3. The court properly refused to instruct the jury that the plaintiff, as brakeman on defendant's train, undertook to run all the "risks, damages and hazards' incident to his employment as such brakeman. The word "ordinary" should have been inserted before the word 'risk 3." C. O. & S. W. R. R. Co. v. Bell. September 15, 1884. Opin. by Ward, P. J., Sup. Ct., rev. Holmes Cummins and Quigly & Quigly for appellant. New Trial 1. Surprise-The fact that a witness testified differently from what he had done on a former trial, and that this was a surprise to appellants that could not have been guarded against, did not authorize the granting of a new trial. Appellants, instead of asking a postponement of the trial, took the chance of a verdict, and must, therefore, abide it. 2. A motion for a new trial upon the ground of surprise is addressed to the sound discretion of the court, and the ruling below should not be disturbed unless it was clearly erroneous. Ivers v. Avery & Sons. September 13, 1884. Opin. by Holt, J., Ct. Ap., aff. Isaac H. Trabue and S. F. Trabue, jr., for appellant. W. O. Dodd for appellees. 3. The newly-dis overed testimony that will authorize a new trial must be of such clear and convincing character that it will doubtless change the result of the former trial, and such that the party could not with reasonable diligence have discovered and produced at the trial. Bramel v. Clark. September 11, 1884. Opin. by Holt, J., Ct. Ap., aff. A. Duvall, B. G. Willis and O. Deming for appellant. Officers 1. Liability of judicial officers-The general rule applicable to all judicial officers is that when the officer has jurisdiction of the person and of the subject-matter he is exempt from suit by a private individual for damages so long as he acts within his jurisdiction and in a judicial capacity. 2 Pleading-An allegation that a defendant maliciously "advised, persuaded and procured” a judge to render a certain judgment against the plaintiff is not sufficient to constitute a cause of action against the defendant. Tabb v. Mudd, &c. September 25, 1884. Opin. by Lewis, J., Ct. Ap., aff. Wilson & Hobson for appellant; Montgomery & Poston for appellees. Partnership-See Pleading 4. 1. Levy on partnership property-Where partnership property is levied upon to satisfy an individual debt of one of the partners the levy holds what remains after paying all firm debts and adjusting the partnership accounts. 2. Sale-A levy on a partner's interest in partnership property does not vest the title in the officer. The firm may sell subject to the lien, and after that is removed the purchaser holds the property free from any claim of the firm or its creditors. Graves v. McKinney's Adm'r. September 22, 1884. Opin. by Bowden, J., Sup. Ct., granting rehearing, aff. on original and reversed on cross appeal. L. Hathaway and Geo. B. Nelson for apellant; Haggard & Jones for appellee. Pleading 1. Insufficient denial-A denial that the defendant is indebted to the plaintiff in the amount claimed in the petition is insufficient. 2. Counterclaim-A counterclaim must be pleaded with the precision required in a petition. An allegation that the plaintiffs sold and delivered to the defendant a certain quantity of tobacco, representing that it was in good condition when it was not in good condition, and was not worth the price for which they sold it, there being no allegation of resulting loss, and no allegation that the representation of the seller was an inducement to the contract, is not sufficient to constitute a counterclaim. Green v. Dudley, &c. September 8, 1884. Opin. by Bowden, J., Sup Ct., aff. R. D. Handy for appellant; Benton & Benton for appellees. 3. There can be no recovery upon a contract to pay money without an allegation of a breach thereof. 4. One partner can not sue alone and for his sole benefit upon a contract executed to the partnership, and when he attempts to do so there is not a mere defect of parties that can be waived by a failure to demur. Mattingly v. Spalding. September, 1884. Opin. by Richards, J., Sup. Ct., rev. J. P. Thompson for appellant; H. P. Cooper for appellee. 5. Actions for recovery of personal property-In actions for the delivery of personal property or its value it is sufficient to allege that the plaintiff is the owner, and entitled to the possession, of certain property particularly described of a named value, which is in the possession of the defendant, and by him wrongfully detained. If more than one article is claimed the petition should state the value of each, but a defect in this respect can not be reached by a demurrer to the petition. Priest v. Taylor's Adm'r. September 3, 1884. Opin. by Richards, J., Sup. Ct., aff. Jeff. C. Johnson for appellant. Pleading and Practice in Crim. Cases 1. Indictment charging more than one offense-Pending a demurrer to an indictment because it improperly charges more than one offense, the Commonwealth may dismiss all but one charge, and thereupon the demurrer shall not be sustained on that ground. Crim. Code, section 168. If the court improperly overrules the demurrer, there being no offer to dismiss, yet requires the prosecution to elect one of the charges, which is done, the error in overruling the demurrer is not prejudicial to the substantial rights of the defendant, and is no ground for reversal. 