Banks 1. Liability to depositors-A bank, having received money on deposit, can not escape responsibility to the depositor by showing a verbal request by the depositor of the cashier to make investments for him. The books of the bank showing the deposits and the investment, the court will assume that the transaction was with the bank, and not with the cashier as the special agent of the depositor, and will require the bank to account either for the deposits or the investments. Robb v. Savings Bank of Louisville. September 25, 1834. Opin. by Pryor, J., Ct. Ap., rev. W. Lindsay and Harrison & McGrain for appellant; James Speed, Barnett & Noble and Thomas & John Speed for appellee. Bills and Notes 1. Forged indorsement-The drawer of a negotiable instrument may compel the holder, when he demands payment, to show the genuineness of the signature of all the prior parties to the paper. Therefore, in this action by appellant upon a bill of exchange, the drawer had the right to plead that the signature of one of the indorsers was not genuine and to call upon the plaintiff to prove it. Chaney v. City Bank. September 19, 1884. Opin. by Ward, P. J., Sup. Ct., aff. Campbell & Gaither for appellant; Petree & Littell for appellee. Bill of Exceptions 1. Time-There is no authority for the filing of a bill of exceptions prior to the rendition of judgment, and a bill so filed is stricken from the record in this case. Kemper Brothers v. Abbott, Morehead & Co., &c. September 15, 1884. Opin. by Richards, J., Sup. Ct., striking bill of exceptions from record. O'Hara & Bryan for appellants; W. K. Carlisle for appellees. County Levy 1. Validity of bond-A county levy bond must be executed either at or subsequent to the term during which the levy is imposed, and if executed prior to that term it can not be enforced either as a statutory or common law obligation. 2. Remedy of creditor against sheriff-When a county creditor proceeds by notice and motion under the statute to recover a judgment against the sheriff and his sureties for failing to pay him his claim out of the county levy, the notice must contain all the averments that would be requisite in a petition upon the bond. Therefore, when the creditor bases his demand upon orders of allowance made subsequent to the term at which the levy was ordered, he must both allege and prove that there is in the hands of the officer a sufficient sum to pay him, after deducting the claims previously allowed. Dicus v. English. September 11, 1884. Opin. by Richards, J., Sup. Ct., aff. Bigger & Reid for appellant; Gilbert & Reid for appellee. October, 1884-5 Deed 1. Reforming-The grantor in a deed to a tract of land described as "containing 100 acres, more or less," when the deed in fact embraced 241 acres, is entitled to have the deed reformed, it appearing that both vendor and vendee supposed it embraced only about 100 acres. Counts v. Kitchen. September 9, 1884 Opin. by Holt, J., Ct. Ap., rev. Wm. Bowling and E. F. Dulin for appellant; J. R. Botts for appellee. Depositions-See Divorce, 4— 1. Residence of witness-The residence of a witness in the county where the action is pending can not be urged as an objection to the reading of his deposition. 2. Exceptions-An exception to a deposition that questions the competency of the witness for all purposes was properly overruled, a part of the deposition being competent. Priest v. Taylor's Adm'r. September 3, 1884. Opin. by Richards, J., Sup. Ct., aff. Jeff. C. Johnson for appellant. Descent and Distribution 1. Advancements-Where land descends directly to the grandchildren of the intestate, the parent who would have inherited being dead, it is not chargeable with the debts due the intestate by the parent unless they may be regarded as advancements to be adjusted in an action for that purpose. Wells v. Wells, &c. September 15, 1884. Opin. by Bowden, J.. Sup. Ct., aff. W. W. Kimbrough for appellant; A. Duvall for appellees. Devise 1. Defeasible fee-A devise to A "and the natural heirs of her body," with the provision that "if she dies without said heirs her portion of my estate shall return to my estate, to be divided between my other heirs," creates in A a defeasible fee. 2. Where a valuation is placed by a testator upon land devised the valuation goes as an incident to the devise. Ecton, &c. v. Smith, &c. September 27, 1884. Opin. by Hines, Ch. J., Ct. Ap., aff. W. M. Beckner and W. Lindsay for appellants; Breckinridge & Shelby for appellees. Divorce 1. Maintenance-Where the wife sues for a divorce on the ground of cruelty she is entitled to maintenance pendente lite, though she may have been already divorced from a former husband on the same ground. 