October 2, 1884. Kenton Ch. Ct. Opin. by Holt, J., Ct. Ap., aff. T. F. Hallam for appellant; James O'Hara and C. D. Foote for appellee. 4. Where a judgment in regular form is admitted in evidence, it can not be attacked by showing that the proceedings in the action in which it was rendered were irregular. Harris v. Lavin, &c. October 21, 1884. Floyd Cir. Ct. Opin. by Holt, J., Ct. Ap., aff. R. H. Weddington and James Gobel for appellant; W. C. Ireland and W. S. Haskins for appellees.

Judicial Sales

1. Premature sale-Where the property of a debtor is indivisible, and a sale has to be made to pay his indebtedness, a sale is not premature because made before the amount of the indebtedness has been ascertained or the debtor's right to a homestead determined.

2. Test of value of property-The value of property sold at judicial sale is not only determined by those appraising the property, but by the actual and active competition on the part of bidders who were wanting the property and able to make their bids good. Such circumstances in this case conducing to the conclusion that the property sold for more than two-thirds of its value, the court properly disregarded merely speculative opinions as to the value of the property on the motion to set aside the sale. Bristow v. Peters, &c. October 4, 1884. Montgomery Cir. Ct Opin. by Pryor, J., Ct. Ap., rev. Holt, J., not sitting. J. J. Cornelison for appellant; B. J. Peters and John Elliott for appellees.

3. Title relates to day of sale-While the title does not pass under a decretal sale of realty until it has been confirmed and the deed executed, the proceedings relate back to the date of sale, and the title passes to the property as it existed at the time. Neal, &c. v. City of Louisville. October

8, 1884. Jeff. Ct. Com. Pleas. Opin. by Richards, J., Sup. Ct., aff. Dupuy & Twyman for appellants; T. L. Burnett for appellee.

Jurisdiction

1. Waiver of right to object-A Cause having been tried and judgment rendered in the District Court of the United States, it is too late to object that court had no jurisdiction because the jurisdiction of the State court had attached, the State court having consented to relinquish its jurisdiction without objection on the part of any of the parties in interest, and no objection being made in the United States Court to its jurisdiction. The judgment of that court is, therefore, conclusive as to the matters there litigated. Barney & Smith Mf'g Co. v. Hart, Rec'r. October 29, 1884. Fleming Cir. Ct. Opin. by Ward, P. J.. Sup. Ct., aff. O'Hars & Bryan for appellants; W. J. Hendrick for appellee.

Justices of Peace

1. Jurisdiction of justices-A justice of the peace has jurisdiction of the offense of keeping a tippling house, and the offense may be prosecuted by warrant.

2. "Conclusion" of warrant-The provision of the Constitution that all prosecutions shall conclude "against the peace and dignity of the Commonwealth of Kentucky," was not intended to apply to prosecutions by warrant before a justice, but only to prosecutions by indictment.

3. Jurisdiction of county judge-Judges of county courts have the same jurisdiction in criminal cases as justices of the peace. Commonwealth v. Clark; Same v. Wornicutt. October 22, 1884. Rookcastle Cir. Ct. Opin. by Ward, P. J., Sup. Ct., rev. P. W. Hardin for appellant; F. H. Reppert for appellees.

Limitations

1. Disabilities-Adverse possession-Two of three joint devisees and the infant heirs of the third instituted this action in 1878 against appellants for the recovery of the land devised to them, of which appellant had had the actual adverse and continuous possession since 1858. All the devisees had for several years prior to 1858 been married women, and, except the one whose heirs are suing, who was still a married woman at the time of her death in 1872, are yet married women. Held-That the recovery by the plaintiffs is not barred. (Moore v. Calvert, &c., 6 Bush, 356.) Parker, &c. v. Smith, &c. October 11, 1884. Franklin Cir. Ct. Opin. by Lewis, J., Ct. Ap., aff. on original and rev. on cross appeal. Preston & Brown, John L. Scott and W. H. Sneed for appellants; Hord & Trabue for appellees.

2. Action by mortgagee to recover mortgaged property-An action by the mortgagee of personal property to recover the property, or its value, from one who purchased it from the mortgagor, is barred by the lapse of five years from the date at which the purchaser took possession of the prop erty and converted it to his own use. Walker v. Chenning, Ex'or. October 8, 1884. Pendleton Ch. Ct. Opin. by Ward, P. J., Sup. Ct., rev. Carlisle, Goebel & Carlisle for appellant; Clark & Applegate for appellee.

