Volume 100 — Kentucky Reports

Case 1 — INDICTMENT APPEALS PROM PAYETTE CIRCUIT COURT. 1. To be guilty of the offense designated in section 1977 of the Kentucky Statutes one must actually engage in the “game” or be the active agent i» determining the act or acts constituting the “hazard.” It is essentially different from the provisions of chapter 47. section 11 of the General Statutes, which embraced persons “playing or betting at any game or wager.” If, therefore, it was not against the law to bet on…

Case 2 — PETITIONS ORDINARY APPEALS FROM DAVIESS CIRCUIT COURT. 1. In an action on a note by the endorsee against the maker an answer alleging fraud in the inception of the note places the burden of proving good faith on plaintiff. (Thamling v. Duffy, 37 Pac. Rep., 363.) 2.

Case 3 — PETITION EQUITY APPEAL PROM CALLOWAY CIRCUIT COURT. 1. Where the voter makes a mistake in voting, the record can not he changed by the officers of election. (Oowan v. Prowse, 14 Ky. L. R„ 273.) 2. After a certificate of election is issued, the only remedy is a proceeding alleging fraud. (Riggs v. Stephens, 13 Ky. L. R., 631.) 3.

Case 4 — MOTION appeal erom: jeeeerson circuit court, chancery division. 1. The transcript filed by the appellant contains enough of the record to enable this court to determine the single question of law involved on the appeal. 2. When an appellant takes an appeal on a partial record, he does so at his peril; and if it appears that portions of the pleadings or evidence bearing upon the questions have been omitted the judgment will be affirmed.

Case 5 — PETITION ORDINARY APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. The production of the certificate of the nearest magistrate or notary public, as required by the terms of the policy, is a condition precedent to the plaintiff’s right to recover; and this suit having been brought without the procurement of such a certificate, was premature, and can not be maintained. (Oldman v. Bewick, 2 H. Bl., 577; Rutledge v. Burrell, 2 H. Bl., 254; Ins.

Case 6 — PETITION EQUITY APPEAL PROM MADISON CIRCUIT COURT. 1. The charge is upon the “property” devised to M. M. and John C. Miller, which means the life estate devised to them by the testator, but the charge upon the fee-simple title to the land would be to fasten it not only upon the “property” devised to M. M. and John C. Miller, but upon the property of the remainder-men. 2.

Case 7 — PETITION EQUITY APPEAL PROM JEPBBRSON CIRCUIT COURT, CHANCERY DIVISION. 1. Where a corporation declares a dividend and it is paid to and received by the stockholders in good faith, believing that the corporation was solvent, the money so paid can be recovered by the corporation or its assignee, if the deed of assignment passes the right.

<p>1. Taxation — Right to Assess eob Previous Years — Limitation.— While under the provisions of section 3403 of the Kentucky Statutes, being a part of the charter for cities of the third class, the authority-to make assessments and to correct improper assessments or irregularities in assessments, is confined to such, omissions or irregularities as occur during tlhe preceding five years, this limitation does not apply to a right acquired by such city under a charter which was in existence at the time of the adoption of the charter for third class cities, as it is provided in said charter for third class cities (sec. 3258, Ky. Stats.), that it “shall not in any manner affect any right, lien or liability acerued, established or subsisting under and by virtue of previous charters, or amendments thereto, or ordinances passed thereunder.”</p> <p>2.Burden of Rroof. — Where the proper authorities make the levy and assessment for taxation, and the same is assailed, the presumption should be indulged that the assessment is correct until the plaintiff shows that it was improperly made, or that he was not the owner of the property or that it was not liable for the taxes in question.</p>

<p>1. Libel. — A publication in a newspaper under the headlines of “Evidently Stolen,” which stated that H. had hired a horse to a man for a special purpose to be returned at a certain time, and that it was not returned as promised, and that H. had concluded that he hired the horse in order to convert it to his own use, and that H. thought he could identify the man as L., is libelous, unless it was true that L. was in fact the man to whom the horse was hired.</p> <p>2. Damages. — The publisher of a libel should be held liable for all the damages which the injured party sustained thereby, including not only the ininry to his character, but also for the injury to his feelings and for the mental suffering caused by the publication, and for such other damages as were the direct or necessary result of such publication; and if the same was known by the publisher to he false, he is liable for punitive damages.</p>

Case 10 — INDICTMENT APPEAL PROM ¿EPPERSON CIRCUIT COURT, CRIMINAL DIVISION. 1. The affidavit of a juror is not admissible for the purpose of purging his conduct of the imputation of impropriety. Taylor v. Geiger, Hardin, 558; People v. Hunt, 5 Cal., 275; Ogden v. State, 26 Miss., 78; Wharton’s Crim. Law, sec. 3328. 2 On the trial of offenses which are or may be punished capitally, the jurors after they are accepted shall not be permitted to sepa-^ rate.

Case 11 — PETITION EQUITY APPEAL PROM JEPPERSON CIRCUIT COURT, LAW AND EQUITY DIVISION • 1. The statute provides that “ the inspector shall remain in office for four years” (Ky. Stats., sec. 2204), and. there is no time fixed at which the term shall begin — the effect, of which is to provide that “the inspector shall remain in office four years” whether the office becomes vacant from death, resignation, expiration of the incumbent’s term or otherwise. 2.

<p>1. Criminal. Law — Variance.—Upon the trial of a defendant under an indictment charging him with murder by “striking, beating, bruising and mortally wounding” the deceased, he can not be convicted upon evidence that he knocked deceased down, and that in falling deceased struck his head against some hard substance which caused his death.</p>

Case 13 — PETITION ORDINARY APPEAL FROM FAYETTE CIRCUIT COURT. 1., The broker is entitled to recover if the purchase was the natural and proximate result of his efforts. Mecbem on Agency, sec. 960; Lincoln v. McClatchie, 36 Conn., 136; Anderson v. Cox, 1C Neb., 10; Green v. Bartlett, 14 Com. Bench (N. R), 681. '2.

Case 14 — PETITION ORDINARY APPEAL FROM MARION CIRCUIT COURT. 1, A party taking a train should inform himself beforehand whether the train he is about to take stops at the station called for in his ticket. 2 Wood on Railway’s, p. 1415; Ballard v. Railroad, 15 Ky. Law Rep., 703; Logan v. Hannibal R., 12 A. & E. It.. R. cases, 141; O. & M. R. Co. v. Swartliout, 67 Ind., 567, and 33 Amer. Rep., 106; Railroad v. Hatton, 60 Ind., 12. 1.

Case 15 — RULE— APPEAL FROM PENDLETON CIRCUIT COURT. 1. The fact that the first sale at which appellee made his bid was not reported to the court by the master and acted on before the subsequent sale which was confirmed, is no reason why the bidder should not account for the difference. Watson’s Admr. v. Violett, 2 Duvall, 333; Am. & Eng. Enc. of Law, vol. 12, pp. 233-4. 1.

<p>1. Elections — Official Ballot — When Name of One Nominated by Petition may be Placed Under Party Device. — Under the provision of Section 1453, Kentucky Statutes, “that if any political party entitled to nominate by convention shall in any case fail to do so, the names of all nominees by petition for any office, who shall he designated in their petitions as members of and candidates of such party, shall he printed under the device and title of such party on the ballots, as if nominated by convention,” to entitle the name of any candidate to be placed under a particular party device or ticket it must appear, that the party in question had failed to nominate by convention a candidate for that office, and that the person who seeks to have his name so placed on the ballot is in fact, and shown to be in the meaning of the statutes, a nominee by petition of that party.</p> <p>2. Nomination by Petition — Duty of Cleric. — Where the petition does not ask that the name of the person nominated shall be placed elsewhere upon the ballot than under a party device, and is insufficient to authorize the clerk to put it there, the cleric should not be required to put his name on the ballot at all.</p> <p>3. Same. — It is provided by Section 1454 of the Kentucky Statutes that if any person shall join in nominating by petition more than one nominee for an office to be filled, such person shall not be counted as a petitioner for either nomination, and the allegation in appellee’s answer that there were electors who signed appellant’s petition in question who had also signed a petition for Ihe name of another to be placed on the ballots as a candidate for the same office, and sufficient in number to reduce the whole number of names on appellant’s petition below the number required by law, constituted a complete defense to the action.</p>

Case 17 — PETITION ORDINARY appeal from losan circuit court. 1. Plaintiff had no right to withdraw an exhibit filed with his petition without the permission of the court, and defendant was entitled to argue a motion to withdraw it. 2. Any willful material alteration in an insurance policy vitiates the policy even if the alteration was not beneficial to the party making it. Am. & Eng.

Case; 18 — PETITION EQUITY APPEAL EROM PENDLETON CIRCUIT COURT. 1. The Appellee having filed his claim against the assigned estate of the principal in the note, he should in this suit against the surety on that note be made to account for the amount he received out of the assigned estate, as he had no right of action against the surety except for the balance. 2.

Case 19 — PETITION EQUITY APPEAL PROM GARRARD CIRCUIT COURT. 1. An individual or corporation can not make another a creditor without his reguest. (Searcy’s H’rs v. Rearden, 3 Bibb, 529; Gordon, &e., v. Towsey, 3 Litt., 426.) 2. A corporation is held to a careful adherence to truth in its dealings with mankind and can not by its representations or silence involve others in onerous engagements and then defeat the claims which, its own conduct has superinduced.

