A gentleman writing from Texas says: "It is singular that lawyers in this State do not attempt to bully witnesses as they do in other localities. I'm told that the reason of it is that a Texas witness would just as soon begin shooting from a witness box as anywhere else." A lawyer, who combines with the pleasures of "briefing" it those of journalism, recently went up in a balloon with a celebrated æronaut. After the balloon had got into the clouds the lawyer fell out. Horror-stricken the balloonist descended to earth, but only to find the lawyer sitting placidly on the ground writing an article, "How it feels to fall from the clouds." He had fallen on his cheek. ABSTRACTS OF CASES IN THE COURT OF APPEALS AND SUPERIOR COURT Not to be reported in full-Alphabetically arranged according to their subject-matters. Adverse Possession Joint owners-The possession of one or two joint owners is the possession of both, and the continued possession of one can not be relied upon to defeat the rights of the other. Gross, &c. v. Houchin. December 9, 1884. Edmonson Cir. Ct. Opin. by Holt, J., Ct. of Ap., aff. L. M. Hazlip for appellant. Alimony 1. Judgment for costs-In actions for alimony and divorce the wife can never have a judgment against her husband for her costs; for if she is in fault, and has ample estate to pay her costs she must pay them herself, and is not entitled to a judgment against her husband therefor; and if those conditions do not exist there is no liability on her part to the officers, and hence no necessity for the protection of a judgment. 2. Attorney's fee-In determining the amount to be allowed as a fee to the wife's attorney the court should look both to the pecuniary liability of the husband and the character of the services rendered, and the chancellor, if he deems it proper, can examine the husband to obtain a disclosure of his property, since the matter is one in which the wife has no interest. In determining the value of the attorney's services the fact that many of the depositions taken by him were about trivial and immaterial matters should be considered. The husband should not be unnecessarily oppressed. 3. The attorney may compel payment of his fee by summary proceedings or by execution in his favor. Gordon v. Gordon. December 1, 1884. Lou. Ch. Ct. Opin. by Richards, J., Sup. Ct., rev. Marc Mundy for appellant; J. R. M. Polk for appellees. Arrest, Order of Affidavit to petition-A proceeding for an order of arrest is purely statutory and the provisions of the act by which it is authorized must be strictly followed. When the plaintiffs in setting forth the grounds for the order of arrest in their petition stated that they believed certain things, and one of them in his affidavit to the petition stated that he believed the statements of the petition to be true, the two together amounted only to an averment that the affiant believed that the plaintiffs believed the grounds of arrest to exist, which is insufficient Fonda & Sons v. Field. December 3, 1884. Lou. Ch. Ct. Opin. by Richards, J., Sup. Ct., aff. Muir & Heyman for appellants; C. H. Gibson for appellee. Assignor and Assignee Consideration for assignment-Pleading-In this action to recover on a note held by another under a written assignment which purported a valuable consideration, it was not necessary for the assignee to set out what the consideration was, but, having volunteered to do so, the consideration thus pleaded must prove sufficient to support the assignment. The defendant having pleaded that the note was assigned to her in consideration of her promise to transfer the interest in certain personal property and a tract of land, and that she had tendered a deed to the land, she is bound to state the facts that make her deed valid. The property being situated in another State, she must allege that the deed is made pursuant to the laws of that State, and the deed must so describe the property that it can be identified. She must also allege that she still owns the personal property she agreed to transfer. An allegation that she owned the property at the time she agreed to sell is not sufficient. Malone, &c. v. Bank of Adairville. December 17, 1884. Todd Cir. Ct. Opin. by Richards, J., Sup. Ct., rev. H. G. Petrie for appellants; Browder & Edwards and J. W. Rodman for appellee. Commissioners in Chancery— 1. Agreement for Compensation-While the parties to a suit may, after the work is completed, agree with the commissioner as to his compensation, and such agreement will, if just and reasonable, be upheld and enforced, yet a contract made with the commissioner before the work is completed will not be enforced. If the parties fail to agree after the work is done the court should make the allowance as if no agreement had been made. 2. Allowance-Allowances to the commissioner of the Louisville Chancery Court, in so far as they are not fixed by law, are within the sound discretion of the chancellor, and can not be disturbed unless flagrantly unjust. 