Estoppel to deny landlord's title. Recovery of possession. 2. A tenant cannot repudiate the title of 8. A statute giving the landlord a sumthe landlord under whom he originally en-mary remedy to recover possession of the tered, and claim to hold the premises un-premises by writ of forcible entry and deder another, until he has first surrendered possession to his original landlord. It is not enough that he has abandoned the premises for a time, and afterwards entered under the new title, unless he has given notice of such abandonment to the original landlord.-Juneman v. Franklin, (Tex.) 562. Holding over. posses 3. In Kentucky, where one rents a stable for a year from a certain date, and at the expiration of the year continues in sion for two months, paying rent for that time, which the landlord accepts, and also takes in, with the knowledge of the landlord, a stock of provender sufficient to last him for another year, the tenant is entitled to occupy the premises for another year, the landlord being estopped by his acceptance of rent, and allowing the tenant to store the provender, to evict him, notwithstanding Gen. St. c. 66, art. 4, § 1, which provides that, where a tenant is in posses sion under a lease for a year or more which is to expire on a certain day, and he holds over without the express consent of the landlord, he does not acquire any right to remain for ninety days, and may be evicted within that time.-Irvine v. Scott, (Ky.) 163. Distress for rent. can 4. One who leases his wife's land in his own name, and takes a note for the rent payable to himself as "attorney," maintain a suit in equity to enforce the landlord's lien in his own name, under Mansf. Dig. Ark. § 4936. as "one with whom and in whose name a contract is made for the benefit of another."- Dickenson v. Harris. (Ark.) 58. 5. And it is not necessary that such a suit should be in his own name, and the wife may therefore be joined in it, either originally or after the institution thereof.-Id. 6. A suit to enforce a landlord's lien on crops, for rent, may be maintained, although the contract shows that the amount claimed is for rent and hire of personalty combined, without separating the two; es pecially if the bill alleges that the hire of the personalty was worth nothing.-Id. tainer, issuing from a justice's court, does not deprive him of his right to sue in the district court to recover possession. The statutory proceeding is cumulative, not exclusive of the right of action.-Juneman v. Franklin, (Tex.) 562. LARCENY. See, also, Receiving Stolen Goods. 1. If the defendant took the lumber he is charged with stealing openly and without he is not guilty of theft.-Williams v. State, any effort at concealment or intent to steal, (Tex.) 226. 2. In Texas, under an indictment for felonious larceny, it devolves on the state 3. A defendant cannot be convicted of Indictment. 4. In an indictment for the larceny of clothing from a room, it is proper to charge the ownership of the clothing in a woman though a minor, she being 18 years of age, and owning and using the clothing as her own.-Phillips v. State, (Tenn.) 434. 5. An indictment for the larceny of a horse alleged both the ownership and possession of the animal to have been in the same person at the time it was stolen. The evidence sustained the ownership as alleged, but proved that the animal was stolen from the possession of a different 7. In Kentucky, a landlord cannot acperson, who was holding the same for the quire a superior lien for rent, which has owner. Held, a fatal variance between the been due less than six, but more than four, allegation and the poof of the possession. months, by the suing out and levy of a-Hall v. State, (Tex.) 338. distress warrant upon the tenant's property, upon the leased premises, but after the making of a deed of assignment by the tenant for the benefit of his creditors.Petry v Randolph, (Ky.) 420. Evidence. 6. In Texas, on the trial of an indictment for the larceny of a horse, parol evidence is not admissible to show that the * * brand of the alleged owner was recorded; | 8. Upon trial for the larceny of cattle, evidence of the record of a brand recorded by one to whom it was assigned, after the alleged date of the larceny, held inadmissible.-Groom v. State, (Tex.) 668. 9. Upon trial for larceny of cattle, if there is evidence that the cattle stolen had the brand "P. O." on the left hip, and a lateral "P." on the left side, and the person whose cattle are alleged to have been stolen testifies that he had the management of the cattle in the "P. O." brand, it is not to be inferred that the witness refers to the before-mentioned brand, and a conviction upon such testimony cannot be sustained.-Id. 10. To warrant an inference of guilt from the recent possession of stolen prop; erty, the possession must be exclusive, and there must be a distinct and conscious assertion of property by defendant.—Robinson v. State, (Tex.) 736. ing and butchering the cow, under the bc lief that it was his, and in ignorance of the fact that it had been stolen, it is error to refuse an instruction to the effect that if the jury believe that evidence, that defendant should be acquitted.-Willey v. State, (Tex.) 570. 14. A conviction of larceny will be set aside where there is evidence tending to establish a purchase by the accused of the property alleged to have been stolen, and the charge of the court fails to present that phase of the case.-Ryan v. State, (Tex.) 547. 