2. Evidence-The evidence being that the liquor sold was in a bottle marked "Hostetter's Bitters" and "Patent Medicine," it was competent to prove that the contents were 'intoxicating," "tasted like whisky," and that it made those drunk who drank it. Parrott v. Commonwealth. September 19, 1884. Opin. by Bowden, J., Sup. Ct., aff. J. H. Tinsley for appellant. 3. Indictment for rape-It is not necessary that the accusatory part of an indictment for "rape" should state whether the rape was upon the body of a female under or over twelve years of age. "Rape" is a sufficient designation of the offense charged. 4. Instruction as to reasonable doubt-The jury should have been told that if the guilt of the defendant was not proved beyond a reasonable doubt he was entitled to an acquittal, and the failure to give such an instruction is a reversible error. Poston v. Commonwealth. September 4, 1884. Opin. by Holt, J., Ct. Ap., rev. G. W. Adair for appellant; P. W. Hardin for appellee. 5. Weight of evidence for jury-Where there is any evidence tending to establish guilt in criminal cases the appellate court has no power to review and set aside a verdict of guilty returned by the jury, the credibility of the witnesses and the weight to be given to their evidence being exclusive for the jury. Spencer v. Commonwealth. September 23, 1884. Opin. by Hines, Ch. J., Ct. Ap., aff. Winfrey & Winfrey for appellant; P. W. Hardin for appellee. Practice in Civil Cases 1. Rule to file exhibit--Upon the trial of a rule against a party to file a writing upon which his action is found the sole question to be determined is, can the party produce the writing? and, if not, has a sufficient reason been given for its nonproduction? In this action by appellant upon a policy of life insurance it appeared from her response to a rule against her to file the policy, and from the undenied allegations of her petition, that the policy was in the possession of one residing in another State, to whom the insured had pledged it in his lifetime, and that the plaintiff had been unable to obtain it, although she had endeavored so to do, the party having possession of the policy being before the court only by warning order. Held-That the rule against the plaintiff should have been discharged. Bacon's Adm'x v. Mutual Benefit Life Ins. Co. September 6, 1884. Opin. by Holt, J., Ct. Ap., rev. Polk & Gaglay for appellant; Isaac Caldwell for appellee. 2. Transfer to equity-Trial of legal issues by jury-Waiver-It being essential that an ordinary action should go to equity that it might be heard with a pending equitable action, the defendant by consenting to the transfer did not waive his right to a jury trial, but was entitled to have the legal issue submitted to a jury, the exercise of equity jurisdiction being dependent upon the result of the legal issue; and the Campbell Chancery Court being authorized by a special enactment to have juries empanneled when necessary to try issues of fact, it was not necessary to remand the case to the circuit court. Betz v. Newport Provision Mart. Association. September 6, 1884. Opin. by Pryor, J., Ct. Ap., rev. J. R. Hallam, John S. Ducker and W. Lindsay for appellant; Simmons & Schmidt for appellee. 3. When the whole record shows that an issue of fact was regarded by the parties as presented by the pleadings; that evidence relating to that issue was introduced, and that the issue was actually tried, a judgment will not be reversed merely that the issue, once fairly tried, may be more clearly stated in the pleadings. Boales v. Boulware. September 10, 1884. Resp. by Bowden, J., Sup. Ct., to pet. for reh'g by appellant; Richards, J., dissenting. Feland & Sebree and A. Duvall for appellant; H. A. Phelps & Son for appellee. Railroads 1. Trespassers on track-A railroad company is under no obligation to provide a safe and properly constructed locomotive for the protection of those who are trespassers on its track. Therefore, appellant is not entitled to recover of appellee for an injury received from defective machinery forming a part of one of appellee's locomotives, as he was without right using appellee's track as a passway, and at the time he was injured was standing near the track, on appellee's right of way, having stepped aside to avoid the passing train. 