Volume 101 — Kentucky Reports

Case 1 — PETITION EQUITY 1. Where infants are parties to an action every step required by law must be pursued, or the judgment will be void. In this case the infants were not represented by any guardian ad litem, and. the non-residents were not represented by an attorney. 2. The sale was absolutely void because there was no advertisement of it.

<p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>1. CONSTITUTIONAI CONSTRUCTION — MUNICIPAL INDEBTEDNESS EOR School Purposes. — Under the provision of section 157 of the Constitution that “the tax rate of cities, towns, counties, taxing districts and other municipalities for other than school purposes shall not at any time exceed” certain rates, and the further provision therein that “no county, city, town, taxing district or other municipality shall be authorized or permitted to become indebted in any manner, or for any purpose, to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof,” a city can not become indebted for the purposes of education in an amount exceeding the income and revenue for the year, without the submission of the question to the voters and obtaining their assent before the obligation is created.</p> <p>2. Same. — The fact that the interest on this indebtedness, and the amount going to the sinking fund for the liquidation of the principal is within the income or revenue for the year, does not prevent the application of the provisions of that section. It is an indebtedness assumed,. although payable in installments, and is prohibited by the Constitution. (Beard v. City of Hopkinsville, 95 Ky., 239.)</p>

Case 3 — PETITION ORDINARY 1. The demurrer should have been sustained to the petition. It is fatally defective in that it fails to allege that any proofs of loss were ever made out, or notice of loss sent to the company before suit was filed, nor were any facts plead showing waiver thereof by the company. These are conditions precedent to the right to maintain an action.

Case 4 — AGREED CASE 1. Where the power to sell and reinvest settled lands upon the same trust is reserved in the deed or will, and is executed by a sale and investment of the proceeds in other property, the power is spent; that is the donee of the power can not 'by reason thereof sell newly acquired land with view of investment. Fritsch v. Klausing, 11 Ky. L. Rept., 788. 2.

Case 5 — PETITION EQUITY 1. If the evidence of the appellant is treated as incompetent there is still abundant evidence in the record to show the fixed determination and purpose of the decedent to pay appellant out of his estate for her services to him. 2. But at any rate there is a state of case from which a Chancellor, in the interest of justice, will imply a promise. 5.

<p>Case 6 — PETITION ORDINARY</p> <p>1. Contributory negligence is not available as a defense if there is not a statute authorizing recovery where the life of a person is destroyed by willful neglect, and the facts alleged show that degree of neglect. Section 241, Kentucky Constitution; section 6, Kentucky Statutes; McClure v. Alexander, 15 Ky. L. Rept., 732; Wright v. Wood’s Administrator, 16 Ky. L. Rept., 337; Payne v. Conner, 3 Bibb, 181; Commonwealth v. Mason, 82 Ky., 256; Southerland on Statutory Construction, secs. 137, 138; Eskridge’s Executor v. C. N. & T. P. R. R. Co., 89 Ky., 374; Claxton’s Administrator v. Lexington & Big Sandy R. R. Company, 13 Bush, 636; L. & N. R. R. Co. v. Walton, 13 Ky. L. Rept., 460; N. N. & M. V. Co. v. Eifort, 15 Ky. L. Rept., 601.</p> <p>2.. Appellant was improperly required to elect which cause of action she would prosecute. Cincinnati, etc. R. R. Co. v. Pruitt’s Adm’r., 92 Ky., 223.</p> <p>3. Decedent was not guilty of contributory negligence under the facts and circumstances of this case; in any event the contributory negligence is a question of law and fact, and what may be reasonably drawn as inferences or conclusions from the facts is a question for the jury. Rhorer on Railroads, vol. 2, pp. 1045 to 1048; C. & A. R. R. Co v. Pondron, 2 Am. Rept., 306; Barton v. St Louis & Iron Mountain R. R. Co., 14 Am. Rept., 418; Laing v. Colder, 8 Penn. St., 479; P. & C. R. R. v. McClurg, 56 Penn. St., 294; New Jersey R. R. Co. v. Canard, 9 Harris, 293; Spencer v. Milwaukee, etc. R. R., 17 Wis., 493; Pittsburg, etc. R. R. Co. v. Andrews, 17 Am. Rept., 568; Dunn v. Railroad Company, 49 Am. Rept., 388; Georgia, etc. R. R. Co. v. Underwood, 24 Am. St., Rept., 756; Morrell v. Mississippi Valley Life Ins. Co., 4 B. 535; L. & N. R. R. Co., v. Sickings, 5 Bush, 1; Favre v. L. & N., 91 Ky., 541; K. C. R. R. Co. v. Jacoby, 14 Ky. L. Rept., 763; Am. & Eng. Law, vol. 4 p. 22; Baltimore, etc. R. R. v. Jones, 95 U. S., 439; L. & N. v. Walton, 13 Ky L. Rept., 461; Petier v. R. R. Co., 16 Ky. L. Rep., 501; Shearman & Redfield on Negligence, vol. 1, sec. 114; Passamaneck, Administrator v. R. R. Co., 17 Ky. L. Rept.</p> <p>1. The facts alleged in the petition when stripped of all inferences and conclusions, do not as a matter of law, impute such negligence to the defendant as was the approximate cause of the injury. L. & P. Canal Company v. Murphey’s Adm’r., 9 Bush, 522; C. & O. R. R. Co. v. Thieman, 16 Ky. L. Rept., 612; Wing v. Haydon, 10 Bush, 280; Bentley v. Bustard, 16 B. M., 686.</p> <p>2. The facts stated in the petition show conclusively, as a matter of law, such contributory negligence upon the part of the decedent as was the approximate cause of the injury complained of, and under such circumstances a demurrer to the petition will be sustained. Favre v. L. & N. R. R. Co., 91 Ky., 541; L. & N. R. R. Co. v. Sickings, 5 Bush, 1; Dunn v. R. R. Co., 78 Va., 646; 16 Am. & Eng. R. R. Cases, 370.</p> <p>1. The facts stated in the petition show no culpable negligence on the part of the defendant and no act or omission is alleged which fixes any approximate cause of the injury; there is no negligent act or omission charged by which the intestate’s elbow was caused to protrude through the window and come in contact with the timbers. Tiffany, sec. 41; L. & P. Canal Co. v. Murphey, 9 Bush, 527; Board Internal Imp. Shelby Co. v. Scearce, 2 Duvall, 576.</p> <p>2. The company can not be charged with negligence because it failed to anticipate the careless and inadvertent act of Clarke in protruding his elbow from the window. Rogers v. Hughes, 87 Ky., 188.</p> <p>3. The allegations of the petition show such contributory negligence upon the part of Clarke as but for which the injury would not and could not have occurred and the demurrer was therefore properly sustained. Favre v. L. & N. R. R. Co., 91 Ky., 544; L. & N. R. R. Co. v. McCoy, 81 Ky., 413; Morel v. Miss. Valley Life Ins. Co., 4 Bush, 537; L. & N. v. Sickings, 5 Bush, 1; Ky. Central R. R. Co. v. Jacoby, 14 Ky. Law. Rept., 763; St. Louis, etc. R. R. Co. v. Rice, 29, S. W. Rep., 525; Hickey v. R. R. Co., 14 Allen, 43; Carico v. W. Va. R. R. Co., 52 Am. & Eng. R. R. Cases, 393; Pittsburg, etc. R. R. Co. v. Andrews, 17 Am. Rept., 568; Richmond & Danville R. R. Co. v. Scott, 88 Va., 958; 52 Am. & Eng. R. R. Cases, 405; Pittsburg, etc. R. R. Co. v. McClurg, 58. Penn. St., 294.</p> <p>4. Under the provisions of section 241 of the Constitution, it was the intention of its framers to get rid of the troublesome and doubtful doctrine of willful negligence, and to simplify the whole subject. McClurg v. Alexander, 24 S. W. Rept., 619.</p> <p>1. The decedent was guilty of such negligence in protruding his arm from the window as will prevent a recovery. L. & N. R. R. Co. v. Sickings, 5 Bush, 1; Pittsburg, etc. R. R. Co. v. McClurg, 58 Penn. St., 295.</p> <p>2. There is no allegation in the petition that the appellee or its servants in charge of the train had any notice that Clarke was about to thrust his arm out of the window, or that it was done •with the permission or consent of any of them.</p> <p>3. The window the passenger has a right to enjoy, but not to occupy, and his negligence consisted in thrusting his elbow or arm where it had no right to be. Pittsburg, etc. R. R. Co. v. McClurg, 56 Penn. St., 293; Morel v. M. V. Insurance Co., 4 Bush, 535; Todd v. Old Colony R. R. Co., 3 Allen, 18; Holbrook v. Ry. Co., 12 N. Y., 236; St. Louis, etc. R. R. Co. v. Hoffman, 27 Ind., 288; Telfee v. N. Y. R. R. Co., 38 N. Y., 290.</p>

