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January 19, 1897, when the deed was executed. Section 2505, Ky. Stat., provides:

"An action for the recovery of real property can only be brought within fifteen years after the right to institute it first accrued to the plaintiff, or to the person through whom be claims."

The cause of action, if any, accrued during the lifetime of Eleanor Henderson, and the statute having commenced to run upon the execution of the deed, her death did not suspend or interrupt the running of the statute. The minority of the children or other heirs will not arrest it; the bar being just as complete as if the grandmother had lived through the whole time of the statutory period of limitations, plaintiffs had no greater rights than if Eleanor Henderson had lived. By the descent cast, the heirs were placed exactly in the shoes of their ancestor, and, the statute having commenced running as to her in her lifetime, it continued to run without let or intermission.

The accrual of a cause of action means the right to institute and maintain a suit, and, whenever one person may sue another, a cause of action has accrued, and the statute begins to run. 25 Cyc. 1066. Any cause of action to set aside the deed in question, having accrued January 19, 1897, and no suit having been brought within 15 years thereafter the action was barred.

2. It is sought to set aside the deed on the ground of fraud, and here again we find the statute puts an absolute bar to the maintenance of this action. Section 2519 of the Ky. Stat. provides:

"In actions for relief for fraud or mistake, or damages for either, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake; but no such action shall be brought ten years after the time of making the contract or the perpetration of the fraud."

There is no escaping the conclusiveness of the statute. Limitation runs from the time of the execution of the conveyance, or the perpetration of the alleged fraud. Dorsey v. Phillips, 84 Ky. 420, 1 S. W. 667, 8 Ky. Law Rep. 405. Death of the grandmother did not interrupt the running of the statute. Castro v. Geil, 110 Cal. 292, 42 Pac. 804, 52 Am. St. Rep. 84. Besides more than 10 years elapsed between the grandmother's death and the filing of the petition.

Haddix's Heirs v. Davison, 3 T. B. Mon. 39, is a case similar to the present one. This was an attempt to set aside a deed on the ground of fraud; and there, as here, it was shown by the heirs that at the time of their ancestor's death they were infants of tender years, and had not arrived at full age before the commencement of

the suit In discussing the point in question the court says:

"But according to the statements contained in their bill, their right to relief, if any they had, must have accrued to their ancestor in his lifetime, and of course the limitations of time must have commenced running against him, and, having commenced running in his lifetime, it must necessarily have continued to run after his death, notwithstanding the subsequent disability of the heirs."

To the same effect see Langford's Adm'rs v. Gentry, 4 Bibb. 468; Clark's Ex'r v. Trail's Adm'rs, 1 Metc. 35; Salve v. Ewing, 1 Duv. 271; Fox v. Hudson's Ex'x, 150 Ky. 115, 150 S. W. 49, Ann. Cas. 1914A, 832.

It is not disputed that in January, 1897, Orthernile Henderson, father of appellants, was dead, and that his widow and children were living and free from any disability, except that some of the daughters were married and some of the children were infants. The deed was recorded in November, 1900, more than 10 years prior to the institution of this suit. The children of Orthernile Henderson unquestionably took as a class, and when limitation began to run against some of them it began to run against all. In Moore v. Calvert, 6 Bush 356, it is said:

"By a long line of adjudication it was determined, under said act of 1796, that where the right of entry descended to heirs who were all within the exception, they had the time allowed after the disabilities were removed from all to begin their action; in other words, if at the death of the ancestor all his heirs were under disabilities, they would have the time allowed after the removal of such disabilities from all to make their entry or bring their suit; but if one of the heirs labored under no disability at the ancestor's death, the disability of the other heirs did not prevent the statute from running, nor bring any of them within its saving. And this principle pertained alike to joint tenants and coparceners."

This case has been followed in a number of subsequent opinions, notably May v. C. & O. Ry. Co., 184 Ky. 493, 212 S. W. 131, wherein the court cites practically all the cases in this state on the question.

For the further reason that, as certain heirs and beneficiaries of Eleanor Henderson were joint tenants with the appellants, and were not laboring under any disability when cause of action accrued in 1897, the action is barred.

Finding no error in the judgment appealed from, the same is affirmed.

NOTE-Disability of Infancy Interrupting Running of Statute of Limitations.-The broad principle stated by the instant case, that being a case of intervening infancy, has, we believe, many exceptions. Thus, under the limitations act of 1623, which is the pattern of most, if not all, of

American limitations acts, provides that re-entry into lands may be made within twenty years after right of entry shall have accrued, feme coverts and persons non compos mentis and those imprisoned or beyond the seas being enlarged beyond that time. 21 Jac. 1, Ch. 16.