Local Option Law-See Pleading, &c., in Crim. Cases, 10, 14.

Married Woman

1. A married woman may mortgage her general estate to secure the debt of the husband.

2. The acknowledgment of a married woman to a deed or mortgage can not be invalidated by proving an alibi on her part. Birkhead v. Kyle, &c. October 25, 1884. Lou. Ch. Ct. Opin. by Pryor, J., Ct. Ap., aff. E. S. Watts and Mix & Rogers for appellant; John Barret for appellees.

Mechanics' Lien

1. Under the mechanics' lien law applicable to the city of Louisville the mechanic can assign his lien, but the assignee takes it subject to the same conditions upon which the original contractor held it, and a subcontractor, therefore, still has the right, at any time before the employer has paid the debt, to acquire a lien for himself by notice to the employer. 2. Neither the contractor nor subcontractor can acquire an enforceable lien for a less sum than $10.

3. No lien attaches in favor of the subcontractor until he has given the required notice, and in an action by him to enforce his lien he must allege facts showing that the statute has been complied with in this respect. Mulliken v. Seiber, &c. October 8, 1884. Lou. Ch. Ct. Opin. by Richards, J., Sup. Ct., rev. Ward, P. J., dissenting. Bland Ballard and Alex. P. Humphrey for appellant; Elliott & Hemingray for appellees.

Negligence

1. Willful neglect-While the rapid speed of a train at an ordinary crossing where the usual signal is given in time for travelers to have notice of its approach is not of itself willful neglect, yet as it appears in this case the train was approaching a dangerous crossing at the rate of thirty-five or forty miles an hour in the face of a storm of wind and rain that obstructed the vision as well as the hearing of those on or near the road, without any precaution other than a signal at the usual time and place, it can not be said that there is an entire absence of evidence showing willful neglect.

2. Evidence-The court properly refused to allow the defendant to prove that no one other than the plaintiff's intestate had been killed at the crossing where he lost his life, as this fact did not tend to refute the proof of willful neglect or contradict the testimony as to the dangerous condition of the crossing. L. & N. R. R. Co. v. Wallace's Adm'r. October 16, 1884. Simpson Cir. Ct. Opin. by Pryor, J., Ct. Ap., aff. W. Lindsay for appellant; J. A. Mitchell and E. W. Hines for appellee.

New Trial-See Practice in Civ. Cases, 4

1. Time for motion-The time within which a motion for a new trial may be made begins to run when the verdict or decision of fact is made, although no judgment upon the verdict has been entered. Special verdict returned January 30th, and judgment rendered thereon May 7th, a motion for a new trial entered May 8th was too late. Imperial Fire Ins. Co. v. Kiernan. Northern Ins. Co. v. Same. October 1, 1884. Jeff. Ct. Com. Pleas. Opin. by Bowden, J., Sup. Ct., aff. F. T. Fox, jr., for appellants; W. Lindsay and S. F. J. Trabue for appellee. Also Dear, &c. v. Warman. October 8, 1884.

2. New trial upon payment of cost-An order granting a new trial is void in so far as it requires the payment of all costs as a condition precedent, but is a valid order to the extent that under it the costs of the former trial may be required to be paid as a condition precedent to a new trial. 3. The court in granting a new trial, upon payment of costs, has no right to require the costs to be paid within a shorter time than forty days, the time allowed by the statute and the party to whom the new trial is granted still has forty days within which to pay the costs of the former trial, notwithstanding the fact that the order of the court may require the payment to be made within a shorter time. McClary v. Nash. Oct. 8, 1884. Jeff. Ct. Com. Pleas. Opin. by Ward, P. J., aff. Elliott & Hemingray for appellant; Kohn & Barker for appellee.

5. Where parties against whom a judgment has been rendered commence proceedings for a new trial, whether by petition or by motion in the original action, and a new trial is awarded them, they thereby become parties to the original action, and the court has jurisdiction over their persons to enter such orders as the ends of justice may require.

6. A decree in an action for a new trial vacating such orders in the original action as were "prejudicial" to the petitioners for a new trial left in full force and effect all orders favorable to them, among which was a judgment dismissing the original action for want of prosecution. Therefore, after the decree vacating all "prejudicial" orders, the original action stood as if no steps had been taken therein after the judgment dismissing it, and without in some way abrogating that judgment the court had no authority to grant any relief to the plaintiff in that action. Sewell, &c. v. Combs. October 15, 1884. Breathitt Cir. Ct. Opin. by Richards, J., Sup. Ct., rev. A. Duvall for appellants; I. N. Cardwell and J. L. Scott for appellee.

