the execution of the instrument in question. Dugan's Adm'r v. Harris' Adm'r, &c. February 26, 1885. Daviess Cir. Ct. Opin. by Holt, J., Ct Ap., aff. G. W. Williams and Eli H. Brown for appellant; W. N. Sweeney & Sons for appellees.

3. Exhibits-Exhibits can not take the place of pleaded allegations.

In a petition to enforce a mechanic's lien the only averment that the plaintiff did any work or furnished any material is that "he did perform his contract with defendant as set out in said itemized account," the account or statement being filed as an exhibit and copied into the petition. There being no allegation that the items in the statement or account are correct, but only an averment that the plaintiff filed such a statement in the clerk's office, it can not supply the place of the omitted allegations that the plaintiff did the work and furnished the material for which he seeks to recover. Yeiser v. Todd, &c. February 11, 1885. Franklin Cir. Ct. Opin. by Bowden, J.. Sup. Ct., rev. D. W. Lindsey for appellant: Hugh Rodman for appellees.

4. Construction-In construing a pleading inferences in favor of the pleader are not to be indulged. Pottingen v. McLure. February 18, 1885. Warren Cir. Ct. Opin. by Bowden, J., Sup. Ct., rev. Halsell, Mitchell & Potter for appellant; Williams & Sims and E. W. Hines for appellee.

5. Denials-Making an issue-Affirmative allegations of an answer which are not the statement of new facts, but simply a contradiction of what the plaintiff has previously alleged on the same subject, do not require a denial in the reply in order to constitute an issue. Adkins v. Cracroft. February 18, 1885. Nicholas Cir. Ct. Opin. by Richards, J., Sup. Ct., aff. Ross & Owens and Kennedy & Kennedy for appellant; Throop and John P. Norvell for appellee.

Pleading and Practice in Criminal Cases

Reversible error-In felony cases where there is any evidence to go to the jury tending to establish guilt, this court can not consider whether the penalty is too light or too severe. Duke v. Commonwealth. February 19, 1885. Carroll Cir. Ct. Opin. by Hines, Ch. J., Ct. Ap., aff. McElrath & Smith and Winslow & Winslow for appellant.

Practice in Civil Cases

1. Defense by one defendant for all-Where, in the settlement of a trust estate, there were several classes of creditors who were antagonistic to each other, and two of one class were appointed to defend for all the creditors, a creditor of another class, who subsequently entered his appearance, was not bound by what the court had decided when he was represented by parties whose interests were antagonistic to his. 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. Mackoy and Thomas McDrugal for appellees.

2. Refusal to transfer to equity-An action for the breach of a sheriff's county levy bond having been properly brought in a court having only common law jurisdiction, the refusal of the court to subsequently transfer the action to equity so that the chancellor, with the aid of his commissioner, might correct certain alleged mistakes made by the sheriff in his various settlements, was not prejudicial to the defendants, it appearing that every account and transaction was as carefully considered and reported by a commissioner, and passed upon and decided by the judge, as if the action had been tried and decided by the chancellor. Mullins, &c. v. Pendleton County Court. February 14, 1885. Pendleton Cir. Ct. Opin. by Lewis, J., Ct. Ap., aff. C. H. Lee and A. Duvall for appellants; A. R. Clarke for appellee.

3. Premature judgment-This action having been submitted simply upon exceptions to the master's report, it was error to render judgment dismissing the plaintiff's petition.

4. Transferring case to equity-As this action was begun in equity and prosecuted by equity methods without objection, it is too late to make that objection when an adverse report has been returned; but if it is not too late, then the objection can not be made by exceptions to the report. There must be a motion to transfer to the ordinary docket. Campbell's Adm'r v. Miller. February 18, 1885. Russell Cir. Ct. Opin. by Bowden, J., Sup. Ct., rev. Hays & Stone for appellant; J. F. Montgomery for appellee.

5. Action to recover personal property- Plaintiff's bond insufficient-Defendant's bond will be canceled-Error to dismiss petition-When in an action for the recovery of personal property the plaintiff has executed bond in order to get possession, and the defendant in order to retain possession has given the same security, if the plaintiff's bond was insufficient when given, or has become insufficient, he should be required to give proper security, and if he fails to do so the defendant's bond, required merely because it is presumed the plaintiff's bond is good, should be canceled. It was error in this case to dismiss the plaintiff's petition because of his failure to give proper security. Ratliff v. Fannin. February 25, 1885. Elliott Cir. Ct. Opin. by Bowden, J., Sup. Ct., rev. J. R. Botts for appellant; J. W. & J. B. Hannah for appellee.