In Stowel v. Zouch (1797), 1 Plowd. 353, the rule stated in the instant case was applied. And in Garner v. Wingrove (1905), 2 Ch. 253, 74 L. J. Ch. N. S. 545, 93 L. T. N. S. 131, 3 B. R. 737, it was said that "the protection afforded by the statute is for those to whom the right or title first accrues." Many American cases support this rule. E. G. Oates v. Beckworth (1895), 112 Ala. 356, 20 So. 399; Bender v. Bean (1889), 52 Ark. 132, 12 S. W. 241; Castio v. Geil (1895), 110 Cal. 292, 42 Pac. 804, 52 Am. St. R. 84; Doe and Jem. Lynch v. Roe (1886), 7 Houst. (Del.) 386, 32 Atl. 391; Futch v. Parslow (1912), 64 Fla. 279, 60 So. 343; Dawson v. Edwards (1901), 189 Ill. 60, 59 N. E. 590; Grether v. Clark (1888), 75 Iowa 383, 39 N. W. 655, 9 Am. St. R. 491; Robinson v. Allison (1905). 192 Mo. 366, 91 S. W. 115; Lyons v. Carr (1906), 77 Neb. 883, 110 N. W. 705; Munroe v. Wilson (1896), 68 N. H. 580, 41 Atl. 240; Chancey v. Powell, 103 N. C. 159, 9 S. E.; Fore v. Berry (1913), 94 S. C. 71, 78 S. E. 706; Patton v. Dixon (1900), 105 Tenn. 97, 58 S. W. 299; Pickens v. Stout (1910), 67 W. Va. 422, 68 S. E. 354; Swearingen v. Robertson (1876), 39 Wis. 462, and Harris v. McGovern, 99 U. S. 161, 25 L. Ed. 317. But it was ruled in Meiggs v. Hoagland (1902), 74 N. Y. Supp. 234, 68 App. Div. 182, that if a person is under 21 years when he becomes entitled to sue as successor to original owner, the statute will not begin to run until he attains his majority. The court said: "John F. Cleu died in August, 1866. Marie, one of his daughters, Marie Philomerca, the mother of Anita, became of full age February 1, 1884. Allowing ten years for the statute to run against her, it would have run out in 1894. She, however, died in 1891, leaving Anita, her infant daughter, then about three years of age. Of course, the statute will not begin to run against her until she becomes of age. Code Civ. Proc., § 375." This evidently is based on a statutory provision.

At an early day in South Carolina, it was held under statutory construction that infancy of an heir would interrupt the statute upon the death of the ancestor against whom it had begun to run. Rose v. Daniel (1814), 3 Brev. 438. Overruled in Faysoux v. Prather (1818), 1 Nott & McC. 296, 9 Am. Dec. 691. See also Fore v. Berry (1913), 94 S. C. 71. 78 S. E. 706. In Fore v. Berry supra the brief of appellant cites Rose v. Daniel supra and several cases of State Supreme Court thereafter down to Sutton v. Clark, 59 S. C. 440. But in that case it was expressly held that "when the statute has commenced to run, no subsequent disability will arrest it."

In Everett v. Whitfield (1859), 27 Ga. 133, the statute specifically provided, that when the statute begins to run it shall not so operate as to defeat interests acquired by infants after its commencement, but the time of their disability shall not be counted. Later it was said that if prescription against ancestor is not complete and his estate is not represented by an administrator sufficiently long to complete it, the infant heir may have additional time to sue. Buchan v. Williamson (1908), 131 Ga. 501, 62 S. E. 815.

Since the ruling in Meiggs v. Hoagland supra, statute provides for raising the rights of infants as to title descending to them during infancy when their rights are extended. Scallon v. Manhattan R. Co. (1906), 185 N. Y. 359, 78 N. E. 284, 7 Am. Cas. 168. This also has been decided to be the rule in Massachusetts. Melvin v. Whiting (1832), 13 Pick. 184. And so in Louisiana, Cousins v. Kelsey (1881), 33 La. Ann. 880.

We think it to be true by the great weight of authority, both English and American, that for a limitation statute to be interrupted after once it has begun to run, the statute must specifically so provide. This is a principle taken 'from our common law, which would have to be negatived, if statutory language would authorize its being recognized. A statute of limitations does no more than provide a rest, and it must C. be pleaded.

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A man was brought into court recently under the new anti-loafing law. The judge looked at him for a moment and then asked: "What is your occupation?"