<p>*Case 20 PETITIONS</p> <p>APPEALS FROM JEFFERSON CIRCUIT COURT, LAW AND 'EQUITY DIVISION.</p> <p>1. Upon the plea of res adjudicata in the case of the Henry Academy and Female College Lottery, the judgment of the court below is 'clearly sustained by abundant authority. In quo warranto the burden is on the defendant to show such a state of facts as invests him with the complete legal title to the franchise in question. And while in Kentucky the writ of quo warranto, or an information in the nature of a quo warranto, is superseded by an ordinary action to vacate or repeal charters, and to prevent the ¡usurpation of an office or franchise (Civil Code, secs. 480 to 485), the rules applicable to the practice in quo warranto, or information in the nature of quo warranto, remain in full force except so far as modified by our Code of Practice. (People v. Rensselaer & Saratoga R. Co., 15 Wend., 133; s. c. 30 Am. Dec., 1 and note; People v. Richardson, 4 Cow., 118; Bank of Auburn v. Aikin, 18 John, 137; State v. Harris, 36 Am. Dele., 460; People v. Utica Ins. Co., 15 John, 358; Utica Ins. Co. v. Scott, 8 Cow., 720; Commonwealth v. City of Frankfort, 13 Bush, 186; Speed v. Braxtell, 7 Mon., 575; McLain v. French, 3 Mon., 386; Eastin v. Rucker, 3 J. J. M., 234; Troutman v. Vernon, 1 Bush, 484.)</p> <p>2. The cases cited by defendant from Missouri and Louisiana fully sustain the contention of appellee Douglass as to the validity of lottery contracts, but. outside of Kentucky these are the only lottery contracts whidh have been sustained by the courts of any State in the Union. The case of Stone v. Mississippi, 1(>1 U. S., 814, has formed the basis of many adverse opinions, among which the following may be taken as illustrations: State v. Woodward, 89 Ind., 110; Moore v. Mississippi, 48 Miss., 147; Mississippi v. Musgrove, 44 Miss., 833; Boyd v. State, 53 Ala., 612; Boyd v. Alabama, 94 U. S., 645; Bass v. Mayor of Nashville, Meigs, 421.</p> <p>3. The contract sought to be protected by this appeal was made touching a subject of governmental power and functions about •which it was unlawful to contract, or if lawful to contract, with full notice to everybody that the State might at any time resume control of the whole subject in the exercise of her police power.</p> <p>As to the limit of this power, see: Tiedman’s Limitation Police Power, sec. 1; Idem, sec. 2; Lake View v. Rose Hill Cemetery, 70 111., 192; State v. Nuges, 47 Me., 189; New Orleans Gas Co. v. Hart, 8 Am. St. Rep., 544; People v. Budd, 15 Am. St. Rep., 460; State v. Moore, 17 Am. St. Rep., 696; People v. Squire, 1 Am. St. Rep., 893; State v. Yopp, 2 Am. St. Rep., 305; People v. Wagner, 24 Am. St. Rep., 141; Butler v. Chamber^, 1 Am. St. Rep., 638; New Orleans v. Boyle, 23 La., 740; Green v. Savannah, 6 Ga., 1; In rc Ruth., 32 Iowa, 250; Patterson v. Kennedy, 97 U. S., 501; Railroad Co. v. Richmond, 96 U. S., 521; Water Works Co. v. Sugar Works Co., 35 La. Ann., 1114; N. O. Water Works Co. v. St. Tammany Water Works Co., 14 Fed. Rep., 194.</p> <p>4. The grant of the Commonwealth to. the city of Frankford by the act of 1872 was, as are all lottery grants, a mere license. (Gregory v. Trustees Shelby College, 2 Met.', 579; Phalen v. Virginia, 8 How., 166; Moore v. The State, 48 Miss., 161; Boyd v. The State, 53 Ala., 615; Boyd v. Alabama, 94 U. S., 650; Miss. Society v. Musgrove, 44 Miss., 836; State v. Norris, 77 N. C., 572; Moore v. Mississippi, 48 Miss.; Reynolds v. Glory, 26 Conn., 179; Tell v. State, 42 Md., 519; Stone v. Mississippi, 101 U. S., 831; Commonwealth v. City of Frankfort, 13 Bush, 192; Stickrod v. Commonwealth, 86 Ky., 285.)</p> <p>5. To the plea of stare decisis under the decisions in Kentucky there is this conclusive answer: That while it is true that this court has sustained such contracts under lottery grants similar to that pleaded in this case, such decisions were made at a time when the science of law and government, especially in the domain of police power and regulation, had not begun, much less reached the limits of its present development. The contention of counsel for appellee Douglass takes no account of growth, development and progression in the law. (Vaughn v. Hopson, 10 Bush, 337, overruling Patten v. McCane, 15 B. M., 444.)</p> <p>6. The contract of the appellee Douglass provides by its own terms for the contingency of legislative or judicial interference and was made by the parties with the evident understanding that the Legislature might interfere.</p> <p>1. Answer does not allege that lottery franchise in hands of appellee is unexhausted. This is required by the rule in Commonwealth v. Simmons, 13 Bush, 193.</p> <p>2. Lottery franchise is a personal privilege that can not be alienated without consent of the Legislature. Though the city of Frankfort was authorized to sell and convey to Stewart; neither Stewart nor his wife was authorized to sell and convey to appellee. Appellee’s title is then illegal so far as the State is concerned.</p> <p>3. In the nature of things, none of the contracts in this case were susceptible of violation by the particular adverse legislation in question, as all were executed. Appellee’s rights, if any, are property rights secured by purchase and protected by the Fourteenth amendment alone (Fletcher v. Peck, 6 Cranch, 87; Fisher v. Whitney, 13 Wall., 63; Cooley’s Const. Lim., 341). The true question in this case then is whether private property can under any circumstances be taken for public use without due process of the law, of which taking without compensation, may be said to be evidence. Now, lotteries are recognized as being immoral in their tendencies. (Phalen v. Va., 8 How., 167; Gregory v. Trustees, 2 Met., 598; Acts 1816, vol. 2, page 1150.) The regulation of morals pertain to the police power, resident in the State government. (Beer Co. v. Mass., 97 U. S., 33; Butchers’ Union y. Crescent City Co., Ill U. S., 757.) The Fourteenth Amendment was not designed to interfere with the police powers of the State when exercised for the promotion of the morals of the people, even though private .property be confiscated. (Barbier v. Connelly, 118 U. S., 31; Powell v. Penn., 127 U. S., 683;) nor indeed does any other portion of the Federal Constitution interfere with this power (Butchers’ Union v. Cres. City, 111 U. S., 757; Stone v. Miss., 101 U. S., 816; Gas Co. v. Light Co., 115 U. S., 672); therefore legislation confiscating lottery rightsi can not offend -the Federal Constitution, nor, of course, a State Constitution which provides by its terms for their destruction. The only question in all such cases is whether the means employed are in fact calculated to attain the end sought — the improvement of morals. (Powell v. Penn., 127 U. S., 683.) Instances where private property .once held and used with the consent of the Legislature has been destroyed in the cause of health and morals ■without paying owner compensation. (Powell v. Penn., supra-, S. C., 114 Pa. St., 265; 77 Mo., 110; 36 Minn., 69 (Oleomargarine cases); Mughs v. Kansas, 123 U. S., 623; Kidd v. Pearson, 128 U. S., 16; Stickrod v. Com., 86 Ky., 285; Burnside v. Lincoln Co., id., 429.)</p> <p>4. But as a question of contract rights appellee has no indefeasible title against the State. He could only buy what others were empowered to sell, which in this instance was only a license or estate at will. (Gregory v. Trustees, 2 Met., 589, shown to be unsound.)</p> <p>5. Stone v. Miss., 101 U. S., 816, not distinguishable from the present ease.</p> <p>1. The sale of a lottery privilege when authorized by an act of the Legislature vests in the purchaser an indefeasible right of contract which can not be repealed or modified by a subsequent legislative enactment or constitutional prohibition. (Bass v. Mayor of Nashville, Meigs, 421; State v. Phalen & Payne, 3 Harr (Del.), 441; Phalen v. Com., 1 Robinson’s, 713; Davis v. Caldwell,» &c., 2 Robertson (La.), 271; Miss. Society of A. S. v. Musgrove, 44 Miss., 837; Boyd v. State, 46 Ala., 333; State v. Hawthorn, 9 Mo., 393; State v. Mirrow, 26 Mo., 131; State v. Miller, 50 Mo., 132; State v. Miller, 66 Mo., 329; Joihffe v. The Steamship Co., 2 Wall., 450; White v. Hart, 13 Wall.; Osborne v. Nicholson, 13 Wall., 654; Boyce v. Sabler, 18 Wall., 546; Delmas v. Ins. Co., 14 Wall., - 661; Gunn v. Barry, 15 Wall., 610.)</p> <p>Adjudications in Kentucky: Gregory, Extr. v. Trustees of Shelby College Lottery, 2 Met., 589; Public Library Case, Nov. 1, 1877; Webb v. Com., ms. op., Sept, 11, 1878; Com. v. Douglass, ms. op., Nov, 25, 1882; Com. v. Whipps, 80 Ky., 269; Laurence v. Simmons, ms. op., 1888; Meredith v. Barron, 2 Ky. Law Rep., 208.) The case of Stone v. Mississippi, 101 U. S., 8Í4, as explained by the later .case of City of New Orleans v. Houston, 119 U. S., 265, does not militate against the view here contended for.</p> <p>2. The matter in dispute is era adjudicaia by virtue of the decision of this court in Com. v. City of Frankfort, ms. op., Feb. 27, 1878; Cooley’s 'Const., Limit., p. 58; Commiss. of Sinking Fund v. Green & Barren River Nav. Co., 79 Ky., 82; Louisville Water Co. v. Clark, 143 U. S., 16; Snapp v. Snapp., 10 Ky. Law Rep., 600. A State is as much bound by judgment as an individual. (Utica Ins. Co. v. Scott, 8 Cow., 709; Hart v. Harvey, 32 Barb., 67; Hob-son, &c. v. Com., 2 Duv., 172.)</p> <p>3. The rule of stare decisis applies: Cooley’s 'Const. Limit., p. 61; Nelson v. Allen, 1 Yerg., 376; Louisiana v: Pilsbury, 105 U. S., 297; Olcott v. The Supervisors, 16 Wall., 690; Ohio Life & Trust Co., v. Debott, 16 How., 432; Farrier v. New England Mortgage Security Co., 33 Cent. L, X, 190; Kneeland v. City of Milwaukee, 15 Wis., 454; Lenth’s heirs v. Thomas’ heirs, 7 Mon., 61; Tribble v. Laird, 7 Mon., 455; Franklin County Court v. L. & N. R. R. Co., 84 Ky.; Franklin County Court v. Deposit Bank of Frankfort, 87 Ky., 380; Barbier v. City of Louisville, 83 Ky., 95.</p>

Case 21 —INDICTMENT APPEAL FROM MNCOLN CIRCUIT COURT, ' 1. The spirit of section 1130 of the Kentucky Statutes is that before one can be confined in the penitentiary for life upon a third conviction of felony he must have been punished by confinement in the penitentiary, where an opportunity was afforded him to reform and repent of the evils of his past life; and after that if it turns out there has been no repentance or change of purpose, then he is to be treated, upon a…

<p>Case 22 — PETITION EQUITY</p> <p>APPEAR FROM JEFFERSON CIRCUIT COURT, RAW AND EQUITY DIVISION.</p> <p>(Record and briefs not in the office.)</p>

Case 23 — INDICTMENT APPEAL PROM RUSSBLI) CIRCUIT COURT. 1. Prior to the adoption of the Code of Practice, and for some time afterwards, the punishment for willful murder was death, and when the statute was amended so as to make it either death or confinement for life, it nullified the provisions of sub-section 7 of section 210 of Criminal Code with reference to questioning persons called as jurors about their conscientious opinions as to inflicting the death penalty.

