Volume 90 — Kentucky Reports

Case 1 — PETITION EQUITY APPEAL PROM FRANKLIN CIRCUIT COURT. 1. The several gifts and conveyances by the testator to his children,, except of the four pieces of real estate which came to them by their mother, should be set aside, because they were made by him with the fraudulent intent to deprive the plaintiff of the interest therein, to which she was entitled as his widow.

<p>Banks — Payment of Forged Checks. — A bank is bound to know the signatures of its depositors, and if it pays a forged check drawn upon it to an innocent holder, who has paid full value for the check, it can not afterward recover the money of him; but oven if such were not the general rule, the bank in this case would be liable, as the forged checks, eighteen in number, were paid from time to time during a period of near five months before the forgeries were discovered.</p>

<p>Case 3 — PETITION EQUITY</p> <p>APPEAL FROM CHRISTIAN COURT OF COMMON PLEAS.</p> <p>1. An acknowledgment taken by an officer who is personally interested in the transaction is invalid. (Devlin on Deeds, vol. 1, sec. 476; Withers v. Baird, .32 Am. Dec., 757.)</p> <p>2. By releasing her dower in the tract of land received in exchange, the widow is not estopped to claim dower in the tract given in exchange. (Mahoney v. Young, 3 Dana, 588.)</p> <p>Although she does not claim it, she is strictly entitled to dower in both pieces of property. (Cass v. Thompson, 8 Am. Dec., 36; Scribner oil Dower, vol. 1, p. 272.)</p> <p>1. There being neither fraud nor mistake, the clerk’s certificate can not be contradicted by showing that the deed was not voluntarily acknowledged by the wife, or that the husband was present. (Tiohenor v. Yankey, 11 Ky. Law Bep.)</p> <p>2. The property received in exchange was mortgaged by appellant and her husband with the fraudulent intent of depriving appellees of any right to look to this property by way of redress for the loss they would sustain by reason of the claim to dower, which appellant then intended to, and does now, assert in the land given in exchange; and as appellant freely and voluntarily participated in the fraud, she is to be held responsible, to the extent, at least, of the injury she thereby caused to he inflicted upon appellees. (Ileck v. Fisher, 78 Ky., 643; Iiusk v. Fenton, 14 Bush, 490.)</p>

<p>1. Weight Given Verdict in Will Case. — The same effect is to be given in this court to the verdict of a jury in a will ease as in any other civil cause. Where, however, an attack upon a will is altogether unsustained by any evidence, this court will, by its mandate, direct the circuit court to remand the case-to the-probate court, with directions to admit it to record.</p> <p>2. Mode op Taking Appeal E'rom Order Probating or Rejecting Will. — In order to prosecute an appeal to the circuit court from-an order of the county court probating or rejecting a will, it is sufficient if it be made to appear, by the filing of either a transcript or a statement, who the parties, appellant and appellee, are, and that a certain judgment was rendered by the county court at a certain. time, from which tlie appellants desire to appeal. Technical strictness should, not be required.</p> <p>3. Objection to Competency of Witness. — Where any part of the testimony of a witness is competent, an objection to his competency as a witness should be overruled.</p> <p>4. Competency of Testimony in Contested Will Case. — In a contest over a will upon the ground of the testator’s want of mental capacity, the parties in' interest are competent to testify as to the conduct, conversation and character of the testator.</p> <p>5. Instructions to Jury. — Where a,testator had given the greater part of his estate to tlie church of which he was a member, and the will was contested upon Hie ground that he was a monomaniac oil religion, the court erred in instructing the jury that, in order to find for the will, they must believe that the testator was not dominated by an “unnatural or irrational bias of mind, so as to overrule and control his own rational will power.1' The issue as to whether the testator was of sound or unsound mind at the making of his will should have been submitted to the jury in as simple language as possible.</p> <p>-6. Validity of Will. — A testator may exercise his choice in selecting the objects of his bounty, and the fact that ho may have “a bias” in doing so does not invalidate his will.</p>

Case 5 — PETITION ORDINARY APPEAL FROM MARION CIRCUIT COURT. 1. The local agent who effected the insurance was only a special agent, with limited powers, and had no authority to vary the terms of the contract of insurance, or to collect any but admission fees; and if lie exceeded his authority the company is not bound by his act.

Case 6 — PETITION EQUITY APPEAL FROM LOUISVILLE LAW ANT) EQUITY COURT. I. The only complaint is itliat -appellee has obstructed a highway, and if her complaint be true,-she suffers the same ftmd of injury that is com-moil to all, and hence has no individual, right of action. (Kineally, &e., v. .St. Louis, &c., 69 Mo., 663; Bailey v. Culver, 84 Mo., 539; Barr v. Stephens, 1 Bibb, 293; Stone v. Railroad Co., 68 111., 394; Angelí on Highways, sees. 283, 284.) 2.

Case 7 — INDICTMENT APPEAL PROM CARTER CRIMINAL COURT. 1. The indictment is not good because it does not show that there ivas an election held in Carter county on the sixth day of November, 1888, and does not show in what district T. H. Paynter was a,candidate for Representative, or whether he was eligible as a candidate to be voted for; nor does it show that he was an inhabitant of tho State in which he was to be chosen, as provided by tlie Constitution of the United…

Case 8 — PETITION EQUITY APPEAL FROM MAGOFFIN CIRCUIT COURT. 1. It was error to decree a sale of any lands in the possession of appellants not included in the deed from appellee and wife to the decedent, Chandler Williams. 2. In order to bind infant defendants, every material allegation stated in the petition must he proved. 3.

Case 9 — INDICTMENT APPEAL ®ROM JEFFERSON CIRCUIT COURT. 1. Dying declarations are admitted only from the necessity of the case. If the “transactions fr-un which death ensued” are clearly shown by other evidence,-dying declarations should not be admitted. (Wharton, sec. 670.) '2. If the statement of the deceased was committed to writing and signed by him at the time, the writing -should he produced, if in existence.

<p>1. Taxation op Corporations — Exemption op Stockholders. — Under our statutes corporations are required to list their property for taxation, and the stockholders are exempt from taxation upon their stock. And the fact that the corporation has failed to list its property, or that its property is situated in another State, and, therefore, not subject to taxation here, does not deprive the stockholder of this exemption.</p> <p>2. Same. — Prior to April 22, 1884, only certain corporations were required to list the corporate property for taxation, and as to such corporations alone were the stockholders exempt from taxation upon their stock. As to all other corporations the burden was upon the stockholders. And the payment of taxes by the corporation when it was not liable did not relieve the stockholder from the payment of taxes upon his stock.</p> <p>3. Same. — The act of April 22, 1884, changing the mode of assessing corporations for taxation, applied to the year 1884, as the act took effect from its passage, and there was still time, before the assessor was required to complete his year’s work, to make the assessment.</p> <p>4. Double Taxation. — To constitute dbuble taxation the property must be twice taxed within the same jurisdiction. To tax property here which has .been taxed in another State does not constitute double taxation.</p> <p>5. Defect in Information “Waiveu. — A mere defect of form in an information against a delinquent tax-payer is waived by failing to make the objection in the county court.</p>

<p>Case 11 — PETITION EQUITY</p> <p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>1. The proof does not sustain the allegation that there was “no property in this State subject to execution, or not enough - thereof to satisfy plaintiff’s claim.” (9 Ky. Law Rep., 765.)</p> <p>The provision of the Code under which the attachment in this case was issued should either be limited to a case where there is only one obligor, or, if there is more than one, the allegation and proof should show that the property subject to execution, owned by all the obligors together, did not, in the aggregate, amount to as much as plaintiff’s demand.</p> <p>This extraordinary proceeding should not be sustained, unless clearly authorized by the law under which the attachment is issued. (Jenkins v. Jackson Brothers, 8 Bush, 373; Burdette v. Phillips Brothers, 78 Ky., 246.)</p> <p>2. To sustain the attachment it is necessary to show not only the insufficiency of property to satisfy plaintiff’s demand, but that “ the collection of the demand will be endangered by the delay in obtaining judgment, or a return of no property found.” One of these conditions is not necessarily the concomitant of the other. (Francis v. Burnett, 84 Ky., 23; Civil Code, sec. 439, et seg.)</p> <p>In order to establish the fact that the collection of the demand will be endangered by delay, the creditor must show that the debtor is guilty of an act, or about to commit some act, that amounts to actual or constructive fraud.</p> <p>3. The appeal was properly granted. The statement required by section 739 of the Code was not essential to the granting of the appeal; and the appeal, having been granted in time, is not barred by limitation, although no statement was filed until after the time for granting appeal had expired. (Civil Code, secs. 734, 738, 739, 740, 745; Jones v Einnell, 8 Bush, 25; Bush v. Lisle, &c., 86 Ky., 504.)</p> <p>1. The appellant having failed to file the statement required by section 739 of the Code, until after the time for granting appeal had expired,, his appeal is barred by limitation. The mere granting of the appeal without filing the statement necessary to authorize the clerk to docket. ' • it will not stop the running of the statute. (Civil Code, secs. 739, 740, 745; Clark v. Kellar, 3 Bush, 223.)</p> <p>2. To sustain the attachment it is not necessary to allege and prove that. the property of both the obligors liable to execution is insufficient to satisfy the plaintiff’s demand.</p> <p>"Where several persons are liable for the same debt, any one or more of them in relation to whom any ground of attachment exists. maj7 be proceeded against by attachment without so proceeding against the others. (Wait’s Actions and Defenses, vol. 1, art. 5, sec. 1, 4X5; Idem, sec. 5, p. 4X9; Austin v. Burgett, 10 Iowa, 302; Chittenden v. Hobbs, 9 Iowa, 417; Brewster v. Honingsberger, 2 Code' E. (N. Y.), 50; McHenry v. Oawthorn, 4 Heisk., 508; Lobdell v. Bushnell, 24 La. Ann., 295; Conklin v. Harris, 5 Ala., 213; Wiley v. Sledge, 8 Ga., 532; Jefferson County Court v. Swain, 5 Kansas, 876; Drake on Attachments, sec. 35; Wade on Attachments, vol. 1, sec. 52, p. 52; Mundy v. Mundy, MS. Op., June, 1855, cited in Myers1' Code, p. 444, note A.)</p> <p>This case is not analogous to that of Erancis v. Burnett, 84 Ky., 23.</p>

Case 12 — PETITION EQUITY APPEAL EROM LOUISVILLE LAW AND EQUITY COURT. 1. In taxing for local improvements the square is the taxing district, and each square must pay for its contiguous street. (Schmelz v. Giles, 12 JBush, 491; McQuillan v. City of Lexington, 9 Dana, 513; Orayeroft v. Selvage, 10 Bush; Johnston v. Ferrill, 8 Ky.

Case 13 — PETITION EQUITY APPEAL PROM ■WASHINGTON CIRCUIT COURT. 1. The land in controversy was subject to execution. The legal title is always and under all conditions liable to levy and sale. (Gen, Stats., chap. 38, art. 12, sec. 1; 11 ©ana,‘216; 2 Dana, 323; 4 Bush, 280; 3 B. M. 580; 9 Bush, 219,; .2 Met., ¶96; 8 Dana, 198; 16 B. M., 78.) 2.

<p>Validity op Insurance as Against Creditors. — Insurance of his life by a husband for the benefit of his wife and children prior to the act of March 12,1870, was valid as against his creditors, unless the amount of the insurance was unreasonable, considering the amount of his indebtedness and his ability to pay. Since the passage of that act such insurance, whatever the amount, is valid, even as to antecedent creditors, unless procured with the intention to defraud; but if the husband 'be insolvent and the amount of the insurance unreasonable, that will be sufficient evidence of fraud. Even in the event of fraud, however, the creditors can subject only the premiums paid.</p> <p>In 1868 and 1869 a husband insured his life for the benefit of his wife and nine infant children for about ($32,000) thirty-two thousand dollars. He paid the premiums until 1871, when he took a paid-up policy, amounting to between five and six thousand dollars, also for the benefit of his wife and children. He afterwards became insolvent, and having since died, creditors whose debts were created in 1867 seek to subject the paid-up policy. Held— That although the insured was in debt when he procured the insurance, yet as it was not to such an extent as to affect his credit or his ability to pay, and the amount invested in the insurance was not such as to materially affect the rights of creditors, the insurance was valid.</p>