"I am a musician, your honor," was the reply. "In that case I'll have to find you guilty of loafing."

"But, your honor," protested the man, "I'm regularly employed by the Methodist Church as an organist."

"That only confirms my opinion," said the judge. "The law requires every man to work, but your occupation requires you to play."— Cartoons Magazine.

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Possession

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1. Adverse Boundary Line. Where a proprietor claimed beyond his true line to a well-defined boundary, and held the excess land openly, notoriously adversely, and continuously for the statutory period, he acquired title by adverse possession, though neither he nor his devisee inclosed all the excess land with a fence. -Heinrichs v. Polking, Ky., 215 S. W. 179.

2. Attorney and Client-Implied Authority.An attorney at law, employed to prosecute or defend a suit, has implied authority to agree to a continuance, when it is in the client's interest, or in attorney's judgment will expedite a hearing. Board of Com'rs of Ohio County v. Clemens, W. Va., 100 S. E. 680.

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tributed ratably among the general creditors, and such sum as may be neecssary to pay priority claims and costs of the proceedings.American Improvement Co. v. Lilienthal, Cal., 184 Pac. 692.

6. Intervention.-A trustee in bankruptcy may proceed in the state courts to set aside a fraudulent transfer, or, in proper cases, may intervene in behalf of all creditors, in an action. brought by a creditor.-Googins v. Skillings, Me., 108 Atl. 50.

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7. Limitation of Action.-Rev. St. U. § 5057, providing no suit shall be maintainable between an assignee in bankruptcy and a person claiming an adverse interest touching any property transferable to or vested in the assignee, unless brought within two years, held not applicable to minor children of a father who inherited from their deceased mother land of the community adjudicated improperly to the father who subsequently became bankrupt.-Brewer v. Brewer, La., 83 So. 30.

8. Preference.-Where a claim filed against a bankrupt estate is contested by the trustee on the ground that the creditor received a voidable preference, the decision of the referee that such preference was received and an order for its return, unappealed from, renders the question res judicata, and the creditor cannot relitigate it in a plenary action by the trustee to recover the preferenec.-Lincoln v. People's Nat. Bank, U. S. D. C., 260 Fed. 422.

9. Banks and Banking Estoppel. The knowledge of a bank president as to purpose of himself and comakers of notes in borrowing money from the bank for the use of a levee district, and their intention to be absolutely released by the bank's acceptance of the levee district's notes in lieu of theirs, is not chargeable to the bank, since his interests conflicted with those of the bank, and could not create an estoppel against the bank to enforce payment of the debt.-Greer v. Levee Dist. No. 3 of Conway County, Ark., 215 S. W. 171.

10. Insolvency.-It is to be presumed that defendant, a private banker, charged with having received a deposit while insolvent, knew whether or not he was insolvent.-People v. Dubia, Ill., 124 N. E. 537.

11. Bills and Notes-Failure of Consideration. -A purchaser before maturity, who had knowledge of the character of the consideration, but who acquired the note before the consideration had actually failed, and had no notice, constructive or otherwise, that the consideration would fail, is an innocent purchaser as respects defense of failure of consideration.-Prater v. Baughman, Ga., 100 S. E. 647.

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prima facie was an acceptance of the freight by the railroad.-Yazoo & M. V. R. Co. v. Nichols & Co., Miss., 83 So. 5.

14.

Lien for Freight.-For its legal charges, a common carrier by rail had a lien on the goods carried, which could be discharged, and the consignee become entitled to the goods only upon payment or tender of the rate.-Pittsburgh, C., C. & St. L. Ry. Co. v. Fink, U. S. S. C., 40 Sup. Ct. 27.

15. Carriers of Passengers-Stoppage at Station. It is the duty of a common carrier receiving a passenger on its train with a ticket calling for a certain station, and without notice the train does not stop there, to stop the train at the station and permit the passenger to alight.Blaylock v. Southern Ry. Co., N. C., 100 S. E. 599. 16. Cemeteries-Regulation.-The powers of municipal bodies, under legislative authority, to adopt reasonable regulations with reference to public cemeteries, cannot be questioned.-Ex parte Adlof, Tex., 215 S. W. 222.

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Law-Espionage.

18. Constitutional The acts of printing and disseminating, during the war with Germany, pamphlets containing disloyal, scurrilous and abusive language about the form of government of the United States, also language intended to incite, provoke and encourage resistanec to the United States in the war, etc., were not within the protection of the freedom of speech and of the press guaranteed by Const. U. S., Amend. 1.-Abrams v. U. S., U. S. S. C., 40 Sup. Ct. 17.

