Opin. by Lewis, J., Ct. Ap., rev. C. C. Fairleigh for appellant; Butler & Brashear for appellees. Common Carriers 1. Special contract limiting recovery-A common carrier can not, by special contract, obtain exoneration from loss which is the result of its own negligence or the negligence of its agents, or limit the amount of recovery on account of such loss. 2. Negligence-Lost package-Evidence showing that a package intrusted to an express company for transportation was delivered to the company's street messenger at its destination, and that he did not deliver it at the company's office or show that it was lost, or if so, how lost, was sufficient evidence of negligence to entitle the consignor to recover. To relieve itself of responsibility the company must show that the package is lost, not converted by the company or any of its agents, and that such loss could not have been averted by the care which they ought, under the circumstances, to have exercised. Judge Bowden, in a separate opinion, holds that the shipper is not bound by his statement as to the value of the article shipped, where the article is converted by a servant of the company to his use, as the court found was done in this case. Southern Express Co. v. Gutman. February 4, 1885. McCracken Cir. Ct. Opin. by Ward, P. J., Sup. Ct., aff. Bigger & Reid, F. E. Whitfield and T. D. Young for appellant; W. D. Greer and C. S. Marshall for appellee. Contracts-- 1. Of sale-When is title complete-Where money was advanced by a firm under an agreement that it was to be used in purchasing tobacco, which was to be shipped to them, and by them sold, and after the expenses were deducted the proceeds to be applied to the repayment of the advance, it is held that the contract was completed by the delivery of possession of the tobacco to a common carrier to be delivered to the firm advancing the money, and that the purchaser then had no interest in it which could be subjected to the payment of his debts. Hobson & Emery v. Broach, &c. February 11, 1885. McCracken Ct. Com. Pleas. Opin. by Richards, J., Sup. Ct., aff. W. D. Greer for appellants; Henry Burnett for appellees. 2. Wife's contract made with husband's knowledge-A petition alleging in substance that the wife of the defendant, with the knowledge and consent of her husband, had delivered to the plaintiff a promissory note, one-third of which was to be for his own use and benefit, which note the defendant, subsequent to his wife's death, had obtained from the plaintiff by promising to pay him therefor a certain sum, states a cause of action for the sum thus promised by the defendant. Adkins v. Cracroft, February 18, 1885. Nicholas Cir. Ct. aff. Ross & Owens and Kennedy & and John P. Norvell for appellee. Opin. by Richards, J., Sup. Ct., Corporations Dividends-It is only the net gain of a corporation that can in any event be disturbed as dividends. Dividends can in no case be paid out of the capital contributed to, or out of the means necessary to, the conduct of the business. Citizens National Bank, &c. v. Dronillard, &c. February 7, 1885. Campbell Ch. Ct. Opin. by Hines, Ch. J., Ct. Ap., aff. Benton & Benton for appellants; W. H. McKoy and Thomas McDrugal for appellees. Courts, Appeals from Justices' and Quarterly-See Appeals, 4. Curtesy Separate estate-While a surviving husband is not excluded from curtesy in the real estate of his wife merely because it was her absolute separate estate, yet he may be so excluded by the instrument which created the separate estate. A devise by a testator to his daughter and "her bodily heirs, free from the control of her husband forever," is held to exclude the husband from curtesy. Northcutt v. Curry, &c. February 10, 1885. Webster Cir. Ct. Opin. by Holt, J., Ct. Ap., aff. Long & Long for appellant; Jno. Elliott for appellees. Decedent's Estate-See Evidence, 1, 4. Debtor and Creditors Rights of creditors among each other-The mere act of a creditor taking from his debtor a note on a third party upon the condition that he is first to be paid, and that the balance, if any, shall go to other creditors, does not require him to account to them until his claim is paid. Tucker, &c. v. Hume. February 25, 1885. Grant Cir. Ct. Opin. by Bowden, J., Sup. Ct., aff. Collins & Fenley for appellants; Geo. C. Drane for appellee. Depositions Exceptions as to competency-A general exception as to competency going to the whole of a deposition can not be sustained if any part of the deposition is competent. Walker v. Goodloe's Ex'ors. February 11, 1885. Fayette