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conveyance was recorded. Adkinson v. Riley. March 10, 1885. Washington Cir. Ct. Opin. by Pryor, J., Ct. Ap., aff. P. B. Thompson, Sr., for appellant.

Assignor and Assignee

Recourse-Diligence-In order that the assignee of a note may preserve his recourse upon the assignor he must commence suit at the first term of such court as has jurisdiction after the assignment and maturity of the notes, at which judgment might be obtained, and an assignee is required to take notice of the unusual jurisdiction of a police court in the county of the maker's residence, although he lives in another county. Potter & Co. v. Manion. March 11, 1885. Allen Cir. Ct. Opin. by Bowden, J., Sup. Ct., aff. W. E. Settle and E. W. Hines for appellants. Attachments

1. Priority of liens-Where the jurisdiction of the court depends upon the contingency of the defendant's subsequent consent, and the plaintiff has an attachmment levied before that consent is given, the act of consent, when given, may relate back so as to affect the defendant, but can not affect other liens already acquired.

2. Answer of garnishee-Lis pendens-The answer of a garnishee setting out the debt he owes the defendant creates a lis pendens affecting liens subsequently acquired, although the garnishee was not served with a notice specifying the debt sought to be attached. Shaw v. Carrick, &c., Ex'ors. February 4, 1885. Scott Ct. Com. Pleas. Opin. by Bowden, J., Sup. Ct., aff. W. S. Darnaby for appellant; James F. Askew for appellees.

Bail Bond

Mistake in name-A person having been indicted under the wrong name and an order entered permitting "the defendant" to give bail, upon the correction by the court of the mistake in the name it was not necessary to repeat the order allowing bail, and the real culprit having been arrested, admitted to bail, tried and convicted, the mistake in the indictment, which was corrected before the bail bond was executed, is not available as a defense to the surety in the bond. Decker v. Commonwealth. February 4, 1885. Daviess Cir. Ct. Opin. by Richards, J., Sup. Ct., aff. Haycraft & Slack for appellant; P. W. Hardin for appellee.

Billiard Tables

What is License-A rectangular table, with cushions on the sides, with four pockets, one in each corner, and on which games are played with cues and balls, is a billiard table within the meaning of the statute requiring license to be obtained to keep a billiard table. It is immaterial what games are played on the table; if kept for public use, and billiards, pool or any other game is played upon it, the party keeping it is guilty.

To own or have possession of a billiard table not used by the public is no violation of the statute.

The judgment in this case is affirmed because the indictment fails to state a public offense, but the court holds that the defendant who kept what is now known as a pool table, upon which the game of pool alone was played, should have had license to keep a billiard table. Commonwealth v. Montedonico. March 12, 1885. Jefferson Cir. Ct. Opin. by Pryor, J., Ct. Ap., aff. Basil W. Duke, A. G. Caruth, Kohn & Barker, James P. Helm and P. W. Hardin for appellant; Kinney & Kinney and H. Clay for appellee.

Bills and Notes

Alteration-Where the acceptor of a bill of exchange for $3,000, executed for his accommodation, offered it for sale, and the bank declining to invest more than $1,500 in the paper, a credit of that amount was entered across the face of the bill and the balance less the discount paid to the acceptor, the entry of the credit was not such a material alteration of the bill as to release the drawers and indorsers; nor does the fact that the proceeds did not accomplish the purpose intended by the obligors release them, it not appearing that the holder was informed of that purpose before purchasing. Jett, &c. v. Farmers and Traders Bank. March 25, 1885. Daviess Cir. Ct. Opin. by Richards, J., Sup. Ct., aff. G. W. Williams, and Weir, Weir & Walker for appellants; Owen & Ellis for appellee.

Boundary

Long acquiescence-Where parties met upon land off of which one had agreed to sell the other a certain number of acres and fixed the division line, long acquiescence in the line so fixed, each party having been in possession of his portion so allotted for about fifteen years, forbids its now being disturbed. Finn v. Rochford, &c. March 14, 1885. Pendleton Cir. Ct. Opin. by Holt, J., Ct. Ap., aff. Clarke & Applegate for appellant; C. H. Lee for appellees.

Champerty-See Adverse Possession.