<p>Case 24 — PETITION ORDINARY</p> <p>APPEAL PROM PULASKI CIRCUIT COURT.</p> <p>1. In an action for slander, words spoken of plaintiff by defendant after the action was commenced, are not admissible in evidence.</p> <p>Z. A charge that one has sworn falsely in one case, is not of similar import to the charge that he has sworn falsely in another case.</p> <p>3. The second paragraph of the answer admitting the speaking of the words and justifying, which was stricken out under the requirement to elect, should not have been read to the jury as an admission by defendants of the speaking of the words.</p> <p>4. The reason of the common la.w rule that a husband is liable for the slanders of his wife no. longer exists. That doctrine originated centuries ago and is founded upon the fiction that husband and wife are one. Then a husband was clothed with extraordinary powers both as to person and property of his wife, and assumed responsibilities commensurate therewith. But in the light of modem legislation and tendencies, and the changed conditions, the rule should no longer obtain.</p> <p>1. The admission of the defendants in the second paragraph of their answer that the words'were spoken, were certainly competent evidence upon the issue as to whether the words were actually spoken. Tf such a statement or admission had been made elsewhere than in the pleadings it would certainly have been proper to show it; andrwhy not show it by this evidence, which is much better and safer?</p>

•Case 25 — PETITION FOR WRIT OF PROHIBITION originad proceeding in the court of appears. 1. There is no statutory provision ’which authorizes any one to take a prisoner confined, in the penitentiary out and take him to another county to testify in any case. Where they are confined in. the county where their testimony is desired the court may have them brought into cofcrt, but in all other cases their testimony (must be taken by deposition. (Sec. 151, Crim.

Case 26 — PETITION APPEAL PROM KNOTT CIRCUIT COURT. 1. Officers can not be held responsible for costs in an effort to enforce a judgment in favor of the Commonwealth. 2. Section 723 of Civil Code clearly gives the right of transcript from inferior to superior courts. 3. Replevying a judgment im favor of the Commonwealth for a violation of the law makes it a civil debt. 4.

Case 27 — INDICTMENT APPEAL PROM LAUREL CIRCUIT COURT. 1. On an indictment for gaming a conviction can he had upon the evidence, alone, of a witness who engaged in the game. (Green v. Commonwealth, 6 Ky. Law Reporter, 217.)

Case 28 — PETITION ORDINARY APPEAL FROM MARION CIRCUIT COURT. 1. Before a party can seek the rescission of a contract, alleged ta ■have been obtained by fraud, he must as far as he can, place thei parties in statu quo. (Green v. Southard, 2 Ky. L. R., 233; Minor v. Kelly, 5 Mon., 274; Speak v. Warner, 5 J. J. M., 68; 1 Addison ion ‘Contracts, sec. 312; Story on Sales, sec. 159; Town’s Adm’r V. Waldo., 20 Atlantic Reporter, 325; E., T. V. & G. Ry.

Case 29 —MOTION APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION. I. The provision of section 281 of the Criminal Code that a decision upon a motion to set aside an indictment shall not be subject to exceptions, relates to an exception by the defendant; this court has repeatedly entertained jurisdiction of such appeals by the (Commonwealth and upheld the same. (Corn. v. Slieggs, 3 Bush, 19; Com. v. English, 6 Bush, 431; Com. v. Rudd, 3 Ky.

Case 30 — AGREED CASE APPEAL PROM PBANKLIN CIRCUIT COURT. 1. The power given by statute to the board of council to create the Board of Public Works carried with it the implied power to abolish that board at will, there being nothing in the statutes showing a legislative inteht to withhold the power to abolish. (29 N. J. Eq., 478; Dillon on Mun. Cor., secs. 231-2, note 1.) 2.

Case 31 — PETITION ORDINARY APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. Upon the fact being disclosed that a' juror is a stockholder in a corporation that was the owner and holder of all of the capital stock of another corporation that was a party to the suit, the court should have ordered his name stricken from the list. 2.

Case 32 —INDICTMENT APPEAL PROM MORGAN CIRCUIT COURT. 1. Under the circumstance in this case a continuance should have been granted. It was within the discretion of the trial court to have done so, under the provisions of section 185 of the Criminal Code, and his refusal to do so, in this case, was an abuse of that discretion. 2.

Case 33 — PETITION ORDINARY APPEAL EROM HART CIRCUIT COURT. 1. The evidence of the appellee as to his defective sight was incompetent. It was introduced for the purpose of counteracting the effect of his contributory negligence in standing at the glass door of the caboose, in plain view of where the cars were hacking up toward the caboose, and failing to taire necessary steps to puti himself in a place of safety.

Case 34 — PETITION EQUITY APPEAL FROM FAYETTE CIRCUIT COURT. 1.

Case 35 — PETITION ORDINARY APPEAL EROM KENTON CIRCUIT COURT. 1. While it is not per se negligence to ride upon the platform of a car, hut to voluntarily and unnecessarily stand or ride upon the platform, if there is standing room within the car, is such negligence as will prevent a recovery for an injury received while thereon. (Beach on Contributory Negligence, sec. 54; Patterson on Railway Accident Law; Hutchinson on Carriers, sec. 272; Pierce on Railroads, pp. 316-17.) 2.

Case 36 — PETITION EQUITY APPEAL FROM MERCER CIRCUIT COURT. 1. A mortgage executed by John Chas. Thompson to sureties on a note of his and John B. Thompson, to secure said sureties from all loss as such, is released when the notes are renewed and John Chas. Thompson’s name left off. (Letcher v. Bank, 1 Dana, 84; Castleman v. Holms, 4 J. J. M., 3; Berry v. Stoekwell, 10 B. M., 300; Breckinridge v. Churchill, 3 J. J. M., 12; Stone v. McConnell, 1 Duvall, 56.) 2.

Case 37 — PETITION ORDINARY APPEAL FROM HICKMAN 'CIRCUIT COURT. 1. It is not pleaded that there was a violation of the statute in reference to blowing the whistle cr ringing the hell; and as a pleading must he construed most strongly against the pleader, it must be presumed that appellee did not intend to charge appellant with a violation of the statute. 2.

Case 38 —INDICTMENT APPEAR PROM CAMPBELL CIRCUIT COURT. 1. The indictment must he direct and certain as to the party charged and offense charged. (Criminal Code, secs. 124 and 126.) 2. Upon the filing of an affidavit by one charged with murder that the acting sheriff is prejudiced against him, and interested in having him convicted, the court should have designated some other officer or person to summon the petit jury. (Criminal Code, sec. 193; Civil Code, 667.) 3.

Case 39 — PETITION EQUITY APPEAL FROM LiEE CIRCUIT COURT. 1. Where a valuable and fair consideration has been paid by a purchaser for land, the insertion in the deed of a mere purpose of>' the parties to the sale, if not realized, forms no grounds for rescission of the contract, and oral evidence can not be admitted! ■to supply facts not expressed in the deed not inferable from its. language, creating obligations not undertaken.

<p>1. Fraud — Misrepresentations—Instructions.—In. an action on notes given for the price of land, where the defense is that the vendor stated and represented that certain improvements would he made in the vicinity of the lot, -which statements and represent-n ■tions were false, hut relied upon by the defendant, and induced him to make the purchase, an instruction telling the jury to find for the defendant, if they believe these things, was erroneous, because of its failure to further require the jury, before finding for defendant, to believe that the vendor had means of knowing, or actual knowledge on the subject of such prospective improvements, that the purchaser did not have and could not -have ac-i quired by ordinary diligence.</p> <p>2. Bona Ftde Holder Without Notice — Fraud.'—The notes sued on being under the.laws of Tennessee where the contract was made, upon 'the footing of inland bills of exchange, and having been, ■before maturity, for a valuable consideration, transferred to appellant without notice of any fraud, are unaffected by any fraud ns het.ween the original parties.</p> <p>3. Conflict of Laws — Comity—Stipulation to Pay Attorney’s Fee. — Where a note is executed in Tennessee and stipulates for the payment of an attorney’s fee if resort to law is necessary to collect if, such a stipulation, although enforceable under the laws of Tennessee, will not be enforced in this State, where such contracts are held to be contrary to the policy of our laws, and absolutely void. The general rule is that the validity of a contract is to be determined by the law of the place where it is made, and if valid there, will be held valid everywhere; but comity 'Should not and does not require a contract made in one State, to be enforced by the courts of another State that treat similar contracts made therein as absolutely void.</p>

Case 41 — PETITION ORDINARY APPSAI. PROM PAYETTE CIRCUIT COURT. 1. Where a corporation adopts a contract, entered into by the promoters before it is in esse, which is intended to inure to ■ th& ■benefit of the corporation and does inure to its benefit, it takes, ■the burden with the benefit, and the contract is enforceable ■against it. (Beach on Private Corporations, vol. 1, section 198; Little. Rock & Fort Smith R. Co. v. Perry, 37 Ark., 1G4; Paxton Cattle Co. v. First Nat.