Cir. Ct. Opin. by Ward, P. J.. Sup. Ct., rev. Z. Gibbons for appellant; Bronston & Kincaid for appellees. Devise 1. Estate tail - The words "bodily heirs" are appropriate to create an estate tail, but may operate as words of purchase if so intended by a testator, and in such a case may be equivalent to the word "children.” A devise by a testator to his married daughter and her bodily heirs" is held to create in the daughter an estate for life, remainder to her children, it appearing that the words "heirs of her body" or "her bodily heirs were used by the testator as to each of his three married daughters to whom he made devises, the devise to one of them being to her and to the heirs of her body "after her." Northcutt v. Curry, &c. February 10, 1885. Webster Cir. Ct. Opin. by Holt, J., Ct. Ap., aff. Long & Long for appellant; John Elliott for appellees. 2. Construction-Devise over-Right of devisee-A testatrix devised all her estate of every kind to her son, with the provision that if he should "die without issue then living" the estate should go to founding and endowing an orphan asylum. It was further provided that the nominated guardian of the devisee might account to him when he arrived at the age of twenty-one. The son died at the age of twenty-three. Held-That the devise of the estate over is as full and comprehensive as the devise in the first instance, and carries with it whatever of the estate remained at the death of the son. The provision that the guardian might account to the son when he arrived at the age of twenty-one shows that it was the intention of the testatrix to give her son an absolute right to the use of the personal estate after that time, but from this it does not follow that such of the personal estate as was not consumed by the son in his lifetime should go to his heirs or distributees. Linn's Adm'r, &c. v. Kennedy, &c. February 12, 1885. Keton Ch. Ct. Opin. by Hines, Ch. J., Ct. Ap., aff. Simmons & Schmidt for appellants. Entry Rights under, as against subsequent intruder-An entry under a defined boundary evidenced by a proper title, whether traceable to the Commonwealth or not, gives to the parties entering the possession to the extent of their boundary, there being no other claimant in possession, and an intruder or trespasser entering within such a boundary for the purpose of asserting a claim of right, having no other title than a mere possession, can hold only to the extent of his inclosure. Cameron v. Beatty, Jefferson Ct. Com. Pleas. &c. February 5, 1885. Opin. by Pryor, J., Ct. Ap., aff. J. R. M. Polk for appellant; J. F. Bullitt, Sr., J. F. Bullitt, Jr., and E. W. C. Humphrey for appellees. Estoppel Delay in asserting lien-Where a vendor's lien is of record mere delay upon his part will not estop him from asserting his lien, he having done nothing to induce a reasonable belief that he was not claiming it. Medley v. McElroy. February 21, 1885. Marion Cir. Ct. Opin. by Holt, J., Ct. Ap., aff. W. E. & S. A. Russell for appellant; Knott & Spalding for appellee. Evidence-See Boundary, 2 1. Suit against decedent's estate for services rendered-Will as evidence--In an action against the estate of a decedent to recover for services rendered the decedent, the liability of the decedent for any amount and also the value of such services being in issue, it was competent to show that the decedent wrote several wills, subsequently destroyed, containing admissions that he was indebted for the services rendered, and also competent to show the value of a tract of land devised by one of the wills to the plaintiff as evidence of the decedent's estimate of the value of the services, and the amount he was willing to pay therefor. 2. As to value of services-The court properly refused to allow witnesses to state for what price they would have performed the services performed by the plaintiff for the decedent during a long sickness, and also properly rejected testimony showing the price at which the decedent might have been waited on and cared for in a large city. 3. Transaction with decedent-A person may testify for himself concerning a transaction with a decedent where one interested in the estate of the decedent has testified as to the same matter. Holiday's Adm'r v. Watson. February 19, 1885. Mason Cir. Ct. Opin. by Lewis, J., Ct. Ap., aff. T. C. Campbell, E. L. Worthington and Barbour & Cochran for appellant; W. Lindsay and Harry Wadsworth for appellee. 