Common Carriers

Express company-Special contract-Under a special contract by which it was provided that $50 was to be the limit of appellant's liability in case of "loss or damage" to a package intrusted to its care, as it does not appear that the package was either lost or damaged, but that it is still in the possession of the company's agent. the shipper is entitled to recover the value of the package and is not limited to the amount fixed by the contract. It is unnecessary for the court to pass upon the validity of the special contract. Southern Express Co. v. Gutman. March 18, 1885. McCracken Cir. Ct. Opin. by Richards, J.. Sup. Ct., modifying a former opinion. Bigger & Reid, F. E. Whitfield, T. D. Young and Sachs & Sachs for appellant; W. D. Greer and C. S. Marshall for appellee.

Continuance

Diligence in serving subpoena-The statement in an affidavit for a continuance that a subpoena has been issued for an absent witness does not

show sufficient diligence, and the failure to place the subpoena in the hands of the proper officer for service is not excused by the statement that before the defendant could have it done he heard the proposed witness had left the State. It is not proper diligence to rely upon hearsay in such a matter.

2. Personal attendance of witness-The defendant was not entitled to a continuance on account of the absence of a witness, whose deposition he had taken under leave obtained from the court at the preceding term upon his affidavit that the witness was very old and physically unable to attend court, although the affidavit for a continuance stated that his personal presence in court was necessary that the defendant might obtain the full benefit of his testimony, nothing appearing to show that his condition had in any way changed from what it was when the leave was obtained to take his deposition. Davis v. Commonwealth. March 7, 1885. Woodford Cir. Ct. Opin. by Holt, J.. Ct. Ap., aff. P. B. Thompson, Sr., J. W. Gillespie and Porter & Wallace for appellant; D. L. Thornton and P. W. Hardin for appellee.

Contracts-See Trusts, 1—

1. Illegal-Remedy-Cancellation-While no action can be maintained either in equity or at law upon an illegal contract, it does not follow that no affirmative relief of any character can be granted in equity. If the contract is executory, its illegal character, if not apparent upon the face of it, will be grounds for cancellation in equity. Wilcox, Cope & Co. v. Buckner. March 4, 1885. McCracken Ct. Com. Pleas. Opin. by Richards, J., Sup. Ct., aff. L. D. Husbands for appellants; Thos. E. Moss for appellee.

2. Past cohabitation-While past cahabitation may not be sufficient to support an express promise in writing, unless it is a compensation for injured reputation by seduction or some particular hurt done, yet if the man, being in equal fault, vests in the woman title to personal property, it is quite a different matter when he seeks to recover it from her. Clark v. Doke's Adm'r. March 18, 1885. Nelson Cir. Ct. Opin. by Bowden, J., Sup. Ct., aff. J. C. Wickliffe for appellant; John A. Fulton for appellee.

3. Sale of goods-To be appraised-Misconduct of appraisers-EstoppelAppellee sold to appellant his household. school and kitchen furniture, appellant agreeing to pay value of goods as fixed by appraisers, one selected by each party, these two to select a third man if necessary, "broken and useless" articles to be exempt from appraisement. HeldThat if the appraisers improperly decided that certain articles were not "broken and useless," and placed too high a value on others, this fact alone can not justify the court in relieving appellant from his express promise to pay the valuation of the appraisers. Moreover, the appellant having accepted the articles without objection after each had been pointed out to him with the appraisement in his hands, he is now estopped to complain. Chenault v. Pinkerton, &c. March 11, 1885. Mad

ison Cir. Ct. Opin. by Bowden, J., Sup. Ct., aff. C. F. & A. R. Burnam for appellant; Caperton & Smith and John Elliott for appellees.

Conversion

Measure of damages-In actions for conversion of personal property the value of the property at the time of its conversion, with interest, is the general and recognized rule for measuring damages. The plaintiff can not recover the value of the property and also the value of its use by the defendant. Levi, &c. v. Stallard. March 4, 1885. Jefferson Ct. Com. Pleas. Opin. by Ward, P. J., Sup. Ct., rev. Dupuy & Twyman for appellants; Kinney & Chatterson for appellee.