Case 42 — PETITIONS EQUITY APrEAL FROM OLDHAM CIRCUIT COURT. 1. Even if the assessment and levy of the taxes was regular, the sheriff had no right to levy on and advertise the real estate of appellants’ for same, because no demand had ever been made of either of them, and they each had sufficient personal property out. of which his taxes could have been made. 2.

. Case 43 — PETITION EQUITY APPEAL FROM MARION CIRCUIT COURT. 1. The law of the place of the performance of the contract will govern the courts in giving the remedy upon the contract, even though the security for the debt may be located in a State other than the one in which the debt is to be paid.

CASE 44 — PETITION ORDINARY APPEAL FROM BRACKEN CIRCUIT COURT. 1. A party to a suit should not be permitted to testify for himself in chief after having introduced other testimony. (Civil Code, section 606, sub-section 4.) ' 2. The evidence of the appellant as to the transactions between him and Irwin, deceased, was competent, because they all took place with Irwin’s agent, who had testified in the case and established the agency.

Case 45 — AGREED CASE APPEAL FROM FRANKLIN. CIRCUIT COURT. 1. Under the rules of construction heretofore laid down by this court, the use of the term “examining court” in the statute authorizes the payment of fees for each case tried on any day; and the use of “examining courts” only authorizes the payment of so much per day, without Tegard to how many cases may have been tried on that day.

Case 46 — PETITION EQUITY appeal prom bell circuit court. 1. The law of another State when relied upon in the courts of this State, is nothing but a fact, and must be pleaded as any other fact, with sufficient distinctness for the court to judge of its effect.

Case 47 — CONTESTED ELECTION APPEAL PE.OM JBEPEBSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1.

Case 48 — PETITION ORDINARY APPEAL PROM MASON CIRCUIT COURT. 1. When a judgment is valid, and the defendant in the judgment subsequently becomes of unsound mind, and there is nothing in the record to show this fact, and execution issues on the judgment and a sale of land is made thereunder, the purchaser obtains a good title. (Allison v. Taylor, 6 Dana, 87; Shirley v. Taylor’s Heirs, 5 B. M., 99; Vanfleet’s Collateral Attack, sec. 616.) 2.

Case 49—PETITION appeal prom mason circuit court. 1. The only way to reconcile the provisions of sections 1138 and 2515 of the Kentucky Statutes is to consider the limitation provided hy the first section as applying only to criminal offenses which may he prosecuted by indictment or other criminal process, and the other as applying to civil actions to recover penalties for which only ordinary money judgments can he obtained. 1.

Case 50 — AGREED CASES APPEALS PROM ERANKLIN CIRCUIT COURT. An examination of the history of legislation in this State with reference to the powers of State officials to employ counsel, makes it entirely clear that section 114 Kentucky Statutes is intended to be a general provision, and that section, 115 is intended to be merely restrictive of the powers of the Governor, auditor, etc. (Kentucky Statutes, sections 113, 114, 115, 118; General Statutes, Ed. 1887, pp. 186 et…

Case 51 — PETITION ORDINARY APPEAL EBOM ROBERTSON CIRCUIT COURT. 1. There being no legatees or distributees, and all debts, if any, being barred by length of time, and the administrator having turned ■over the note to the heirs, the estate could have no interest in the note, and the heirs could maintain the suit. (Bellamy’s Adm’r. v. Bellamy, 3 Bush, 110.) 2.

Case 52 — PETITION EQUITY APPEAL EROM WHITLEY CIRCUIT COURT. 1. The payment of $200 was made on the execution which was issued on the 16th of February, 1890, and the execution which was issued on the 2d of February, 1894, was therefore not barred by limitation. (Kentucky Statutes, sec. 2514.) 1. The running of the statute was not suspended during the pendency of the equitable action.

Case 53 — PETITION EQUITY APPEAR EBOM PIKE CIRCUIT COURT. 1. A feme covert may constitute her husband as her agent, and is bound by his promises and representations in regard to her property at the time of the sale-, which he is making as such agent. (9 Amer. & Eng. Enc. of Law, pp. 836 et seq.) 53 Conn., 496.) And where there are facts sufficient to- imply the relation of principal and agent, the parties are bound. (1 Amer. & Eng. Enc. of Law, 345.) 2.

Case 54 — PETITION EQUITY APPEAL PROM GRAVES CIRCUIT COURT. 1. Money advanced by one at request of another, to pay losses already-incurred in gaming, where the one advancing the money was not engaged in the gaming, may be recovered. (Pope v. McKinney, 3 B. M., 93; English v. Young, 10 B. M., 141; 3 Dana, 51; 7 J. J. M., 16.) This case is also distinguished from Triplett v. Seelbach, 91 Ky., 30. 1.

Case 55 —MOTION APPEAL PROM BOYD CIRCUIT COURT. 1. The object in taxing the $20.00 attorney’s fee under the old statute, for the benefit of the Commonwealth was to reimburse the State for the $20.00 it had to pay to the Attorney-General in each case. The reason for this ceased when it was provided by section 117, • Kentucky Statutes, that the Attorney-General should be paid a stipulated salary, and the provisions of the old act stand repealed. 1.

<p>Case 56 — PETITION ORDINARY</p> <p>APPEAL PROM DAVIESS CIRCUIT COURT.</p> <p>1. When the petition shows that the several paragraphs relate to the same cause of action, the plaintiff should be required to elect to prosecute one of the paragraphs, and the others should be stricken out, unless he shall allege that the statements in one or the other of the paragraphs is true, but he does not know which. (Turnpike Co. v. Maupin, 79 Ky., -102.)</p> <p>2. The nature of the partnership is not disclosed by the pleadings. If it was a non-commercial partnership, the plaintiff should allege affirmatively that the partner was authorized to make the contract in question. (Judge v. Braswell, 13 Bush, 75; Dickinson v. Vaepy, 10 B. & C., 128; Levy v. Pyne & Richards, 41 E. C. L., 249; Smith v. Sloan, 37 Wis., 289.)</p> <p>1. The answer in effect confesses the existence of the partnership, and the right of Griswold to sign the firm name to the contract for rooms to be occupied by the firm and used in the conduct of its business, follows as a matter of law.</p> <p>2. Notice of his withdrawal from the partnership did not release appellant from the contract previously entered into while he was a member of the firm.</p>

Case 57 —INDICTMENT APPEAL FROM ADAIR CIRCUIT COURT. 1. While the witnesses introduced by the Commonwealth on the motion for a change of venue all state that appellant could get a fair trial in Adair county in their opinions, yet they state facts which show that he could not, and the whole evidence taken together shows that he could not. 2. The appellant should have been granted the continuance on account of the absence of his witness, Evans.

CASE 58 —INDICTMENT APPEAL FROM ADAIR CIRCUIT COURT. 1. Upon the return of the first verdict the right and province of the jury to pass upon the life and liberty- of the accused ended, and the court had no right or power to send them again to the jury-room to make another and different verdict. (Brown v. Com., 90 Ky„ 655.) 1.

Case 59 — PETITION ORDINARY APPEAR FROM WHITLEY CIRCUIT COURT. 1. The powers of the curator lasted only while the contest over the will was pending in the County Court, and the order admitting the will to probate was binding upon all parties until it was superseded, reversed or annulled. Sec. 4852 Ky. Statutes; Reed v. Reed, 91 Ky., 267; 91 Ky., 36.) It was, therefore, the duty of the curator to turn over the estate to the administrator upon his appointment and qualification.

<p>1. Set-off — Right to use Assigned Judgment as — Conditional Assignment. — A judgment debtor who, 'subsequent to the rendition of the judgment against him, procures an assignment to himself of a judgment against his judgment creditor and acquires the legal title thereto, may, when the latter is insolvent, set off the assigned judgment against the other, although his liability to pay for the assigned judgment was dependent upon whether he could use it as a set-off.</p>

Case 61 — PETITION ORDINARY APPEAL EKOM DAVIESS OIBCtTIT COUBT. 1. There was no definite or.actual refusal of appellants to receive the logs or any part of them. 2. Appellants were all the time ready and willing to receive and pay for the logs, other than oak, while damages are allowed for all. 3. The logs for failing to receive which, damages are allowed, were •other than those contracted to appellants. ' 4.

<p>1. Gas Company — Maximum Charge — Meter Rent. — Where the charter of a gas company provides that it shall furnish gas for illuminating purposes to private consumers “under reasonable miles and regulations to be prescribed by the company, at a price not to exceed one dollar and thirty-five cents for one thousand cubic feet,” the company can not impose upon the small consumer a charge for meter rent in addition to the charge for gas authorized by the charter, upon the idea that it is a “reasonable rule and regulation”, within the meaning of the charter.</p>

Case 63 — PETITION EQUITY APPEAL FROM FBANKLTN CIRCUIT COURT. (No brief in the record.) 1. Money paid voluntarily, although under a mistaken belief, can not be recovered back unless a fraud was perpetrated by the payee. (Bilbie v. Lumlie, 2 East, 469; Tyler v. Smith, 18 B. M., 793; Elliott v. Swartout, 10 Peters, 153; Bank v. Daniel, 12 Peters; Kerr on Fraud and Mistake, pp. 401-2.) 2. The city had the power to pass the ordinance under its general police powers.

<p>Case 64 — PETITION ORDINARY</p> <p>APPEAL FB03I WHITLEY CIRCUIT COURT.</p> <p>(Record and briefs not in the office.)</p>

Case 65 — PETITION ORDINARY APPEAL PROM GRATES CIRCUIT COURT, 1. The purpose and intention of section 166 of the Constitution was to prevent conflict and confusion between the Constitution and the several charters until uniform laws could be enacted for the government of cities and towns. (Holtzhauer v. Newport, 15 Ky.