<p>Case 15 — PETITION EQUITY</p> <p>APPEAL FROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. A mortgage given to secure future advancements to the mortgagor is a. valid and enforceable contract. (Shirras v. Craig, 7 Cranch, 50 (1812); Conrad v. Atlantic Ins. Co., 1 Peters, 448 (1829); Lawrence v. Tucker, 23 Howard, 22 (1859); Robinson v. Williams, 22 N. Y., 380 (1860); Eassett v. Smith, 23 N. Y., 252 (1861); McKnister v. Babcock, 26 N. Y., 278 (1863); Miller v. Lockwood, 32 N. Y, 293 (1865); Brown v. Kieffer, 71 N. Y., 610 (1887); Spear v Skinner, 35 111., 291 (1864); 11 Am. Law Reg. (N. S.), 273 (Mitchell, 1872); 1 Jones on Liens, see. 77; 1 Jones on Morlg., seos. 351-374; Pomeroy’s Eq. Jur., sec. 1235; Miller v. Daniel, 8 Ky. Law Rep., 330; 2 Am. Law Reg. (N. S.), 12 (Redfield, Nov., 1862); Lyle v. Ducornb, 5 Binn., 585; Moroney’s Appeal, 24 Pa. St., 372; Gordon v. Preston, 1 Watts, 385; Wisconsin Planing Mill Co. v. Sebuda, 39 N. W. Rep., 558 (1888); Tapia v. Demartini, 19 Pacific Rep, 643 (1888); Tully v. Harloe, 35 ■Cal,, 302; Googins v. Gilmore, 47 Me., 13; Morris v. Cain (La.), 1 Southern Rep., 977; Ward v. Cooke, 17 N. J. Eq., 93; Witczinski v. Everman, 51 Miss., 844; McDaniels v. Calvin, 16 Yt., 300; Leeds v. Cameron, 3 Sum., 492 (1839); National Bank of Gennessee v. Whitney, 13 Otto, 99.)</p> <p>2. It is admissible to explain fully by parol evidence that the mortgage, though absolute on its face, was really given to secure future advancements ; and it is valid for that purpose, though no money passed at the time the mortgage was given. (1 Greenleaf’s Evi., sec.'283, 284a; 2 Starkie’s Evi., p. 570; 1 Jones on Mortgages, secs. 96, 351, 374, 376, 384; McCaughrin v. Williams, 15 S. C., 505; Kaphan v. Ryan, 16 S. C., 352; Walker v. Walker, 17 S. C., 329; Moffatt v. Harden, 22 S. C , 9; Dial v. Gary, 24 S. C., 572; Moses v. Hatfield, 27 S. C., 324; Harrington v. Samples (Minn.), 30 N. W. Rep.. 671; Manufacturing Co. v. Gady (Neb.), 9 N. W. Rep., 569; Dicken v. Morgan (Iowa), 7 N. W. Rep., 145; Bolles v. Sachs (Minn.), 33 N. W. Rep., 862; Lewis v. Gray, 1 Mass., 297; Knight v. Knotts, 8 Rich., 35; Brown v. Keiffer, 71 N. Y., 610; Shirras v. Craig, 7 Oranch, 50; Miller v. Daniel, 8 Ky. Law Rep., 339.)</p> <p>■8. A mortgage with note given as collateral security for future advances will secure advancements made after the maturity of the mortgage as well as those made before such maturity. Especially is this true when the notes dated after the maturity are mere renewals of old notes given before the maturity of the mortgage. (Lawrence v. Tucker, 23 Howard, 22; Boswell v. Goodwin, 31 Conn., 83; Dunham v. Day, 15 Johns., 555; Bolles v. Chauncey, 8 Conn., 389; Clark v. Pond, 14 Conn., 334; Smith v. Prince, 14 Conn., 372; Chaffee v. Whitfield, 4 So. Rep., 504; Kaphan v. Ryan, 16 S. C., 352; Thomas v. Wyatt, 5 B. M., 134; Burdette v. Clay, 8 B. M., 295; Lowry v. Fisher, 2 Bush, 70; Pryor v. Smith, 4 Bush, 382; Bank of America v. McNeil. 10 Bush, 56.)</p> <p>4. The mortgage was absolute in its terms, and passed Mrs. Duile’s homestead. (Drye v. Cook, 14 Bush, 465; Wing, &c., v. Hayden, &c., 10 Bush, 280; Kaufman v. Haisli, 1 Ky. Law Rep., 55.)</p> <p>1. The oral contract relied on is not good as against creditors. When the rights of third parties are affected, the deed must speak for itself, and evidence aliunde is not competent.</p> <p>The cases relied on by counsel for appellant decide questions between the mortgagor and mortgagee, but in this case we have an insolvent estate, and unsecured creditors whose rights are affected.</p> <p>2. The ten Deutsch notes sued on were not intended to be secured by the mortgage. The only notes secured were “notes and acceptances of regular dealers to whom Duile sold his furniture in the regular course of .business.”</p> <p>3. A deed which misrepresents the transaction it recites, and the consideration on which it is executed, is liable to suspicion.</p> <p>The mortgage of appellant, which recites an indebtedness of five thousand dollars, when no such indebtedness existed, is constructively fraudulent, there being nothing in the mortgage to refer to future advancements.</p> <p>4. A mortgage to be valid must bo made so as to disclose its purpose, that creditors may know what is intended to be secured. (12 Bush, 209; 31 Conn., 74; 44 Penn. St., 423; 31 Yt., 122; Story’s Eq. Jur., vol. 2, p. 251; "Washb. Beal Property, vol. 2, pp. 143-8.)</p> <p>5. To make a mortgage unassailable by creditors, it must have been made (1) in good faith, and (2) to secure a debt created simultaneously with its execution. (79 By., 182.)</p> <p>1. Where the wife unites with the husband in a mortgage which purports to be given to secure money advanced at the lime, when, in fact, it was given to secure future advances, the mortgage does not pass the homestead. The wife is not presumed to have contracted beyond the purport of the instrument. (Gen. Stats., chap. 38, art. 13, sec. 13; Idem, chap. 24, sec. 21; Hedger v. Ward, 15 B. M., 116; Hatcher & Wife v. Andrews, 5 Bush, 561; Prather v. McDowell, 8 Bush, 61; Pierce, Tolle & Holton v. Hall, 12 Bush, 212.)</p> <p>2. The collateral paper was not valid for any purpose. (Steinharter v. Covington City National Bank, 10 By. Law Bep., 369.)</p> <p>3. The renewals constitute a new contract. (Letcher v. Bank of Commonwealth, 1 Dana, 84.)</p> <p>Brief not in record.</p>

Case 16 — PETITION EQUITY APPEAL PROM LOUISVILLE LAW AN1) EQUITY COURT. It was the testator’s intention to give to his wife the fee-simple estate, and the court erred in adjudging that there was a quasi trust for the benefit of the testator’s children. (Best v. Best, MS. Op., May 16, 1889.) No brief in record.

Case 17 — PETITION EQUITY APPEAL PROM FAYETTE CIRCUIT COURT. 1. Although the estate of appellant’s wife was a defeasible fee, he was, by virtue of having had living issue by her, entitled to a life estate as tenant by the curtesy. (1 Jann. on Wills (Perkins’ed.), side page 792; 2 Jann. on Wills (Randolph & Talcott’s ed.), side page 878; 2 Redf. on Wills, chap. 414, p. G53; Northcott v. Whipps, 12 B. M., 71-76.) 2.

<p>Case 18 — PETITION EQUITY</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>'The action was properly instituted in the Kenton Circuit Court, that court alone having jurisdiction. (Gen. Stats., chap. 4.4, art. 1, sec. 10; Óarroll’s Code, secs. 92, 62, 65, 66, 428, 429, 433, 434, 489; Myers’ Code, secs. 96, 97, 98, 25, 28, 18, 846; 1 Stanton’s Bev. Stat., chap. 40, see. 10; Davis’ Heirs v. Duncan’s Adm’r, MS, Op., January, 1858; Bush v. Williams, 6 Bush, 406; Hopkins v. Stout, 6 Bush, 377; Weatherford v. Myers, 2 Duv., 91; Craig, &c., v. Garnett’s Adm’r, 9 Bush, 101, 102; Hood’s Adm’r v. Hood’s Devisees, &c., 80 Ky., 41; Boberts & Wife v. Phillips, &c., 11 Bush, 11, 17; Bennett v. Mc-Crocklin, 3 Met., 322; Flint v. Spurr, &c, 17 B. M., 499; Driskell v. Hanks, 18 B. M., 855; Fishback v. Green, &o., 87 Ky., 107; Webb v. Wright, 1 Bush, 167.)</p> <p>The eases of Stone’s Adm’r v. Powell, &c., 13 B. M., 343, and Greenly, &c., v. Daniels, 6 Bush, 42, have no application to the case at bar. ,</p> <p>As this is an action to settle the guardian’s accounts, and not to enforce a lien, the Kenton Circuit Court did not have jurisdiction. (Civil Code, sec. 67; Stone v. Powell, 13 B. M., 343; Groen 13' v. Daniels, 6 Bush, 42.)</p>

<p>Case 19 — PETITION EQUITY</p> <p>APPEAL PROM PAYETTE OTROUTT COURT.</p> <p>1. As to the distinction between powers and estates: 1 Sugden on Powers, side page 40; 4 Kent, side pages 315-6; Williams on Real Property, side page 272; Jones v. Clifton, 101 U. S., 225; Burleigh v. Clough, 52 N. H., 271-2.</p> <p>2. The gift of an estate expressly for life, with the grant of an absolute power of disposal to the life tenant, does not constitute an estate in fee, nor-render invalid the remainders limited to take effect after the expiration of the life estate and the non-exercise of the power. (4 Kent, side pages 319, 535-6; 1 Hilliard on Beal Property, 622; 2 Id., 590; Tomlinson v. Dighton, 1 P. Wms., 171; Jackson v. Bobins, 16 Johns., 588; 2 Preston on Estates, side pages 80-82; Glover v. Still-son, 56 Conn., 316; Fairman v. Beal, 14 111., 244; Funk v. Eggleston, 92 111., 533; Caleb v. Field, 9 Dana, 346; Thompson v. Vance, 1 Met., 676-7; note to Johnson v. Cushing, 41 Amer. Dec., 704; note to Bubey v. Barnett, 49 Id., 115; Tiedeman on Beal Property, sec. 564; 1 Sugden on- Powers, side pages 120-126; Burleigh v. Clough, 52 N. H., 271-278; Denson v. Mitchell, 26 Ala., -370.)</p> <p>1. The testator intended his wife should take the absolute property, and. not a mere life estate with the naked power of appointment. (David, . &e., v. Bridgman, &c., 2 Yerg., 557,)</p> <p>The capacity of the first devisee to dispose of the devised estate as he pleases, without being accountable for the estate or its proceeds, creates an absolute gift. (Attorney-General v. Hill, Fitzgibbons, 144; Flanders v. Clark, 1 Ves., Sr., 9; 3 Atk., 509; Bland v. Bland, 2 Cox, 349; Goodtitle v. Otway, 2 Wils., 6; Bobinson v. Dusgate, 2 Vem., 180; Pushman v. Filliter, 3 Ves., Jr., 7; Hales v. Margemm, 3 Ves., 299; Barford v. Street, 16 Ves., Jr., 135; Boss v. Boss, 1 Jacob & Walker, 154; Bull v. Kingston, 1 Merr., 314; Henderson v. Cross, 29 Beav., 216; Perry v. Merritt, 18 Eq. Cases, 152; Watkins v. Williams, 3 MacN. & G., 622; Shermer v. Shermer’s Ex’rs, 1 Wash. (Va.), 266; Biddick v. Cohorn, 4 Band., 547; Melson v. Cooper, 4 Leigh, 348; May v. Joynes, 20 Gratt., 692; Missionary Society v. Calvert, 32 Gratt., 363; Cole v. Cole, 79 Va., 255; Pulliam v. Byrd, 2 Strobh. Eq., 134-138; Smith v. Bell and Wife, Martin & Yeag., 302; Booker v. Booker, 5 Humph., 513; David v. Bridgman, 2 Yerg., 557; Dead-rick v. Armour, 10 Humph:, 558; Ide v. Ide, 5 Mass., 499; Hale v. Marsh, 10 Mass., 468; Bamsdell v. Bamsdell, 21 Me., 288; Flinn v. Davis, 18 Ala., 132; McKenzie’s Appeal, 41 Conn., 637; Van Gordner v. Smith, 99 Ind., 404; Jackson v. Coleman, 2 John., 391; Jackson v. Bull, 10 John., 18; Jackson v. Bobbins, 16 John., 537; Howard v. Oarusi, 109 H. S., 725; 2 Minor’s Inst., 1061, 1081; 1 Jann. on Wills, note 1, page 669; Moore v. Webb., 2 B. M„ 282; Ball, &c, v. Hancock’s Adm’r, 82 Ky„ 107; Gifford v. Choate, 100 ita'ss, 346; Jenner v. Hardies, 1 Leonard, 283; Bur-well’s Bx’rs v. Anderson’s Adm’rs, 3 Leigh, 356.)</p> <p>2. As the legal effect of the language of the will was to vest in Mrs. McCullough the absolute property in the entire estate, the limitations over are void, either as executory devises or contingent remainders. Not even to effectuate the intention of the testator will the courts overturn an established principle of law. (Loveacres v. Blight, Uowper’s R., 352; Hem-y v. Hogan, 4 Humph., 210; Thompson v. McKissick, 3 Humph., 631; Van Gorder et al. v. Smith, 99 Ind., 409; Smith v. Bell, 6 Bet., 75; Bearne on Remainders, 373 (side page), 3d Am. ed.; Cruise’s Digest, vol. 2, 238 (side page); Lee v. Lee, 7 B. M., 606; 6 Cruise’s Digest, 407, side page; 3 Saunders’ Rep. (2d Am. ed.), 388, d., note; Jackson v. Bull, 10 John., 18.)</p> <p>3. Where the first taker has an estate for life, with absolute power to dispose of the whole, he takes property, and not power only; but where a limited or qualified power of disposition is annexed to a life estate only, power, and not property, is conferred. (Bradley v. Westcott, 13 Yes., Jr., 445.)</p> <p>Burleigh v. Clough, 52 K. H„ 267, commented on.</p>

Case 20 — PETITION ORDINARY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 'The Constitution of the State requires that all process shall be in the name of the “ Commonwealth of Kentucky,’’ and an attachment which does not conform to this requirement is void. While the order of attachment may be indorsed upon the summons as a matter of convenience, it must be complete in itself, and nothing in the summons can supply a defect in the attachment.

<p>Case 21 — PETITION EQUITY</p> <p>APPEAL EROM JESSAMINE CIRCUIT COURT.</p> <p>E. B. Muir held the property in controversy in trust for appellant. Trusts may be established by oral testimony. (Caldwell v. Caldwell, 7 Bush, 516; Crutcher v. Hord, 4 Bush, 363; Williams v. Williams, 8 Bush, 245; Brothers v. Porter, 7 B. M., 109; Paris v. Dunn, 7 Bush, 276; Snelling v. Utterback, 1 Bibb, 609; Letcher v. Letcher, 4 J. J. M., 593; Carey v. Callan, 6 B. M., 45; Boyd v. McClure, 1 Johns’ Oh’y, 583; Griffin v. Coffey, 9 B. M., 542; Carpenter v. Carpenter, 8 Bush, 283.)</p> <p>Plaintiff should be given an opportunity to amend his petition. The lower court, by overruling defendant’s demurrer to this petition, misled plaintiff to his prejudice. As this court virtually sustains the demurrer, it should send the case back that plaintiff may amend.</p> <p>Without an allegation of fraud or mistake a written contract can net be varied by parol testimony. (Greenleaf on Evidence, section 275; Fowler v. Lewis, 3 A. K. Mar., 443; Thomas v. McCormick, 9 Dana, 109; Gelpcke v. Blake, 15 Iowa, 387 (83 Am. Dec., 418); Harper v. Harper,' 5 Bush, 176; Benfield v. McMurtry, 6 K. Law Rep., 445; Smith v. Price, 39 111., 28; s. e., 89 Am. Dec., 284.)</p>

<p>1. A motion for a new trial must be made within three days after the verdict is returned, although a motion for judgment notwithstanding the verdict may be ponding.</p> <p>2. Neither a motion for a new trial nor a motion for judgment notwithstanding the verdict is necessary to authorize the appellate court to review a judgment for the purpose of determining whether it was authorized by the pleadings.</p>

<p>Case 23 — PETITION EQUITY</p> <p>APPEAL EROM BRECKINRIDGE CIRCUIT COURT.</p> <p>issue an attachment without bond, and, therefore, the attachment was void. (Civil Code, sec. 439; Austin v. Payne, &c., 7 Bush, 480; Weatherford v. Myers, 2 Duv., 91.)</p> <p>2. A return of “ nulla bona ” by the proper officer is necessary to the jurisdiction of the court to set aside a fraudulent conveyance of land unless a valid attachment has been levied on the land and sustained. (Martz v. Pfeifer, 80 Ky., 600.)</p> <p>3. It being a question of jurisdiction, and the appellants being infants, they can not have waived any defense by failing to demur, or by the answer made to the merits by their guardian ad litem. In fact, the amended petition making appellants parties to the action states no ■ cause of action against them. (Weatherford v. Myers, 2 Duv., 91; Maddox v. Pox, 8 Bush, 402.)</p> <p>Mrs. Behan, who was only constructively summoned, never appeared, answered or made any other issue than that which the law makes for persons constructively summoned, and so did not waive her right to object to the jurisdiction of the court.</p> <p>The answer signed by the attorney for the non-resident was never filed by order of court, and is no part of the record; but if it can be considered, it did not enter the appearance of the non-resident, as the attorney made no report that he was employed by the defendant. (Civil Code, sec. 59, subsecs. 2, 3, 4, 5.)</p> <p>1. A return of “no property ” upon an execution from the circuit court-was not necessary to give jurisdiction. A proper officer has returned the execution, issued from a proper court, on a proper judgment, and this is all that the statute requires. (Civil Code, sec. 439.) No attachment bond upon which action might lie for damages was necessary. (Martz v. Pfeifer, 80 Ky., 600.) Section 439 of the Code-includes all judgments rendered by any of the courts of this Commonwealth, and is the only kind of action that can be maintained upon a judgment of a court of this State. (Davidson v. Simmons, 11 Bush, 333.)</p> <p>2. The answer of Mrs. Behan put in issue nothing but the question of fraud, and she having died pending the action, the guardian ad litem of her infant devisees adopted the allegations of her answer. Therefore, all other defenses were waived.</p>