Nonresident

1. Attorney for-Where the appellant has an attorney appointed to defend for the nonresident appellee. he can not escape the payment of an allowance to the attorney by showing that there was no necessity for the appointment, by reason of the fact that the nonresident had entered his appearance. Ryland v. Suire. October 15, 1884. Kenton Cir. Ct. Opin. by Richards, J., Sup. Ct. Adjudging resp. to rule insufficient. M. R. Lockhart for appellant; J. F. & C. H. Fisk for warning order attorney.

Partnership

1. The property of a partnership belongs to the firm, and not to the partners, each of whom is entitled only to a share of what may remain after payment of the partnership debts and after a settlement of the accounts between the partners; consequently no greater interest can be derived from a voluntary sale of his interest by a partner, or by a sale of it under execution.

2. The legal value of such a sale involves the implication that the selling partner is not to be called on as a debtor to pay back what he has as partner withdrawn for his own use. The partner's individual account is not a debt due to the firm, but a matter to be adjusted in a settlement of firm business among the members, when all sums so withdrawn by other partners will also be considered. Eubank, &c. v. Vance. October 29, 1884. Simpson Cir. Ct. Opin. by Bowden, J., Sup. Ct., aff. Milliken & Bush for appellant; Geo. C. Harris for appellee.

3. Failure to keep accounts-The appellant having applied to a court of equity asking a settlement of partnership accounts, and it appearing that by reason of the neglect of both the plaintiff and the defendants in failing to keep any accounts, it is impracticable to make any adjustment of the partnership matters, no judgment should be rendered in favor of either party but the petition should be dismissed, although it appears

that if either party is entitled to judgment it is the appellant, plaintiff below. Bradford v. Wares' Ex'or, &c. October 23, 1884. Bracken Chy. Ct. Opin. by Pryor, J. Ct. Ap., rev. W. Lindsay and Jno. B. Clark for appellant; B. G. Willis and E. Whittaker for appellees.

Patents

1. Correction of calls-While the law permits the correction of the calls of a patent by the plat and certificate of survey upon which it is based, this should only be done when clearly authorized by the testimony.

2. Exclusion-Where the patent upon which the plaintiff in an action of ejectment relies contains an undefined exclusion and the defendant has put in issue the plaintiff's title, it rests upon the plaintiff to show that the land he claims is not within the exclusion, but when he has shown this, if the defendant seeks to shelter under an older patent, which also contains an exclusion, then the burden is thrown upon him to show that his claim is not within the exclusion in his own patent. Harris v. Lavin, &c. October 21, 1884. Floyd Cir. Ct. Opin. by Holt. J., Ct. Ap., aff. R. H. Weddington and James Gobel for appellant; W. C. Ireland and W. S. Haskins for appellees.

Pension Money

1. Exemption-The fact that land was purchased with money received by the owner as a pensioner of the United States does not exempt it from the payment of his debts. Pension money is exempt only until it reaches the hands of the pensioner. Hudspeth v. Harrison, &c. October 23, 1884. Taylor Cir. Ct. Opin. by Holt, J., Ct. Ap., aff. Russell & Russell for appellant; H. Robinson and W. B. Harrison for appellees.

Personal Representative-See Heirs, 1, 2.

Pleading

1. Failure to traverse allegation of value-Subsection 4 of section 126 of the Code, relating to allegations concerning value or amount of damage, does not relate to a case where it is alleged that the defendant expressly agreed to pay the specified sum, but to cases where his liability is based on an express contract which binds him to pay some amount in case of a breach, and where the facts alleged by the pleader require the defendant to pay the sum claimed. McKinley's Ass'ee v. Barney, &c. October 8, 1884. Kenton Cir. Ct. Opin. by Bowden, J., Sup. Ct., rev. Clark & Simon for appellant; O'Hara & Bryan for appellees. 2. Defects cured by verdict-Defects in a petition are cured by the verdict and judgment when the issue joined is such as necessarily requires on the trial proof of the facts imperfectly stated or omitted, and without which it is not to be presumed the judge would have directed the jury to give, or the jury would have given, the verdict. McDowell, &c. v. Linville, &c. October 1, 1884. Robertson Ch. Ct. Opin. by Ward, P. J., Sup. Ct., aff. W. Buckler and O. S. Deming for appellants; W. W. Kimbrough, B. G. Willis and A. Duvall for appellees.