<p>Case 66 — PETITION ORDINARY</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>1. No right of action survived at common law. L. & P. Canal Co. v. Murphy, 9 Bush, 534; Givens v. K. C. Ry. Co., 89 Ky., 234.)</p> <p>2. In respect to right of action. (Section 241 of the Constitution, and sections 1 and 3, of chapter 57, of the General. Statutes.)</p> <p>3. Reduction of power to earn money does not apply in actions for death. L., C. & L. R. R. Co. v. Case’s Adm’r, 9 Bush, 736; Muldraugh’s Hill, etc., Turnpike Co. v. Maupin, 79 Ky., 105; K. C. Ry. Co. v. Ackley, 87 Ky„ 283.)</p> <p>4. Exemplary damages not recoverable against master for mere negligence of servant, if master not in fault. (Shearman & Redfield on Negligence, sec. 749; 5 Amer. & Eng. Enc. of Law, pages 2 to 23 inclusive.)</p> <p>5. Only compensatory damages can be recovered under section 1, chapter 57, of the General Statutes. (L., C. & L. R. R. v. Case’s Adm’r, 9 Bush, 737; Givens v. K. C. Ry. Co., 89 Ky., 234; C., N. O. & T. P. R. R. Co. v. Privitt’s Adm’r, 92 Ky., 223.)</p> <p>6. That gross neglect signifies a less degree of neglect than willful neglect. (City of Lexington v. Lewis, 10 Bush, 677; Handsford’s Adm’r v. Payne, 11 Bush, 380; Bransom’s Adm'r v. Labrot, 81 Ky., 641; Hackett v. L., St._L. & T. Ry. Co., 15 Ky. Law Rep., 613; L. & N. R. R. Co. v. Coniff’s Adm’r., 16 Ky. Law Rep., 299.)</p> <p>7. The degree of negligence alleged determines whether action is instituted under section 1 or section 3 of chapter 57 of General Statutes. (Henderson’s Adm’r v. K. C. Ry. Co., 86 Ky., 389; Jordan’s Adm’r v. C., N. O. & T. P. R. R. Co., 89 Ky., 40; Baker’s Adm’r v. L. & N. R. R. Co., 13 Ky. Law Rep., 465; Hackett v. L., St. L. & T. Ry. Co., 15 Ky. Law Rep., 612.)</p> <p>8. In respect to measure of damages to decedent’s estate. (Sutherland on Damages, Yol. 3, 282; Sedgwick on Measure of Damages, Vol. 2, €35; Pierce on Railroads, 393; Whitford v. Panama R. R. Co., 23 N. Y., 465; Blake v. Midland R. R. Co., 10 English Law and Equity Reports, 443; and 18 Q. B., 93; Houston, etc., R. R. Co. v. Cowser, 57 Texas, 393; McAdory v. L. & N. R. R. Co., 10 Southern Reporter, 507; James v. R. & D. R. R. Co., 9 Southern Reporter, 335; 26 Ga., 259; 4 Gill, 406; 8 Gray, 45; 66 N. C„ 154; Stand. Oil Co. v. Tierney, 92 Ky., 377; C., N. O. & T. P. R. R. Co. v. Sampson’s Adm’r, 16 Ky. Law Rep. 819.)</p> <p>9. In respect to intention of master in determining liability for act of servant, etc. (Bowler v. Lane, 3 Met., 311; Lou. & Port. R. R. Co. v. Smith, 2 Duvall, 556; Parker v. Jenkins, 3 Bush, 587; L. & N. R. R. Co. v. McEwan, 31 S. W. Rep., 465, and 16 Ky. Law Reporter; Shearman & Redfield on Negligence, sec. 749.)</p> <p>10. Juries should not be left to assess damages by guess-work. (Shearman & Redfield on Negligence, section 740; Pierce on Railroads, 395; Erie Iron Works v. Barber, 102 Penn. St., 156; L. S. R. R. Co. v. Minogue, 90 Ky., 375.)</p> <p>11. In respect to admissibility of life-tables as evidence. (City of Friend v. Ingersoll, 58 N. W. Reporter, 281.)</p> <p>12. In respect to “damages” and “punitive damages.” (Sutherland on Damages, vol. 1, chapter 1, p. 1, and vol. 1, chapter 9, p. 717; Anderson’s Dictionary of Law, p. 305; Fay v. Parker, 53 N. H., 342; L. & N. R. R. v. 'frammell, 9 Southern Reporter, 870; Rose v. Des Moines, etc., R. R. Co., 39 Iowa, 355; C., etc., R. R. Co. v. Bayfield, 37 Michigan, 205; Telfer v. Northern R. R. Co., 30 N. J. Law Reports (1 Yroom, 188.); St. L., etc., R. R. Co. v. Farr, 56 Federal Reporter, 994; Houston, etc., R. R. Co. v. Willie, 53 Texas, and 5 Amer. and Eng. R. R. Cases, 541; St. L., etc., R. R. Co. v. Robbins, 21 S. W. Rep., 886 (57 Ark., 377.)</p> <p>13. Reversible error to permit proof of the number of family dependent upon person killed or injured. (Patterson on Railway Accident Law, 372; Thompson on Negligence, 1263; Penn. R. R. Co.’ v. Roy, 102 TJ. S., 460; Rorer on Railroads, 1099; Sedgwick on Measure of Damages, 7th edition, vol. 1, 641; Pitts., etc., R. R. Co. v. Powers, 74 111., 343; City of Chicago v. O’Brennan, 65 111., •163; Stephens v. Hannibal, etc., R. R. Co., 9 S. W. Rep., 591; Beems v. Chicago, etc., R. R. Co., 36 Iowa, 363, and 6 Amer. and Eng.R. R. Cases, 227; 41 N. H., 358; 119 111'., 89; 4 Gray, 333; 39 Conn., 552; 50 Barbour, 628; 48 Ala., 566; Standard Oil Co? v. Tierney, 92 Ky., 377; C., N. O. & T. P. R. R. Co. v. Sampson’s Adm’r., 16 Ky. Law Rep., 819.)</p> <p>1. The word “damages” as used in section 241 of the Kentucky Constitution does not mean compensatory damages merely. The object of that section was to extend the right of action for injuries not resulting in death, to cases where death resulted, with all its incident rights as fixed by the law of this State, including the right to exemplary damages where the negligence complained of was gross. (Shearman fc Redfield on Neg., sec. 16; Muldraugh Hill Co. v. Maupin, 78 Ky., 103; Maysville, &c., R. R. Co. v. Herrick, 13 Bush, 127; N. N. & M. V. Co. v. Dentzel, 12 Ky. L.R., 626; Chiles v. Drake, 2 Met., 146; Code of Alabama, sec. 2589; R. & D. R. R. Co. v. Freeman, 97 Ala., 292; Code of Tenn., sec. 2291;-Harley v. M. & O. R. R. Co., 7 Baxter (Tenn.), 243.)</p> <p>2. But the damages awarded in this case are purely compensatory. The whole amount awarded placed at interest, will yield, after the deduction of taxes-, just about the wages the decedent was earning at the time of his death.</p> <p>3. .The instruction as to the measure of compensatory damages is correct. (L. C. & L. R. R. Co. v. Case’s Adm’r, 9 Bush, 737.) But if it was not, appellant having asked for substantially the same instruction on that point, could not be heard to complain of the error. (CÍeft v. Stockton, 4 Litt., 217; Chambers v. Wilkins, 4 Litt., 147; Outer v. Grested, 4 J. J. M., 610.)</p> <p>4. The undisputed facts in this case show willful neglect, and it is therefore immaterial what instructions were given on the sub- , ject of gross negligence, or whether ^Foss negligence authorizes exemplary damages.</p> <p>5. The rule that no exemplary damages can be recovered in an action against the master, for the acts of his servant, no matter how gross the negligence, if the master be personally free from fault, has no application to corporations which can only act through their agents and servants. (Bass v. R. R. Co., 36 Wis., 423; Sutherland on Damages, Vol. 1, pp. 750 and 758; Goddard v. Grand, 57 Me., 202; Hanson v. E. & N. A. R. R. Co., 62 Me., 84; Shearman & Redfield on Negligence, 4th ed., sec. 749; Harris on Damages by Corporations, Vol. 1, p. 296-7, sec. 249; Redfield on Railways, 3d Ed., 510.)</p> <p>6. The life tables- were competent evidence. (Mahoney’s Adm’r v. L. C. & L. R. R., 7 Bush, 238; Greer v. L. & N. R. R., 14 Ky. L. R., 879; Amer. & Eng. Enc. of Law, Vol. 5, p. 67.)</p> <p>1. The word “damages” as used in section 241 of the Constitution of Kentucky does not in itself mean or include punitive or exemplary damages. “Damages” as used in its ordinary sense contemplates ■compensation only. (Webster’s Dictionary; Worcester’s Dictionary; Bouvier’s Law Dictionary, Vol. 1, 14th Ed., p. 426; Anderson’s Dictionary of Law, p. 305; Sedgwick on Measure of Damages, 7th Ed., Vol. 1, p. 34; Sutherland on Damages, Vol. 1, p. 3; Field on Law of Damages, p. 2; Amer. & Eng. Enc. of Law, Vol. 5, title, “Damages,” pp. 2 and 21.)</p> <p>2. Where a master, even if a corporation, has exercised due care and caution in the employment of competent agents or servants, he (or it) can not be held liable for exemplary damages on account of the willful or malicious torts of such agents or servants, unless they are ratified and confirmed. (Gleghorn v. R. R. Co., 54 N. Y., 44; Shearman & Redfield on Negligence, 4th Ed., see. 748; Railroad Co. v. Prentice, 147 U. S., 101; 3 Wheaton, 546.)</p> <p>1. The proper measure of compensatory damages is the pecuniary loss suffered by the parties entitled to the sum to be recovered, without “solatium” for distress of mind, and the loss is what deceased would properly have earned by his intellectual or bodily labor, during the residue of his life, taking into consideration his age, ability and disposition to labor, and his habits of living and expenditures. (Penn. R. R. Co. v. Butler, 57 Pa., 335.)</p> <p>2. There was no foundation for the instruction as to exemplary damages. If the action is one under sec. 1, chapter 57, of the General Statutes, the instruction was erroneous, because under that section only compensatory damages can bo recovered. (Railroad Co. v. Case, 9 Bush, 737; Givens v. Railroad Co., 89 Ky., 234.)</p> <p>If it is under sec. 3 of chapter 57 in order to recover punitive damages, willful negligence must be alleged and proved (9 Bush, 732), and that has not been done in this case. And section 241 of the Constitution furnishes no basis for the instruction, because the “damages” therein means only compensatory damages.</p>

Case 67 — PETITION EQUITY APPEAL FROM HENDERSON CIRCUIT COURT. The ordinance while not an appropriation of money, certainly in>olved the expenditure of money. It provided that the city might advance the money by taking an assignment of the contractor’s liens, and the contractor agreed with the city in his written contract to assign his lien to it in the event the money was advanced to him, which shows an expenditure of money was contemplated at the time.