<p>1. An entry op land which has been already surveyed for another is void.</p> <p>'2. Entries and Surveys. — The provision of the statute for the survey of entries successively in point of time in which they are made does not invalidate a survey which precedes the entry of the land. That provision merely gives to a party who makes the first entry of land then subject to entry the right to have survey first made, and that right he may, if necessary, enforce by judicial proceedings.</p> <p>3. Patents. — It is not essential to the validity of a patent that the plat and certificate should have been filed within six months from date of the survey.</p>

<p>Receiving Stolen Goods. — The degree of the offense of receiving stolen goods is determined by the value of what is received, and not by the value of the aggregate quantity originally stolen and divided into small parcels among numerous receivers not acting in concert with each other. Therefore, tw.o persons jointly indicted for receiving stolen goods were each entitled to an instruction applicable to such state of case as would reduce the offense charged to a misdemeanor, as neither of them was shown to have received stolen goods amounting in value to ten dollars, and there is no evidence that they were acting in concert.</p>

Case 26 — PETITION EQUITY APPEAL PROM LARUE CIRCUIT COURT. Pension money, after it reaches the hands of the pensioner, is not exempt. (Eobion v. Walker, 5 Ky. Law Eep., 799; Hudspeth v. Harrison, 6 Ky. Law Eep., 304; Sims, &c., v. Walsham, 9 Ky. Law Eep., 912.) I. An action to set aside a fraudulent conveyance can not be maintained without a return of “no property.” (Kyle v. O’Neil, 10 Ky. Law Eep., 710.) 2.

Case 27 — INDICTMENT APPEAL PROM ROWAN CIRCUIT COURT. 1. The indictment, which is drawn under a special statute, is defective, because the statute is not specially pleaded. 2. The statute under which defendant was indicted is unconstitutional in so far as it attempts to deprive the citizen of the right to give away his own property. 8. The persons to whom defendant gave the liquor were his “invited guests,” and he is, therefore, not liable under the statute. 1.

Case 28 — PETITION EQUITY appeal from franklin circuit court. 1. The amount in controversy is sufficient to give jurisdiction of the appeal. The costs which are to be excluded in estimating the amount in controversy upon an appeal are the costs of the action in which the judgment appealed from was rendered, and not the costs included in an execution sought to be enjoined whore the appeal is from a judgment dismissing the petition and dissolving the injunction.

Case 29 — PETITION EQUITY APPEAL FROM FLEMING CIRCUIT COURT. 1. It was error to render judgment against the administrator without an affidavit purging the claim of usury. (Matthews v. Jones, 2 Met., 255.) 2. To enforce a lien on land, those who have the legal title must be before the court. (Smith v. West’s ExT, 5 Litt., 48; Edwards v. Bohannon, 2 Dana, 98; Thornton v. Knox’s ExT, 6 B. M., 74; Anderson v. Sutton, 2 Duv., 486.) 3.

<p>Case 80 — PETITION ORDINARY</p> <p>APPEAL FROM ICENTON CIRCUIT COURT.</p> <p>1. In an action of ejectment equitable matter can not be pleaded as a defense. (Coleman v. Casey, 1 Mar., 440; Stinebaugh v. Wisdom, 13 B. M., 468.)</p> <p>2. Upon the death of the wife the husband is not entitled to a homestead in her land, either as against a creditor or the legal heir to the estate, unless he is a bona fide housekeeper with a family; and the person or personS'residhig with him, and constituting such a. family, must he those whom ho is under a moral or legal obligation to support. (Washburne on Real Property, vol. 1, p, 343; Gunn v. Gudehouse, 13 B. M., 468; Beaton v. Marshall, 6 Bush, 430; Brooks v. Collins, 11 Bush, 622; Miles v. Hall, 12 Bush, 105; Little’s Guardian v. Woodward, 14 Bush, 588; Allensworth v. Kimbrough, 79 Ky., 332; Bell v. Keach, 80 Ky., 44; Lloyd v, Lloyd, 6 Ky. Law Rep., 551; Riley v. Smith, 9 Ky. Law Rep., 615; Carter v. Adams, 9 Ky. Law Rep., 91.)</p> <p>The surviving husband has the same rights in the homestead owned by the wife that the widow has in the homestead owned by the husband, and to entitle him to the continuance of the exemption it is not necessary that he should be a bona fide housekeeper with a family. (Gen. Stats., chap. 38, secs. 14, 15, 16, and amendment of March 15, 1870; Gasaway v. Woods, 9 Bush, 72; Eustache v. Rodaquest, 11 Bush, 46; Miles v. Hall, 12 Bush, 105; Little’s Gd’n v. Woodward, 14 Bush, 585; Gay v. Hanks, 81 Ky., 553.)</p>

<p>In a suit under the statute for tiie partition of land owned jointly by two or more persons, one of the joint owners can not be required to accept his interest partly in land and partly in money. If the payment of money is necessary to equalize the allotment, the land should be sold, and not partitioned. Such a practice will be tolerated in the partition of land between coparceners, if it is to the interest of the heirs, and the money can be paid out of the fund to be distributed from the common estate, but can not be allowed where one of several tenants in common, or joint tenants, seeks a division under the statute.</p>

Case 32 — PETITION EQUITY APPEAL FROM CAMPBELL CHANCERY COURT. 1. Appellee’s device of issuing five coupons, good for twenty crossings each, is not a compliance with the ordinance requiring it to deliver “packages of one hundred tickets to foot passengers for one dollar to all persons who apply for the same.” 2.Appellant has the right to prosecute the agents of appellee who refuse to comply with the ordinance. 1. Injunction is the proper remedy.

'Case 33 — PETITION ORDINARY APPEAL FROM HENDERSON CIRCUIT COURT. 1. It is essential to tbe validity of a deed that there should be a delivery either to the grantee himself or to his authorized agent. Registration of itself does not operate as a delivery, nor does it supersede the necessity of proof of delivery. (Jackson v. Phipps, 12 John., 418; Hawkes v. Pike, 105 Mass., 560; Robinson v. Gould, 26 Iowa, 891; Kingsbury v. Burnside, 58 111., 310; Ins.

<p>Construction op Devise. — Word “Child” Construed to Include Grandchild. — The words “ child or children,” when used as describing those who are to take under a will, will be construed to embrace grandchildren, if it is apparent from the entire will that such was the intention of the testator. The mere fact, however, that injustice will be done if the meaning of the words is not thus extended is not sufficient to authorize the chancellor to thus construe them.</p> <p>A testator made devises to each of several children and his or her “ heirs,” with the provision that “ if any one of said heirs of mine should die leaving no child or children, then their share or shares to be equally divided amongst the survivors.” The testator then made a devise to his daughter, M., omitting the word “heirs,” but providing that the devise to her was “ to be under the same restrictions as provided for the other heirs.” Held — That the word “ child ” in the provision as to survivorship embraces grandchild, it being apparent from the entire will that the testator intended that the share of any devisee, upon his death, should go to the survivors only in the event he left no descendants. And the daughter M. took the same character of estate that the other children took, as the “ restrictions” referred to in the devise to her include the provision as to survivorship as well as certain restrictions in regard to the sale of the property. Whether the devise created a defeasible fee or a life estate, it is not necessary to determine, as the grandchild of M., who claims her share of the estate, takes it in either event.</p>

<p>A mistake in A deed as to the boundary of the land may he corrected, even as against a subsequent purchaser, provided he had notice of the mistake when he purchased.</p> <p>A surveyor appointed to divide a tract of land into two parcels, preparatory to its sale under decree of court, made a mistake in reporting the dividing line. The court adopted the dividing line thus reported, and the deeds to the purchasers of the respective parcels followed the report and plat of the surveyor. The land was, in fact, sold according to the dividing li- e as actually run by the surveyor, and the purchasers were not, for some time, aware of the mistake in the surveyor’s report and commissioner’s deeds. One of the purchasers now seeks to have the mistake corrected. Held — That although the present owner of the other parcel was not the original purchaser, yet, as he accepted a transfer of the purchaser’s hid with the understanding that he was purchasing according to the dividing line actually run by the surveyor, the mistake in the deed may be corrected, although the deed was made to him in accordance with the judgment of the court.</p>

Case 36 — PETITION EQUITY APPEAL PROM WOODFORD COURT OP COMMON PLEAS. 1.

Case 37 — PETITION EQUITY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. Where a hank has unmatured claims against a depositor at the time he makes an assignment for the benefit of creditors, it can not apply the deposits to tlie payment of its claims to the exclusion of other creditors; and especially is this true where the deposit was made on the day of the assignment.

Case 38 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1, The second paragraph of the reply pleading that the husband ratified and approved the wife’s conduct in trading, and expressly promised “to pay the balance due thereon,” was a departure from the cause of action stated in the petition, and the court properly sustained a demurrer thereto. (16 O. S., 533-9; 18 O. S., 262; 4 Mo.

Case 39 — PETITION ORDINARY APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1.

Case 40 — PETITION EQUITY APPEAL PROM M’CRACKEN COURT OF COMMON PLEAS. This is not an action embraced by section 66 of the Civil Code of Practice, but is an action under section 490 of the Code, which, by the express provisions of section 62, subdivision 3, must be brought in the county in which the subject of the action is situated; therefore, the McCracken Court of Common Pleas, and that court alone, has jurisdiction.

Case 41 — PETITION EQUITY APPEAL PROM LOGAN CIRCUIT COURT. 1. A mortgage executed by an insolvent debtor to an antecedent creditor,. with the design to prefer, operates as an assignment under the statute,, although the debt was created upon the faith of the debtor’s promise • to execute the mortgage. (James, &c., v. Zigler, &c., 9 Ky. Law Rep., 869.) 2.

Case 42 — PETITION APPEAL FROM MARION CIRCUIT COURT. 1. Upon demurrer all pertinent allegations of the answer, and all proper deductions therefrom, are to be taken as true. (Morgan v. Ballard, 1 Mar., 558; Smith v White, &c., 1 B. M., 16.) '.2. If legal rights are pursued in equity the legal operation of the statute must jirevail. (Eield v. Wilson, &c., 6 B. M., 480; Brunk v. Means, &c., 11 B. M., 218; McDonald’s Ex’r v. Underhill’s Ex’r, 10 Bush, 590.) 3.

<p>Dormer Jeopardy — Indictment for Forgery. — Under an indictment for forgery alleged to have been committed by signing the name of another to an order for $1.75, proof that the defendant merely wrote the figure “ 1 ” before the figures “ 75,” so as to make the order read “ 1.75 ” instead of “ 75 cents,” for which sum it was given by the person whose name was signed thereto, was competent, and was sufficient to authorize a conviction; and the indictment having been dismissed after the jury was sworn and a part of the proof heard, the Commonwealth had no right to try the defendant under a second indictment, alleging the actual facts as to the manner in which the forgery was committed, as the same facts specifically alleged in the second indictment were competent to be proved under the first indictment; therefore, the defendant’s plea of “twice in jeopardy” should have been sustained.</p>

Case 44 — PETITION ORDINARY APPEAL FROM WARREN CIRCUIT COURT. 1. The pecuniary loss sustained by appellant in missing the donation of' the note named in the petition is not too remote to he recovered.

Case 45 — PETITION EQUITY APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1. By the supersedeas bond and writ the plaintiff was not enjoined from doing any act necessary to save any right or benefit to which be was entitled, and the time during which the judgment was superseded is to be estimated as a part of the period of limitation.