15. On the trial of an indictment for the larceny of a cow, the court instructed the jury that, "upon the trial of any person charged with the theft of any animal of the horse, ass, or cattle species, the possession of such stolen animal by the accused, without a written transfer or bill of sale contain ing a description of such animal, shall be prima facie evidence against the accused, and that such possession was illegal." Held erroneous, as being a charge upon the weight of evidence.-Willey v. State, (Tex.) 570. 16. Where the evidence fails to establish a fraudulent taking by the accused, and ownership as alleged in the indictment, the judgment should be reversed.—Ryan v. State, (Tex.) 547. LICENSE. See, also, Intoxicating Liquors. Tax in form of license. 11. If a defendant charged with theft gives a reasonable, natural, and probable 1. The charter of the city of Owensexplanation of his possession of the stolen borough, (1 Acts Ky. 1881, p. 817,) § 36, proproperty, it then devolves upon the state, vides that the common council shall have if it relies and solely on such possession power to grant a license to the following as evidence of defendant's guilt, to show persons, and to provide by ordinance adethe falsity of the explanation.-Clark v.quate penalties for doing business without State, (Tex.) 744. Instructions. license, viz., tavern keepers, concerts, menageries, and express companies; and section 37 provides that, upon granting such 12. It is not necessary that, in instruct-license, the city council shall charge such ing the jury upon the rule as to the recent sum as they shall deem fit and reasonable. possession of stolen property being pre- Held, that although the power given municsumptive evidence of guilt, the court ipal corporations to require a license of useshould make a direct application of the ful trades does not, generally speaking, conrule to the facts of the case.-Hart v. State, fer power to tax such trades with a view to (Tex.) 741. revenue, but gives power to require only a 13. On the trial of a joint indictment of reasonable fee for the license, and labor attwo persons for the larceny of a cow, tending the issue of the license, yet the last which was butchered and sold, where section in the foregoing charter, enlarging there is evidence tending to show that one the power given in the preceding section, of the accused simply acted as the hired shows that it was the legislative intent to man of the other, and assisted him in driv-confer upon the city council full power over the subject, and to authorize them to use the power to license express companies as a means of taxing such companies if they saw proper to do so.-Adams Exp. Co. v. City of Owensborough, (Ky.) 370. 2. The act of March 2, 1870, (1 Acts Ky. 1869-70, p. 33,) imposes a tax on foreign express companies, and provides that they shall not be required by any county, city, or other corporation to take out any other or additional license, or pay any other or additional tax for the right or privilege of conducting business in or through such county or city. Held, this act was not expressly or impliedly repealed by a subsequent act (1 Acts Ky. 1881, p. 817, §§ 36, 37) conferring on a particular city the power to license express companies. The act of 1870 shows an intention upon the part of the state to exempt foreign express companies from local taxation upon the pay. ment of the state tax, and that intent is not to be reversed in favor of a particular city by mere implication from the general terms of a subsequent act, so as to enable the city, under that act, to impose a license on a foreign express company that had previously paid the license to the state required by the act of 1870.-Id. LIENS. See, also, Mechanics' Liens. Attachment, equitable interest, see Attachment, 1. Attorney's lien for services, see Attorney and Client, 4. Landlord's lien, see Landlord and Tenant, 4-7. Vendor's lien, see Sale, 2. LIMITATION OF ACTIONS. Adverse possession, see, also, Ejectment, 2. Guardian, limitation of suit on bond, see Guardian and Ward 7. Mortgage, limitation of power of sale, see Mortgages, 11. Judgment, suit to revive, see Judgment, 13. Retroactive effect of, see Constitutional Law, 6. Taxation, suit for failure to list property, see Taxation, 10. Adverse possession. 1. A party claiming a tract of land under color of title given by a deed, which also gives him a good title to other land, will not be deemed in adverse possession thereof by his possession and occupation of that land included in the deed of which he has a good title.-Word v. Box, (Tex.) 93. 2. When actual possession of land by an adverse claimant ceases, the constructive possession of the legal owners revives, and a renewed adverse possession will not receive aid from or be tacked to a former possession to piece out the time allotted by the statute for acquiring title by adverse possession.-Brown v. Hanauer, (Ark.) 27. 3. Adverse possession is not acquired by marking off a boundary around land, unless the claimant, or some one for him, reside on the land within such boundary, and claims up to the boundary adversely. -Sanders v. Barbee, (Ky.) 528. 4. Actual, continuous, adverse possession of land for any period of 15 years, whether the 15 years be next before the institution of the suit to recover the land, or at any other time, will confer a perfect title, and toll the right of entry under an elder patent.-Id. Running of the statute-Personal rights. 