CASE 68 — PETITION ORDINARY APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY- DIVISION. ,T. Appellants’ failure to allege in petition notice of acceptance of the letter of credit and appellee’s promise to pay is cured by the evidence and verdict. (9 Bush, 332, Bridges v. Reed; 14 Ky. L. R., p. 431, Droege v. Woods; 11 Ky.

CASE 69 — PETITION EQUITY APPEAR EROM JEEEERSON CIRCUIT COURT, CHANCERY DIVISION. 1.

<p>1. Taxation — Exemption of Charitable and Educational Institutions — Constitutional Construction. — A theological seminary, the object of which is to furnish free of charge'educational facilities to young men studying or preparing for the Christian ministry, and which does not refuse to accept young men, so studying ■or preparing, from any denomination, is a purely public charity within the meaning of section 170 of the Constitution. And while the management and organization of the institution may he private and denominational, the charity administered is purely public.</p>

<p>1. Taxation — Exemption -op Charitable and Educational Institutions — Constitutional Construction. — Schools and colleges where general education is imparted to all who may apply, without regard to nationality or religious creed, either free or at merely nominal prices, and the property of which has been ac- . quired by gift from charitable people or by purchase with funds so derived, and in which there is no element of personal gain or profit, -are institutions of “purely public charity,” and “institutions of education not used or employed for gain by any person or corporation and the income of which is devoted solely to the cause of education” within the meaning of section 170 of the Constitution of Kentucky.</p>

Case 72 — PETITION ORDINARY APPEAL FROM CARLISLE CIRCUIT COURT. 1. Under the express terms of section 196 of the present Constitution of Kentucky, “no common carrier shall be permitted to contract for relief from its common law liability.” This provision was intended to avoid the effect of this court’s opinion in Owen v. Railroad, 87 Ky., 626. 2. 'But'the petition as amended, alleges á practical compliance with the terms of the contract.

<p>Case 73 — PETITION ORDINARY</p> <p>APPEAL FROM CLAY CIRCUIT COURT.</p>

Case 74 — PETITION ORDINARY APPEAL FROM- FAYETTE CIRCUIT COURT. 1. The statute of limitations runs against a right of action for dividends declared by a corporation, and the five year statute is applicable to such actions. (Mercer Co. Ot. v. S. M. & H. T. P. Co., 10 Bush, 254.) That case is not overruled by the opinion in Bank of Louisville v. Gray, 84 Ky., 575.

Case 75 — PETITION ORDINARY APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. The sale must be made by the saloon-keeper knowing the buyer to be an inebriate, and no such knowledge is brought home to appellants in this case. (Com. v. Bell, 14 Bush, 433.) 2. The uncontradicted evidence shows that there was no. partnership, and that Wm.

Case 76 — PETITION EQUITY APPEAL EROM JESSAMINE CIRCUIT COURT. 1. The courts always proceed with great caution in declaring contracts void as against public policy, and will so adjudge only in cases, free from doubt. (Smith v. DeBose (Ga.), 6 Amer. St. Rep., 269; Richmond v. Dubuque, 26 la., 190; Kellogg v. Larkin, 56 Amer. Dec., 164; Swan v. Swan, 21 Fed. Rep; Richardson v. Melish, 2 Bing., 229; 9 Com. L., 557.) 2.

Case 77 — PETITION ORDINARY APPEAL EBOM CLARK CIRCUIT COURT. 1. A judge is liable as a trespasser to the injured party, when he acts from impure motives or wilfully and corruptly in the exercise of his judicial functions, renders a decision or does an act which amounts to an unjust oppression or wrong. (Kennedy v. Terrill, Hardin, 491; Ayars v. Cox, 10 Bush, 203; Chrisman v. Bruce, 1 Duvall, 68; Morgan v. Dudley, 18 B. M., 693.) 2.

Case 78 — PETITION EQUITY APPEAL PROM CLARK CIRCUIT COURT. 1. The husband was entitled to the proceeds of his wife’s labor, and the property having been wholly paid for by his and her labor, was subject to his debts. (Urigh v. Hortsman, 8 Bush, 177; Penn, v. Young, 10 Bush, 628.) 1.

<p>Case 79 —MOTION</p> <p>APPEAR from jeffbrson circuit court, law and equity division.</p> <p>(Record and briefs not in the office.)</p>

Case 80 — PETITION ORDINARY APPEAL EROM POWELiU CIRCUIT COURT. 1. While the general rule of law is that money paid out voluntarily in ignorance of law but with a knowledge of all the facts can not be recovered back, this rule does not apply where the parties are not on equal terms in the transaction.

Case 81 — PETITION EQUITY ■APPEAL FROM KENTON CIRCUIT COURT. 1. The lien attaches at the time fixed by the statute, and parties who acquire interests subsequent thereto, will be treated as purchasers pendente Ute; and express words are not necessary to authorize the inference that the statute intended to make the lien paramount. (Elliott on Roads and Streets, pp. 432-435.) 2.

<p>1. Limitation — Judgment—Junior Mortgage. — In a suit by a junior mortgagee to foreclose his mortgage, the statute of limitations is not available to defeat the senior mortgage which had already previously been foreclosed in a suit to which the junior mortgagee was not a party, upon the ground that the senior mortgage was merged in the judgment, it appearing that the senior mortgage was not barred by the statute at the time the suit to foreclose it was filed.</p> <p>2. Interest — Pda,oe of Contract. — Where a loan is secured by a mortgage on real estate in Kentucky, the bonds given to secure the mortgage dated in Kentucky, and the mortgagor received the .money in Kentucky, the parties were contracting with reference •to the interest laws of Kentucky, and they will b'e governed by them, although the bonds were mad© payable in another State.</p> <p>3. Same. — When the rate of interest at’ the place of contract differs from the rate at the place of payment, the parties may contract for either rate, and will be governed by it.</p> <p>4. Purchaser at Decretad Sale — Rents and Profits. — A senior mortgagee who sues to foreclose without making the junior mortgagee a party, and at the sale buys the mortgagor’s interest, becomes the owner of the property, and not merely a mortgagee in possession, and consequently not chargeable with rents and profits.</p>

<p>1. Practice in Court oe Appeals. — The time within which an appellant is required hy section 738 of the Civil Code to file a transcript in the Court of Appeals where the appeal is granted hy the court rendering the judgment, must be computed from the date of the order granting the appeal, and not from the date of the filing of the bill of exceptions, although the lower court had extended the time in which the bill of exceptions might be filed.</p>

Case 84 — PETITION ORDINARY APPEAL PROM SIMPSON CIRCUIT COURT. 1. The message was to all intents and purposes a cipher message and entirely obscure to all except the parties. The “eighty-five-dollar load” might have referred to anything else as well as to mules. Such messages should be repeated to insure accuracy, and, according to the contract, the company is not liable, unless they are. Primrose v. W. U. Tel. Co., 154 U. S., 1. 2.

Case 85 — PETITION EQUITY APPEAL FROM FAYETTE CIRCUIT COURT. 1. On the question that maxim in pari delicto,” etc., does not apply Cammack v. Lewis, 15 Wall., 643 (82 U. S., 244); Warnock v. Davis, 14 Otto, 775 (104 U. S., 924) ; Basye v. Adams, 81 Ky., 368 (cites above cases with approval); Martin v. Richardson, 94 Ky., 183.) 2. The following cases relied on by appellee are cited and their want of application to case at bar is discussed.

Case 86 — PETITIONS EQUITY APPEAL FROM BULLITT CIRCUIT COURT. 1. The filing of the answer of Mrs. Brooks, and the judgment entered thereafter for the sale of the lands, free from her potential right of dower, constituted a contract of record between her and the creditors of her husband, to the effect that they would sell the land free of her said right and pay her the value thereof in money, and whatever the value of it was, passed to her estate.