3. The provisions of section 9 of chapter 75 of the General Statutes apply to the commissioner of the Louisville Chancery Court. Miller, Commissioner v. Mix, Trustee, &c. December 17, 1884. Lou. Ch. Ct. Opin. by Ward, P. J., Sup. Ct., aff. on original and cross appeal. Temple Bodley for appellant; R. W. Woolley for appellees. Consideration-See Assignor and Assignee. Continuance 1. Judgment of lower court not disturbed-As any public excitement or prejudice against the accused existing at the time of the trial seems to a larger sum than he has already susberibed." The directors advanced moneys from their own pockets and borrowed of others to pay the creditors of the joint stock company, and when seeking to recover of the shareholders the Lord Chancellor said: "This is a distressing case. There is no suggestion whatever as to mismanagement or misconduct on the part of the directors. It is quite clear that as between the shareholders and the directors all that is to govern their respective liabilities is to be discovered in the deed which they have entered into; that alone must regulate their rights inter se." It was also held in that case, when discussing the liability of the shareholders as to third parties, that a bank of which some of the money had been borrowed could not recover because the bank had clear notice of the stipulations of the deed and of the limited liability of each shareholder, as one of the partners in the bank was a shareholder in the company. That case is similar to the case before us. In that case the shareholder had agreed to pay a certain rate on each share and no more, and the court held that the deed was the contract between the parties to it. That being the contract the directors have no power to violate it. If the amount paid by each subscriber of stock in the presentcase had constituted its full value and included all the shares of the corporation, and the directors, or Ainslie & Co., had advanced moneys in addition to the capital stock, it might he contended, with as much propriety as is maintained here, that the stockholders would be liable because the necessities of the company required the expenditure, and the shareholder was deriving the benefits. The answer to either question is, that the charter is the contract between the shareholders, and no member of the corporation can violate it, whether president or director, by making an unauthorized expenditure, unless approved or directed by the shareholders. This brings us to the consideration of the question as to whether the stockholders in this case or the directors authorized rate. Cincinnati Southern Railway v. Cummings. December 6, 1884. Kenton Ch. Ct. Opin. by Pryor, J., Ct. Ap., aff. on original and crossappeal. W. Lindsay, C. B. Simrall and McKee & Finnell for appellant; John W. Stevenson and O'Hara & Bryan for appellee. Criminal Law Cutting in sudden heat and passion-Under an indictment for malicious cutting and stabbing, to authorize the jury to find the defendant guilty of a misdemeanor, it is only required by section 1, article 17, chapter 29, General Statutes, that the cutting or stabbing should have been done in a sudden affray, or in sudden heat and passion, and without previous malice, and it was, therefore, error in this case to require the jury to find that it was done in sudden heat and passion, caused by considerable provocation, such as a blow or actual trespass." Omission of the words "in a sudden affray," used in the statute, and the addition of other words, not used in the statute, were both erroneous and prejudicial. Baker v. Commonwealth. December 13, 1884. Garrard Cir. Ct. Opin. by Lewis, J., Ct. Ap., aff. Geo. Denny, Jr., for appellant; P. W. Hardin for appellee. Deeds 1. Parol evidence to explain-Parol evidence is competent to show the circumstances under which a deed was made, and thus aid in its construction. 2. How construed-A deed is to be construed most favorably to the grantee. Gross, &c. v. Houchin. December 9, 1884. Edmonson Cir. Ct. Opin. by Holt, J., Ct. Ap.. aff. L. M. Hazlip for appellants. 3. Fraud-Absolute deed intended as mortgage-The court refuses to cancel the notes sued on upon the allegation that the signature of the obligor was procured by the false and fraudulent representations made to her by the obligee, without any specifications as to how they were made or of what they consisted, and without any proof whatever to sustain the allegation. Nor is the court authorized to hold that the deed to the land, for the purchase price of which the notes sued on recite that they were executed, was intended simply as a mortgage, no motive appearing for the execution of an absolute deed, if the intention was simply to secure the payment of money the grantor had borrowed. Davis & Co. v. Starks, Ex'or. September 11, 1884. Ct. of Ap., aff. Young & Trabue for appellants. Defenses Equitable-Transfer to ordinary docket-In an action by a landlord upon a note executed by the tenant for rent the surety in the note pleaded that the landlord, by consenting that certain property upon which he held a lien for his rent might be transferred to another, had thereby released the surety. Held-That the defense thus set up was not one exclusively cognizable at law, and that the court, therefore, properly overruled motions to |