4. Transactions with decedent-The mother of a bastard child, the putative father being dead, is not a competent witness to establish a claim of the child against the estate of the father, based upon a contract alleged to have been made by the father with the mother for the support of the child. Stower's Adm'r v. Hollis, By, &c. February 4, 1885. Lou. Ch. Ct. Opin. by Ward, P. J., Sup. Ct., rev. Thomas Joyes for appellant; James Harris and L. N. Dembitz for appellees. Execution Sale Time allowed to redeem the land-Several different tracts of land were sold under as many successive executions issued on the same judgment. The plaintiff in the several executions, who was the purchaser at each of the sales, agreed with the defendant to give him time to redeem the land upon the payment of a certain amount and his promise to borrow the money and pay the balance in a few days. The defendant having failed to comply with his promise, in an action by the purchaser to recover the several tracts of land, the sheriff having executed to him a conveyance therefor, it is held that he is entitled only to a lien upon the several tracts for the amount of his bids, and it was error to award to him a writ of possession for anyone of the several tracts, his agreement to give the defendant time to redeem extending to all the tracts sold. Layne v. Weddington. February 12, 1885. Floyd Cir. Ct. Opin. by Lewis, J., Ct. Ap., rev. T. R. Brown for appellant; Weddington & Gobel for appellee. False Imprisonment Necessary averment-In an action against a justice of the peace for false imprisonment on the charge of contempt, the failure of the plaintiff to allege that the justice had no jurisdiction in the matter rendered his petition fatally defective. Parker v. Hamilton, &c. February 24, 1885. Jefferson Cir. Ct. Opin. by Holt, J., Ct. Ap., aff. John Stites for appellant. Forgery 1. Necessary allegations of indictment-An indictment for forgery is sufficient which charges that the defendant "did unlawfully, willfully and feloniously make and forge a promissory note for the payment of money," which is set out in full, "without authority and with intent to defraud” the person whose name was forged, which is equivalent to charging that he falsely and fraudulently made the note. 2. Evidence-Under an indictment for forgery it is not indispensable to prove that the name forged is in the handwriting of the defendant. Resort must necessary be had in nearly every case to other facts and circumstances to show that the name of the obligor is falsely signed. Holdsworth v. Commonwealth. February 21, 1885. Hardin Cir. Ct. Opin. by Lewis, J., Ct. Ap., aff. James E. Gaither and James Montgomery for appellant; P. W. Hardin for appellee. Fraudulent Conveyance 1. Surety-A surety may maintain an action to set aside as fraudulent a conveyance by the principal, the creditor being made a party defendant. 2. Badges of fraud-A conveyance from sister to brother is held to be fraudulent, the sale of the property for much less than its value, the retention of possession by the grantor without the payment of rent, and the pecuniary condition of the grantee being recited as badges of fraud. Johnson, &c. v. Harrison, &c. February 7, 1885. Daviess Cir. Ct. Opin. by Lewis, J., Ct. Ap., aff. Owen & Ellis for appellants; Little & Slack for appellees. 3. Return of "no property"-When necessary-A suit to set aside a conveyance as fraudulent can not be maintained without first having obtained judgment at law and execution with return of no property unless there is a failure to object in the court below, by demurrer or otherwise, to the exercise of jurisdiction, but it is immaterial whether the objection is by demurrer or by answer. It is only necessary that the objection should be of such a character as to notify the court that jurisdiction is not conceded. The denials of the defendant in his answer that the plaintiff "has any right in this action to attack his title and have it declared void" is held, in this case, to be sufficient to show that jurisdiction is not conceded. Hill v. Cannon, &c. February 24, 1885. Todd Cir. Ct. Opin. by Hines, Ch. J., Ct. Ap., aff. A. Duvall and B. T. Perkins, Jr., for appellant; H. G. Petree for appellees. 4. No one acquires any rights under-A transfer of property for the purpose of defrauding creditors is illegal, and neither the grantors nor the grantee can have any standing in a court of equity under such a contract. Kingsbury v. Haswell, &c. February 11, 1885. Breckinridge Cir. Ct. Opin. by Richards, J., Sup. Ct., aff. Lewis & Fairleigh and Stuart & Atchison for appellant; G. W. Williams for appellees. March, 1885-5 |