec. 27, Art. 2).</p> <p>Court’s Duty as to Moral Question.</p> <p>If a lottery privilege is immoral in its tendency the legislature may interfere with it, but the courts cannot. It is the duty of the court to construe and decide what the law is, but it has no power to make a law or to repeal one.</p>

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

<p>Voluntary Conveyance by Husband.</p> <p>Under the statute of 1856 a voluntary conveyance by a husband to his wife without consideration is void as to his then existing liabilities.</p> <p>Suit Against Heir.</p> <p>An heir receiving property from his ancestor may be sued in equity by a creditor for any liability of the ancestor.</p>

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

<p>Guardian and Ward — Investment of Ward’s Money.</p> <p>When a guardian invests his ward’s money in stocks and bonds without the advice of the chancellor, he acts at his peril, and if the money is lost, the guardian will be held liable for the loss.</p>

<p>Accepted Order Discharged the Debt of the Drawer.</p> <p>An order for money, when accepted by the drawee, discharges the debt of the drawer, and the payee must after due diligence show that he has failed to collect from the person on whom he holds the order before he can hold the drawer liable.</p>

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

<p>Sale of Horse — Delivery- of Possession — Creditor’s Claims.</p> <p>An absolute sale of personal property, unless it be followed by the possession of the purchaser, is void as to creditors of the vendor.</p> <p>Sale and Delivery.</p> <p>Where the vendor of a horse and his vendee reside together there must be an actual, visible change of possession, and where there is no such delivery the vendor’s creditors may subject the property to their debts.</p>

<p>Usury — Principal and Surety.</p> <p>Where a principal and surety are jointly sued and judgment is taken by default and paid by the surety, who takes a transfer of the judgment and attempts to collect it from his principal, the principal may not legally set up that there was usury embraced in the judgment to defeat its enforcement by the surety.</p>

<p>Husband and Wife — Husband Leasing Wife’s Real Estate — Fraud.</p> <p>The husband has a right to execute "a lease of his wife’s real estate for a period of three years, if the lease is made in good faith, but where made only a day or two before the wife’s death, not in good faith hut as a mere device to defeat the right of the wife’s heirs to possession for a period of three years, it is void because fraudulent.</p>

<p>Officer Holding Over — Liability of Sureties on Bond.</p> <p>Where the law provides that an officer shall hold over until his successor is qualified, his bond covers his acts, while he is holding over, but where he is not authorized by the law to 'hold over, and gives bond for one year, the sureties on such bond are not liable for defalcation after the expiration of such year.</p>

<p>School Teacher — Employment and Discharge.</p> <p>The commissioner may suspend or remove a teacher, but before he can do so some cause must exist and a charge be lodged against the teacher. He cannot remove a teacher at his mere will and pleasure.</p> <p>Judicial Opinion by Officer.</p> <p>The rendition of a judicial opinion, where officer is not influenced by Improper motives, will not subject the officer to an action, but he may be held liable where he acts corruptly and maliciously.</p>

<p>Execution — Right of Ownership.</p> <p>.Where an officer holding an execution mates a levy on property seized as the property of the execution defendant such property is prima facie subject to such seizure, and one claiming to own such property has the burden of proof and the right to open and close.</p> <p>Fraud of Mortgagor.</p> <p>Although a mortgagor executes a mortgage to defraud creditors, if the mortgagee had a subsisting debt against him and was ignorant of his fraudulent purpose such mortgagee is protected by Sec. 1 of the statute relating to fraudulent conveyances.</p>

<p>Change of Venue.</p> <p>Where a cause is reversed in this court on appeal the trial court has no authority to entertain or pass on an application for a change of venue prior to the cause being certified to the lower court.</p> <p>Wills — Fraud and Undue Influence — Evidence.</p> <p>The jury in deliberating on the question of mental incapacity of a testator and fraud and undue influence, has the right to consider the provisions of the paper or will in connection with other evidence.</p> <p>Verdict of Jury.</p> <p>This court is bound by the statute to give to the verdict of a jury the same effect as is given to verdicts in other than will cases and will not reverse the findings of the jury unless flagrantly or palpably wrong.</p>

<p>Husband and Wife — Wife’s Money Used to Buy Land.</p> <p>Where .the husband buys lands while the wife’s money is still in the hands of the administrator and still subject to her right of settlement, and he agrees with or promises her to use her money to pay for the land and have it conveyed to her, her equity in the land is superior to the equity of her husband’s creditors.</p> <p>Wife’s Money Not in Possession of Husband.</p> <p>When a husband, before reducing the wife’s choses to possession, promises her to .invest the proceeds in her name, he must be held to receive such proceeds in trust and not in his own right.</p>

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

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

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

<p>Evidence as to Character.</p> <p>A witness should not he allowed to testify as to the general character of a party who had testified, when such character witness does not first say that he was acquainted with the party’s general character.</p> <p>Contract of Hiring Horse.</p> <p>One who hires a horse of another contracts to take good and reasonable care of the horse and to supply the same with suitable food during the time of said hiring.</p>