Case 7 — PETITION EQUITY 1. The value of the wife’s tract adjoining that of the deceased husband should have been considered in laying off homestead out of his land, as she was entitled to homestead carved in part out of her own land and in part, out of his. Mills v. Hall, 12 Bush, 105; Lowell v. Shannon. 60 Iowa, 713. 1.

<p>Case 8 — PETITION EQUITY</p>

Case 9 — AGREED CASE 1. Where the granting clause in a deed does not describe the estate conveyed, but the estate conveyed is described and restricted in the habendum clause the grantee will only take such estate as is so described in the habendum. Baskett v. Cellars, 93 Ky., 2; Bodine’s Adm’r. v. Arthur, 91 Ky., 53; Barnett v. Same, 104, Cal., 298; Humphrey v. Foster, 13 Grattan, 653. 2.

<p>Case 10 — PETITION ORDINARY</p>

Case 11 — WILL CONTEST 1. The first instruction was erroneous and misleading, and calculated to confuse the jury by submitting an issue to them which the court afterwards passed upon. It left to the jury to pass upon the question whether the two witnesses to the will were credible witnesses or not, and thereby the idea was suggested to the jury that if these two witnesses testified that the decedent was of sound mind they must, if they were credible witnesses, so find.

Case 12 — PETITION ORDINARY 1. It is not only the right but the duty of the plaintiff to aver in his petition, stating a single cause of action, every ground for recovery that he has. This necessarily results from the rule, that if the plaintiff in suing upon a cause of action, omits to rely upon any ground of liability, and a trial is had upon the. merits, he is barred in another action from asserting the ground so omitted.

Case 13 — AGREED CASE 1. The legislature in providing that the first ward of the city of Louisville, shall he one legislative district; that the second and third ward shall he one, and so on, manifestly intended that the territory embracing these districts should follow any change in the wards of the city, which the municipal authorities were empowered to make. 1.

<p>APPEAL PROM MONTGOMERY CIRCUIT COURT. „</p> <p>1. Pleading. — In an action by a bank against two persons on an over-draft, an allegation that they “drew checks on said New Farmer’ Bank, beyond the amount they had on deposit, for the sum of $-, which checks were paid, whereby said Mitchell and Ringo became indebted to the New .Farmers’ Bank, in the sum of $-, for said over-draft, which sum is due and remains unpaid,” clearly signifies that the check and the deposit were executed and belonged to them jointly, and it was not necessary to allege that the over-draft was occasioned by the joint check or cheeks of the parties, or that there was a co-partnership between them.</p> <p>2. Practice in Civtl Cares. — Where an answer which had been filed was ordered withdrawn from the record with leave to' the defendants to file another answer, and on the following day they tendered the new answer, they occupied the same position as if no previous answer had been filed, and the sufficiency of the pleading could not be raised by an objection to its filing.</p> <p>S. Same. — An objection to an amended answer and counter-claim and set-off. that the claim asserted as a set-off against an assigned bank had not been proven, as claims against assigned estates for the benefit of creditors are required to be, should have been raised by a rule to file affidavit and proof of claim, and on failure to do so by dismissal of the set-off.</p> <p>4. Same. — The tender of an answer and set-off takes from the plaintiff the right to> dismiss without prejudice and thereby deprive the defendant of a right to a trial of his set-off.</p> <p>5. Clerical Misprision. — The entering of a judgment in a case, which was at the time under submission upon a motion to file an. answer and set-off, was a clerical misprision.</p>

<p>APPEAL ¡FROM CARROLL CIRCUIT COURT.</p> <p>1; Settlement of Estates — Actions by Heirs, Distributees and Creditors — Necessary Allegations. — Under the provisions of sections 428 and 429 of the Civil Code, distributees and creditors of a deceased person may institute an action against the administrator for the settlement of the estate without waiting two years or any length of time after his qualification; and in such action it is not necessary in order to- give equity jurisdiction to make any special averments other than those required by -those sections.</p> <p>2. Same. — In such an action it is not necessary to allege in the petition either that the estate is insufficient to> pay the debts or a demand or proof of claims by the claimants as required by the statute. A failure to make such proof and demand should be taken advantage of by a pleading or by affidavit and motion, and not by demurrer.</p> <p>3. Parties to Suit — Practice.—Where one is made- a party to a suit to settle an estate under the provisions of section 428 Civil Code, because he has an interest in part of the property left by the decedent, lie is entitled to file his answer, and not merely to offer it; and any objection to- it should be made afterwards by demurrer or other appropriate procedure.</p> <p>4. Costs and Attorney’s Fees. — When a suit is brought by a distributee or creditor to settle an estate without giving the personal representative a reasonable opportunity to- collect the assets and distribute- them, or brought for the mere purpose of harassing or annoying the administrator, or of forestalling him in bringing such suit, for the purpose of depriving him or his counsel of compensation, the court in the exercise of its discretion may deny the cost and attorney’s fees to the party bringing the suit.</p> <p>5. Equitable Jurisdiction. — The county court is not the sole tribunal having authority to settle the estates of decedents, and it is not necessary to give the circuit court jurisdiction that there must exist some such reason as insolvency.</p>

Case 16 — PETITION ORDINARY 1. The general plea of contributory negligence is sufficient in cases of this sort. L. & N. R. R. v. Wolf, 80 Ky., 82; Shearman & Redfield on Negligence, secs. 672, 682. 2. It was not proper to permit the appellee to prove the declarations of statement by defendants’ claim agent, that appellant would pay the loss, for two reasons.

Case 17 — PETITION ORDINARY 1. The cause of action in this case only arose after the death of the decedent, and did not exist before her death, and the statute of lirnitation did not begin to run until after the appointment and qualification of the administrator has been uniformly decided in this State without exception.

Case 18 — PETITION ORDINARY 1. A suit must be prosecuted in the real name of the party in interest. Civil Code, sec. 18. 2. The Baumeisters were not liable for the negligence or carelessness of Merriweather, he being an independent contractor.

<p>APPEAL FROM LOGAN CIRCUIT COURT.</p> <p>1. Homestead — Sale of by Widow. — Under the provisions of sec. 1707, of the Kentucky Statutes (sec. 14, art. 13, chap. 38, Gen. Stat.), occupancy of a homestead is a continuing condition precedent to the right. It was not intended to vest in the widow an unconditional and vendible life estate in the homestead. A permanent abandonment of it by her extinguishes the right, and an attempted unconditional sale and conveyance by the widow of her homestead right is a permanent abandonment of it; and as the widow could not pass any title by the conveyance, the purchaser acquired no title or right of possession under it.</p>

Case 20 — MOTION FOR MANDAMUS 1. This court under the provisions of sec. 110, of .the Constitution, has the “power to issue such writs as may be necessary to give 'it a general control of inferior jurisdictions.” 2. The supersedeas does not take away the jurisdiction of the court below, but simply stays procedure on the judgment superseded; and it retains all its jurisdiction except the right to enforce that judgment, including the right to' call back and preserve the fund.