19. Franchise.-A provision of a franchise ordinance granted by a city and accepted by a street railroad company, requiring the company to sell half-fare tickets to certain classes of passengers, held not to constitute a contract protected from change or annulment by the legislature of the state by the contract clause of the federal Constitution, but a government regulation, made under state authority, and subject to revocation by the state.-Dubuque Electric Co. v. City of Dubuque, Ia., U. S. C. C. A., 260 Fed. 353.

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agreement to have case dismissed by order dismissing the case settled; each side to pay own costs.-Karnes v. Black, Ky., 215 S. W. 191.

23. Mutuality.-An agreement founded on a consideration is not invalid for want of mutuality because one party has an option while the other has not, so that it is obligatory on one and optional with the other.-Miller v. Kimmel, Okla., 184 Pac. 762.

24. Repugnancy.-Where there is an inconsistency between two clauses in a written contract, the repugnancy must be reconciled so as to give effect to the repugnant clauses, in keeping with the general intent or predominant purpose of the instrument.-Todd v. Superior Court of California in and for City and County of San Francisco, Cal., 184 Pac. 684.

25. Statutory Duty.-When a statute provides a duty, and a contract is made involving performance of the duty, the statute becomes part of the contract.-Guilford Lumber Mfg. Co. v. Holladay, N. C., 100 S. E. 597.

26.

Corporations-Assignment of Stock.—As between the transferror and the transferee of a corporate stock certificate assigned by indorsement on the back thereof, the title was completely vested in the transferee without a transfer on the corporation's books.-Fidelity Trust Co. v. Newark Milk & Cream Co., N. J., 108 Atl. 54.

27. Criminal Law-Circumstantial Evidence. In a criminal trial, it is not error to refuse defendant's instructions on circumstantial evidence, which matter was covered by the main charge. (Per Prendergast, J.)-Porter v. State, Tex., 215 S. W. 201.

28. Continuance.-Refusal of a continuance held not reversible error, where the three absent witnesses named in defendant's affidavits all admittedly lived in the county and within a few miles from the county seat, and six days intervened between arrest and date of trial, since they could have been secured by using reasonable diligence, with the possible exception of one whose pregnancy it was not shown would probably terminate in time for attendance at the succeeding term.-Hogan v. Commonwealth, Ky., 215 S. W. 183.

29. Intoxicating Liquors. In prosecution for selling intoxicating liquor, evidence of other sales in defendant's place of business, near time of the sale charged, was competent to show that part of defendant's business, in connection with alleged cigar store, was the sale of whisky, and to show that he knew of them, and that liquors were intermingled with other goods as tending to show that particular sale was a part of defendant's business.-Bundy v. State, Okla., 184 Pac. 795.

30. Joint Indictees.-Joint indictees may, in the discretion of the court, be ordered to be tried together.-Stilson v. U. S., U. S. S. C., 40 Sup.

Ct. 28.

31. Similar Offense. In a prosecution for burglary, testimony tending to prove a similar burglary of the store, by two of the three defendants, in which they took money to a certain amount, was competent on the issue of intention

in entering the store on the night of the offense charged.-Camp v. State, Ark., 215 S. W. 170.

Performance.

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32. Damages-Specific In suit for specific enforcement of contract to exchange lands, where plaintiff had conveyed her property, and defendant had conveyed to plaintiff, but had subsequently destroyed the deed and transferred the property to innocent third persons without authority, the measure of plaintiff's damages was the reasonable market value of the property of which plaintiff was deprived; defendant's liability being based, not on breach of contract, but on his tort in destroying the original deed and depriving plaintiff of her property. Johns v. Parsons, Ky., 215 S. W. 194.

33. Wife's Earning Capacity.-Wife, suing for personal injuries, was entitled to recover for loss of earning capacity.-Kirkpatrick Crutchfield, N. C., 100 S. E. 602.

V.

34. Deeds-Delivery.-To constitute delivery of a deed, it must clearly appear that it was the grantor's intention that the deed should pass title at the time, and that he should lose control over it.-Pemberton v. Kraper, Ill., 124 N. E. 611.

35. Delivery.-If a deed be delivered to a third person, with the intention that it shall become operative only upon certain contingencies, there is no delivery.-Weber v. Brak, Ill., 124 N. E. 654.