<p>Case 46 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. The appellees were keepers of a “bucket-shop,” in which wagering was done on the future rise or fall of prices 'in grain, &e. This was a “wager” in the meaning of the statute. (Sawyer, Wallace & Co., v. Taggart, 14 Bush, 751; Smith v. Western Union, 84 Ivy., 684; Beadles, Wood & Co. v. MeElrath, 85 Ky., 280; Irwin v. Milliar, 110-U. S., 508; Commonwealth v. Helm, 9 Ky. Law Rep., 532; Bryant v. Western Union, 17 Federal Reporter, 825.)</p> <p>2. The fact that this statute was enacted in 1852, before “bucket-shops” had become an established method of gambling, does not prevent the statute from applying. It was to apply to all gambling by “ any wager ” done thereafter.</p> <p>3. The provision of the statute authorizing a recovery wherever the party loses to another more than five dollars “at one time,” applies to-bucket-shop wagers and losses. (General Statutes, chapter 47, article-1, section 2.)</p> <p>1. In the absence of statute no recovery could be had. Gambling con-tracts are against public policy. (Bispham’s Equity, sec. 223, note 3; 2 Kent, 46; Krauth, Ferguson & Co. v. Butcher’s Sons, 14 Bush;Sawyer, Wallace & Co. v. Taggart, 14 Bush; Bevil v. Hix, 12 B. M.;, 4 Cranch, C. C., 423-4; Idem, 161; Carrier v. Brannin, 8 Cal., 328; Greenhood on Public Policy, 223, 237, 230, note 3.)</p> <p>Parties in pari delicio can not recover. (Downs v. Quarles, Litt. Sel. Cases; Tracy v. Talmadge, 14 N. Y., 162; Oscanyour v. Arms. Go., 103 U. S.; Love v. Harris, 18 B.- M., 124; Bevil v. Hix, 12 B. M., 142; Graves v. Ford, 3 B. M., 113; Hickman v. Littlepage, 2-Dana. 844; Alfriend v. Hughes, 4 Bush, 41; Roberts v. Tennell, 3 Mon., 252; Reed v. Harrod, Sneed, 166; Brittain v. Darling, 15 B. M., 140; Greenhood on Public Policy, pp. 77-82; Thompson v. Cummings, 68 Ga., 124.)</p> <p>Only in the case of fraud, or when one of the parties is under disability, will the court interfere. (Webb v. Fulshire, 3 Ired. (FT. O.), 485; Ruchizky v. DeHaven, 97 Penn. St., 202.)</p> <p>2. The gaming statutes should be, and have always been, construed strictly.. (Virginia Statute, 1748; 1 M. & B., 749, sec. 8; Virginia Statute,. 1779 ; 1 M. & B., 749; Kentucky Statute of 1798; 1 M. & B., 753; Downs v. Quarles, 5 Litt., 490; 1 M. & B., 751; Levy v. Perkins, 4 Bibb, 505; Bess v. Shepherd, 2 Bibb, 225; Pryor v. Lucas, 3 Bibb, 96; Act of 1799; 1 M. & B., 754; Bell v. Parker, 3 Dana, 51; Faris v. Kirtley, 5 Dana, 460; Cheek v. Commonwealth, 79 Ky., 359.)</p> <p>FTotwithstanding Conner v. Ragland. 15 B. M., 635, a bet upon an election was not within the act of 1833, 1 M. & B., 758. (Graves v. Ford, 3 B. M., 113; Hickman v. Littlepage, 2 Dana, 345; Bevil v. Hix, 12 B. M., 140; Love v. Harris, 18 B. M., 122; Hutchings, v. Stillwell, 18 B. ,M., 776.)</p> <p>3. The business of dealing in futures does not come within any of the-definitions of the word “wager,” and, therefore, the facts alleged in the petition do not bring this case within the present gaming statute. (Gen. Stats., chap. 47, art. 1, sec. 2; "Webster; Bouvier; Diggle v. Higgs, 46 L. J. Ex., 74; Cheek v. Commonwealth, 79 Ky., 361; Love v. Harris, 18 B. M., 124; Smith v. Commonwealth, MS. Op., Sept. 15, 1881.)</p> <p>Similar statutes of other States are construed not to apply to such transactions. (Gregory v. Wendell, 39 Mich., 337; Thompson v. Cummings, 68 Ga., 124; Higgins v. McCrea, 116 TJ. S., 684; White v. Barker, 126 TJ. S.; Budizky v. DeHaven, 97 Penn. St., 210.)</p> <p>The act of the Legislature (Acts 1883-4, voi. 1, p. 192), declaring such transactions in Lexington to be gaming, was a legislative determination that, theretofore, they had not been gaming.</p> <p>Buies for construction of statutes. (TJ. S. v. Pisher, 2 Cranch, 358; Atkins v. Disintegrating Company, 18 Wall., 272; Hadden v. Collector, 5 Wall., 107; Maillard v. Laurence, 16 How., 251; McCool v. Smith, 1 Black, 459; Platt v. Union Pacific, 99 U. S., 48; United States v. Union Pacific, 91 U. S„ 72; Alridge v. Williams, 3 How., 9; Dist. of Columbia v. Wash. Ins. Co., 108 U. S., 245; Barbour v. City of Louisville, 7 Ky. Law Bep.; Brewer v. Blougher, 14 Pet., 178.)</p> <p>•4. To authorize a recovery under the statute the money must have been lost “at one time or within twenty-four hours,” in sums of “five dollars or more,” and the petition must so allege. The statute must be strictly pursued. (Downs v. Quarles, Litt. Sel. Cases, 469; Pryor v. Lucas, 3 Bibb, 97; Bliss v. Townsend, Sneed, 15.)</p>

<p>X A perry franchise ts a property right of which the Legislature has no power to divest .the owner. Therefore, the statute giving the county court the .power to revoke the franchise of any non-resident owner is unconstitutional as to the vendee of one who acquired his .franchise prior to:the'enacit'm.ent.of the statute.</p> <p>2. The grant of a ferry franchise to a non-resident in 1843 was valid, as the statute did not then make it a condition that the owner of such franchise should be a resident citizen of this Commonwealth.</p> <p>■3. The only causes for which a ferry franchise could be revoked or discontinued, prior to the adoption of the Revised Statutes, were: (1) a failure for six months after establishment of a ferry to provide “ the necessary boats and ferrymen; ” ■ (2) the fact that the ferry shall have been for two years “wholly disused and unfrequented.”</p>

Case 48 — PETITION EQUITY APPEAL FROM MONTGOMERY CIRCUIT COURT. The presumption is that a deed beneficial to the grantee has been accepted by him. (Davenport v. Prewitt, 9 B. M., 94; Eisher’s Adm’r v. Hess, 9 B. M., 617-18.) 1. It is essential to the validity of a deed that there should be an actual acceptance by the grantee, or something equivalent to it.

<p>Case 49 — PETITION EQUITY</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>An express and continuing trust is not affected by limitation. (Gen. Stats., chap. 71, art. 4, seo. 20; Cholmondeley v. Clinton, 2 Jac. & "Walk. Ch., 1; Kane v. Bloodgood, 7 John’s Ch., 90; Coster v. Murray, 5 Johns. Ch„ 531; 16 Serg. & Rawle, 379; Talbott v. Todd, 5 Dana, 199; Lex. L. E. & M. Ins. Co. v. Page, &c., 17 B. M., 446; Manion’s Adm’r v. Eitzworth, 18 B. M., 601; Roberts v.' Roberts, 7 Bush, 104; Seymour v. Ereer, 8 Wall., 218; Lewis v. Hawkins, 23 Wall., 119.)</p> <p>So long as the relation of trustee and cestui que trust exists, and is admitted by the trustee, lapse of time is no bar; but if the trust is denied in plain terms, and such denial brought to the knowledge of' the cestui que trust, the statute runs from that time. (Philippe v. Philippe, 115 U. S., 151; Boone v. Chiles, 10 Pet., 180; Bohannon’s Heirs v. Streshley’s Ex’r, 2 B. M., 439; Bindley v. Patterson, 2 B. M., 78; Hendrick v. Robinson’s Adm’r, 7 Dana, 167; Hume v. Beale, 17 Wall., 336; Hovenden v. Annesley, 2 Scb. & Lef. Ch., 607.)</p> <p>Administration of a decedent’s estate is “a continuing and subsisting trust” within the meaning of the statute. (Angelí on Limitation, sec. 168; Hargis, &c., v. Sewall’s Adm’r, 9 Ky. Law Rep., 920.)</p> <p>Limitation ran in Elam’s favor only from the date of the county court order confirming this last settlement.</p> <p>Plaintiffs could have sued the administrator after nine months had elapsed from the date of his qualification, and, therefore, limitation ran from. that time; but if there is any doubt upon that point there certainly can be none as to their right to sue immediately upon the confirmation of his settlement of 1866. In either event the action is barred. (Murrell’s Adm’r v. MoCallister, 79 Ky., 315; Hargis, &c., v. Sewall’s Adm’r, 9 Ky. Law Rep., 920.)</p>

<p>Case 50 — PETITION EQUITY</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>Brief not in record.</p> <p>1. The lien created in favor of the landlord on personal property which his tenant has taken to the leased promises remains as a security for the rent as long as the tenant occupies, whether the rent accrued under the lease existing when the property was taken upon the premises or under a renewal. Therefore, the landlord’s lien, even for rent accruing under a renewal of the lease, is superior to that •of a mortgagee whose mortgage was executed while the original lease was in force. (Gen Stats., chap. 66, art. 2, secs. 12, 13; English v. Duncan, 14 Bush, 377.)</p> <p>The decision in the case of City of Richmond v. Deusberry, 27 •Gratt., 214, was the decision of a divided court, and is for that reason •entitled to but little weight in Kentucky. Besides, it does not apply, because the statute of Virginia differs materially from that of Kentucky in that the only landlord’s lien known to the Vii’ginia law is a process lien under a warrant for rent. The law of Kentucky was formerly similar to the law of Virginia. (2 Dana, 204; 3 J. J. Mar., 432; 4 Dana, 22.)</p> <p>Bolling’s lease was continuous from May 1, 1883, to January 1, 1889, and he has a superior lien for rent accruing during that time. (English v. Duncan, 14 Bush, 377.)</p> <p>The condition of Bolling as a landlord is different from that of Deppen, for the reason that there was a renewal of Deppen’s lease while Bolling’s lease was continuous, an agreement to renew having been indorsed upon the original lease before its expiration.</p>

<p>Assignment pop. Creditors — Eight of Action for Wrongfully Suing out Attachment Against Eirm. — The wrongful suing out of an ¡attachment against a firm having resulted in the closing of their establishment and the making of an assignment for the benefit of creditors, the right of action for the injury done to the firm property and credit is in the assignee, and not in the partners. The cause of action accrued to the firm before the assignment, and passed by its terms to the assignee.</p>

<p>Case 52 — PETITION EQUITY</p> <p>APPEAL FROM KENTON CHANCERY COURT.</p> <p>1. Statute law of Kentucky upon the subject of investments by guardians: Act of March 1, 1797, Digest of Statutes, vol. 1, p. 643'; act of January 15, 1831, 1 Statute Law, 771; Revised Statutes, chap. 43, art. 2, sec. 7; Myers’ Supp., p. 254; General Statutes, chap. 48, art. 2, secs. 18, 19; act of March 6, 1884, General Statutes, p. 707.</p> <p>2 There has been no removal of the ward’s property from the State.. Shares of stock are personal property, and follow the abode of the owner. (City of Louisville v. Sherley, &e., 80 Ky., 71; Cromie v. Bull, 81 Ky., 658.)</p> <p>There is no legal difference between an investment in the bonds of a foreign State and in the bonds of a foreign private corporation. An investment in either is not a violation of the law. (Thompson & Thompson v. Pettibone, &c., 79 Ky , 319.)</p> <p>3 The provision of the General Statutes that courts of equity may direct. the investment in real estate or bonds was not intended to operate as a restriction upon the guardian. CWorrell’s Appeal, 9 Pa. St., 511.)</p> <p>4. A. guardian is a trustee, and all that a court of equity requires of him. is ordinary prudence and skill. (Jones’ Appeal, 8 Watts & Serg.,. 143; s. e., 42 Am. Dec., 282; Boat’s Adm’r v. Milliken, 83 Ky., 638; Cross v. Petrce, 7 B. M.; Harrison v. Berry, 82 Ky., 141; Merriwether v. Merriwether, &c., 3 Ky. Law Rep., 326; Barney v. Parsons, 54 Vt„ 623; s. c., 41 Am. Rep., 858; Kimball v. Reding, 31 NT. H., 352; s. c., 14 Am. Dec., 336.)</p> <p>If the secur ties that come to the guardian’s hands are such that a reasonably prudent man would not hold, the guardian should-sell them. (1 Perry on Trusts, see. 465; Powell v. Evans, 5 Yes., 839-Wills’Appeal, 22 Pa St., 325; Lacey v. Davis, 4 Redf., 402; Ward' v. Kitchen, 30 N. J. Eq., 31; Lacey v. Stamper, 27 Gratt., 42.)</p> <p>A trustee having power to manage, invest and pay over may invest- and reinvest. (Luxon, &c., v. Wilgus, &c, 7 Bush, 205.)</p> <p>Investments of stocks or bonds of private corporations stand on the same footing as loans on personal security. (Trafford v. Boehm, 3 Atk., 400; Hynes v. Redington, 1 Jones & La. T., 589f s. c., 7 Ired.. Eq., 405; Ackerman v. Emott, 4 Barb., 626; King v. Talbot, 40 N. Y., 476; Ward v. Kitchen, 30 N\ J. Eq., 31; Worrell’s Appeal, 9 Pa. St., 508.)</p> <p>Where the English rule as to personal security does not obtain, an investment in the stock of a private corporation stands on the same-ground as loans on private security generally, and if made with due prudence and caution the trustee will be protected. (Harvard College v. Amory, 9 Pick., 446; Lowell v. Minot, 20 Pick., 116: Brown. v. French, 125 Mass.', 410; s. c., 28 Am. Bep., 254; Boggs v. Adger, 4 Bich. Bq., 408; Smyth v. Burns, 25 Miss., 422.)</p> <p>In this State the English rule does not prevail, and the guardian may loan on personal security. (Higgins v. McClure, 7 Bush, 379; Jennings’ Ex’r v. Davis, &c., 5 Dana, 132; Clay v. Clay, 3 Mot., 553.)</p> <p>Loans by guardians upon the security of stock, which subsequently depreciated and caused a loss, wore held to be justifiable in Lowell v. Minot, 20 Pick., 116; Be Worrell’s Est., 14 Phila., 311; Green v. Bountree, 88 N. C., 64; Bobertson v. Wall, 85 FT. C., 283; Haddock v. Planters’ Bank, 66 Ga., 496; Walthall v. Walthall, 42 Ala,, 450; Hoffman v. Stoudomiro, 42 Ala., 593; Elston v. Wiley, 42 Ala., 640; Covington v. Leake, 65 N. C., 594; Love v. Logan, 69 N. C., 70; Coffin v. Bramlett, 42 Miss., 194.</p> <p>The case of Citizens’ National Bank v. Jefferson, 11 Ky. Law Bep., 175, is absolutely conclusivo of the questions involved in this appeal.</p> <p>I. By reason of the provisions of our statutes pointing out the duties of guardians as to the investment of the ward’s funds, guardians are held to a stricter accountability than simple trustees. The fact that they have acted with ordinary prudence and skill is not sufficient to exonerate them. They must secure the loans made by them of the ward’s money. (Gen. Stats., chap. 48, art. 2, secs. 18, 19, and amendment of March 6, 1884, p. 707; Higgins v. McClure, 7 Bush, 379; Elbert v. Jacoby, 8 Bush, 542; Clay v. Olay, 3 Mot., 548; Hughes v. Smith, 2 Dana, 252.)</p> <p>Bank stock is not considered a secured investment. (Smith v. Smith, 7 J. J. M., 238.)</p> <p>2. The investment of the ward’s funds in the stock of a foreign bank is a removal of the ward’s property from the State, and is such a violation of the statute as renders the guardian and his sureties liable for any loss that may result therefrom.</p> <p>•8. To entitle the plaintiff to redress, it was not necessary that she should surcharge the guardian’s settlement. (Clay v. Clay, 3 Met., 548; Hemphill, &c., v. Lewis, 7 Bush, 214.)</p>

Case 53 — PETITION EQUITY APPEAL PROM BOTJRBON CIRCUIT COURT. 1. There is nothing to support the claim made by appellees upon the ground of adverse possession and lapse of time. Adverse possession for the purpose of a hostile claim is entirely different from exclusive possession amicably obtained by trustees who take a necessary possession in order to discharge their duties.