<p>Case 87 — PETITIONS EQUITY</p> <p>APPEALS FROM JEFFERSON CIRCUIT. COURT, CHANCERY DIVISION.</p> <p>1. The appeal granted in the Dulaney case on October 18, 1893, from the judgment entered August 21, 1893, was in time and is a valid appeal, notwithstanding the court below entered the judgment of August 21, 1893, “ nunc pro tunc as of March 30, 1883.” Entering a judgment nunc pro tunc does not affect the right of appeal. Ky. Code, secs. 390, 392, 393, 368, 374; Ky. Stats., sec. 378; Johnson v. Com., 80 Ky., 377; Rubber v. Goodyear, 6 Wallace, 153; Coon v. Grand Lodge, 76 Cal., 254; Rose Estate, 72 Cal., 577; Dickey v. Givens, 41 N. W. Rep., 608; Credit Co. v. Arkansas R., 128 U. S., 258; Polly v. Black River, 113 U. S., 81; Elliott on Appellate Procedure, secs. 118, 119.)</p> <p>2. The judgment when entered, August, 1893, did not follow the opinion filed in March, 1893, but was something entirely different (which illustrates that the appeal must be from the judgment, and not from the opinion). (Elliott on Appellate Procedure, sec. 119.)</p> <p>3. Norton and Erdman, as the vendees and privies of Dulaney, have the right (as this court has heretofore adjudged on various motions in the case), to prosecute this appeal in the name of Dulaney, but for their own benefit. (Ky. Code, sec. 734; Ency. of Pleading and Practice, vol. 2, p. 158; Elliott on Appellate Procedure, secs. 132, 133, and 137; Ragland v. Wickware, 4 J. J. Mar., 530; Marr v. Hanna, 7 J. J. Mar., 643.)</p> <p>4. The ordinance of June, 1882, under which these tracks were laid and operated, did not give any authority to the L. & N. Railroad whatever, but only to the Chesapeake, Ohio & Southwestern ■ — a rival and competing road; and it did not authorize the connections (now made) between the main tracks of the L. & N., but only a connection between the C., O. & S. W. line and the Louisville Railway Transfer Company (a connection that has never been made). Burnett’s City Code, p. 563; Commonwealth v. City of Frankfort, 92 Ky., 149.)</p> <p>5. The “title” of that ordinance only authorized a single track to be laid; and, under the city charter, so much of the body of the ordinance as authorized a “double” track was void; as “not expressed in the title.” (Burnett’s Code (Louisville), p. 347, sec. 15.)</p> <p>6. The title of the ordinance only related to the C., O. & S. W. building and operating the track; and so much of the body of the ordinance as authorizes any other company, if any, is “not expressed in its title,” and is void. (Burnett’s Code, p. 347.)</p> <p>7. The ordinance only authorized the C., O. & S. W. to build these tracks on condition that it would give certain bonds, and execute certain contracts, with the city of Louisville, and perform other conditions prfecedent; none of which things have ever been done; nor has the C., O. & S. W. ever attempted to do anything whatever under the ordinance; and the L. ft N. (which is building and operating the tracks), was given no rights under the ordinance. (Burnett’s City Code, p. 563.)</p> <p>8. The claim of the L. ft N., that the G., O. & S. W. has transferred what franchises it obtained under the ordinance, to the L. & N., is untenable. Such a transfer would be void in law, even if proven to have been made. (Commonwealth v. Smith, 87 Am. Decisions, C72 (10 Allen, 455); Rhorer on Railroads, 439; Thomas v. R. R. Co., 101 U. S., 71; 130 U. S., 1; 131 U. S., 371; 145 TJ. S„ 393.)</p> <p>9. But, even if the ordinance of the city had contained an attempted grant to the L. ft N. R. Co. (instead of to the C., O. & S. W.); and even if it had authorized a connection over A street between the L. & N. main tracks and the transfer company’s line (in- ’ stead of only a connection from the C., O. & S. W.’s Cecilia Branch to the transfer company line); the ordinance would have been void; because there was no legislative authority for it. Legislative authority is necessary to authorize a city council to grant the right to operate steam railroads through the streets. (Louisville Railway v. City of Louisville, 8 Bush, 420; Covington Ry. v. Covington, 9 Bush, 127; Ruttle v. City of Covington, 10 Ky. Law Rep., 766; Commonwealth v. City of Frankfort, 92 Ky., 151; Dillon on Municipal Corporations, sec. 705; Cooley’s Constitutional Limitations, 676;District v. B. & P. R., 114 U. S., 456; Davis v. E., &e., R., 87 Ga., 605; Daly v. Ga. R., 12 Am. State Reports, 286; Kenton County v. Bank Lick R., 10 Bush, 535; Milhau v. Sharp, 84 Am. Decisions, 314.)</p> <p>10. None of the legislative acts relied on in the answer of the L. & N. authorize it to construct or operate its railroad through A street. (Ordinance of June, 1882, Burnett’s City Code, p. 563; Acts of 1873, vol. 1, p. 248; Acts of 1871,. vol. 1, p. 395; Burnett’s City Code, p. 800; Acts of 1867, vol. 2, p. 253; Acts of 1867-8, vol. 1, p. 622; Acts of 1881, vol. 1, p. 260; Acts of 1863, p. 541; Elliott’s Charter and Ordinances of Louisville, p. 128; Lewis on Eminent Domain, secs. 71, 116, 270; Cooley’s Constitutional Limitations, p. 672; Dillon on Municipal Corporations, sec. 705; St. Louis R. v. Halla, 82 Ill., 208.)</p> <p>11. There being no legislative authority for the L. & N. to use this street for railroad purposes, and its use being, therefore, an unauthorized trespass, nuisance and purpresture, the abutting property owners have the right to an injunction to restrain the construction and the operation of said railroad along said street in front of and over their property. (Cornwall v. L. & N. R., 87 Ky., 77; High on Injunctions, 3d ed., sec. 816; Dillon on Municipal Corporations, 4th ed., sec. 708; Booth’s Street Railway Law, secs. 4 and 100; Wood’s Railway Law, sec. 335; Lewis on Eminent Domain, sec. 635; Wesson v. Washburn Co., 13 Allen, 103; Higby v. C. & A. R., 19 N. J. Eq., 276; Texarkana R. v. Goldberg, 68 Texas, 685; Pa. R. Appeal, 115 Pa. St. 514; Savannah R. v. Shields, 33 Ga., 601; Cox v. Louisville, &c., R., 48 Ind., 179; Milhau v. Sharp, 84 Am. Decisions, 314.)</p> <p>12. It is recognized, everywhere, that the operation of a steam railroad track along a street “necessarily damages, and is a special injury to the abutting property owner,” unless it is legalized, by legislative authority. (Ruttle v. Covington, 10 Ky. Law Rep., 766; 4 Cushing, 71; 14 Wisconsin, 609; Cooley’s Constitutional Limitations, 678; Roberts v. Easton, 19 Ohio St., 78; 26 Minnesota, 11; 89 Missouri, 488.)</p> <p>13. The case chiefly relied on against us (Owensboro & Nashville R. v. Cosby, 10 Bush, 288) is, as to this point, dictum merely; is not in accordance with the authorities in Kentucky, or elsewhere; and is based upon a wrong interpretation of the cases it cites as its basis — Lexington & Ohio R. v. Applegate, 8th Dana, 289; and Louisville & Frankfort R. v. Brown, &c., 17 Ben. Mon., 763.</p> <p>14. That case of Owensboro & Nashville v. Cosby, 10 Bush; 288, relied on against us has since been repeatedly disregarded and practically overruled, by this court; in so far as it purports to say that the abutting owner has no right to enjoin an unauthorized steam railroad from operating the street in front of his property. (Cornwall v. L. & N. R., 87 Ky., 77; Ruttle v. City of Covington, 10 Ky. Law Rep., 766; Kreiger v. K. & I. Bridge Co., 93 Ky. 243; Louisville R. v. Hess, 92 Ky., 410; Green v. Asher, 10 Ky. Rep.,. 1006; Corey v. Lancaster, 81 Ky., 174; Owensboro & Nashville R. v. Sutton 12 Ky. Law Rep., 247.)</p> <p>15. The new corporation law, of April, 1893, also, forbids the construction of a steam railroad along any street, until the right of way shall have been condemned, or until the permission of the adjacent property owners shall have been obtained. (Kentucky Statutes, sec. 768; Colstrum v. Minneapolis R., 33 Minn., 516; Dillon on Municipal Corporations, 4th ed., sec. 720; Elliott on Streets and Roads, pp. 537, 538; Am. & Eng. Ency. of Law, vol. 9, pp. 408, 410; Atchison Street Railway v. Nave, 5 Am. St. Reports, 800; 54 Hun. (N. Y.), 165.)</p> <p>16. The Indiana rule (relied on by counsel for the L. & N.) — that the plaintiffs have lost their right by permitting the railroad company to get into unlawful possession, and can only sue for damages, has been expressly repudiated in Kentucky. (Louis- ' ville, &c., R. v. Hess, 92 Ky., 408; Holloway v. Louisville, &c, R., 92 Ky., 244.)</p> <p>17. The Louisville & Nashville R. Company having no legislative authority to thus convert A street into a steam railroad line, to the destruction of the value and enjoyment of plaintiff’s abutting property; the injunction should go, against such daily and continuous trespasses, nuisance and purpresture by the operation of said road.</p> <p>1. Judgment in Dulaney case was sufficiently entered in 1883 to appeal from; the prayer sought injunction, and this was denied by decision mp.de a part of the record.</p> <p>2. It was proper to enter judgment nunc pro tunc. (Graham v. Lynn, 4 Ben Mon., 17; Davis v. Shaver, 1 Phillips (N. C.), 18; Buinett v. The State, 14 Texas, 455; Parker v. Rugg, 9 Gray, 209; Anderson v. Mitchell, 58 Ind.; Ins. Co. v. Boone, 95 U. S. 117.)</p> <p>3. But if this were not true the delay in prosecuting the appeal, and the actual abandonment of the litigation are fatal. (High on Injunction, secs. 7 and 618; Kerr on Injunction, star page 43 and 16 and 348; Encyclopedia of Law, vol. 10, p. 802; Smith v. Clay Ambler, 645 (3 Brown’s Chy.,639); Kincaid v. Indpls. Gas Co., 124 Ind., 572 (19 Am. St. Rep., 113); Munsey v. Joest, 74 Ind., 413; Parker v. W. L. C. & W., 2 Black, 552; Pickert v. R. P. R. Co., 25 N. J. Eg., 316; B. & O. R. Co. v. Strauss, 37 Md., 237; Hilliard on Injunctions, p. 24; Great Western R. Co. v. O., W & W. & Co., 3 De Gex M. & G., 358; McAuley v. Western Vermont R. Co., 78 Am. Dec., 629; 33 Vt., 311; Holloway v. L. & St. L. & T. Ry., 92. Ky., 246; M. & E. R. Co. v. Pruden, 20 N. J. Eg., 541.)</p> <p>4. When more wrong will be done than prevented by granting an injunction it should not be granted. (Encyclopedia of Law, vol. 10, p. 783; Tuttle v. Church, 53 Fed., 422; Hall v. Rood, 40 Mich., 46 (29 Am. Rep., 528); Jones v. City of Newark, 11 N. J. Eg., 456; Highland Avenue Railroad Company v. Birmingham Railroad Co., 93 Ala., 505 (9 Southern Reporter, 570); High on Injunction, sec. 598.)</p> <p>5. The right to sue is in the public and not in the plaintiffs. (Cosby v. Owensboro, &c.. Railroad Company, 10 Bush, 288; Hyland v. Short Route Railway Transfer Company, 10 Ky. Law Rep., 900; Maysville, &c., Turnpike Company v. Ratliff, 85 Ky., 247; Henderson Belt Railroad Company v. Dechamp, 95 Ky., 225.)</p> <p>The cases of Ruttle v. City of Covington, 10 Ky. Law Rep., 766; Commonwealth v. City of Frankfort, 92 Ky., 149; Cornwall v. L. & N. R. Co., 87 Ky., 72; K. & I. Bridge Company v. Krieger, 91 Ky., 625, and same v. same, 93 Ky., 243, have no application.</p> <p>In line with the Owensboro case is Zabriskle v. Jersey City, &c., R. Co., 13 N. J. Eg., 314; Morris & Essex R. Co. v. Pruden, 20 N. J. Eg., 530; Hinchman v. Patterson, &e., R. Co., 17 N. J. Eg.,, 78; Corcoran v. Chicago, &c., R. Co., 37 N. E. Rep., 68; Lorie v. Northern Chicago City Ry. Co., &e., 32 Fed., 270; Fulton v. Short Route Ry. Co., 85 Ky., 653.</p> <p>6. There was legislative authority for the city of Louisville to enact the ordinance granting A street right of way. (Subsec. 5 of sec. 768 of Ky. Statutes has no application. But see act of February 18, 1873, 1 vol., p. 248; also 1 vol., Acts 1871, p. 395.)</p> <p>7. It is said that the legislative grant should be construed more strictly against the grantee, but there is another principle, viz.; That he who seeks an injunction against a public work must show his right thereto most clearly, and in order to do so he must show there is no legislative grant. (Connor v. Covington d’ransfer Co., 14 Ky. Law Rep., 136; Duncan v. Central Passenger R. Co., 85 Ky., 532.)</p> <p>S. Charters must he construed reasonably, with the view to discovering the legislative intent; and a suicidal interpretation must be avoided. (State v. Newport Street Ry. Co., 18 Atlantic Rep., 161 (16 R. I., 533); Inhabitants of Springfield v. R. Co., 4 Cushing, 63; Morawetz on Private Corporations, sec. 316.) •</p>