36. Illegal Consideration.-A conveyance made by a mother for the purpose of securing an indebtedness of her son, with knowledge that in incurring the indebtedness he had committed a criminal offense and with intent to prevent his prosecution, is not for that reason invalid as for an illegal consideration, where not induced by any threat of prosecution or promise of immunity.-National Bank of Savannah v. All, U. S. C. C. A., 260 Fed. 370.

37. Intent to Defraud.-If conveyance, although for valuable consideration, is with actual intent to defraud creditors on part of grantor, of which intention grantee has notice, the conveyance is void. Merchants' Natl. Bank of Winston v. Park, N. C., 100 S. E. 615.

38. Intoxication.-In action to set aside a deed on account of grantor's mental weakness the test applicable is the same as in other forms of mental derangement, and the deed is voidable if grantor at its execution was so far intoxicated as to be unable to comprehend the nature and consequence of his act and unable to bring to bear any intelligent choice.-Miller v. Howard, Okla., 184 Pac. 773.

39. Descent and Distribution-Advancement. -There is a presumption that a conveyance by a parent to a child without consideration was by way of advancement.-Thompson v. Ohl, Ia., 174 N. W. 446.

40. Divorce Death Dissolving Marriage. Marriage being a personal relation or status, and an action for divorce a proceeding of a personal nature to effect its dissolution, in the absence of contrary statute, death of one of the parties abates the action, having deprived the court of jurisdiction over the persons of the parties before decree and of the subject-matter of the action itself.-Bushnell v. Cooper, Ill., 124 N. E. 521.

41.-Interference with Wife.-Under Rev. St. 1911, art. 4639, wife seeking divorce may ask injunction to restrain husband from interfering with her in the cultivation and harvesting of crops, and in the use of teams and farm implements, and from molesting or intruding himself upon wife's presence, even though wife had an adequate remedy at law of which she could have availed herself.-Hunt v. Hunt, Tex., 215 S. W. 228.

42.-Lex Domicilii.-As respects jurisdiction in divorce suits, the marital status follows the marital domicile.-Aspinwall v. Aspinwall, Nev., 184 Pac. 810.

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44. Estoppel-Change of Position.-Where a party gives a reason for his conduct and decision to anything involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct upon a different consideration and so mend his holding.-Mitchell v. Brotherhood of Locomotive Firemen and Enginemen, Neb., 174 N. W. 422.

45. Fraudulent Conveyances-Intent. The question of fraudulent intent is to be considered as of the time when the conveyance is made, and with reference to the particular conveyance alleged to have been fraudulent as against creditors.-Tanner v. Frink, Neb., 174 N. W. 417.

46. Guaranty-Conditions of. - A guarantor may impose any terms or conditions in his guaranty which he may choose, and will only be liable to the holder according to the terms of the agreement.-Illinois Surety Co. v. Munro, Ill., 124 N. E. 528.

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48.

Homicide-Motive.-It is always relevant to introduce evidence of jealousy and unrequited love and the facts on which they rest, for the purpose of showing motive in homicide.-People v. Laures, Ill., 124 N. E. 585.

49. Husband and Wife-Community Property. -The validity of a conveyance from husband to wife of the husband's interest in community property cannot be questioned by a third party, unless he was a creditor of the husband before the conveyance was made, or was a subsequent purchaser without notice.-Glover v. Brown, Idaho, 184 Pac. 649.

50.

Infants-Guardian ad Litem.-Under Civ. Code Prac., § 38, court had no authority to appoint a guardian ad litem for an infant over 14 years of age until he had been summoned.Crume v. Sherman, Ky., 215 S. W. 196.

51. Ratification.-Infant defendants in partition ratify the proceedings, and are estopped to take advantage of a mere irregularity, by receiving to their guardian for and appropriating their shares of the proceeds, with full knowledge of the facts on arriving at age. In re Youtsey, U. S. D. C., 260 Fed. 423.

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54. Judicial Sales - Jurisdiction. court has jurisdiction of the parties and the subject-matter of the suit, and adjudges a sale by the commissioner, which is fairly made, and the sale is reported and confirmed, the purchaser, if not a party to the suit, cannot be divested of land because the judgment under which sale was made was erroneous, even though it is reversed on appeal; but the rule is different where purchaser was a party to the suit, or an attorney, or assignee of the judgment.-Crume v. Sherman, Ky., 215 S. W. 196.

55. Libel and Slander-Punitive Damages.Where plaintiff seeks to recover punitive damages for libel, or where the defendant alleges that the publication was justified on the ground that it was privileged, actual malice or malice in fact becomes an issue.-Scott v. Times-Mirror Co., Cal., 184 Pac. 672.

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