<p>1. Vendor and Vendee — Title by Adverse Possession. — Where, pending an action to enforce a vendor’s lien, the vendor’s adverse possession ripens into a perfect legal title, that fact may bo set up by an amended petition, and the vendee required to accept the title, although the vendor had no title when the action was commenced.</p> <p>2. Interest Payable Semi-annually. — Where a promissory note provides that it shall hear interest, “ payable semi-annually,” each semiannual installment of interest bears interest from its maturity until paid, as any other interest-hearing- debt; hut the interest should he. computed semi-annually only until the maturity of the note, and interest on the whole note should then he computed in the ordinary way; hut interest on each preceding installment then unpaid should run until paid.</p>

<p>Case 55 — PETITION ORDINARY</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>The defendant, by filing a general demurrer to plaintiff’s petition, entered its appearance to the action, and could not thereafter question the court’s jurisdiction over its person. (Civil Code, secs. 19, 118, 309, 312; Barbour v. Newkirk, 83 Ky., 532;- Barton v. Barton, 80 Ky., 214; Baker v. Railroad Company, 4 Bush, 623; Boone on Code Pleading, sec. 259; Meixwell v. Kirkpatrick, 29 Ivan., 679; Burdett v. Corgan, 26 Kan., 102; Insurance Co. v. Lemke, 40 Kan.', 142; Elliot v. Lawhead, 43 Ohio St., 171; Grantier v. Rosecrance, 27 Wis., 491; 84 Ala., 36.)</p> <p>A party desiring to demur generally to the petition, and also desiring to plead to the jurisdiction of the court over him, the facts not appearing on the face of the petition, must first file his demurrer, and after that is acted on make his objections to the jurisdiction when he answers. Therefore, appellee, by filing a general demurrer to the petition, did not waive its right to object to the jurisdiction. (Civil Code, seos. 91, 92, 93, 113, 118; Pomeroy on Remedies and Remedial Rights, sees. 697, 698; Newman on Pleading and Practice, 492; Baker v. L. & N. R. Co., 4 Bush, 619.)</p>

Case 56 — PETITION EQUITY APPEAL FROM M’CRACKEN COURT OF COMMON PLEAS. 1. The judgment under which the lot in controversy was sold was void. A judgment against infants for more than was asked in the prayer of the petition is void. (Allsmiller v. Prouchtenecht, 86 Ky., 198.) 2. Even if the judgment was not void the case should be opened up, and the infants allowed to make defense, and show that no taxes remained unpaid against their lot. 3.

Cash 57 — PETITION EQUITY APPEAL FROM CALDWELL CIRCUIT COURT. It is the duty of trustees to make such investment of trust funds a? would be made by prudent business men, with a view of securing a safe income for themselves or families, and they may change the investment from time to time as they may deem the interest of beneficiaries requires. (Citizens’ Nat. Bank v. Jefferson, 11 ICy. Law Bep., 175.)

<p>Case 58 — PETITION ORDINARY</p> <p>appeal prom m’cracken court -op common pleas.</p> <p>Section 72, and not section 78, of the Civil Code regulates the jurisdiction in cases like this, and, therefore, the action may be brought in any county where the corporation has an office or place of business.</p> <p>Section 72 of the Civil Code does not apply to actions against common carriers. Section 73 regulates the jurisdiction in such cases.</p>

<p>1. Venue of Action. — An action against an incorporated insurance company, upon a contract of insurance made with an agent of the company, may be brought in the county in which the transaction with the agent took place.</p> <p>The fact that the policy sued on in this case shows that it was signed in Louisville (Jefferson county) can not be allowed to control the averment in the petition that the company, “through its duly and regularly authorized agent, in Allen county, Kentucky,” issued to the insured a certificate of membership, i</p> <p>2. Same — Service of Summons. — Where the Code has localized an action against a corporation, or given the claimant the right to do so, summons may be served upon the chief officer or agent of the company wherever found in the State.</p> <p>3. Insurance Laws. — By the provision in defendant’s charter, that “the said company being of a purely benevolent character, it shall not be subject to the laws of this State -governing life insurance companies,” it was not intended that it should be sued otherwise than as the law provides as to other insurance companies.</p>

Case 60 — PETITION ORDINARY APPEAL FROM SHELBY CIRCUIT COURT. 1.

Case 61 — PETITION EQUITY APPEAL PROM BUTLER CIRCUIT COURT. This is not an action to quiet title, but an action to-cancel a conveyance in order to remove a cloud upon plaintiff’s title. To maintain such an action it is not necessary that plaintiff should be in possession.

<p>Mechanics’ Lien on Property of Married Woman. — A person who-performs labor or furnishes material in the erection of improvements upon the land of a married woman is not entitled to a lien on the property therefor unless the contract for the improvement was in writing signed by the wife.</p>

Case 63 — MANDAMUS APPEAL EROM CAMPBELL CIRCUIT COURT. 1. The county judge acts ministerially in assessing property for taxation, and, therefore, mandamus lies to compel him to make the assessment. (Hoke v. Commonwealth, 79 Ky„ 567; Puget Sound Agr. Co. v. Pierce County, 1 Wash. (Tenn.), 159 ¡ People v. Otsego County, 51 N. Y., 401; People -v. Auditor General, 9 Mich., 134.) 2.

Cash 64 — PETITION ORDINARY APPEAL FROM KENTON OIROUIT COURT. No brief in record. 1. The lease is not good, because it is not contemplated by the charter and because it is in conflict with an ordinance of the city. Persons contracting with a municipal corporation must take notice of its charter and the extent of its powers. (Murphy v. City of Louisville, 9 Bush, 127; Craycroft v. Selvage, 10 Bush.) 2.

Case 65 — PETITION EQUITY APPEAL PROM MADISON COURT OP COMMON PLEAS. No brief in record. 1. Certainly in the description of land ordered to be sold is indispensable to the validity of the sale. A levy must describe the land levied on with sufficient certainty to enable it to be identified without other evidence. (Borer on Judicial Sales, sec. 577; Shields v. Butts, 5 J. J..

<p>1. Trust estates oe every kind are subject to the debts oe the cestui que trust, unless the will or other instrument creating the trust gives the trustee a discretionary power to withhold all payment or benefit from him; and this is true, even though the testator or grantor may expressly provide that the trust estate shall not he subjected to the payment of the debts of the cestui que trust. The intention of a testator will not he regarded if it is contrary to law or public policy.</p> <p>2. Same. — Where a will creates a trust, and provides for the payment of the profits of the trust estate to the cestui que trust, with a further provision that, in the event any creditor of the cestui que trust shall attempt to subject the profits, they shall he added'to the principal, which the cestui que trust shall have unlimited power to dispose of by will, the cestui que trust takes such a beneficial interest in the property as may he subjected to the payment of his debts. It is only where the devisee is divested of n.U interest in the estate devised upon the attempt of creditors to subject it that there is nothing that can be reached by creditors.</p> <p>3. Same. — Whore a creditor attempts to subject the trust estate under such a will, the pex'sonaltv should he first applied to the payment of the debt, and then, if necessary, the real estate should be rented out for that purpose. If this will not satisfy the debt within a reasonable time, then a sale of so much of the real estate as may he necessary should bo ordered.</p>

<p>Case 67 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>1. The renting of the Board of Trade building to strangers, with a view to the rent, is not an occupation by the Board of Trade “ for the purposes contemplated in its organization” within the meaning of the condition upon which it is exempted from taxation. (The Bank v. Tennessee, 104 U. S., 493; Crawford v. Burrell, 53 Pa. St., 219; County Comrs. v. Sisters of Joseph, 48 Mo., 34; Pacific Mail S. S. Co. v. Commis. of Taxes, 64 N. Y., 541; Proprietors of Lowell Meeting House v. Lowell, 1 Met., 541; Pierce v. Cambridge, 2 Cush., 423; Trustees of Good Shepherd v. Boston, 120'Mass., 212; Kedemptorist Bathers v. Boston, 129 Mass., 178; Lynn 'Workingmen’s Aid Asso. v. City of Lynn, 136 Mass., 288; Milwaukee & St. Paul K. Co. v. Crawford County, 29 Wis., 116; Crawford County v. Chicago, St. Paul, &c., B. Co., 48 Wis., 666; Cleveland Library Asso. v. Pelton, 36 Ohio, 256; St. Joseph’s Church v. Assessor, 12 B. I., 19; Bed, &c., v. Johnson, 53 Texas, 284; Orr v. Baker, 4 Ind., 83; State v. Lynn, 36 N. J., 360; State v. Krollman, 38 N. J., 323; Same v. Axtell, 41 N. J., 117; Temple Grove Seminary v. Cramer, 98 N. Y., 121; St. Mary’s Church v. Tripp, 14 B. I., 307; Northwestern University v. The People, 99 U. S., 309; new edition of Cooley on Taxation, pp. 204-213; Desty on Taxation, vol. 1, 161-165, 119-120.)</p> <p>2. A court will not enjoin the collection of taxes upon a mere defect in the proceedings, if the tax be substantially just and owing. ^Benick v. Curry, 4 Ky. Law Bep., 156; Burlington, &c., B. Co. v. Branz, 22 111., 34.</p> <p>3. Even if it be true that the assessment comprises a portion of the lot and building that is not liable, still the plaintiffs below had no right to ask for an injunction unless they had pointed out the proportion taxable and that not taxable, and offered to pay the taxes owing on the parts that are taxable. (Appeal Tax Court v. Masonic Lodge, 50 Md.; State Bailroad Tax Oases, 92 U. S., 575.)</p> <p>4. An injunction is a remedy peculiar to a court of equity; and a party applying for such a remedy may always be put upon terms. (White v. Cates, 7 Dana, 358.)</p> <p>1. The charter and the exempting act and ordinance contemplated that the entire structure which this public and charitable organization was authorized to purchase, was to be exempt so long as the Board of Trade should own and occupy it. ’ There was no provision for exempting part. The fact that a part was left empty, or rented out, did not change the statute which exempted the “ one hundred by two hundred-foot lot, and any improvements thereon.” (Acts 1862, page 230; Acts 1873, vol. 2, page 578; Hareman v. Queen, 49 “Wis., 71; Hancock v. Morgan, 17 Texas, 582; Bouvier’s Law Dictionary, title “ Occupant.”)</p> <p>2. "Where the exemption is of a certain sized lot, with improvements thereon, “while occupied for a certain purpose,” the whole lot and improvements are exempt, if any part of it is occupied for that purpose. (49 "Wis., 71; 17 Texas, 582.)</p> <p>3. Occupation by a tenant to raise money for its support is “occupying the building for the purposes contemplated in the organization ” of the Board of Trade. (University v. People, .99 United States, 323; "Walters v. People, 18 111., 199: 21 111., 178; 10 Abbott’s New Cases, 429; 98 New York, 126; 101 Mass., 319; 12 Mo. Ap., 342.)</p> <p>4. The contemporaneous construction put for years on this exemption by the State and city tax officers shows that the whole building was intended to be exempt. (Barbour v. Louisville, 83 I£y., 95; United States v. Moore, 95 U. S., 763.)</p> <p>5. Homestead lands are exempt by statute under the same policy, and it has always been held that an exemption of a house, or lot of land from execution “ so long as occupied by the owner ” exempts the entire house, although the owner may live in a part thereof, and rent out the other portions. (Phipps v. Acton, 12 Bush, 377; Stansbery v. Sims, 79 Ky., 529; 9 Wisconsin, 70; 17 Texas, 371; 37 Arkansas, 298; 22 Michigan, 260; 10 Minnesota, 157; 1 Nevada, 607.)</p> <p>6. The decision in 82 Kentucky, 653, that this building could not be exempt from State taxes, does not prevent it from being exempt from city taxes. (Cooley on Taxation, 2d ed., 71; Board v. Watson, 5 Bush, 662; Southgate v. Covington, 15 Ben. Monroe, 498.)</p> <p>7. The following have been held to be so far public purposes or public services as to justify exemption from city taxation: Boards of Trade (Bushy & Simon on Law of Produce Exchange, sec. 79); New Orleans Cotton Exchange (35 La. Ann., 1154); Town Hall, used for general meeting of citizens, but not belonging to the city (6 Pickering, 101 ; 77 111., 325; 3 Allen, 9); Places for Commercial Gatherings (7 La. Ann., 510; 2d Ohio State, 107); Market-houses, which are analogous to Boards of Trade (Dillon on Municipal Corporations, sec. 384; Lewis’on Eminent Domain, 174; 33 Pa. State, 209; 50 Texas, 539; 28 Hun., 515; 4 La. Ann., 355); a building for the Society to Prevent Cruelty to Animals (142 Hass., 24); Statues of Public Men or Art Statuary (Lewis on Eminent Domain, 133; 2d Hun., 146); monuments to ornament a city (Dillon oil Municipal Corporations, sec. 599); Christian Association Booms (44 Hun., 102) ; a Laboratory (61 Pa. State, 31); Public Squares (Dillon on Municipal Corporations, 598; 51 Illinois, 57; 54 Missouri, 458); a fountain on the street or in a square (Dillon on Municipal Corporations, 599); Parks (63 Barbour, 282); a Town Clock (12 Pickering, 227); a Grist Mill (111 U. S., 363); any Institution for “Postering Commerce” (21 Pa. State, 172; 60 Pa. State, 31; 16 Gray, 425; 1st 'Wallace, 296; 59 American Decisions, 775.)</p> <p>8. The said city ordinance of exemption, of 1879, constituted a contract between the city of Louisville and the Board of Trade, which contract was protected by the provisions of the United States Constitution against the impairment of the obligations of contracts. The subsequent city tax ordinance of December, 1885, under which this tax was levied, impaired the obligation of said contract, and is void. (125 U. S., 31; 132 U. S., 184; 116 U. S., 131; 10 Howard, 511, 541; 16 Howard, 369; 1 Wallace, 116; 105 U. S., 362; 8 Wall., 430, 439; 3 Howard, 133; 20 Wall., 36; 16 Wallace, 314; 13 Wallace, 264; 4 Wallace, 143.)</p> <p>9. The Kentucky Statute reserving the right to repeal legislative acts does not apply to city ordinances. (Desty on Taxation, vol. 1, 425; 100 Indiana, 585.)</p> <p>10. An injunction was the proper remedy to prevent the enforcement of the illegal tax levy. (84 Ky., 502; 79 Ky., 295; 8 Bush, 206; 5 Bush, 243; 21 Federal Beporter, 49; High on Injunctions, 796, 801; ■Cooley on Taxntion, 539.)</p>

Case 68 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. As the contract under which the money was advanced by plaintiff to Hanks & Co. was different from that guarantied by defendants they . are not bound upon their guaranty. 2. A demand on the principal debtor and notice of his default must be given to the guarantor in order to bind him. (2 Parsons on Contracts, p. 29.) 3. The contract sued on in this case is a contract of guaranty and not of suretyship.