Case 21 — INDICTMENT 1. It was the manifest purpose and intention of the framers of the Constitution, and the local option law, that the whole question of local option should be purely local, and that each division and subdivision should have the right to determine for itself whether or not liquor should be sold within its borders. It was plainly the intention to change the old policy. Secs. 61 and 147, Ky. Constitution; Tabor v. Landor, 94 Ky., 237; Ky.

<p>Case 22 — PETITION ORDINARY</p> <p>1. Upon the affirmance of a judgment bearing interest the plaintiff in the judgment is entitled to damages upon the interest which has accrued upon the judgment as well as upon the principal. Civil Code, sec. 764; Johnson v. Williams, 82 Ky. 45; Cavanaugh v. Britt, 90 Ky., 277.</p> <p>1, The appeal in this case is taken or prosecuted in the name of the infant by its next friend, whereas it is shown that six months prior to the taking of the appeal, a statutory guardian had been appointed and qualified for the infant. Sec. 35, of the Civil Code, provides that the action, of an infant must be brought by tbe guardian, and the appeal should, therefore, be-dismissed. Miller v. Cabot, 81 Ky., 178.</p> <p>2, Under the provisions of see. 764, of the Civil Code, damages. on affirmance can only be awarded “on the amount superseded.” And allowing damages upon interest which accrued alter the supersedeas would be the allowance of damages, upon an amount which at the time of the supersedeas had no existence.</p> <p>3. The damages provided for by that section of the Code, are in the nature of a penalty, and are fixed by the provisions of the statute, and not by the bond. And penal statutory provisions, should be strictly construed.</p>

Case 23 —INDICTMENT 1. The lease referred to in sec. 791 of the Kentucky Statutes was evidently intended to he in writing, as it requires the same to be recorded in the office of the Secretary of State, and of the various county clerks. 1. This statute is an attempt upon the part of the State of Kentucky to control a foreign corporation, and regulate commerce between the States, and is, therefore, unconstitutional. Pensacola Tel. Co. v. West, 96 TJ. S., 12; Cuiper Mfg.

<p>APPEAL PROM GRANT CIRCUIT COURT.</p> <p>1. Limitation — Certified Checks — Refusal to Pat. — The provision of sec. 2515, of the Kentucky Statutes (sec. 2, art. 3. chap. 71, Gen. Stats.) that “an action upon a bill of exchange, check, draft or order, or any endorsement thereof, of upon a promissory note placed upon a footing of a hill of exchange * * * shall he commenced within five years next after the cause of action accrued,” applies to actions upon certified checks. The endorsement on the check by the cashier of the hank “good for $100 when properly endorsed” does not make the instrument less or other than a check in the meaning of that section.</p> <p>2. Trusts. — Whether the hank was in the attitude of a trustee of the funds out of which the check was payable, does not affect the running of the statute of limitation, because the refusal of the hank to pay the check was equivalent to a repudiation of the trust.</p> <p>3. Practice in Civil Cases. — But inasmuch as the lower court first sustained the demurrer to the answer pleading the five years limitation, and the appellant was not given an opportunity to plead in avoidance of the plea of limitation, the judgment is reversed that he may have such opportunity.</p>

Case 25 —INDICTMENT 1. The indictment was drawn under section 1304, of the Kentucky Statutes, and the court erred in refusing to give the instruction that if the sale was made by the defendant to be drunk on the premises, and it was so drunk on the premises, then the license was no protection to him.' Commonwealth v. Bartholomew, 33 S. W. Rept., 84. 2.

Case 26 —INDICTMENT 1. The Dental Statutes are to be construed liberally. Black on Interp., sec. 113. 2. If tbe act of 1893 repeals, in any way, the former dental acts, fhe repeal is one by implication. Ky. Stat., sec. 459. , 3. Repeals by implication are not to he favored, and will never he allowed except upon the ground of irreconcilable repugnancy.

Case 27 — PETITION 1. The object of the provision in section 3064 was to prevent policemen and other city officials from charging the city for extra services rendered the city; and not to authorize the payment into the city treasury of fees earned by them in the service of the State. 2.

Case 28 — SPECIAL PROCEEDING 1. The appellant erected his ferry under the unconditional grant by the county court, and resisted the motion of the appellees on the idea that one ferry was sufficient to do the business, and that there was no necessity for a second one, which is shown by the evidence to be true. 2.

Case 29 — PETITION ORDINARY 1. It was incumbent upon the company to allege a state of fact showing a superior outstanding title to that of appellant, and it devolved upon the company to establish them, and show affirmatively that he was not the unconditional sole owner of the property. Insurance Co. v. Southar.d, 8 B. M., 645. 2. Possession and acts of ownership are prima facie evidence of ownership. Amer. & Eng.

<p>APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>1. Commencement of Action — Warning Order — Affidavit for— Attachment. — Under the provisions of section 194, of the Civil Code, an attachment may be issued only at or after the commencement of an action, and an attachment issued before summons is issued or warning order ds made, is void; and as under the provision of section 57, sub-section 2, the clerk is not authorized to make a warning order unless the defendant is a non-resident and believed to be absent from the State, in this suit in which the plaintiff failed to allege that the defendant was believed to he absent from the State, the warning order issued against him was void, and the action was not commenced within the meaning of section 39, of the Civil Code; and under such an attachment, issued before the commencement of the action, no lien was acquired.</p>

Case 31 — INDICTMENT 1. The conclusion in the indictment that it was to- the common nuisance of all good citizens, and against the peace and dignity of the Commonwealth of Kentucky, is sufficient. Sec. 123, Criminal Code; Smith v. Commonwealth, 6 B. M., 21; Wilson v. Commonwealth, 12 B. M., 4; Bishop’s Crim. Procedure, vol. 2, secs. 863 and 865; Commonwealth v. Mahon, 2 Smith, Penn., 243; Mains v. The State, 42 Indiana, 327. 2.

Case 32 — PETITION ORDINARY 1. The bill was on the' footing of a foreign bill of exchange and ■ in Order to hind the appellant as endorser on it it was necessary to protest it and, give him notice of such protest; and because Moore was cashier of the bank, and had knowledge of the dishonor of the note, and through fraud or negligence failed to protest the same, is no reason why notice of dishonor and nonpayment should not have been given to Hays.

Case 33 — PETITION EQUITY 1. The appellant bid on and agreed to pay for the fee simple title to the land, and having discovered before the confirmation of the sale the defect in the title, filed exceptions and asked to have the sale set aside. Under such circumstances the sale should have been set aside or the parties brought before the court and the title litigated. Farmers’ Bank v. Peter, 13 Bush, 594. 1.

Case 34 — PETITION ORDINARY 1. It is not claimed that Lyle really acted as county attorney in having the forfeiture made, hut that Ashbrook acted for him, and it is alleged and not denied that Ashbrook was never appointed county attorney pro- tem.

Case 35 — PETITION 1. The appellant never assisted in the operation of the turntable until the day before he was injured, and was not aware of the danger in its operation: under such circumstances it was the duty of the foreman, under whose orders he was acting, to warn him of the danger and protect him from it. Cooley on Torts, p. 632: R. R. Co. v. Darby, 14 How., 487; R. R. Co. v. Dickson, 88 111., 431. 2. The appellant was not guilty of contributory negligence-.

Case 36 — PETITION IN EQUITY I. The extension of a local government to a new boundary, is an act of legislative discretion that can not be reviewed by the courts, whatever abuse or apparent injustice may be the consequence. The remedy is by appeal to the legislature unless the complainant can rest his case upon some prohibition of, or right secured' by, the Constitution.

Case 37 — PETITION EQUITY I. No execution having been issued to the county In which the judgment was obtained, nor to. the county of the defendant’s residence, this action to enforce a judgment under the provisions of .section 439, of the Civil Code, had no' standing in court, and the demurrer should have been sustained. Proctor v. Bell’s Adm’r., 16 Ky. Law Rept., 823. 2.