Case 88 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. A trust like the one sought to be established in this case, should not be sustained except upon the fullest and clearest proof. (Perry on Trusts, secs. 126 and 137.) 2. The emancipation of the son by the father is not satisfactorily made out by the evidence. In the absence of emancipation the earnings of the son belonged to the father. 3.

Case 89 — BAIL BOND APPEAL EBOM DAVIESS CIRCUIT COURT. 1. The Commonwealth, through her attorney, had the power to agree to the change of venue. (Lightfoot v. Com., 80 Ky., 516; Hourigan v. Com., 94 Ky., 520.) That being true, the consent order changing the venue, divested the Daviess Circuit Court of jurisdiction to try the case and vested it in the Ohio Circuit Court. 2.

*Case 90 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. The sale could not have been had under the provisions of sec. 491 of the Civil Code, because the estate is not a “particular estate,” but a defeasible fee as held by this court in Ecton v. Smith, 6 Ky. L. R„ 216. 2.

Case 91 — PETITION EQUITY APPEAL FROM JESSAMINE CIRCUIT COURT. 1. Under the provisions of the Civil Code, and especially sub-section 3 of section 62, the county of the decedent’s residence alone had jurisdiction to sell her land. (Civil Code, secs. 62, 65, 66; Girty v. Frame, 6 Bush, 10; Montgomery v. Montgomery, 2 Bush, 49; Hobson v. Hobson, 8 Bush, 665; Ky. Stats., secs. 3894, 4849; Hughey v. Sidwell, 18 B. M., 261; Carpenter v. Strother, 16 B. M., 295.) 2.

Case 92 — PETITION ORDINARY APPEAL FROM 3 EFPERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. The “arrest” of an insolvent debtor in a civil action referred to in section 168 of the Civil Code, means the arrest under the capias upon final judgment. (Sheriff v. Buckner, 1 Litt., 127; Bryan v. Perry, 5 Mon., 276; White v. Sergeant, 1 Mon., 53; Phelps v. Burton, 6 Mon., 37; Abbott v. Daniel, 3 Met., 340.) 2.

Case 93 — PETITION ORDINARY APPEAL PROM LEWIS CIRCUIT COURT. 1. The evidence of Holton himself shows there was no adverse holding. He admits that he expressed himself to the chief engineer as favorable to the road and as desiring its construction; and that in farming his land in 1886, he left the space for the right of way, and permitted the contractors and their workmen to enter and begin the construction. 2.

Case 94 — PETITION EQUITY APPEAL FROM MONTGOMERY CIRCUIT COURT. (Brief not in the record.) 1. The authority of Mrs. Bent to make the settlement is not denied in the original petition. In the amended petition, it is claimed she had no authority from appellant to do so. But this is inconsistent with the allegations of the original petition, and . should not be permitted. (Civil Code, sec. 113, sub-sec. 4.) 2. The authority of Mrs. Bent is shown by the evidence.

<p>Case 95 — PETITION EQUITY</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>1. In order to effectuate the manifest intention of the parties, courts in considering written instruments, will transpose, not only words, hut sentences, and will supply whatever mere letters or words may be technically necessary to express in grammatical form an intention otherwise fairly apparent.</p> <p>1. While it is true that when the terms of a written contract are ambiguous, the subject matter of the contract and the presumed object of the parties are admissible and pertinent considerations, and the words employed should be harmonized as far as possible and interpreted consistently with common sense. But where there is no ambiguity as in this case, there can be no interpretation contrary to the words. (Connelly v. Magowan, 3 Mon., 153)</p>

Case 96 — PETITION EQUITY APPEAL FROM HART CIRCUIT COURT. 1. The circuit clerk had no authority to issue the order of arrest under section 2124, Kentucky Statutes, unless the bond required by section 154 of the Civil Code was first executed, and the order was for that reason void. (Secs. 152, 153, 154, 177 and 194 of Civil Code; Pauer v. Simon, 6 Bush, 514; Kline v. Nie, 88 Ky., 542.) 2.

Case 97 — PETITION ORDINARY APPEAL EEOJI DAVIESS CIRCUIT COURT. 1. The drainage act of July 10, 1893, was repealed by the act of March 19, 1894. And while this proceeding had been heard and determined in the county court before the repeal, it was appealed to the circuit court where it was tried Ac novo, after the repeal. No vested right having been acquired by the parties under the original act, the judgment of the court rendered after the repeal of the act, was void.

Case 98 — PETITION EQUITY APPEAL PROM OWSLEY CIRCUIT COURT. 1. By an agreed judgment in the record it is shown that appellee, Lucinda Hensley, received from appellant $118.15 for her dower interest, and that same was paid and a deed made therefor under order of the court. Therefore, this suit should have been, dismissed. 2. In no event should the court fix the value of the dower and allow it in a gross sum, except by agreement of parties.

Case 99 — PETITION EQUITY APPEAL PROM OHIO CIRCUIT COURT. I.i The law directs that the clerk shall prepare as many ballots for each precinct as there were votes cast at the last preceding election, and fifty per cent. more. (Ky. Stats., sec. 1461.) And it stands admitted in the answer that the clerk did that in this instance. 2.

Case 100 — PETITION ORDINARY APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. It was necessary foi nine jurors to concur in the verdict, and of those nine who signed the alleged verdict in this ease, one is shown by the record not to have been sworn as a juror. Under such circumstances the verdict was a nullity. (Thompson on Trials, sec. 3.) And a motion to set aside a void judgment may be made at any time, even after term time. (Amer. & Eng.

<p>Case 101 — PETITION EQUITY</p> <p>APPEAL PROM MEADE CIRCUIT COURT.</p> <p>(Record and briefs not in the office.)</p>

Case 102 — PETITION ORDINARY APPEAL PROM SPEXCER CIRCUIT COURT. 1. Counsel fees may be recovered in a suit on an injunction bond executed in an action in which a perpetual injunction was the final relief asked, or in a suit upon the bond to procure a temporary injunction where the fees have been incurred in the attempt to get rid of the temporary injunction. (Turnpike Co. v. Dulaney, 8 Ky. L. R., 520; Reading v. Davis, 6 Ky. Li. R., 661.) 2.

<p>Case 103 — PETITION EQUITY</p> <p>APPEAL FEOII PERRY CIRCUIT COURT.</p> <p>1. To enable either party to compel a specific execution, the contract must, as a general rule, be mutually binding upon both parties. (Litz v. Goosling, 14 Ky. L. R., 91) In this case there was mutuality — one was to convey the land, and the other paying ' part down and giving notes with personal security for the remainder. These facts conclusively show that the writing was not intended as an option.</p> <p>2. The evidence fails to sustain the plea that the contract was aban-, doned by the parties. The evidence of appellee to that effect was incompetent, because, he says it was in a conversation with Cornett, who was dead at the time the evidence was given. (Civil Code, sec. 606.)</p> <p>1. There is no mutuality in the terms of the writing, and the contract is, therefore, unenforceable. Brashears could at no time have enforced the collection of the notes.</p> <p>2. The writing was nothing more than an option by which Cornett might procure from Brashears within a certain time a conveyance of the land, upon the payment of a certain sum.</p> <p>1. The deferred payments were not paid when due, and under the express terms of the writing “the first payment is to be void and contract forfeited.”</p> <p>2. The petition is defective, because it fails to allege that the deferred payments were made when due, or that the amount had been tendered to defendant.</p> <p>3. While the cash payment was sufficient to uphold the option, appellants or their ancestor having failed within the prescribed time to exercise the right of purchase, it is too late to do so almost four years after that time has expired.</p> <p>But appellants would in no event be entitled to exercise the right to purchase, which was given to their ancestor and not to them. (Sutherland v. Parkins, 75 111., 339.)</p>

Case 104 — PETITION EQUITY APPEAL PROM BARREN CIRCUIT COURT. 1. The special demurrer should have been sustained, because, under the terms of the deed of trust, the trustee only had the authority to enforce the provisions of the deed. And no reason is. shown why another trustee had not been selected by the bondholders in place of the one which had gone out of business. In. any event, all of the bondholders were necessary parties. 2.

Case 105 — PETITIONS ORDINARY AND EQUITY APPEAL FROM DAVIESS CIRCUIT COURT. 1. A parol gift of land, accompanied with an adverse holding, under the gift for the statutory period, ripens into a possessory title. (Moore v. Webb, 2 B. M., 282; Com. v. Gibson, 9 Ky. L. R., 205, and authorities there cited; 10 Ky.