2. The wife's right to maintenance pending her action for divorce is to some extent a local question, and there is a peculiar propriety in assuming that the chancellor has done his duty, and allowed her enough and no more. Hill v. Hill. September 10, 1884. Response by Bowden, J., Sup. Ct., to pet. for reh'g. Anton Kutzleb for appellant; W. R. Abbott for appellee. 3. Where a husband and wife boarded at a hotel and he ordered her to pack her trunks and leave, stating to her that he would not pay her board any longer, and thereupon she procured from the hotel manager another room and occupied it one night, and the next day had her trunk taken from her husband's room. Held-This was no such abandonment by her as would entitle him to a divorce on that ground. 4. Depositions-Though the evidence shows the required residence of the parties, it is not sufficient unless the officer taking the depositions certifies that the witness by whom the residence is proved is known to him to be worthy of belief. Kean v. Kean. September 17, 1884. Opin. by Bowden, J., Sup. Ct., aff. Barnett, Noble & Barnett for appellant; W. Lindsay for appellee. Evidence. See Pleading and Practice in Crim. Cases, 2. Equity. See Husb. and W., 1. Gaming 1. Suffering gaming-Accomplice - A conviction of the offense of permitting gaming on one's premises may be had upon the testimony alone of one who was permitted to game, as such person is not an accompliceğin the offense charged unless he had an interest in or control over the premises. Green v. Commonwealth. September 19, 1884. Opin. by Ward, P. J., Sup. Ct., aff. C. W. Lester for appellant. Homestead. See Husband and Wife. Husband and Wife 1. Money treated as realty-Where money is directed to be converted into land, or vice versa, the property is to be considered in equity of the character it would have after the conversion, but a direction to have such effect must be given in a legal way, as by will or deed or judgment of a court. The mere naked intention of a party verbally expressed is not sufficient unless in case of a noncupative will. Where the land of the wife, in which she was entitled to a homestead, was decreed to be sold to satisfy a mortgage lien upon it, with direction that a sale bond be taken payable to the wife for any excess of sale money above the mortgage debt, and both husband and wife died before the maturity of the bond, the wife dying first, the personal representative of the husband became entitled to the proceeds of the bond after paying debts, etc., as a part of the wife's personal estate, although the wife, just before her death, requested a gentleman to administer on her estate and reinvest the fund in a home for her infant children, who now claim the right to have it so invested. Smith's Adm'x v. Smith's Adm'r. September 27, 1884. Opin. by Holt, J., Ct. Ap., aff W. C. Ireland for appellant; John W. Hampton and L. T. Moore for appellee. Infants' Real Estate, Sale of— 1. Authority is given courts of equity by both the General Statutes and section 490 of the Civil Code to sell real property owned by two or more persons, even if they be infants, which can not be divided without ma terially imparing its value, upon the allegation and proof that the interest of the infant requires such sale, without a specific reference to the maintenance or education of the infant, or the investment of the proceeds of the sale in other property. 2. Process-When infants sue by their guardian, under section 490 of the Code, for the purpose of obtaining a judgment for the sale of real estate, it is not necessary that the infants should be made defendants to the action and served with process. 