<p>Tavern Keeper — License.</p> <p>An order-of the court authorizing one to keep a tavern does not license such keeper to sell spirituous liquors. The privilege of selling liquors cannot be implied, and before it is given such authority must be specified in the license.</p> <p>Notes Given for Intoxicating Liquors.</p> <p>Where any portion of the consideration of a note was intoxicating liquors sold and delivered at the tavern house of one not licensed to sell liquors, such note is void, as the consideration of such note is illegal.</p>

<p>Newly Discovered Evidence — New Trial.</p> <p>Where newly discovered evidence is merely cumulative, it is not a sufficient ground for a new trial.</p>

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

<p>Slander — Answer—Burden of Proof.</p> <p>Where the answer in a slander case pleads that the words spoken were true the burden is on the defendant to prove the fact.</p> <p>Punitive Damages.</p> <p>Where a defendant in a slander suit answers that the words spoken are true, and he fails in his proof, the jury may award punitive damages.</p>

<p>Practice — Effect of Motion for New Trial.</p> <p>A motion for a new trial in a law case suspends the operation of a judgment prematurely entered, or rather entered subject to the right of the unsuccessful party to suspend it by making the motion.</p> <p>Judgment in Chancery.</p> <p>A judgment in chancery is final and enforcible from the beginning, and will not be suspended by a suggestion to the chancellor that it would be proper for him to exercise his power to set it aside during the term.</p>

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

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

<p>Peremptory Instruction.</p> <p>On a motion for a peremptory instruction every fact the evidence conduces to establish and every inference the jury may reasonably draw from the facts and circumstances in evidence before them must be assumed to be established.</p> <p>Fraudulent • Representations.</p> <p>In a suit growing out of a sale of stock in a corporation, the price at which stock was selling was a fact capable of being known, and one who for a fraudulent purpose affirms that a named article is selling for so much in the market, when he knows it is selling for a less price, or is ignorant of the price, is guilty of legal fraud, and cannot escape liability on the ground' that the other party might, by proper precautions, have learned that his statement was untrue.</p> <p>Opinions as to Values.</p> <p>A mere representation of the value of an article is not such a representation of a fact as will, if false, amount to a fraud in law.</p>

<p>Slander — Malice.</p> <p>In. a slander suit it is error for the court to charge the jury that if they believe that any of the actionable words charged were spoken maliciously they must find damages in plaintiff’s favor, not exceeding the sum claimed by him; for, notwithstanding the words were spoken, the defendant is entitled to overturn or rebut the charge that the words were spoken maliciously. Malice in an action of slander is an essential ingredient, and is a question of fact for the jury.</p>

<p>Married Women — Conveyance of Real Estate to Married Woman — Lien.</p> <p>A married woman is capable of receiving the title to real estate, and a conveyance to her is therefore not void; and while a lien for balance of purchase money may be enforced against her property, such claim cannot be enforced against her personally.</p>

<p>Homestead — Waiver of by Wife.</p> <p>A homestead exemption is not waived by the wife merely joining with her husband in a mortgage of his property to relinquish her right of dower.</p> <p>Residence of Homestead Claimant.</p> <p>Mere absence for business purposes temporarily from home, where the homesteader leaves his furniture in the house and leaves a person in charge, is not a change of residence that deprives one of a homestead exemption.</p>

<p>Conveyance to Defraud Creditors.</p> <p>A conveyance of all one’s real estate to an assignee for the benefit of all of one’s creditors cannot be set aside as made to defraud creditors, on account of the assignor having withheld money from the assignee and his creditors with which a part of his debts could have been paid. He may have defrauded his creditors in withholding the money, but the deed cannot be held fraudulent for that cause.</p>

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

<p>Trespass to Real Estate — Title.</p> <p>In an action of trespass where the question of title is directly involved as between the plaintiff and defendant a verdict and judgment must be held conclusive as to the title between the parties.</p>

<p>Fraud to Prevent Redemption of Land — Recovery of Land.</p> <p>Where the holder of a sheriff’s .certificate for a deed enters into a fraudulent combination, by which he and a friend are to prevent the owner from redeeming the land by the friend’s offering to loan the owner the money with which to do so, and thereby lulling him into a sense of security, and after it is too late to secure the money elsewhere refuses to make the loan, a court of equity, upon a proper showing, will decree the recovery of the land in favor of the person thus defrauded upon equitable principles, even after the holder of the sheriff’s certificate has secured his deed.</p>

<p>Guardian and Ward — Unauthorized Payment to Guardian.</p> <p>Where a guardian enters into an unauthorized contract to sell the ward’s land, and puts the purchaser into possession, the purchase price to be paid when the ward becomes of age and makes a deed, and the money is paid to the guardian before the ward arrives at age, such payment is made at the peril of the purchaser, and the ward is not bound to make a deed.</p> <p>Ratification of Contract by Ward.</p> <p>When the guardian has entered into an unauthorized contract agreeing that the ward will convey certain real estate when he becomes of age and receives the money, such ward may ratify the contract upon becoming of age, and is entitled to receive the purchase money upon tendering a deed, but he is not bound to look to his guardian for the money. Unless the purchaser will pay the money to him he is not entitled to a deed, and will be liable to the ward for rents of the land when he has had the possession thereof.</p>