<p>Case 38 — PETITION EQUITY</p> <p>1. While under the Kentucky Statutes if a mechanic or material man accepts security for work done or materials furnished, it is a waiver of his statutory lien, the security contemplated by the statute must he a bona -fide security, and not a sham one which is fraudulently palmed off on the mechanic; otherwise all a designing individual would have, to do would be to make false representations as to the value and title of property, and induce an innocent mechanic to accept it as security for materials furnished, etc., and thereby deprive h'im of his statutory rights. Chitty on Contracts, p. 748; Amer. & Eng. Enc. of Law, vol. 8, p. 653, and vol. 15, p. 39; Caldwell v. Young, 2 Duvall, 586.</p> <p>2. The attaching creditors acquired a lien only upon such interest as the debtor had. Drake on Attachments, sec. 220; Phillips on Mechanic’s Liens, sec. 225; Bispham’s Principles of Equity, sec. 45; Carstairs, &e. v. Kelly, 17 Ky. Law Rept., 309.</p> <p>1. Appellant’s assignors waived their statutory lien by accepting a mortgage on real estate from the debtor, (Ky. Sta.t., sec. 2467); and there is no proof in support of the claim ■that the debtor bad no1 title to the mortgaged property, except the statement in the deposition of one of the Nortons; and bis statement is purely a conclusion of law; and it was incumbent upon appellants to show want of title in tbe debtor in order to invalidate the security.</p> <p>2. Tbe allegation in tbe rejoinder that “said Hope Milling, Mining & Lumber Co., did not have any title to .said land or any right thereto, or interest therein, whatever. Said defendant Hope Milling, Mining & Lumber Co. bad mortgaged said land to one Thistlewait prior to tbe mortgage to Norton & Son,” when strictly construed does not charge a want of title 'in the debtor.</p> <p>3. Appellant has no right to reassert bis statutory lien to- tbe prejudice of creditors who have since bis acceptance- of tbe mortgage, acquired attachment liens. Tbe attaching creditors may have foregone other remedies by reason of their reliance upon the fact that appellant bad waived bis statutory lien. Gorman v. Sagner, 22 Missouri, 137.</p>

Case 39 — PETITION EQUITY 1. A court of equity will uphold and sanction that which has been done if it would have authorized the doing of the same, if it had been applied to. In this case any chancellor would certainly have authorized the appellant and his wife to- do what they did do for the infant. Withers v. Hickman, 6 B. M., 295; Jarret v. Andrews, 7 Bush, 311; Campbell v. Golden, 79 Ky., 544. 2.

Case 40 — PETITION 1. There were mutual running accounts between Albritton and Seibert from 1885 down to February 12, 1890, and at that time there had never been a final settlement between them; under such circumstances the statute of limitations begins to run at the time of the last transaction. 2. The letter of Albritton on file dated February 4, 1893, in which he says “I am not able to pay any more than I have offered.

Case 41 — PETITION 1. While the affidavit does not state in terms' that the claimis just, it does show on its face that it is just, and the language of section 196, of the Civil Code, requires of the plaintiff only that he shall file an affidavit showing that his claim is just. 2. The defects in a petition or a pleading may be cured by the expressed or implied admissions of his adversaries’ pleadings. 8 Dana, 184; 4 B. M., 198; 7 Dana, 172; 3 Marshall, 474.

<p>Case 42 — PETITION EQUITY</p> <p>1. Under the provision in the testator’s will, that “after the expiration of the said fifteen years my estate is to he divided among my aforesaid five children, their heirs, assigns, e-te., according to the statute of descent,” the five children took the- fee in the estate. The word “heirs” should he given its usual meaning, and should not be construed to mean “children” unless such is shown by the provisions of the- will as a whole to have been the testator’s meaning; and the addition of the words “or assigns, etc.,” to “heirs ” makes it plain in this case that no such construction should be given it. Amer. & Eng. Enc. of ^aw, vol. 11, p. 515; 109 Indiana, 476; 41 N. J. Eq., 89; 35 ‘Conn., 256; 118, 111., 403; Barhydt v. Ellis, 45 N. Y., 107; Fearne on Remainder, vol. 2, p. 734, Amer Ed.; Hocker v. Gentry, 3 Met., 471; Jarman on Wills, 5 Amer. Ed., p-. 407; 14 Ind., 502; 3 Ired. Eq., 323; Bush. Eq., 221; Byrne v. France, 33 S. W., 180; Fowler v. Duhne, 42 N. E., 626.</p>

Case 43 — PETITION EQUITY X. Only the remainder interest of the husband in the property,, subject to the wife’s life estate, was sold under the execution, and no interest of the wife was attempted to he sold. This suit is nothing more or less than a suit brought hy the husband in the name of the wife to recover property of the husband so that he may through the wife join her in a sale to get the money and defeat the payment of his debts. 1.

Case 44 — WRIT OP PROHIBITION 1. The' ordinance in question is retrospective as to- the appellant, and if enforced against him, would unlawfully deprive and divest him of a franchise and right vested in him by the laws of Kentucky, and possessed and enjoyed by him before, up to, and at the time the ordinance was attempted to be passed, and is, therefore, as to him, unconstitutional, inoperative, and void. 2 Sharwood’s Blackstone’s Com., 37; 3 Kent’s Com., 458; Commonwealth…

Case 45 —PETITION 1. The chief office or place of business of the appellant was in Louisville, and under. section 71, of the Civil Code, actions against an insurance company, with certain exceptions not applicable to this case, may only he brought in the county within which its principal office or place of business is situated; at any rate the agent Duncan upon whom the process was served was not the “chief agent” of the appellant within the meaning of section 723, of the…

<p>APPEAL FROM DAVEISS CIRCUIT COURT.</p> <p>1. Life Insurance — Beneficiaries—Distribution of Proceeds.— Under a policy of life insurance taken out by a woman upon her life, which provides that the insurance money shall be payable to and for the sole and separate use of her husband and children, upon' her death the proceeds of the policy are not to be treated as part of her personal estate, and as such to be inherited by the husband and children, but are to be divided per capita between the husband and children living at 'her death under the contract of insurance; and the only effect of the death of one of the children before her death was to' reduce the number of parts into which the whole was to be divided.</p> <p>2. Guardian and Ward. — A father who is the guardian of his infant children, whose circumstances are such that, h© is not required to Spend any of their money in their support, should not be credited with any sums so expended; and the evidence in this case shows part of the children to have been self-sustaining, and that the father used all of their money which came to his hands, in the payment of his debts which had been previously contracted.</p>

Case 47 — PETITION EQUITY 1. National banks are not regulated by State laws with reference to penalties and forfeiture's for charging usurious interest, and their action must be controlled exclusively by the Federal laws. Farmers’ & Mechanics’ Nat. Bank. v. Dearing, 91 U. S., 29; Bran v. Munsey National Bank, 98 U. S., 555; Stephens v. Monongahela National Bank, 111 II. S.,-137; Center Nat. Bank v. Pratt, 115 Mass., 539; First Nat.

Case 48 — INDICTMENT 1. The statute expressly exempts from its operation steam vessels, and thereby discriminates between citizens navigating streams within the Commonwealth. Thurman v. Morrison, 14 B. M„ 296; Daniel v. Trustees of Richmond, 78 Ky., 542; Pecheimer Bros. v. City of Louisville, 84 Ky., 306; Commonwealth v. Smith, 13 Ky.

Case 49 — PETITION EQUITY 1. The court erred in dismissing the petition for want of proper verification. This can only be done after the issual of rule against the plaintiff to show cause, &e. Harris v. Ray, 15 B. M., C30; Wheeler v. Wales, 3 Bush, 225. 2. A motion for a rule based upon an answer filed, or an affidavit filed, is the proper way to raise the question as to the sufficiency of the affidavit and proof of claim against the decedent's estate.