3. Curing defect-Where an amended petition was filed in such an action asking for the sale of a small parcel of property omitted to be mentioned in the original petition, it was not necessary that process on the amendment should be served upon infant defendants, but had it been necessary the answer filed by the infants by their guardian would have been sufficient to cure the defect. Bacon v. Bills, &c. September 6, 1884. Opin. by Lewis, J., Ct. Ap., aff. Byron Bacon for appellant; Randolph H. Blain for appellees. Instructions-See Pleading and Practice in Crim. Cases, 4. Judgments 1. Process on amended petition-The court, having rendered by default a personal judgment and a judgment enforcing a lien upon land, had no power upon a return of “no property" as to a part of the original judgment, to render a judgment subjecting other inerests in the same land, this new cause of action being set out in an amended petition, upon which there was no service of process. Such a judgment was void, and the court erred in refusing to set it aside. Dameron v. Osenton. September 27, 1884. Opin. by Pryor, J., Ct. Ap., rev. R. D. Davis and James Botts for appellant; E. B. Wilhoit for appellee. Jurisdiction 1. Settlement of estate-The court can not grant relief which would involve the re-settlement of an estate in a county different from that in which the personal representative qualified. Ecton, &c. v. Smith, &c. September 27, 1884. Opin. by Hines, Ch. J.. Ct. Ap., aff. Wm. Lindsay and W. M. Beckner for appellants; Breckinridge & Shelby for appellees. Lien 1. The statement in the note that the piano was to remain the property of the payee until the note should be paid gave a lien upon the piano, although the note was a renewal of the original note executed for the purchase price in which there was no such recital. Scott v. Baldwin & Co. September 3, 1884. Opin. by Ward, P. J., Sup. Ct., aff. Haycraft & Slack for appellant; G. W. Ray for appellees. Limitation 1. Action against seller of spurious bond-A cause of action accrues in favor of the purchaser against the seller of a spurious bond immediately upon its transfer, and is barred after five years from that date. The purchaser is not obliged to postpone suit until it has been determined by a court of competent jurisdiction that the bond is spurious. 2. Principal and agent-Where one has traded with an agent for an undisclosed principal, the fact that the agency was not disclosed at the time does not prolong the time within which suit may be brought against the principal, unless the plaintiffs' efforts to find out who was the principal were obstructed by the principal's conduct. Covington v. Morton, &c. Same v. Nortin. September, 1884. Opin. by Ward, P. J., Sup. Ct., aff. A. M. Rutledge, J. S. Ray and R. W. Covington for appellant; A. P. Humphrey, W. O. & J. L. Dodd and Good loe & Roberts for appellees. 3. Fraud and mistake-While in cases of fraud or mistake the statute begins to run only from the discovery of the fraud or mistake, in no case does an action lie after ten years from the making of the contract or the perpetration of the fraud. The action by a vendee to recover for the deficiency in the tract of land fraudulently represented by the vendor to contain a greater number of acres than it actually contained is barred, more than ten years having elapsed after the sale and execution of title bond before the bringing of the action. Lyms v. Henderson. September 27, 1884. Opin. by Hines, Ch. J., Ct. Ap., aff. Thomas & Pugh for appellant; Geo. T. Halbert for appellee. Liquor Dealer 1. Right of distiller to sell spirits at his residence - Under the statute which permits a distiller to sell at his residence spirits of his own manufacture, he is not permitted to sell at his store room, although it and his dwelling house are in the same enclosure. Moody v. Commonwealth. September 17, 1884. Opin. by Richards, J., Sup Ct., aff. Bronston & Caperton for appellant. Married Women 1. Garnishee-Where a married woman, authorized to trade as a feme sole, is a garnishee, there is no reason why an ordinary execution may not issue against her upon her failure to comply with a rule requiring her to pay into court the money owing to the defendant. Cavanaugh v. Fried. September 11, 1884. Opin. by Fryor, J., Ct. Ap., aff. O. D. McManama for appellant; D. M. Rodman for appellee. Negligence 1. Pleading-In an action by an employe against his employer to recover for an injury resulting from defects in machinery furnished by the employer, the petition should not only allege that the machinery was defective, but that the defects were known or could, by the exercise of ordinary care, have been made known to the employe. 2. Instruction-It was not for the court to tell the jury what facts in the case constituted contributory negligence. It is for the jury to determine in each case what acts amounted to negligence, and whether they contributed to the injury, so that it would not have happened but for those acts. |