5. The act of a town in making a contract ultra vires, and afterwards assessing the property, and continuing to assert its power to bind the property holders until the court decided that it had no such power, does not constitute fraud, actual or and Gen. St. Ky. c. 71, art. 3, § 6, providing constructive, as against the contractor; that in actions for relief for fraud the cause of action shall not be deemed to have accrued until the discovery of the fraud, does not apply.-Hahn v. Town of Bellevue, (Ky.) 132. 6. The probate allowance of a claim is a judgment within the meaning of the Arkansas statute fixing the period of limitation of judgments at 10 years; and, while the statute may not operate to bar such a judgment while the estate is in course of administration, yet, as to a cause of action which accrued upon the discharge of the administrator, the statute will run from that time, and bar the demand at the end of 10 years.-Brown v. Hanauer, (Ark.) 27. Real rights. 7. In case of a grant of land under Mexican law to a colony for the benefit of the citizens of a certain place, the statute of limitations will begin to run immediately upon a claim of one of such citizens to the tract, based upon an earlier grant to him. Sydeck v. Duran, (Tex.) 264. " 8. Under Gen. St. Ky. c. 71, art. 3, § 6, providing that "in actions for relief for fraud the cause of action shall not be deemed to have accrued until the discovery of the fraud, but no such action shall be brought ten years after making the contract or perpetration of the fraud, if a fraudulent or voluntary conveyance is permitted to stand for 10 years without attack, the grantee under it acquires a perfect title, which he can enforce by action against all persons.-Brown v. Connell, (Ky.) 794.* 9. A husband having instituted suit to set aside a will made by his wife, he subsequently agreed with his son to dismiss the suit in consideration that he should be allowed the use of the homestead which belonged to the wife and one-half the proceeds of the real estate during his life; the son and daughter to have the other one-half. The father and children having acquiesced in this agreement for over 20 years, held, neither the father nor the daughter, who had in the mean time mar ried, could maintain an action to set aside the agreement.-Riggs v. Riggs, (Ky.) 423. Disabilities and exceptions. 10. In proceedings to open an administrator's account, and for a further accounting, when it appears that the heir and distributee was an infant when the adminis trator settled his accounts, and died in infancy, and an administrator to such heir's estate was not appointed till 10 years afterwards, the statute of limitations does not begin to run in favor of the administrator of the ancestor until such appointment, and no laches can be imputed to the heirs of decedent in their action.-Sorrels v. Trantham, (Ark.) 198. tract of land, part of which plaintiff claims to own, defendant relied on the statute of limitations as a bar to the action. Held, that he was not estopped to plead the statute by the fact that he had previously misrepresented to plaintiff (innocently and without fraudulent intent) the true division line between their tracts, so that plaintiff was induced to believe that the right of way did not touch any part of his land, and did not discover otherwise until after two years from the date of payment of the money to defendant; and that the fact that plaintiff resided at a greater distance from it than did defendant did not excuse his want of knowledge about it.—McFaddin v. Prater, (Tex.) 306. Acknowledgment. 15. Where the maker of a note, barred by the statute of limitations, writes upon it, "I hereby waive my right to rely upon or plead the statute of limitations as to the within note," this is a sufficient acknowledgment of the justice of the debt, and willingness to pay it, to imply a promise to pay, and will revive the debt, although there was no new consideration for such indorsement.-Jordan v. Jordan, (Tenn.) 896.* 11. In an action to set aside and cancel certain deeds alleged to have been exe16. A written waiver of the right to cuted by a trustee contrary to the condi- plead the statute of limitations is not contions of his trust, the property having trary to public policy, but is valid, and will been conveyed by the mother of the plain- estop the maker from pleading the statute. tiffs to the trustee in trust for all her chil--Id. dren, when it appears that one of the plaintiffs was a married woman at the time of the conveyance by the mother to the trustee, and that she so continued until the institution of this suit, the statute of limitations could not run against her.-Smith v. McElyea, (Tex.) 258. 12. The averments of the petition that the trustee and his grantees, during the life-time of the grantor of the trust, induced the grantor and the plaintiff to believe that the trust would be carried out after the grantor's death, held to be sufficient to prevent the running of the statute of limitations as to plaintiff claiming under the trust. Id. 13. Where the full legal title to property is vested in a trustee to be held for the sole use and benefit of another, and subject to no other condition than that it shall be conveyed to such other person upon demand, if the right of action of the trustee to recover the property is barred by limitation, the cestui que trust is also barred, although the latter may have been under disability at the time the cause of action accrued.-Collins v. McCarty, (Tex.) 730. 