Process

Service on infant who has no guardian-The Code of 1854 required a summons to be served on an infant under fourteen years of age, by delivering a copy to the infant and also a copy to the guardian, parent or other person having the infant under charge, and an administrator having no more control over the infant than to pay for his board and schooling did not have such control as was contemplated by the Code for the purpose of service of process. Therefore, where suit was instituted by the administrator having only such control, service upon the infant alone was not sufficient, although there was no guardian and no parent. Mess

more, &c. v. Stone's Adm'r. February 26, 1885. Hancock Cir. Ct. Opin. by Hines, Ch. J., Ct. Ap., aff. on original and cross appeal. W. Lindsay for appellants; W. P. D. Bush and G. W. Williams for appellee.

Railroads

Injury to passenger riding in express car-If the manager of a train know that a passenger is in an exposed and improper place on the train it is their duty to forbid him to remain there, and if they do not and injury occurs the company should be held responsible.

In this case an express messenger not on duty, who, under the contract of his principal with the railroad company, was at such times to be regarded as a passenger, while riding in an express car was killed by a collision which did not wreck the passenger cars or injure any of the passengers in them. The baggage master, who, by an agreement with the conductor and with the consent of the company's superintendent, had the control of the express car, knew of the decedent's presence there and did not forbid it.

Held-That the railroad company is liable. Ky. Central R. R. Co. v. Thomas' Adm'r. February 14, 1885. Harrison Cir. Ct. Opin. by Holt, J., Ct. Ap., aff. O'Hara & Bryan for appellant; J. Q. Ward and C. W. West for appellee.

Receipts-See Agency

As evidence-While a receipt from a woman to her confidential adviser in whom she placed unbounded confidence should be closely scanned, it prima facie establishes payment, and unequivocal testimony is necessary to overturn it. Dugan's Adm'r v. Harris' Adm'r, &c. February 26, 1885. Daviess Cir. Ct. Opin. by Holt, J., Ct. Ap., aff. G. W. Williams and Eli H. Brown for appellant; W. N. Sweeney & Sons for appellees.

Sales of Personal Property-See Contracts, 1.

Separate Estate-See Curtesy

Liability for improvements-Verbal contract-The separate estate of a married woman may be subjected to pay for improvements made thereon upon the faith of a verbal contract with her, the credit having been given her on account of her separate estate. In order to subject her separate estate it is not necessary that the contract should be in writing, or that her husband should unite in it. Pfleeger v. Stiver. February 11, 1885. Kenton Ch. Ct. Opin. by Ward, P. J., Sup. Ct., rev. Tisdale

& Theissen for appellant.

Sheriff

Liability on county levy bond-Allegations of petition-Where a sheriff and his sureties on his county levy bond are proceeded against under section 9 of article 3, chapter 27, General Statutes, it is not necessary to allege anything more than that a settlement was duly made between the sheriff and the commissioner appointed by the county court, and that from the report of settlement it appeared that the amount of money sued for was in

the hands of the sheriff, due the county, and that payment has been demanded by the receiver appointed for the purpose. It is not necessary to allege that the defendants were indebted to the plaintiff in the amount found due upon the settlement. Mullins, &c. v. Pendleton County Court. February 14, 1885. Pendleton Cir. Ct. Opin. by Lewis, J., Ct. Ap., aff. C. H. Lee and A. Duvall for appellants; A. R. Clarke for appellee.

2. In action against deputy-Necessary allegations-In order that a sheriff may recover upon his deputy's bond for the failure of the deputy to collect and pay over the taxes listed and placed in his hands he must allege and show that he is legally accountable for, or has actually accounted for, the taxes which he seeks to recover from the deputy and his sureties. 3. Liability of deputy for uncollected taxes-A sheriff, having taken tax lists out of the hands of his deputy while there was yet a balance due upon them, can recover from the deputy and his sureties only the taxes that could have been collected by the deputy while in office, and were not collectible at the time of his removal, together with such damages as the sheriff may have sustained by reason of the delay in collecting, or additional expense of collecting, if it was worth, and cost, more to collect the remnant than the fees allowed by law therefor. Bowen, &c. v. Shewmaker's Adm'rs. February 25, 1885. Washington Cir. Ct. Opin. by Ward, P. J., Sup. Ct., rev. J. W. Lewis, A. Duvall, W. C. McChord and D. W. Lindsey for appellants; W. E. &. S. A. Russell for appellees.