Costs

Amending pleadings-If pleadings have to be amended or reformed the party in fault must pay the cost occasioned by his fault. Therefore. when the Court of Appeals reversed a judgment, with directions to permit the plaintiffs to amend their petition, the plaintiffs ought to have been compelled to pay all costs after the answer of the defendant up to the answer of the amended petition, although the Court of Appeals did not impose terms. Harwood, &c. v. Baldwin & Co. March 25, 1885. Kenton Ch. Ct. Opin. by Ward, P. J., Sup. Ct., rev. Hallam & Perkins for appellants; Fisk & Fisk for appellees.

County Levy

Power of county court-A county court having made a sufficient levy to pay the interest for certain years upon railroad bonds issued by the county, its power to levy is exhausted, and it can not be required to make another levy. The fact that the plaintiff's interest bonds have been merged in a judgment does not preclude him from being paid out of the sum levied to pay all interest, of which his was part. Pitchford, &c. v. Foster. February 4, 1885. Allen Cir. Ct. Opin. by Bowden, J., Sup. Ct., rev. Wilkins & Sims and E. W. Hines for appellants; J. J. Gatewood for appellee.

Courts

Construction of statute-The word "co-extensive,' as used in an amendatory act declaring that the jurisdiction of a police judge "in said town and county" is "made co-extensive" with that of the judge of the quarterly court, means "concurrent," and was intended to increase the amount of which the court should have jurisdiction, and not to extend the territory within which that jurisdiction should exist, the jurisdictions being extended territorially by the phrase "in said town and county," having originally been limited to the town. Potter & Co. v. Marion. March 11, 1885. Allen Cir. Ct. Opin. by Bowden, J., Sup. Ct., aff. W. E. Settle and E. W. Hines for appellants.

Criminal Law-See Franchise

1. Trespass and injury to property-The proper designation of the offensedescribed in section 7, article 28, chapter 29, General Statutes, is "tres

pass and injury to property," but an indictment for the defense is not rendered bad by its designation of the offense as "malicious mischief." 2. Indictment-Where the words of a statute are descriptive of an offense, the indictment should follow the language, but the words "not with felonious intention" are not descriptive of the offense of "trespass and injury to property," and their omission from the indictment is immaterial. Commonwealth v. Sherman, &c. February 4, 1885. Johnson Cir. Ct. Opin. by Richards, J., Sup. Ct., rev. P. W. Hardin for appellant.

Damages

New trial for smallness of-A new trial can not be granted on account of the smallness of damages in any case where they cover the actual pecuniary loss sustained; and while the plaintiff in this case, if entitled to recover at all, was entitled to recover a greater amount than that fixed by the jury, yet as the decided weight of evidence tends to the conclusion that there was no such contract as was declared on, it can not be said that the damages assessed did not equal the actual pecuniary loss sustained by the plaintiff. Callahan v. Harris. March 31, 1885. Jefferson Ct. Com. Pleas. Opin. by Hines, Ch. J., Ct. Ap., aff. on original and cross appeal. Alpheus Baker and S. B. Toney for appellant; Chas. H. Gibson for appellee.

Depositions-

Where each party in an equitable action has given his deposition, and one of them dies before the trial, the deposition of the living party may be read, although the representative of the decedent refuses to introduce his deposition. Lear v. Smith's Adm'r. March 11, 1885. Washington Cir. Ct. Opin. by Ward, P. J., Sup. Ct., aff. Russell & Selecman for appellant; John W. Lewis for appellee.

Devise

Defeasible fee-Under a devise of a defeasible fee the profits, unless otherwise disposed of by the will, remain the property of the first devisee and pass to his heirs or personal representative. (See original opinion. 6 Ky. Law Rep., 589, to which the court adheres, with the above addition.) Lynn's Adm'r v. Kennedy. March 31, 1885. Kenton Ch. Ct. Opin. by Hines, Ch. J., granting rehearing and rev. W. Lindsay and Simmons & Schmidt for appellant.

Dower-See Partnership, 1, 2—

1. Homestead included in estimating dower-In an action to foreclose a mortgage the wife of the mortgagor filed a petition claiming a homestead, the value of which was paid to her, the property being indivisible. In an action by her to recover dower in the same property after her husband's death she admitted that she had received the value of the homestead during her husband's life, and still had it. Held-That it would be unjust in allotting dower not to charge the widow with the value of the homestead thus adjudged to her upon her own petition, although received by her in her husband's lifetime.

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