<p>Appeal — Estoppel—Administrator.</p> <p>Where an appeal bond is executed to an administrator the appellant is estopped to question the fiduciary character of such administrator.</p> <p>Sureties on Appeal Bond.</p> <p>In a suit on an appeal bond it is not necessary to have a return of no property found against the principal, before being entitled to maintain an action on the bond against the sureties.</p>

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

<p>Administrator’s Bond — Liabilities of Sureties.</p> <p>Where there are joint administrators each signing the bond with others, they become sureties for each other; and when one resigns or is discharged as administrator he is still liable on the bond.</p>

<p>Admissibility of Declarations.</p> <p>Tbe declaration as to ownership of property is not admissible as evidence to prove title in the declarant unless he was in actual possession at the time made.</p> <p>Sale of Personalty — Delivery.</p> <p>It is the fact of actual and visible change of possession, and not knowledge on the part of those in the neighborhood, that renders sales of personal property valid. Where there is actual change of possession the sale is not per se fraudulent as to creditors.</p>

<p>Conveyance to Defraud Creditors — Secret Trust for the Wife.</p> <p>Where the husband receives money from his wife and buys real estate, taking conveyances in his own name, and sells the same, his wife joining in the deed, and buys other real estate, taking title the same way, and becomes indebted on the strength of such property, the real estate deals being ratified by the wife joining in conveyances, neither he nor his wife can assert that he holds the real estate for the wife, and a conveyance to the wife will be set aside at the instance of the husband’s creditors.</p>

<p>Criminal Law — Forgery.</p> <p>In a prosecution for forgery it is enough to show that the accused committed the forgery for the fraudulent purpose of obtaining the possession of money or property, and it is not required that the party to whom the forged instrument was offered should have received it as genuine or believed it was genuine.</p>

<p>Surviving Partner — Right to Sell Assets, etc.</p> <p>A surviving partner has a right to retain possession of firm assets, to sell them, collect the debts and settle the business of the firm, and the administrator of the deceased partner has no power to prevent such partner from so doing; and where such partner converts the assets to his own use in order to make the administrator liable, it must be shown that facts existed which made it his duty to take action, and such as would have enabled him to prevent such conversion, and that he was or ought to have been aware of such facts.</p>

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

<p>Married Woman’s Contracts — Infancy.</p> <p>The rule that an infant cannot reclaim property, without returning the money for which it was sold, does not apply to a married woman.</p>

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

<p>Criminal 'Law — Unlawful Breaking Into Warehouse — Burglary.</p> <p>If a window is closed, a door shut or the floor laid down, in use the breaking in by forcibly removing the one or opening the others is sufficient breaking to constitute burglary, if done in the night time with a felonious intent; and it is sufficient unlawful entry to constitute the breaking charged if done with intent to steal.</p>

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

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

<p>Criminal Law — Manslaughter.</p> <p>One in a fight who unlawfully stabs his adversary in sudden heat and passion is guilty of manslaughter, and not murder, if his adversary dies as the result of being thus stabbed, and it does not matter that the attack was voluntary.</p>

<p>Criminal Law — Homicide—Self-Defense.</p> <p>One may lawfully do in the defense of the person of another all that he might lawfully do if the danger threatening or apparently threatening that other were threatening or apparently threatening himself.</p> <p>Instruction — Malice.</p> <p>Malice, like any other fact, is to be found by the jury, and the court should not charge the jury in a murder ease that they were bound to find that malice existed if they found certain other facts.</p> <p>Instruction.</p> <p>It is error in a murder ease for the court to charge the jury, in effect, that in order to reduce the offense from murder to manslaughter the accused must have committed the act under the influence of passion aroused by some act on the part of the deceased which was likely to excite violent and uncontrollable anger in the accused. It is not required to reduce murder to manslaughter that the killing should have been done under the influence of uncontrollable passion aroused by an act likely to create anger.</p>

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

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

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

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

<p>Conveyance of Real Estate — Recording of Deed.</p> <p>It is not necessary that a deed be recorded to invest a grantee with title and where a deed has- been signed, acknowledged and delivered the title passes and the destruction of such deed by consent of the grantor and grantee will not reinvest the grantor with title.</p>

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

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

<p>Will — Construction of Will.</p> <p>In a will containing the following clause, “To my son, James Chiles, I give one-seventh (of the proceeds of certain property) with the following provisions: the proceeds given for his benefit are to be placed in the hands of S. P. Boone, of Kansas, as trustee, to be held and used for the benefit of the wife and children of the said Chiles,” it is held that the fund named was dedicated to the use and benefit of the devisee’s wife and children, and could not be made subject to claims of his creditors.</p> <p>Rights of Creditors.</p> <p>Creditors have no claims, either legal or equitable, upon the estates or bounty of the ancestors of their debtors.</p>