<p>APPEAL FROM PIKE CIRCUIT COURT.</p> <p>1. Promoters — Commissions Against Partners or Joint Owners.— Where promoters are instrumental in consummating a sale of land to several parties as partners or joint owners each of the partners or joint owners was hound for the -whole commission; and where the bond for title taken by them, discloses that they were joint purchasers or partners, it was incumbent upon them to prove a mistake in the writing to avoid such liability.</p> <p>2. Interest. — In such an action for commissions the question whether the plaintiffs were entitled to interest should have been left to the discretion of the jury.</p> <p>8. Attorney’s Fees and- Commissions. — The promoters, who were also attorneys, having advised the parties to purchase the land from one party, when they knew that another party claimed it, were not entitled to charge the purchasers with attorney’s fees in a subsequent suit between the parties to test the title to the land, as the consummation of the sale depended upon the result of the suit, and their commissions depended upon the consummation of the sale.</p>

Case 51 — PETITION 1. Where the plaintiff specifies the negligence complained of he will be held to the specifications, and the specification of the particular negligence will control general words in the petition alleging negligence generally. In the pleading in this case there was no complaint because there was not a flagman at the crossing or a gate at the crossing, and yet the instructions authorized a finding on that account. 2.

Case 52 — PETITION 1. The death of Omberg was caused by blood poison brought about by the sting of an insect, which was by “external, accidental and violent means” within the meaning of the policy of insurance. Bacon v. U. S. Mutual Accident Association, 44 Hun., 599; May on Insurance, 3d Edition, 2d vol., 1190 and 1193; Mallory v. Travelers’ Ins. Co., 47 N. Y., 53; Ins. Co. v. Burroughs, 60 Penn. State, 43. 2. The mosquito bite was the approximate cause of death.

Case 53 — PETITION EQUITY 1. A sewer is a “structure” and the stone or wooden supports to the walls thereof are “fixtures” within the meaning of sections 2463 and 2492, of the Kentucky Statutes; giving a mechanic’s lien to laborers or material-men. 2.

Cash 54 — PETITION EQUITY 1. Under the circumstances set forth in the answer of appellant the appellees were not entitled to the relief sought; by their laches and long acquiescence they are estopped. Bisphams’ Equity, p. 59; sec. 39; Sec. 458, p. 512; sec. 260, p. 320; Holcomb’s Equity Jurisprudence, pp. 202 and 303; Story’s Equity Jurisprudence, pp. 126 and 758, and notes; Smith v. Clay, Ambler, 645; High on Injunctions, see. 681; Amer. & Eng.

<p>Case 55 — PETITION</p>

Case 56 — PETITION EQUITY 1. The lien given by section 14, chap. 70, of the General Statutes, to a mechanic or a material-man, is not intended to invalidate any previously existing lien created by the act of the parties; and the lien of the mechanic or material-man must have attached to the property before the date of the purchase, to authorize him to create a lien upon the unpaid purchase money under the provisions of that section.

Case 57 — SPECIAL PROCEEDING 1. No other tax payer or set of tax payers than those embraced by this act are allowed three years within which to pay their State, county, and municipal taxes, and it is therefore in violation of section 3, of the Bill of Rights, in reference to the granting of exclusive privileges. Kentucky Trust Co. v. Lewis, 82 Ky., 579. 2.

Case 58 — PETITION ORDINARY 1. The court erred in refusing to give in the instructions the rule laid down by the statute as to what is a proper ventilation of mines, and erroneously left to the jury that question. Shear-man & Redfield on Negligence, sec. 13, p. 16; see. 54, and authorities cited; Toledo, &c. R. R. Co. v. Deacon, 63 111., 91; Lawson’s Rights and Remedies, vol. 3, sec. 1213. 2.

<p>APPEAL PROM JEFFERSON CIRCUIT COURT. LAW AND EQUITY DIVISION.</p> <p>1. Revivor. — Where pending an action to enforce a lien upon land the defendant dies upon the day which the report of sale is made to the court, the order of revivor made therein against the executrix within six months after her qualification, is under the provisions of section 507, of the Civil Code void, and a sale made thereunder passed no title.</p> <p>2. Equity — Subrogation.'—The hid of the purchasers at the decretal sale having been transferred to- the executrix in her own right, and she having paid a large part of the indebtedness of the decedent in consideration of the assignment to her of the bid, and the sale having been declared void, she would he entitled to have repaid to her, such sum as she had paid therefor out of her own funds; and her vendee is entitled to he subrogated to her rights to the extent of the payments made by him to her for the lots sold, not exceeding the amount paid by her in consideration of the transfer of the bids; hut the vendee must account for the rental value of the property and will be allowed interest on the purchase price, and pay for improvements.</p>

<p>APPEAL EKOSt WASHINGTON CIRCUIT COURT.</p> <p>1. Peddlers’ Note — Conflict of Lawk — Constitutional Law — Police Power. — Tlie requirement of section 4223, of the Kentucky Statutes, that persons who sell .patent rights shall have written on the face of the notes executed in consideration therefor the words “peddlers’ note,-’ is not in conflict with the Federal Patent Laws, and does not limit the right of the patentee, or his assignees in disposing of the patent right; but is only the exercise of a police power designed by the State to protect its citizens against fraud and imposition of itinerant persons.</p> <p>2. Pleading. — An answer in such cases which failed to allege that the payee of the note were itinerant persons or peddlers at the time of the sale of the patent rights or execution of the note in contest, was insufficient, the allegation that the note “is what is denominated by the laws of Kentucky as a peddler’s note,” being merely a legal conclusion.</p> <p>S. Negotiable Instruments Executed in Violation oe Statutory Provisions — Estoppel—As a general rule one who executes a negotiable promissory note knowing it to he the subject of barter and sale in the commercial world, and does not put into it words that would give warning to others not to buy it, is estopped from making a defense to the same after it has. passed into the hands of a bank in this State; but where a statute in direct terms declares that a note given in violation of its provisions shall he void, it is so, no matter into whose hands it may pass.</p>

Case 61 — PETITION ORDINARY 1. Appellants demurred to so much of the petition as sought to recover for lodgment of the logs upon plaintiff’s land and it was sustained; and yet-the court permitted evidence to go to the jury as to the damages caused thereby. 2. The denials in the reply to appellant’s answer and counterclaim. .are connected by the copulative conjunction “and,” and are in effect admissions, and are. therefore insufficient.

<p>APPEAL FROM JEFFERSON CIRCUIT COURT. LAW AND EQUITY DIVISION.</p> <p>1. Civil Rights — Trade—Conspiracy.—It is part 'of every man’s civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice. With his reasons neither the public nor third person have any legal concern, and the exercise by him of his legal rights can not be a legal wrong to another. Appellant brought this action against certain members of the Funeral Directors’ Association to' recover damages, alleging that they and other members of that association had refused to furnish him the articles, or render the services necessary for the burial of his wife, said refusal being based upon the ground thai appellant was indebted to some member of the said association for the burial services of his father, and that, therefore, under the rules of said association no member thereof was permitted to furnish such services until said indebtedness was satisfied. And it is held that while the members of the association might be guilty of a public offense, and a violation of the provisions of chap. 101, of the Kentucky Statutes, if proceeded against by an indictment, yet appellant having asserted no claim for damages to personal character or business reputation resulting from such alleged acts of conspiracy, can not maintain his action.</p>

<p>APPEAL FROM SHELBY - CIRCUIT COURT.</p> <p>1. Constitutional Law — Validity op Ordinance. — The provisions of section 3490, of the Kentucky Statutes, (being a part of the charter of cities of the fourth class), that the board of council in such cities shall have power within such cities to' pass ordinances imposing and collecting license fees and taxes on all franchises, trades, and professions, is expressly authorized by the provision of section 181, of the Constitution, that the General Assembly may by general laws delegate the power to counties, towns, cities, and other municipal corporations, to provide for the payment of license fees on all trades, occupations and professions; and the validity of such an ordinance can not be assailed merely because it may be considered unreasonable, or as working a hardship in particular cases, or as oppressive upon persons conducting a small business.</p>