Cask 69 — PETITION EQUITY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 'While the conveyance of land abutting upon a highway usually passes the fee to the middle of the way, the rule does not apply where the contrary is stated in the deed, or where the fee in the way is reserved from conveyance; nor does it apply where the way has never been accepted, and has been notoriously abandoned and fenced up, and where the deed conveying the adjoining lot does not describe it as…

<p>1. Blank indorsements on a draft in the hands of a bank imply a transfer to the hank of dominion over and some right to the paper, with authority to fill up the blanks as proof of the specific character ' of that right. But such implication may he rebutted by evidence showing the true character of the transaction and the actual rights of the parties.</p> <p>2. Title of Bank to Checks Deposited and Credited as Money.— Upon a deposit made by a customer in a bank, in the ordinary course-of business, .of money or drafts or checks received and credited as money, the title to the money or to the drafts or checks is immediately vested in and becomes the property of the bank; and if checks, notes, etc., are deposited for collection, credited to the depositor on general account and drawn against, the bank is holder of the paper for value, and if it becomes insolvent the paper forms part of its assets. And whei'e it is the custom of a depositor to deposit checks payable to himself, which are entered on his pass-book, and to draw against such deposits, an indorsement of the words “ for deposit ” on a check so deposited is, in the absence of a different understanding, presumption of more than a mere agency or authority to-collect; it is a direction by the customer to deposit the sum to his credit.</p> <p>3. Title to Drafts Deposited in Bank for “ Collection and Credit.” — When a hank receives a draft or note for “ collection on account,” or, which is the same, “collection and credit,” it does not owe the amount until collected; and though credit he given therefor prior to collection, the hank is not precluded from canceling such credit, which is regarded as only provisional, if the paper is dishonored. On the other hand, the owner of the paper is at liberty to treat the bank as an agent until the proceeds are collected by the bank in money, and an entry of credit by the bank before it has actually received the money will not bind the owner. Therefore, when the bank has entered the credit, and then gone into the hands of a receiver before it has actually received the money from another bank to which it transmitted the paper for collection, the real owner may recover from the latter bank the proceeds still in its hands. Neither the receiver nor the creditors of the bank which transmitted the paper for collection have any right to the money. A mere usage between bams whereby the collecting bank credits the transmitting bank with the amount collected, instead of remitting, is not sufficient to deprive the real owner of his rights.</p>

Case 71 — PETITION ORDINARY APPEAL PROM HENDERSON CIRCUIT COURT. 1. The contract for the sale of. the insured property was. void for uncertainty of description. The writing must contain such description of the land as would be enforceable without parol proof. (Fowler v. Lewis, 3 Mar., 445; Kay v. Curd, 6 B. M., 100; 12 B. M., 604; 7 Ky. Law Rep., 694; Judge v. Cash, 6 Ky. Law Rep., 444.) 2.

Case 72 — PETITION EQUITY APPEAL PROM KENTON CIRCUIT COURT. Brief withdrawn. 1. The power to license a business is clearly constitutional. (Dillon on. Mun. Corp., secs. 115, 357.) 2. A corporation created by the laws of one State can not do business in any other State without its permission, and the latter State has the-power to impose discriminating license and tax upon the corporation for the privilege of doing business therein. (Doyle v. Continental. Ins.

Case 73 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. Trust estates were not liable to execution at common law. (Ereeman on Executions, 187; Thomas v. Marshall, Hardin, 19; Allen v. Saunders, 2 Bibb, 94.) 2. By statute in Kentucky estates of every kind hold in trust are subject to the debts of the person for whose benefit they are held. (More-head & Brown, p. 443; Gen. Stats., chap. 63, art. 1, sec. 21.) 3.

<p>Construction op Deed — Description oe Property. — Where there is hoth a general and a particular description of property conveyed, the particular description will, as a general rule, control; but if the particular description is to any extent obscure, the general description should be resorted to for the purpose of determining the premises granted; or if the premises are described by a well-known name, and then the boundary is particularly set out, but so as to include only a part of the premises embraced by the general description, the whole-will pass.</p> <p>Persons who had dedicated for public use a strip of ground called “ Park Place ” executed a writing agreeing that it might bo diverted to a use different from that designed by them, and relinquishing all reversionary rights, but said strip of land referred to in the writing as “Park Place” was described as lying between certain streets, whereas only a part of the strip dedicated, and known as “ Park Place,” lies between the streets named. Held — That as the writing shows that it was intended to apply to the entire strip of land dedicated, the particular description should not be allowed to limit the extent of the release.</p>

<p>Case 75 — PETITION EQUITY</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>1. Any claim to contribution arising among devisees or heirs must, to be-sustained, he founded on some section of chapter 23, General Statutes.</p> <p>2. Section 6 of chapter 23, General Statutes, by its express language, is applicable only to specific legatees, and hence can give no support to the claim of appellee, Hettie 0. Wathen, as she was not a specific legatee of the Daveiss county bonds.</p> <p>3. Before there can be a recovery under section 6 there must be a failure of title.</p> <p>The title of Hettie 0. Wathen to the bonds i-eceived by her is perfect. The fact that they have declined in value does not affect the title.</p> <p>4. The appellee, Hettie 0. Wathen, occupies the position of a purchaser of the bonds, and in the sale of such securities the only implied warranty on the part of the seller is that they belong to him, and that they are not forgeries. (Otis v. Cullom, 92 U. S., 447; Town of Orleans v. Platt, 9 Otto, 676.)</p> <p>5. To authorize a recovery under section 6 of the statute it must appear from the will that a contribution from the other devisees is consistent with the intention of the testator.</p> <p>The language of the will in this case conclusively shows that it was not the intention of the testator to guaranty a continuing value to the bonds distributed to his heirs.</p> <p>6. It was formerly the rule that specific legacies were exempt from contribution, though legacies generally contributed to the payment of • the debts of the testator. (Timberlake v. Parish, 5 Dana, 353; Colbert v. Daniel, 32 Ala., 314; White v. Green, 1 Ired. Eq., 45; Stuart v. Carson, 1 Desaus., 500.)</p> <p>Sections 2 and 5 of chapter 23, Gen. Stats., were intended, as respects the payment of the testator’s debts, to place specific and general legacies on the same footing.</p> <p>7. The judgment of the Hardin Circuit Court, adjudging the bonds to Hettie C. Wathen as three thousand eight hundred and sixty dollars of her share of the testator’s estate, is conclusive as to the salable value of the bonds at the time they were paid to her.</p> <p>8. The plaintiff’s cause of action accrued, if ever, when the bonds were distributed, and was barred in live years thereafter.</p> <p>1. The cause of action, if any, accrued upon the delivery of the bonds, and was barred in five years. (Ellis v. Kelso, 19 B. M., 300; Covington v. Morton, 6 Ky. Rep., 253; Kennison v. Carpenter, 9 Bush, 599; Graves v. Leathers, 1 B. M., 1S5.)</p> <p>If this be regarded as an action for relief on the ground of fraud or mistake, it was barred after ten years from the delivery of the bonds. (Gen. Stats., chap. 71, art. 3, sec. 6; Phillips v. Shipp, 5 Ky. Rep., 460; Cochran v. Walker, 6 Ky. Rep., 184.).,</p> <p>The statute of limitations should be permitted to have its effect in all cases where its operation will not work evident injustice. (L. & O. R. Co. v. Bridge, 7 B. M., 556; 46 Am. Dec., 528.)</p> <p>2. Even if the cause of action did not accrue upon the delivery of the bonds it certainly accrued when the maker of the bonds elected to dishonor them and treat them as invalid. (Wood on Limitations, sec. 143; Cowper v. Gadmond, 9 Bing., 788; Merchants’ Nat. Bank of Balt. v. First National Bank of Balt., 3 Fed. Bep.; Bipley v Wither, 27 Tex., 14.)</p> <p>■ 3. The holder of void negotiable paper is not required to establish its spuriousness by a judgment in a suit against the maker in order to recover of the party who transferred the paper to him. (White v. Thomas, 3 Litt., 177; 14 Am. Dec., 56; Jordan v. Jordan, 4 Greenly, 175; 16 Am. Dec., 249; Mudd v. Harper, 1 Md., 110; 54 Am. Dec., 644; Marble v. Hatfield, 2 Johns., 455; 3 Am. Dec., 446; 12 AmDeo., 51; Jones v. Byde, 4 Esp., 89; Eagle Bank v. Smith, 5 Conn., 71; 13 Am. Dec., 37; Watson v. Oresap, 1 B. M., 195; 36 Am. Dec., 572; Smith v. McNah1, 27 Am. Bep., 117.)</p> <p>-4. As Daveiss county refused to pay interest on the bonds in January, 1877, this put appellees on inquiry to learn what was the matter, and the statute then began to run. (A., T. & S. F. B. Co. v. Burlington Township, 36 Kans., 628; 59 Am. Bep., 578; L. & O. B. Co. v. Bridges, 7 B. M. 556; Dye v. Holland, 4 Bush, 635; New Hope DB. Co. v. Perry, 52 nm. Dec., 451.)</p> <p>No action lies on the original consideration unless the party reasonably offers to return the paper or exhausts his remedies upon it with diligence. (Pope v. Naves, Minor, 299; 12 Am. Dec., 51.</p> <p>-5. At common law a specific devise was not subject to contribution to meet the debts of the testator, and if, for any cause, a specific devise was lost, the other devisees were not liable to contribution for any part of the loss. (Timberlake v. Parrish, 5 Dana, 353; Hoeber’s Appeal, 4 Penn. St., 497.)</p> <p>Sections 5 and 6 of chapter 23, Gen. Stats., were intended to abolish ■all distinction as to liability for debts of the testator between general and specific devises, and to put all heirs-at-law, whether holding .special or general devises, on an equal footing as to contribution.</p> <p>Section 6 of the statute can not be construed to refer to general devises, because, when it was enacted, it had long been a well settled rule of equity that if in the division of the estate among the general devisees property not belonging to the estate, or spurious paper was assigned to one of them, or if, by mistake, one’s share was not paid, ■or was taken to pay a debt of the testator, the others were liable to ■contribution for the loss. (1 Story’s Eq., secs. 503-505; McClanahan v. Kennedy, 1 J. J. Mar., 333; Livingston v. Livingston, 3 Johns. (Ch.), 148; Brents v. Brown, 3 Head, 560; Guier v. Kelly, 2 Binn., '289; Young v. Weldon, 1 Murph., 176.)</p> <p>Appellees’ case can get no support from the statute, because here the devise is general, and there has been no failure of title.</p> <p>1. This action is not grounded upon the implied warranty of title resulting from tlie sale of personal property, nor upon an express warranty. The case is controlled entirely by section 6 of chapter 23, Generali Statutes, the requirements of which are fully met.</p> <p>2. By the express terms of the statute the cause of action for contribution, accrues when the title to the property, or any part thereof, shall prove-, invalid. By the expression “prove invalid” is intended the highest, and only legal proof, viz: the judgment of a court of competent jurisdiction determining the invalidity of the title.</p> <p>The judgment of 1877 against the “unknown bond-holders” was set aside, and thereafter the rights of all parties stood as though it. had never been made.</p>

Case 76 — PETITION EQUITY APPEAL PROM JESSAMINE COURT OP COMMON PLEAS. The sons took a defeasible fee under their father’s will. It was the intention of the testator that, in case of the death of one of his sons at any time without bodily heirs, his portion should be divided as directed in the will.

Case 77 — INDICTMENT APPEAL FROM MONTGOMERY CIRCUIT COURT. 1 The Montgomery court had no jurisdiction to try the defendant. If the jurisdiction of an offense be in two or more counties, the defendant must be tried in the county in which he is first arrested. (Criminal Code, sections 21, 24.) 2.

<p>1. Demurrer to Indictment. — A demurrer is the proper mode of objecting to an indictment upon the ground that it charges two offenses.</p> <p>2. Indictment for Forgery. — An indictment, which alleges that the defendant did “ utter and publish ” as true a certain false, “ forged and counterfeited” order, charges but a single offense. It was not intended by the use in the statute of the words “utter or publish” to state two offenses; nor was it so intended by the use of the words “forge or counterfeit,” these words being used in their general sense, and as importing that which is false.</p> <p>3. Same — Variance.—The fact that the evidence showed a forged order only, and which was not in the strict sense of the term a counterfeit one, did not constitute a variance between the indictment and the proof.</p>

<p>Case 79 — PETITION EQUITY</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>A railroad company can not abandon the purpose of taking property which it has had condemned for its use, and thus escape liability for the damages assessed. (2 Vroom, N. J., p. 72; 86 Am. Dec., 199; First Nat. Bank v. West Biver B. Co., 49 Vt., 167; 27 Vt., 39; 25 Mo., 532; 2 Mo. Ap., 105; 44 Mo., 116; 10 How., 395; 62 Me., 272; 9 Iowa, 438; 12 Mo., 328; 60 N. Y., 319; 28 N. H., 244; 13 Kansas, 514; 56 N. Y., 144; 1 Hill, 545; 11 Wend., 155; 1 Wend., 318; 73 N. Y., 560; 7 John., 542; 18 John., 545; 20 La. Ann., 497; 39 N. J. L., 640; 41 N. J. L., 161; 22 Pick., 263 ; Mills on Eminent Domain, sec. 312; 51 N. H„ 188; 44 Ind., 97; 35 Iowa, 579; 20 Iowa, 523; 45 Me., 419; 15 Neb., 367;- 33 N. J. Eq , 584, 622; 78 N. Y., 56; 8 Col., 380; Duncan v. Mayor of Louisville, 8 Bush, 104.)</p> <p>'The effect of condemnation proceedings is simply to fix the price at which the party condemning can take the property sought, and even after confirmation or judgment the purpose of taking the property may ho abandoned without incurring any liability to pay the damages awarded. (Baltimore & Susquohana B. Co. v. Nesbit, 10 How., 395; Garrison v. City of New York, 21 Wall., 201; 1 Borer on Bailroads, p. 331; Lewis on Eminent Domain, sec. 656; Lamb v. Schottler, 54 Cal., 319; Chicago v. Barlian, 80 111., 482; City of Bloomington v. Miller, 84 -111., 621; St. Louis, &c., v. Teters, 68 111., 144; Blackshire v. Atkinson, &c., B. Co., 13 Kan., 514; State v. Cincinnati, &c., B. Co., 17 Ohio, 103; State v. Groves, 19 Md., 351; Gear v. Dubuque, &c„ B. Co, 20 Iowa, 523¡'Cave’s Ex’r v. Calmes, 3 A. K. Mar., 36; Duncan v. Mayor of Louisville, 8 Bush, 99.)</p>

Case 80 — PETITION EQUITY APPEAL EROM HENDERSON OIRCTJIT COURT. 1. The petition herein should have been dismissed upon the ground that the city of Henderson has no statutory authority to enforce the collection of taxes by suit in equity, or by any kind of a proceeding in the courts. (Johnson v. Louisville, 13 Bush, 527; Baldwin v. Shine, 84 Ky., 502; Louisville Water Co. v. Commonwealth, 89 Ky., 244.) 2.

Case 81 — PETITION EQUITY APPEAL FROM WEBSTER CIRCUIT COURT. Section 9 of chapter 113, General Statutes, does not apply. Where there is executed simultaneously with the will an antenuptial contract fixing the property rights of the parties, as in this case, the reason for the statute ceases to exist.

Case 82 — PETITION EQUITY APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1.