Street Improvements

Alley-Apportioning cost-The cost of improving an alley must be equally apportioned among the owners of the whole square. The only exceptions to this rule that has ever been recognized is where the alley lies wholly within one of the quarter sections. Connelly, &c. v. Shadburne. February 25, 1885. Lou. Ch. Ct. Opin. by Richards, J., Sup. Ct., aff. Elliott & Hemingray for appellants; Samuel B. Richardson for appellee.

Sureties-See Fraudulent Conveyances, 1—

1. Of guardians-A guardian resigned his trust under an agreement with his successor, whom he had appointed, that he was to have one year within which to settle his accounts and pay over the ward's money to the new guardian.

Held-That the contract was against public policy and void, and, therefore, did not injure the sureties of the former guardian, as it did not prevent any legal steps by them for their protection.

2. Release by failure to sue-In the absence of the statutory notice a surety in a guardian's bond is not released by the failure to sue until his principal and co-surety have become insolvent. Buckler v. Bromel, &c. February 11, 1885. Robertson Cir. Ct. Opin. by Richards, J., Sup. Ct., aff. W. Buckler and W. W. Kimbrough for appellant; A. Duvall and B. G. Willis for appellees.

3. Contribution-Suit having been instituted by S. upon a note executed to him by Y. as principal and B. as surety, it was agreed that Y. and his father would give their note in lieu of the note sued on, thereby releasing B., provided S. would consent, which he did. After the new note had been signed by Y. and his father turned to B. and asked him to sign also, which he did.

Held-That B. thereby voluntarily abandoned the agreement for his release, and, having paid one-half the new note, can not look to the father of Y. for protection, the father being as to B. a co-surety, and not a principal. Bradford v. Yelton. February 25, 1885. Pendleton Cir. Ct. Opin. by Richards, J., Sup. Ct., aff., Bowden, J., dissenting.

Taxation

Board of equalization-Its powers-The act of the legislature, entitled "An act to equalize assessments for revenue purposes, and to provide for a State board of equalization," was not intended to apply to taxes on the value listed under the equalization law (which will be paid as if the board had never assembled), but to the increase or decrease made only on the land and the classes of personal property valued by the assessor and enumerated in the statute. Barbour, Sheriff v. Goodloe. February 5, 1885. Lou. Ch. Ct. Aff. by equal division of court. Opin. by Pryor,

J., Ct. Ap., Holt, J., concurring. Helm & Bruce for appellant; John Roberts for appellee.

Usury

Necessary allegations to recover-In order to authorize the chancellor to purge a claim of usury it is not necessary that usury should be charged in express terms; it is sufficient if facts be stated showing it to exist. An allegation that a note given in renewal of another was taken for too much, by fraud or mistake, is held to be sufficient to warrant proof of usury and to authorize the chancellor to prevent its collection. Walker v. Goodloe's Ex'or. February 11, 1885. Fayette Cir. Ct. Opin. by Ward, P. J., Sup. Ct., rev. Z. Gibbons for appellant; Bronston & Kincaid for appellee.

Vendor and Vendee-See Estoppel

Rescission-Lien-Rent-A vendor sold two tracts of land, conveying one and agreeing to convey the other as soon as title and possession could be obtained, but failing to obtain the title to the latter tract the entire contract was rescinded by the parties. Upon a settlement, which included rent for both tracts, the vendor was found to be indebted in a small sum to the vendee. Subsequent to the adjustment the vendee was compelled to pay rent to a claimant of the tract which was never conveyed.

Held-That the vendee is entitled to a lien on the tract conveyed to him not only for the amount found due him upon setltement, but for the amount of the rent he was subsequently compelled to pay. Caldwell, &c. v. Rainey. February 12, 1885. Mercer Cir. Ct. Opin. by Hines, Ch. J., Ct. Ap., aff. on original and rev. on cross appeal. Durham & Jacobs for appellants; A. Duvall and Bell & Wilson for appellee.