Case 64 — PETITION ORDINARY 1. Gillispie’s default in his dealings with the appellant was in his capacity as administrator of her deceased husband, and not in his capacity as her agent in the collection of rents; he testifies himself, that he applied all the rents collected by him, which accrued subsequent to Denton’s death, to the payment of claims against his estate, and thereby sufficiently accounts to appellants for such rents as came to his hands as her agent, and…

<p>APPEAL FROM CALLOWAY CIRCUIT COURT.</p> <p>1. Attachments — Grounds for — Evidence Necessary to Support. —Evidence that a debtor has not sufficient property subject to execution to pay the plaintiff’s demands is prmia facie evidence that the demand will be endangered by the delay in obtaining a judgment or a return of no property found; but it may be rebutted by showing the debtor’s ability and willingness to pay his debts and by showing his business standing and integrity in the community.</p>

Case 66 — INDICTMENT .1. If the appellant is guilty of any offense It was punishable under the provisions of section 1162, of the Kentucky Statutes, and not under those of 1164. The little room cut off as a part of the cellar could not be considered as a storehouse, within the meaning of section 1164. Price v. Commonwealth, 15 Ky. Law Rept., 857; White v. Commonwealth, 10 Ky. Law Rept., 422; Whallen v. Commonwealth, 17 Ky. Law Rept., 921. :21.

Case 67 — PETITION ORDINARY 1. Where a surety holds himself out as principal otherwise than by signing the note without designating whether he is principal or surety, he is estopped to show that he was surety as much as if he had been designated principal in the body of the note. Picot v. Siguago, 22 Mo., 587; McMillan v. Park, 64 Mo., 286. 1.

Case 68 — PETITION EQUITY 1. Words used by a grantor in a deed are to he most strongly construed against the grantor, and where two1 repugnant clauses exist the first prevails in a deed. 2d, Minor’s Institutes, p. 1066; 2 Blaekstone’s Com., 38; Kentucky Statutes, 342. 2.

<p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>1. Sheriff’s Liability fob Tortious Acts of Deputy. — Under the provisions of section 4141. of the Kentucky Statutes a sheriff is liable in damages for the misconduct of his deputy if the deputy maliciously and unnecessarily, and for the purpose of degrading and punishing one arrested under a warrant puts irons and handcuffs on him, and which action is not taken for the purpose of enabling the officer to properly execute the writ.</p>

Case 70 — PETITION ORDINARY 1. An award is a final and conclusive judgment as between the-parties respecting the matters determined by it, and the plaintiff’s recovery should have been on the award and not on the; contract of insurance. Morse on Arbitration and Award, chap. 1, sec. 1, pp. 4, 34 and 36, chap. 18, p. 487. 2. If the arbitration is a nullity as claimed by appellee it certainly could not have operated as a waiver of proofs of loss. 3.

Case 71 — PETITION EQUITY 1. Under the provisions of section 107, of the Kentucky Statutes the compromise provided for therein between the parties to a suit must be made in good faith, and without the payment of money or other thing of value, so as to deprive the attorney of his lien or claim against the defendant.

<p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>1. Benefit Insurance — Trusts—Specific Performance. — One who is the sister of the insured and under a contract with him is made the beneficiary in a benefit certificate of insurance and agrees to accept a portion of tbe fund arising therefrom under the terms of the insured’s will, and to act as trustee in the distribution of the remaining portion of the fund according to the provisions of his will, will be held to a strict compliance with the agreement, notwithstanding a provision in the constitution and by-laws of tbe Benefit Insurance Society, that the fund arising therefrom shall not constitute a part of the insured’s estate; and the fact that some of the beneficiaries in the will of the insured were not his relatives will not prevent the distribution of the fund under the provisions of his will.</p>

<p>APPEAL FROM LEWIS CIRCUIT COURT.</p> <p>1. Ferry Rights — Condemnation of Land — Appeals.—Upon appeal to the circuit court from a proceeding in the county court seeking to condemn land for ferry purposes, the circuit court was authorized to hear evidence in addition to the evidence certified from the county court. It appears in this case that at the time of the condemnation proceedings in the county court, the owner of the land was of unsound mind, and was not competent to elect whether the condemnation should .be made for twenty years or in fee, and the circuit court upon appeal by his-committee properly heard evidence as to his mental condition, and reversed the order of the county court, and directed the issual of a new writ, and that the committee be given the right, of election which the owner had declined to exercise.</p>

Case 74 — PETITION EQUITY I. The amount of the premium is not to be considered in a question of an over issue, because it is not a liability hut an asset, and is an unknown quantity which can not be ascertained until after the sale of bonds is made; and if 'it is an over issue; the bonds are valid to the extent necessary to raise the required sum of money. Daviess County v. Howard, 13 Bush, 101; Daviess County v. Dickinson, 117, U. S., 663. 2.

<p>APPEAL PROM SHELBY CIRCUIT COURT.</p> <p>1. Railroads — Leases—Duties op Lessor and His Vendee — Specific Performance. — The L. & N. R. R. Co., having purchased from the L. O. & L. R. R. Co. all of its property including a lease which it held on the property of the Cumberland & Ohio R. R. Co., and having taken charge of the said Cumberland & Ohio road thereunder, and having operated the same for a long time, and having elected to sue and recover from said Cumberland & Ohio R. R. Co., the sums due to the L. C. & L. R. R. Co., under the terms of the lease, the said L. & N. R. R. Co. assumed whatever obligations the L. C. & L. R. R. Co. were . under by virtue of the lease and was not a tenant by sufferance; and the specific performance by the L. & N. R. R. Co. of the terms of the lease is adjudged, notwithstanding the fact that the original lessor had failed to perform its undertaking to furnish means with which to complete the construction of the road.</p> <p>2. Contracts — Specific Performance. — There is no adequate relief to be had for the bond holders in this case, except by a specific performance of the contract, and the provisions of the contract being neither complicated nor difficult to perform it can, and should be enforced by a court of equity, and does not come with- ' in that class of cases where a court of equity will refuse specific performance of a contract calling for continiious services, involving skill and judgment, and requiring continuous supervision on the part of the court. The contract in question may be enforced either under the direct orders of the court, or by a receiver of the court at the cost and expense of appellee.</p>

Case 76 — PETITION EQUITY 1. The charter and by-laws of the Swift Iron & Steel Works prohibited the treasurer from executing the notes and checks in controversy. Harper was vice-president of the bank, and president of Swift’s Iron & Steel Works, and he knew the provisions and restrictions of the charter and by-laws of the Iron & Steel Works, and his knowledge was the knowledge of the bank and notice to it of the want of authority.