<p>Case 83 — PETITION EQUITY</p> <p>APPEAL PROM WHITLEY COURT OE COMMON PLEAS.</p> <p>1. The petition is defective in that plaintiff fails to allege that he is entitled to the possession of the land he seeks to recover.</p> <p>The statement of a fact constituting a cause of action or defense can not be avoided by a statement which raises only a prima facie presumption of the fact relied on. (Haggan v. Hay, 13 B. HI., 176; Gregory v. McFarland, 1 Duv., 62.)</p> <p>2. In the absence of any explanation in the petition as to why plaintiff-has not procured a patent, the presumption is that his survey or warrant was not legal, and that a patent could not be legally issued thereon.</p> <p>3. Under the act of 1815, which is the law of this case so far as plaintiff’s title to the land is concerned, a party for whose benefit a survey is made has no title to the land before patent issues, unless he has his survey registered within one year from its date.</p> <p>While various statutes have been enacted giving time to perfect claims, and for the filing of' plats and certificates with the Eegister, there is none sufficient to give relief to plaintiff. (Gen. Stats., chap. 109, sec. 3.)</p> <p>4. A patent is not void, although it embraces land that had been previously entered or surveyed, provided the prior entry or survey had not been registered within the time allowed by law.</p> <p>5. A mere equity can neither maintain nor bar ejectment. (Griffin v. Davis, 2 Bibb, 417.)</p> <p>Plaintiff must show title in himself, or he can not recover. (Shutt v. Travis, Sneed, 307; Anderson v. Turner, 3 Marsh, 134.)</p> <p>In absence of proof of title on either side, a presumption of title in favor of the first possessor may be indulged in. (Fawk v. Darnall, 5 Lilt., 317.)</p> <p>Appellant’s patent is void, because it covers land that had been surveyed by appellee prior to the survey upon which it was based. (Gen. Stats., chap. 109, sec. 3; act of 1835, Loughborough’s Statutes, p. 380; Act of 1837, Loughborough’s Statutes, p. 388; Little, &e., v. Bishop, &c., 9 B. M., 240; Flippin v. Hays, &o., 3 Met., 215.)</p>

Case 84 — AGREED CASE APPEAL FROM TODD CIRCUIT COURT. 1. Section 9 of article 3, chapter 5, of General Statutes, applies only to prosecutions for misdemeanors in which the justice of the peace ha? jurisdiction to render final judgment, and does not apply to prosecutions in which ho sits merely as an examining court. 2. The offense named in the warrant was not a misdemeanor, hut a felony, (Gen. Stats., chap. 29, art. 6, see. 2.) 1.

Oase 85 — PETITION ORDINARY APPEAL PROM BSTILL CIRCUIT COURT. 1. The judgment should he reversed for errors appearing on the face of the petition. Plaintiff states that he is the owner of five-eighths of a tract of land which is described by metes and bounds, but lie does not describe by metes and bounds the five-eighths of which he claims to be the owner, and does not show who is the owner of the other three-eighths. 12.

<p>1. Costs of Contest of Will. — The successful contestant of a will is not entitled to have the extraordinary costs of the contest jiaid out of the estate where the contest was for his benefit alone, the portions of the other heirs being diminished by the rejection of the will.</p> <p>• 2. Same. — Where the nominated executor in a will, in good faith and upon reasonable grounds, has endeavored to probate it, be is entitled to have any extraordinary expense, such as his attorney’s fees and other incidental costs, paid out of the estate, although the will was rejected. But where one merely as devisee or as curatrix of the estate of a decedent attempts to set up a will, which is rejected, he is not entitled to have the expense of the litigation paid out of the estate.</p> <p>3. Costs of Suit to Surcharge Settlement of Administrator.— Where one of several distributees of an estate has succeeded in a suit to surcharge a settlement made by the administrator, and the correction of the settlement has inured to the benefit of all the distributees, he is entitled to have his attorney’s fees paid out of the estate. But the expenses of the administrator in defending such a suit having been incurred in endeavoring to protect his own interest, he is not entitled to have them paid out of the estate.</p> <p>■4. Interest. — The curatrix of the estate of a decedent should not be charged with interest upon money of the estate .which was in bank to her credit and ready for distribution pending a contest over the will of the decedent, if, in tact, she received no interest upon this portion of the estate during that period.</p>

<p>Case 87 — CONTESTED WILL</p> <p>APPEAL FROM WOODFORD CIRCUIT COURT.</p> <p>1. The court erred in permitting a part of the- heirs to- prosecute the appeal for all. As the heirs were only sixteen in number, they were not so numerous that it was impracticable to bring them all before-the court. (Hendrix, &c., v. Money, &e., I Bush, 307; Kirk v. Young, 2 Abb., 453; Civil Code of Practice, see. 25.)</p> <p>2. It was error to admit testimony tending to show that tile testator was not the owner of the property which he attempted to devise, as that question was not in issue.</p> <p>3. The declaration of the testator that he was responsible for his nephew being a drunkard was incompetent evidence.</p> <p>4. It was not competent for the contestants to prove that the testator had declared more than twenty years before he made his will that he intended to give his property to his- nephew, who was dead when the will was made.</p> <p>5. The opinion of a witness that a certain person exercised an undue influence over the testator is not competent, unless the facts upon which that opinion is based are stated by the witness.</p> <p>6. The assessor’s hooks wore not competent evidence, because they explained no issue in the cause; nor were they properly proved. (Sutton, &c., v. Eloyd, 7 B. M., 3.)</p> <p>7. It was error to admit as evidence the record of the litigation between, the testator and his nephew.</p> <p>8. The charge made by the court to the jury after they announced that they could not agree was improper, and is ground for reversal. (Howard, &c., v. Coke, &o., 7 B. M., 659; Earnham v. Earnham, 73 111., 497.)</p> <p>9. Undue influence defined : 2 Greenleaf, 688; Lucas, &c., v. Cannon, &c., 13 Bush, 653.</p> <p>10. As there was no testimony to sustain the verdict of the jury, the lower court erred in overruling the motion of the proponnders for a judgment sustaining the whole will, notwithstanding the verdict. (Broaddus’ Devisees v. Broaddus’ Heirs, 10 Bush, 303.)</p> <p>Brief not in record.</p> <p>1. Undue influence defined: Boyd v. Boyd, 66 Pa. St., 293; 1 Rod. on Wills, 4th ed., 528; Hall v. Hall, L. R., 1 P. & M., 481; Darley v. Darley, 3 Brad., p 508; Boyse v. Rosshorough, C II. & L., p. 51; Davis v. Calvert. 5 Gill & John.,¡Md„302; Williams’Ex., 6 Am. Ed., p. 57; 3 Moore P. C. C., 290; Eorman v. Smith, 7 Lans., 443; Reynolds v. Root, 62 Barb., 250; St. Leger’s Appeal, 34 Conn., 434; Brubein v. Cieotte, 12 Mich., 460; Davis v. Calvin, 5 Gill & John., 300; Kinne v. Johnson, 60 Barb., 69; Reynolds v. Root, 62 Barb., 250.</p> <p>2. Whore relations exist by means of which the one is able to exercise dominion over the other, the courts will annul any transaction between them under which the person with such power of control takes a benefit, unless he can show that the transaction is a righteous one. (2 Pom. Eq., 951, and notes; Cadwalader v. West, 48 Mo., 483; Long v. Mulford, 17 O. S., 484; Woods v. Downs, 18 Yes., 119.)</p> <p>3. Where a will is unreasonable in its provisions, and inconsistent with the duties of the testator with reference to his property and family, this will of itself impose upon those claiming under the instrument the necessity of giving some explanation of the unnatural character of the will. (Rodfield on Wills, vol. 1, pp. 510-514; Lynch v. Clements, 24 N. J. Eq., 431; Lead. Cas. in Eq., vol. 2, pt. 2, pp. 1275-6; Hanel v. Hanel, 1 Duv., 203; Bates v. Bates, 27 la., p. 116; Higgins v. Cartel-, 28 Md., 115; Reynolds v. Root, 62 Barb., 250; Gay v. Gillilan, 92 Mo., 250, 263-4.)</p> <p>Brief not in record.</p>

Case 88 — PETITION ORDINARY APPEAL FROM MARION CIRCUIT COURT. Plaintiff can not maintain this action, as -there is nothing to show that his intestate left either widow or child. (Henderson’s Adm’r v. Ky. C. R. Co., 9 Ky. Law Rep., 625; L. & N. R. Co. v. Sanders, Ibid, 690.) 1. The statute is general in its terms and scope. If this particular representative has no right to sue, his incapacity to sue must he shown by answer.

Case 89 — PETITION EQUITY APPEAL FROM HARDIN CIRCUIT COURT. Brief not in record. 1. It is immaterial whether or not the land in controversy was occupied as a homestead at the time of the creation of the debt if it be true that at the time of the alleged sale appellee was occupying said premisos as a homestead by himself and family. (Nichols v. Sennet, 78 Ky., 632; Eish v. Hunt, 81 ICy., 587.) 2.

<p>Vendor and Vendee — Agreement to Confess Judgment. — Where, in an action by vendor against vendee to recover the purchase price-of land, and to enforce a lien therefor, the defendant agrees in writing, for a valuable consideration, to confess judgment, the agreement, is binding, and the defendant can not thereafter resist judgment upon the ground that the vendor’s title is defective; and parol testimony,, in the absence of fraud or mistake, will not be heard to restrict enlarge or modify the written agreement, which, it is to bo presumed, contains the entire contract.</p> <p>A vendor having an action to enforce a lien for purchase-money, and also an injunction against the vendee to stay waste, the vendees ' executed a writing agreeing, in consideration of plaintiff’s consenting-to a dissolution of the injunction, that plaintiff’s attorney might, at. the next term of court, confess judgment against them for the full amount that might then be due on the note sued on, defendants to-receive a deed when purchase-money should be paid. Held — That, the agreement is binding, and that defendants can not resist judgment upon the ground that plaintiff’s title is defective; but the court, erred in rejecting a plea of partial payment, as defendants only-agreed to confess judgment for the amount that might be due.</p>

<p>Case 91 — PETITION ORDINARY</p> <p>APPEAL PROM MASON CIRCUIT COURT.</p> <p>1. The interest of a vendor in land that he has sold but not convoyed is subject to execution, although the vendee has entered into possession under the contract of sale. (Riley v. Million, 4 J. J. Mar., 395; Million v. Riley, 1 Dana, 359; Butts v. Chinn, 4 J. J. Mar., 641.)</p> <p>The possession of a vendee under an executory contract of purchase is presumptively not adverse to the vendor. (Sprigg v. Albin, 6 J. J. Mar., 162; Ogden v. Walker, 6 Dana, 421; Griffith v. Dieken, 2 B. M., 21; Craig v. Austin, 1 Dana, 518; Higgcnbotham v. Eishback, 1 A. K. Mar., 506; Henderson v. Dupree, 82 Ky., 678; Williams v. Cash, 73 Am. Dec., 739; Dean v. Brown, 87 Am. Dec., 553 and notes.).</p> <p>2. Whenever plaintiff' and defendant derive title from the same source,. the plaintiff usually need not go behind, this source to prove his title. (Sedgwick & Wait on Trial of Title to Land, sec. 803 (2d cd.); Luen v. Wilson, 85 Ky., 503; Smith v. Bradley, 10 Ky. Law Rep.,. 1029; Woolfolk v. Ashby, 2 Met., 289; Addison v. Crow, 5 Dana, 281; Brooks v. Chaplin, 23 Am. Dec., 209; Miller v. Suris, 65 Am. Dee., 592; Barnard v. Whipple, 70 Am. Dec, 422; Merchants’ Bank v. Harrison, 93 Am. Dec., 285; Smith v. Lindsey, 89 Mo., 76; 2' Greenleaf on Evidence, sec. 307; 6 Am. & Eng. Encyclopedia of Law, 245; 3 Smith’s Leading Cases, 747 (7th Am. Ed.)</p> <p>3. Notice to quit was not necessary in order to enable appellant to maintain this action. (Adams v. Greenard, 76 Am. Dec., 626; Snowdon ■ v. McKinney, 7 B. M., 258; Stedman v. McIntosh, 42 Am. Dec, 138 (note); Haley v. Hickman, Litt. Sel. Cas., 266; Ciasen v. Rankin. 1 Duer., 341; 6 Am. & Eng. Encyclopedia of Law, p. 238, n. 2; Sedgwick & Wait on Trial of Title to Land, sec. 290; Shackleford v. Smith, 5 Dana, 238; 1 "Wood on Landlord and Tenant, sec. 45, p. 124; Springs v. Schenck, 6 Am. State Rep., 554; s. c., 99 N. C., 551; Meraman v. Caldwell, 8 B. M., 32; Peterson v. Lailc, 69 Am. Doc., 441; s. c., 24 Mo., 541; Harrison v. Taylor, 82 Am. Dec., 159; s. c., 33 Mo., 211; "Williams v. Cash, 73 Am. Dec., 739; s. c., 27 Ga., 507; Preeman on Cotenancy and Partition, sec. 292; Eastin v. Rucker, 1 J. J. Mar., 235; Butts v. Chinn, 4 J. J. Mar., 641; Greer v. “Winter smith, 85 Ky., 516; "Woods’ Landlord and Tenant, sec. 18; Gray v Stanion, 1 M. & “W., 695; Burnett v. Caldwell, 9 “Wall., 290; Sedgwick & “Wait on Trial of Title to Land, sec. 804, 305.)</p> <p>4. Appellant is the legal owner of the land in contest, and an equitable title is no defense to an action of ejectment "brought by the legal title holder. (Bennett v. Titherington, 6 Bush, 197.)</p> <p>Cited in petition for rehearing as to the vendor’s right to maintain such an action since the Code: Pomeroy on Remedies, secs. 68, 95; Spencer v. Tobey, 22 Barb., 268; Dewey v. Hoag, 15 Barb., 369; Bliss on Code Pleading, sec. 351 and note 4; Newman’s Pleading and Practice, 554; Oavilli v. Allen, 57 N. Y., 508; Sedgwick & "Wait on Trial of Title to Land, sec. 487-488; 3 Pomeroy’s Eq., sec. 1407.)</p> <p>1. The vendor of land by executory contract can not recover the possession of the vendee, who has taken possession under the contract, without at least proof of default of payment of the purchase-money. (Abbott’s Trial 'Evidence, p. 707; Browning v. Estes, 49 Am. Dec., 761; Burnett v. Caldwell, 9 "Wall., 290; Gregg v Yon Phul, 1 “Wall., 274; Sedgwick & Wait on Trial of Title to Land, secs. 304, 306, 307, 310, 317, 394; Pears v. Merrill, 50 Am. Dec., 226; Seabury v. Stewart, 58 Am. Dec,, 254.)</p> <p>'2. The vendor must also show notice to quit prior to the bringing of the action. (Harle v. McCoy, 7 J. J. M., 318; Dennis v. "Warder, 3 B. M., 175; Hope v. Cason, 3 B. M., 544; Bedford v. Thomas, 6 B. M., 332; Landers v. Beauchamp, 8 B. M., 493; Harrison v. Hord, 12 B. M., 477.)</p> <p>The execution purchaser acquires no greater rights than the vendor had, and is as much bound to give notice to quit as the vendor. (Snowden v. McKinney, 7 B..M., 258; Locke v. Coleman, 2 Mon., 12; Riley v. Million, 4 J. J. Mar., 395.)</p> <p>A vendee’s assignee is as much entitled to notice to quit as the •vendee himself. (Dennis v. Warder, 3 B. M., 175; Bedford v-'Thomas, 6 B. M., 332.)</p> <p>Cited in reply to petition for rehearingTibeau v. Tibeau, 19 Mo., "78; s. c., 59 Am. Dec., 329; Sedgwick & "Wait on Trial of Title to Hand, sec. 304; Muldrow v. Muldrow, 2 Dana, 387.)</p>

Case 92 — INDICTMENT APPEAL PROM MARION CIRCUIT COURT. No brief in record. 1. The divorced wife of the defendant was a competent witness. What was proposed to be shown by her was not a communication that had come to her by Teason of the marital relation. (Civil Code, sec. 6061 Ellswick v. Commonwealth, 13 Bush, 155; 1 Greenleaf on Evidence’ sec. 337; 1 Phillips on Evidence, p. 75, 3d Am. ed.; Diekerman v. Graves, 6 Cush., 308.) '2.