2. Evidence-The declarations of the fireman at the time of the injury as to the existence of facts tending to show the company's knowledge of the defects in the machinery of the locomotive were not admissible, the fireman not being that character of agent whose declarations are admissible upon the ground that he is speaking for the corporation. Lyter v. L.,C. & L. R. R. Co. September 11, 1884. Opin. by Pryor, J., Ct. Ap., aff. Carroll & Barbour and W. P. Thorn for appellant; W. Lindsay for appellee. Rape-See Pleadings 4 and Pleadings in Crim. Cases, 3. Rent 1. Death of life tenant-The rent which section 29, article 2, chapter 39, General Statutes, provides shall be paid by the lessee of a life tenant of land, who has let the land for the year and dies after the first day of March, is a reasonable rent and not that fixed by the contract, nor is it payable for the entire term fixed by the contract, but only until the last day of December following the death. 2. Attachment for rent-The affidavit for an attachment for rent must be made before the officer who issues the attachment. Norris v. Cheatham, Gd'n, &c. September 12, 1884. Opin. by Ward, P. J., Sup. Ct., rev. Thos. E. Ward for appellant; M. Merritt and A. T. Dudley for appellees. Statutes, Construction of 1. Repeal-When a statute is amended the amendment becomes a part of the original enactment, and an act repealing the statute repeals the amendment. 2. The act of April 4, 1884, which repeals so much of chs. 1 2 and 3 of title 18 of the Civil Code "as relates to and requires the assignment of errors and cross-errors by parties prosecuting appeals or cross appeals," repealed the act of May 5, 1880, amendatory of section 756 of the Code, which is a part of chapter 3, title 18. Dicus v. English. September 11, 1884. Opin. by Richards, J., Sup. Ct. aff. Bigger & Reid for appellant; Gilbert & Reid for appellee. October, 1884-6 Sureties 1. A surety who has not paid the debt for which he is liable is not entitled to a judgment against his principal therefor. The limit of his right is to require the principal to pay to the creditor. Graves v. McKinney's Adm'r. September 22, 1884. Opin. by Bowden, J., Sup. Ct., granting reh'g; aff. on original appeal and rev. on cross appeal. L. Hathaway and Geo. B. Nelson for appellant; Haggard & Jones for appellee. 2. Where the obligee in a valid note was induced by fraud to accept in lieu thereof notes which were forgeries as to the surety in the original note, but binding on the principal, the collection of a part of the debt on the forged notes did not release the surety on the note binding on all, the amount collected having been credited on that note. McMeekin v. Stratton. September 11, 1884. Opin. by Pryor, J., Ct. Ap., aff. L. Hathaway and Geo. B. Nelson for appellant; Haggard & Jones for appellee. Tax Sale 1. Lien of municipal corporation-The statute which provides that the purchaser at a sale for State taxes shall acquire all the title which the person to whom the property was assessed had therein at the date of the assessment, and "free from all liens or claims of any person claiming under or through him, 'is enforceable against municipal corporations, and the lien of the municipality for taxes is lost when the whole estate has been sold to pay the taxes due the State. Moreover, in this case the city or its authorized agents knew the property was about to be sold for taxes due the State, and should have taken such steps as would have secured the city, either by purchasing the property or relieving it from the burden, by paying the taxes due the State. City of Paducah v. Green. September 11, 1884. Opin. by Pryor, J., Ct. Ap., aff. P. D. Yeiser for appellant; W. D. Green for appellee. Title 1. Removal of cloud upon-In order to give jurisdiction to remove a cloud upon title it must appear that the deed or other instrument constituting the cloud may be used to injuriously or vexatiously embarass and affect the title of the complainant. It must be a case where extrinsic evidence would be required to show the falsity of the claim, and not merely a case for construction and interpretation. Therefore, where both parties are claiming under the same instrument, and the question presented is purely one of construction, no case is presented for the removal of a cloud upon title. 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. Towns and Cities 1. Liability for injuries by dogs-The mere fact that appellee, in consideration of the payment of a tax or license fee by the owner of a vicious dog, licensed him to keep the dog within the city limits, does not render |