<p>Case 77 — PETITION EQUITY</p> <p>1. The provisions of section 59, of the Constitution, prohibiting the General Assembly from passing local or special acts regulating the rate of interest, was intended as a prohibition against permitting any person or corporation from charging a higher rate of interest than other persons may charge; and whenever the language used in the Constitution is prohibitory it is understood to be a positive, unequivocal negation. Cooley on Constitutional Limitations, p. 72; Black on Interpretation of Laws, sec. 13.</p> <p>2. The act in question is not a general act simply because it applies to all building and loan associations; it is a special act because it attempts to discriminate between different persons or corporations as to the rate of interest which they may charge. To hold that it was a general act because it applied to building and loan associations as a class would render the constitutional clause nugator3L</p> <p>3. The act is violative of the Bill of Bights, because it grants an exclusive privilege to one set of men as against all other men,, and not in consideration of public services. Tilley v. Amer. Building Association, 52 Fed. Rep., 618; Columbia Building Association v. Bullinger, 12 Rich. Bq., (S. C.) 124; Gordon v. Association, 12 Bush, 112; Mills v. Association, 75 N. C., 298; Ky. Trust Co. v. Lewis, 6 Ky. Law Rept., 547; Endlich on Building Associations sec. 363; Cooley on Constitutional Limitations, p. 485; Rogers v. Rains, 100 Ky., 295; Daly v. The State, 13 Lea, (Tenn.) 228; • U. S. Saving Co. v, Scott, 17 Ky. Law Rept., 1244; Shreveport v. Levy, 20 La., (Ann) 671; (21 Amer Rept., 553); Southern Building Association v. Harris, 17 Ky. Law Rept., 721; Henderson. Building Association v. Johnson, 88 Ivy., 191; Bayha v. Carter, 26 S. W. Rept., 137; Herbert v. Kenton Building Association, 11 Bush, 296; Philanthropic Building Association v. McKnight, 35 Penn., . 470; Johnson v. Cassidy, 68 Texas, 282; International Building & Loan Association v. Biering, 25 S. W. Rept., 622.</p> <p>4. It is true that in several Slates acts similar to the on© in question have been held to be constitutional under constitutional provisions somewhat similar to ours; but in all such cases the courts have held that such acts establishing or regulating the rate building and loan associations may charge were not acts regulating the rate of interest, but were acts regulating partnership transactions; and in nearly all such cases, held that if such transactions were a borrowing and lending of money they would be usurious and unconstitutional; and it'appears from the act itself in this State that the chief aim and object of such associations is the lending of money.</p> <p>1. The transaction between a building and loan association and a. borrowing member thereof, in which the member is directly or indirectly charged more than 6 per cent, per annum for a loan, is against the letter and spirit of the statute against usury. Henderson Building Association v. Johnson, 88 Ky., 191; Southern B. & L. Association v. Harris, 17 Ky. Law Rept., 721; U. S. Sav. & Loan Co. v. Scott, 17 Law Rept. 1244.</p> <p>2. The act in question is a special act, because it provides for the loaning of its money only to its members, and th©n only when secured by a first mortgage on real estate; as all persons do not own real estate it necessarily applies only to' that class of its members who own real estate. The act in question confers. special privileges upon certain men who may organize themselves into a building and loan association, and confers upon them the right to charge a greater rate of interest than other persons are authorized to charge, and thereby creates a privileged class in every community. Gordon v. Winchester B. & L. Association, 12 Bush, 110. .</p> <p>3. The act in question undertakes to grant to a set of men special privileges not accorded to other men in reference to the loaning of money and the rate of interest which may be charged, and is violative of the letter and spirit of section 3, of our present Bill of Rights. Ky. Trust Co. v. Lewis, 82 Ky., 579.</p> <p>1. A transaction between a building and loan association and a borrowing member is a loaning of money and the building and IdStn act was a special act regulating the rate of interest and was contrary to section 59, of the present constitution.</p> <p>2. The act regulating the building and loan associations of the State of Kentucky can not be upheld because it gives peculiar and distinct benefits and rights to those institutions.</p> <p>1. The act regulating building and loan associations is not special legislation, nor does it confer special privileges. Its benefits are open to all the citizens of the State as much so as the privileges of any other corporation allowed by our laws, and it is general in that it applies to the whole body of citizens opening to all the same opportunities that may be embraced by some, and is a general law, as much so as the statute relating to banks. Sutherland on Statutory Construction, sec. 124.</p> <p>2. The associations are in the nature of partnerships, arranged so that advancements may be made to their members upon certain terms and conditions, and all of whom participate in the dividend declared by the association, and are really benefactions, as they enable poor men to obtain money on easy terms and with it secure homes. Henderson B. & L. Association v. Johnson, 88 Ky., 197; Patterson v. Workingmen’s B. & L., 14 Lea, (Tenn.) 686; Delano v. Wild, 6 Allen, 1; Merrill v. McIntyre, 13 Gray, 165; Freeman L. & T. Co., v. Whitehead, 2 N. D., 82; Bndlieh on Building Associations, 456.</p> <p>S. Such transaction between a building and loan association and a borrowing member is not the lending and borrowing of money and therefore is not in violation of the Constitution. Patterson v. Workingmen’s B. & L. Association, 14 Lea, (Tenn.) 680.</p> <p>4. The constitutionality of acts similar to the. one under consideration has been affirmed in a majority of the States having constitutional provisions similar to ours. Peters v. Workingmen’s B. & L., 14 Lea, (Tenn.) 686; Maryland Co. v. McIntyre, 13 Gray, 157; Robertson v. American Homestead Association, 10 Md., 397; Albany B. & L. Association v. Patterson, 63 Ga., 373; Clarksville B. & L. Association v. Stephens, 26 N. J., 351; Bndlich on B. Associations, sec. 337; Herbert v. Kenton B. & L. Assciation, 11 Bush, 296; Holmes v. Smith, 100 111., 413; Freeman v. Ottawa B. Association, 114 111., 185; Reed v. Homestead Association, 82 Penn. St., 180; Linnek v. German-town Association, 89 Penn. State, 15; Beckel v. Uniontown B. & L. Association, 88 Penn. St., 214; Livingston B. & L. Association v. Drummond, 68 N. W. Rept., 375, (Neb.); Hoboken B. Association v. Gordon, 2 Beasley, 430; Freehold Mutual Association. v. Bryan, 2 Stew., 122; Peoples Association v. Billings, 104, Mich., 186; (62 S. W. Rept., 373); Central B. & L. Association v. Lampson, 60 Minn., 422; McLaughlin v. Citizens Association, 62 Ind., 264; Citizens Mutual Association v. Webster, 26 Bar., 264; Concordia Saving Association v. Reed, 93 N. Y., 474; White v. Mechanics B. Association, 22 Grat., 246; Montgomery B. & L. Association v. Robertson, 69 Ala., 413; Security Loan Association v. Lake, 69 Ala., 436; Bibb County Association v. Rogers, 21 Ga., 592; Reeves v. Ladies B. Association, 56 Ark., 335; Parker v. Fulton L. & B. Association, 46 Ga., 166.</p> <p>5. All enactments' of the legislature unless they shall he believed beyond a doubt to be violative of the Constitution must be upheld, and all doubt of their constitutionality will he resolved in their favor.</p> <p>1. The business of the building and loan associations is of a peculiar nature; they lend only to their members who are stockholders for the purpose of enabling them to build homes, and the stockholders who pay the alleged usury are the owners of the accumulative fund caused thereby, and it is at set intervals divided among them and the other stockholders,the whole system being co-operative. Constitution secs. 3, 59, 21; Ky. Stat., 854, 864; Holmes v. Smythe, 100 111., 413; Freeman v. Ottawa B. Association, 114 111., 185; Rhodes v. Homerstown Association, 87 Penn. St;, 180; Linnek v. Germanto-wn Association, 89 Penn. St., 15; Robertson v. Amer. Homestead Association, 10 Md., 397; Albany B. & L. Association v. Patterson, 63 Ga., 373; Clarksville B. & L. Association v. Stephens, 26 N. X, 351; Parker v. Association, 88 Penn. St., 211, 216; McLaughlin v. Citizens B. & L. Association,' 62 Ind., 264; Forrest City v. Gallagher, 25 Ohio St., 100; Merrill v. Mclntire, 13 Gray, 157; Endliah. on Building Associations, 337.</p> <p>1. The borrowing member of a building and loan association pays a premium on account of his stock and not on account of the loan, and the premium goes into a sort of sinking fund, of which he gets his portion back at the end of six months, and thereby Is in an attitude of both a borrower and a lender.</p> <p>2. Some cases have arisen under special acts passed before the adoption of the present Constitution, and which have been passed upon by this court, but no case has been considered by it which arises under the present general law, and there is therefore no stare decisis.</p> <p>3. Section 3, of the Bill of Rights, is not applicable in this- case; it does not refer to a class of persons in a business in which every one can not engage. The act in question is a general la,w applicable to- all citizens who choose to bring themselves within its provisions. Schoolcraft’s Adm’r. v. L. & N. R. R., ■92 Ky., 233; 39 Iowa, 112; 40 N. .1., Law, 1; Livingston L. & M. Association v. Drummond, (Neb.) 68 N. W., 375; Hoboken B. Association v. Gordon, 2 Beasley, 430; Freehold Mutual Association v. Bryan, 2 Stew., 122; Peoples B. & L. Association v. Billings, 104 Mich., 186; Central B. & L. Association v. Lamp-son, 60 Minn., 422; McLaughlin v. Citizens B. & L. Association, 62 Ind.. 264; Freeman v. Whitehead, 2 N. D. 82, (49 N. W„ Rept.); Citizens M. & L. Association v. Webster, 26 Barbour, 264; Concordia S. & A. Association v. Reed, 93 N. Y., 474; Brown v. Rogers, 1 Mo. App., 100 111., 413; 128 III., 67; 14 Lea, 693.</p> <p>1. A statute relating to persons or things as a class is a general law. Sutherland on Statutory Construction, secs. 121, 127.</p> <p>2. After a wide and careful examination of all the available authorities touching on the question in issue we have failed to find a decision in any court of last resort where a similar statute to ours which had been obeyed, was held to be invalid. This court stands alone on that' question. Montgomery Mutual B. & L. Association v. Robertson, 69 Ala., 413; Reeve v. Ladies B. & L. Association, 56 Ark., 335; Mutual Sav. Bank & Association v. Wilcox, 24 Conn., 147; Pabst v. B. Association, 1 McArthur, 385, (Dis. Col.); . Parker v. Fulton B. & L. Association, 46 Ga., 166; Holmes v. Smythe, &c., 100 1)1., 413; McLaughlin v. Association, 62 Ind./ 264; Hawkeye Benefit & L. Association v. Blackburn, .48 Iowa, 385; Massey v. B. Association, 22 Kan., 624; American Homestead v. Linnek, 46 La., Ann., 1118; Robertson v. Amer. Homestead Association, 10 Md., 411; Delano v. Wild, 6 Allen, 1, (Mass.); B. & L. Association v. Billings, 104 Mich., 187; Central B. & L. Association v. Lampson, 60 Minn., 94; Hammerslough v. Kansas City B. & L. Association, 79 Mo., 84; Livingston L. & B. Association v. Drummond, 68 N. W. Rept., 375; Shannon v. Dunn, 43 N. H., 198; Clarksville B. & L. Association v. Stephens, 26 N. J. Eq., 355; Citizens Mutual L. Association v. Webster, 26 Barbour, 271, (N. Y.); Lath-am v. Washington B. & L. Association, 77 N. C., 145; Freeman Loan & Trust Co. v. Whitehead, 2 N. D., 82; Hagerman v. Ohio B. & L. Association, 26 Ohio, 205; Pfeister v. Wheeling B. Association, 19 W. Va., 719.</p> <p>1. Contracts between building and loan associations similar to the one in auestion have been sustained by the courts of last resort in able and well considered opinions in most of the States of the Union. Delano v. Wild, 6 Allen, 1, (Mass.); B. & L. Association V. Billings, 104 Mich., 187; Central B. & L. Association v. Lampson, 60 Minn., 424: Sullivan v. Association, 70 Miss., 94; Hammerslough v. Kansas City B. & L. Association, 79 Ma, 84; Livingston B. & L. Association v. Drummond, S. W. Rept., vol. 68, 379, (Neb.); Shannon v. Dunn, 43 N. H., 198; Montgomery Mutual B. & L. Association v. Robinson, 69 Ala., 413; Reeve v. Ladies B. Association, 56 Ark., 335; Mutual Sav. Bank & B. Association v. Wilcox 24 Conn., 147; Pabst v. B. & L. Association, 1 McArthur, 385, (Dist of Col.); Parker v. Fulton, B. & L. Association, 46 Ga., 166; Hawkeye Benefit & Loan Association v. Blackburn, 48 Iowa, 385; Massey v. B. Association, 22 Kan., 624; Amer. Homestead Co. v. Linnek, 46 La., Ann., 1118; Robinson v. Amer. Homestead Association, 10 Md., 411; Clarksville B. & L. Association v. Stephens, 26 N. J. Eq., 355; Citizens Mutual Loan Association- v. Webster, 25 Bar., 27l, (N. Y.); Freeman Loan & Trust Co. v. Whitehead, 2 N. Dak., 82; Hagerman v. Ohio, B. & L. Association, 25 Ohio, 205; Patterson v. Workmen’s B. & L. Association, 14 Lea, 677, (Tenn.); White v. Mechanics Building Fund Association, 22 Grattan, 233;, (Va.); Preister v. Wheeling B. Association, 19 W. Va., 719; Holmes v. Smythe, 100 111., 413; McLaughlin y. Association, 62 Ind., 264.</p> <p>1. Any thing in excess of the legal rate of interest, whether the same be by way of premium, penalty, or any other device or subterfuge, is nothing more nor less than usury to the extent of the excess. Mack v. Workingmen’s B. & L. Association, 5 Ky. Law Rept., 520; Centennial B. & L. Association v. Mitchell, 5 Ky. Law Rept., 696; Ruffra v. Kenton B. & L. Association, 6 Ky. Law Rept., 698; Commercial Bank of Kentucky v. B-ramel, 6 Ky. Law Rept., 527; Henderson B. & L. Association v. Johnson, 88 Ky., 198; Hurbert v. Kenton B. ■& L. Association, 11 Bush, 296.</p>