14. In an action by one to recover a portion of a sum of money received by another from a railroad as compensation for the railroad's right of way over a certain Taxes. 17. The statute of limitations will run against a municipal corporation, to operate as a bar to the collection of city taxes, when the defense thereunder is not expressly taken away by statute.-Mellinger v. City of Houston. (Tex.) 249. 18. The Texas act of July 4, 1879, (Sp. Sess. Tex. 1879, Gen. Laws, p. 15,) providing "that no delinquent tax-payer shall have the right to plead in any court, or in any manner rely upon, any statute of limitation by way of defense against the payment of any taxes due from him or her, either to the state or any county, city, or town," applies to a purchaser of property incumbered with a líen for taxes.-Id.* 19. In an action to recover possession of land, upon the ground of plaintiff's use and occupancy and payment of taxes thereon for more than five years, evidence that the land was assessed for taxation against plaintiff, and the tax-roll marked "paid" for three years, and that it was the invariable custom of the tax collector, when taxes were paid, to so mark on the roll, did not show, but rather tended to repel, the fact of payment for the remaining two years.-French v. Olive, (Tex.) 568. Evidence. 20. Where, in an action to subject lands to the payment of a probate judgment, the defense is set up that the cause of action did not accrue within 10 years of bringing suit, the burden is upon the plaintiff to show that he had commenced his suit within the statutory period. - Brown v. Hanauer, (Ark.) 27. ducting the litigation complained of, he 21. Where an action is brought in Kentucky, and both parties are non-residents, 2. Mere dislike or ill will towards one by the statute of limitations of this state ap- another does not constitute malice in the plies, and the burden of proof is on the legal sense. There must be some act done party relying on Gen. St. c. 71, art. 4. § 19, by defendant with intent to injure plain(providing that where a cause of action tiff, and such act must be wrongful, and arises in another state between residents done without legal justification or excuse. of such state, and by the laws of that state-Peck v. Chouteau, (Mo.) 577. an action cannot be maintained thereon, no action can be maintained in this state,) Pleading. of showing that the cause of action accrued in another state between citizens of that state, and the statute there was no obstacle to recovery.-First Nat. Bank of Cincinnati v. Thomas, (Ky.) 12.* LIS PENDENS. Where rule applies. 1. A pending action to enforce a mortgage is notice, to all purchasers who become such during the pendency of the action, of the mortgagee's rights. A husband and wife joined in mortgaging her land, and, she dying, her interest descended to her sons, from one of whom the husband bought his interest. Held, that the interest so purchased was liable, along with the husband's estate by curtesy, to the mort gage; especially as it appeared that the mortgage contained a clause of general warranty.-Edmunds v. Leavell's Adm'r, (Ky.) 134. 2. Plaintiff, in an action of ejectment, after his attorney had dismissed the action, filed in vacation a motion to have it reinstated. Afterwards, but before the defendant had notice of the motion to reinstate. the latter gave a mortgage on the premises sued for, the mortgagee accepting it in reliance upon the dismissal, and in ignorance of the motion to reinstate. Held, that the title under the mortgage was free from any lien created by the pendency of the action of ejectment, and that the subsequent reinstatement of the action would not affect it.-Davis v. Hall, (Mo.) 382. Logs and Logging. Damages for breach of contract relating to, see Damages, 3-5; Evidence, 10. MALICIOUS PROSECUTION. 1. An attorney is not liable to an action for malicious prosecution unless, in con 3. The declaration must aver want of reasonable or probable cause.-Turner v. Turner, (Tenn.) 121. Evidence. 4. Plaintiff having been indicted, along with A., for a fraudulent conspiracy, was acquitted, and subsequently brought an action for malicious prosecution. In that action, held, that evidence of a previous indictment against A. for a similar offense was incompetent, as it did not tend to prove plaintiff guilty upon the indictment complained of, or disprove malice or show probable cause on the part of defendant.Peck. v. Chouteau, (Mo.) 577. 5. But A. having appeared as a witness in the action for malicious prosecution, him previously to the one complained of is evidence of the indictment found against admissible to affect his credibility, it appearing that he had entered a plea of guilty to that indictment, but the government had dismissed the proceeding without entering judgment on the plea.-Id. MALPRACTICE. Evidence. 1. When, in an action for malpractice, the plaintiff is permitted to show the skill, reputation, and standing of one as a surgeon and physician, by the testimony of medical experts, who were then asked and permitted to give their opinions upon the material issues, on the assumption that his diagnosis of the case was correct, the defendant may show, by the same experts and witnesses, his own skillfulness and reputation in that behalf.-Vanhoover v. Berghoff, (Mo.) 72. 2. In an action against a surgeon for malpractice in the improper treatment of a dislocated bone, a question whether he was justified in not using the "splint" which had been practically tested, and was in common use in such cases, by the profession, and in adopting and using a sub |