Case 93 — PETITION EQUITY APPEAL PROM LAUREL COURT OE COMMON PLEAS. 1. The denials of the answer are evasive, and, therefore, the allegations of the petition are to be taken as true.

<p>Case 94 — PETITION EQUITY</p> <p>appeal from daveiss circuit court.</p> <p>'The court erred in adjudging that appellant was not entitled to be allowed any thing for the improvements made by him on the fifty acres of land after his marriage with Mrs. Rafferty.</p> <p>No brief in record.</p>

<p>1. Homicide — Evidence.—Upon a trial for murder it is competent for the defendant to testify that he believed at the time of the killing that he was in danger at the hands of tho deceased.</p> <p>2. Introduction op Testimony. — "While tho trial court has a reasonable discretion in the matter of allowing either party to introduce additional testimony in chief after the close of his testimony, the court should not allow the introduction of testimony out of the usual order, except for good cause.</p> <p>After the close of the testimony in chief for the Commonwealth upon a trial for murder, and after several witnesses for defendant had testified, the attorney for Commonwealth stated that a certain witness for the Commonwealth had answered, and was in the court-room, and asked that he be sworn and put under the rule and allowed as an eyewitness to testify in chief, as the defendant’s testimony had not closed, but the motion was overruled. At conclusion of defendant’s evidence this same witness was introduced by the Commonwealth in rebuttal, but was allowed to testify as to the position of tho deceased at the time he was shot, which was the main issue of fact. Held — That this testimony was in chief, and, in view of the time and manner in which the witness was allowed to testify, an undue advantage was given to the Commonwealth, and the substantial rights of the defendant were prejudiced.</p>

Case 96 — PETITION EQUITY APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1. The acceptance of the lease by J. M. Bent & Co. for seven years did not waive their lien on the rents secured to them by reiterated contracts prior to the execution of said lease. 2. The court below, in its judgment of January 11, 1878, recognized the obligatory force of the acts of W. A. Barnett as guardian by uphold- ' ing the lease.

Case 97 — PETITION ORDINARY APPEAL FROM HENDERSON CIRCUIT COURT. None but parties and privies can plead an estoppel. Terry would be estopped as to Dunham, or any one claiming under him, but not as to-strangers. (Herman on Estoppel, vol. 1, sec. 20; Idem, vol. 2, secs. 586, 680; Mershom v. Mershom, 9 Bush, 639; Brown v. Griggs, 1 J. J. M., 27; Bank of Utica v. Merseeraux, 49 Am. Dec., 197, Corn-stock v. Smith, 23 Am.

<p>Case 98 — PETITION EQUITY</p> <p>APPEAL EKOM LOUISVILLE LAW AN.D EQUITY COURT.</p> <p>1. The deed of 1882 w as prima fade valid, and should not have been canceled without proof. A deed from child to parent is not presumptively fraudulent. (McHarry v. Irvine’s Ex’rs, 85 Ky , 346; Jenkins v. Page, 12 Peters, 241; Perry on Trusts, sec. 201; Story’s Eq. Juris., sec. 309.)</p> <p>2. The deed of 1887, though not prima facie valid, might have been vindicated by proof, and it was error to deny to appellants the right to do so. A trustee and cestui que trust may make a valid contract with reference to the trust property. The burden of showing perfect fairness is devolved upon the trustee. (Perry on Trusts, sec. 194; Hare’s American Notes, 2 Loading Oases in Equity, part 2, top page 1228.)</p> <p>3. Even if the deed of 1887 was necessarily invalid, and, therefore, incapable of vindication, the only result would bo to remit all parties to the trusts created by the will of B. P. Avery and the deed of 1882.</p> <p>4. A judgment ordering the trustees to turn over to the cestui que trust all the trust estate without an account, and before the payment of debts secured by the deeds, was manifestly unjust and erroneous.</p> <p>1. Contracts between parent and children are prima facie valid, and it is always necessary to prove some improper and undue influence in order to set aside such contracts. (McHarry v. Irvine’s Bx’r, 85 Ky., 346; Perry on Trusts, vol. 1, sec. 201; Story’s Eq. Jur., vol. 1, sec. 309; Jenkins v. Page, 12 Peters. 252.)</p> <p>2. The deeds can not be set aside until the creditors are satisfied. Although some of the objects for which a trust is created are invalid, the legal title vests in the trustees during the continuance of the valid objects of the trust, except in those cases where the valid objects of the trust are so mixed up with those which are void that it is impossible to sustain the one without giving effect to the other. (Hurley v. James, 5 Paige, 320.)</p> <p>In this case the trust for the benefit of creditors is not so mixed up with the others as to be incapable of separation. (Keys v. Oarleton, 141 Mass., 51; Henderson v. Stein, 47 Mich., 267.)</p> <p>•%. A trust created from necessity or for a special purpose will cease with the necessity which gave i'ise to it, but not otherwise. (1 Perry on Trusts, secs. 274, 350 and 353; Cromie v. Bull, 81 Ky., 652; Elournoy v. Johnson, 7 B. M., 694; Thomas v. Harkness, 13 Bush, 29.)</p> <p>1. All transactions are fraudulent per se where the relation of trustee and cestui que trust exists, and the trustee procures a benefit to himself .and a detriment to the cestui que trust. The law will not allow the trustee to go into the question as to whether his motives were good, fPerry on Trusts, secs. 194,197; Mitchum’s Heirs v. Mitchum’s Adm’r, ■&c., 3 Dana, 260; Jewett v. Miller, 10 N. Y., 402; King v. Remington, 36 Minn., 35; Baldwin v. Allison, 4 Minn., 11; Davone v. Panning, 2 Johns. Ch’y, p. 252; McGaughey v. Brown, 46 Ark., 25; Wright v. Smith, 23 N. J. Eq., 106; Smith v. Drake, lb., 302; 0ad-wallader’s Appeal, 64 Pa. St., 293; Renew v. Butler, 30 Ga., 954; Coles v. Trecothick, 9 Yes., 234; Handlin v. Davis, 81 Ky., 34; Kelson v. Hovoner, 66 111, 487; Story’s Eq. Jur., vol. 1, sec. 258.)</p> <p>2. By the deed of 1887 appellants actually exercised the discretion reposed in them by the will.</p> <p>The discretionary powers under the will of B. P. Avery were not arbitrary, and the appellants were hound to exercise them in good faith, without fraud, and without any benefit to themselves. (Perry on Trusts, vol. 2, secs. 511, 511a; Walker v. Smyser’s Ex’r, 80 Ky., .620.)</p> <p>If a trustee has once exercised or executed a discretionary power he can not take it hack or change the-results of that exercise (Mason v. Mason, 4 Sauf. Ch’y, p. 631); and so the appellants here, having exercised this discretionary power for their own benefit, can not claim, if they do not get the benefit it is no exercise of the power.</p> <p>.'3. Had not the discretion reposed in the appéllants under the will been exercised, and the renunciation of the trusts created by the will.and the deed of 1882 been made, the law would presume, under the facts and circumstances of this case, the renunciation of the trust and the exercise of the discretion. (Perry on Trusts, vol. 1, secs. 320, 354; Flournoy v. Johnson & Kingly, 7 B. M., 693.)</p> <p>4. The trustees were guilty of a mismanagement and perversion of the trust to their own benefit, and the purposes of the trust under the will having been accomplished, the trustees having surrendered the trust, and having exercised the discretion as to the habits of appellee, a conveyance of the stock should be decreed in his behalf. (Perry on Trusts, sec. 843; Thomas v. Harkness and Wife, 13 Bush, 30.)</p>

Case 99 — PETITION EQUITY APPEAL PROM NICHOLAS CHANCERY COURT. Brief withdrawn. The evidence establishes the fact that the deed in controversy was the act of an incapacitated mind, overpowered by the influence of a conspiring husband.

Case 100 — PETITION OBDINABY APPEAL PROM WHITLEY COURT OP COMMON PLEAS. The evidence shows no effort to guide the logs down the stream, and makes manifest appellee’s carelessness and -negligence. 1. When the facts are ascertained, the question whether or not the stream^ is a public highway is a question of law. (Morgan v. King, 18 Barb.,. 285; Rhodes v. Otis, 33 Ala., 598.) 2.

<p>The legislature may pass registration laws, even of a local character, if they merely regulate in a reasonable and uniform manner how the privilege of voting shall be exercised. But a registration law which, under the color of regulating the manner of voting, really subverts the right, as by prescribing a qualification for the elector in addition to those provided by the Constitution, will not be held valid.</p> <p>A registration law for the city of Owensboro, which provides for but one registration within a year, at which only those qualified to vote at the succeeding August election can register, deprives electors who may not ho qualified to vote at the August election, but who may be qualified to vote at subsequent elections within the year, of the right to vote at such subsequent elections, and is, therefore, invalid.</p>

<p>Case 102 — INDICTMENT</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>1. The indictment is bad for duplicity, and the demurrer thereto should have been sustained. (Criminal Code, secs. 126, 127; Gen. Stats., chap. 29, art. 6, sec. 4; Connor v. Commonwealth, 13 Bush; Johnson v. Commonwealth, 87 Ky., 190.)</p> <p>2. The mere possession of the stolen goods is not prima facie evidence of burglary, and the court erred in refusing to so instruct the jury. (Wharton’s Criminal Evid., sec. 763; American and English Encyclopedia of Law, p. 693.)</p> <p>3. It was error to instruct the jury that they could convict if less than ten dollars’ worth of property was stolen.</p> <p>4. It was error to instruct as to the effect of confessions made by the accused, as there was no attempt to prove that he had made any confessions.</p> <p>5. A verdict can not cure errors in instructions.</p> <p>'1. The indictment charges but a single offense. The statute on which the indictment is based was intended to embrace the act of feloniously breaking and stealing goods from a store-house as one offense. (Olive v. Commonwealth, 5 Bush, 376; Gen. Stats., chap. 29, art. 6, sec. 4.)</p> <p>:2. The verdict of the jury finding the defendant guilty as charged in the indictment is conclusive upon the question of misjoinder of offenses. (Scalf v. Commonwealth, 9 Ky. Law Rep., 413.)</p> <p>3. If there is one good count in the indictment the court will permit the verdict to stand. (Orim. Code, sec. 340; Robinson v. Commonwealth, 16 B. M., 609.)</p>

Case 103 — PETITION EQUITY APPEAL PROM PIKE CIRCUIT COURT. 1. There -was no equity in appellee’s petition, and the court should have sustained appellant’s motion to transfer to the ordinary docket. (Civil Code, sec. 10, subsec. 1; 1 Story’s Equity, secs. 616, 620, 621, 622, 826, 859; Eraley v. Peters, 12 Bush, 469; Scott, &c., v. Means, 80 Ky., 460.) 2. The court erred in rejecting appellant’s plea of former adjudication.

Case 104 — INDICTMENT APPEAL PROM SCOTT CIRCUIT COURT. It was error to instruct the jury that they might convict if they believed defendant approved of or consented to the shooting of the deceased. (Plummer v. Commonwealth, 1 Bush, 76.) No brief in record.

<p>Case 105 — INDICTMENT</p> <p>APPEAL PROM PAYETTE .CIRCUIT COURT.</p> <p>It was error to allow the mistake in the instruction to be corrected, and the case resubmitted after the jury had agreed upon a verdict. (Criminal Code, sec. 225; State v. Catlin, 3 Vt., 530.)</p> <p>Brief not in record.</p> <p>, The appellant was not prejudiced by the correction of the mistake in the instruction, and besides, there was no exception to the instruction when corrected.</p>

<p>Ca.su 106 — CONTESTED WILL</p> <p>APPEAL PROM JEPPERSGN COURT OP COMMON PLEAS.</p> <p>1. The law presumes the sanity of the testator, and the contrary must be shown by the contestants after the propoundors have made out a prima facie ease. (Milton v. Hunter, 13 Bush, 166; Singleton v. Singleton, 8 Dana, 316; Hawkins v. Grimes, 13 B. M., 268.)</p> <p>2. Influence obtained by proper persuasion and argument, or by mere • appeals to the affections, is not undue influence in a legal sense. (Bush, &c., v. Lisle, &c., 89 ICy., 393; Wise v. Eoote, 81 ICy., 10; Lucas v. Cannon, 13 Bush, 650; Turley v. Johnson, 1 Bush, 117.)</p> <p>3. If a testator has the requisite capacity to make a will he may dispose of his estate as he deems proper; and an unequal disposition is only a circumstance to be considered in connection with other facts bearing on the question of mental capacity. It is not proper to give it undue prominence by calling attention to it in the instructions. (Broaddus’ Devisees v. Broaddus’ Heirs, 10 Bush, 299.)</p> <p>i.The verdict against the will is not supported by the evidence, and the-court should, -therefore, reverse the judgment with, directions to dismiss the appeal from the order of the county court admitting the will to probate. (Bush, &c., v. Lisle, &c., 89 ICy., 393; Broaddus’ Devisees v. Broaddus’ Heirs, 10 Bush, 299.)</p> <p>1. The instructions are unobjectionable. No-fault can be found with-the definition of either testamentary capacity or undue influence. ¡</p> <p>2. The law will not presume in the face of an apparent and unexplained injustice either, soundness of mind or absence of undue influence.,</p> <p>3. It was not error to instruct the jury that the fact of discrimination, if any, might, be considered by them in reaching a conclusion.</p> <p>4. The court will disregard any errors in instructions that do not affect the material rights of the parties. (Bohlsen v. Bohlsen, 5 Ky. Law Bep.)</p>

Case 107 — PETITION EQUITY APPEAL PROM CLARK' COTJRT OP' COMMON ‘PLEAS. AsW. M. Pharis had euVtesy in the láhd’su'éd for; the appellant’s C'áuse of action did not accrue until his death, and limitation did not begin-to run until then. . , ,, '1.

Case 108 — PETITION EQUITY APPEALS PROM PRANKLIN COURT OP COMMON PLEAS. Brief not in record. ' The English doctrine of Cy Pres does not obtain in Kentucky. (Moore’s Heirs v. Moore’s Devisees, 4 Dana, 366.) The trouble in this case is not the want of trustees, but the want of a beneficiary, and the court can not divert the fund to any other use than the support of the “ Orphans’ Home ” named by the testator as the object of his bounty.