Case 78 — INDICTMENT 1. The evidence as to the other false entries than the one expressed: in the indictment was not competent; the effect of its admission was to convict the defendant of one felony by proof of other felonies. Martin v. Commonwealth, 93 Ky., 194; State v. Le-page, 57 N. H., 245, (24 Amer. Rept., 69.) 2.

Case 79 — PETITION EQUITY 1. An allegation in a petition of divorce that the plaintiff now resides, and for some time has resided in the county where the suit is filed, is pinma facie equivalent to the expression “usually resides,” contained in section 76, of the Code. Lochnane v. Lochnane, 78 Ky., 467. 2.

Case 80 — PETITION EQUITY 1. The provisions in the charter for cities of th'e third class that the councilmen shall hold office until their successors are elected and qualified, applies to only elected members of the council, and not to those who may be appointed to fill vacancies. 2. The appointment of the councilmen to fill vacancies was. only valid until the next general election, and a failure to hold the election provided for by the law left the offices vacant.

Case 81 — PETITION ORDINARY 1. The State Auditor had. prior to the adoption of the present Constitution, under acts of the General Assembly, issued warrants to the various charitable institutions of the State and the same were not paid because of a failure in the revenue. Section 49, of the Constitution was adopted to govern just such cases. 2.

Case 82 — INDICTMENT 1. The mere false making of a note -without the intent to defraud some one does not constitute the crime of forgery, for there is no presumption of law that the accused has actually forged a note on another person, when he has not uttered the same. Fox v. The People, 1 N. W. Rept., 702. 2. Both the false making of the instrument and the fraudulent intent must be proved, and it was not sufficient that only one of these was shown. 10 Ky. Law Rept., 413. 3.

Case 83 — PETITION ORDINARY 1. Plaintiff should have been required to elect which cause of action they would prosecute. They first sued on the note and by an amendment, without abandoning that cause of action, set up a cause of action on the account, which was a departure from the original cause of action. 2.

Case 84 — PETITION EQUITY 1, The election of stockholders was not held by the cumulative system as required by section 207, of the Constitution, and was consequently illegal. There having been no definite form or manner of holding the election pointed out by the articles of corporation, that section of the Constitution and the statute passed in pursuance thereof should have been followed.

<p>Case 85 — Petition Ordinary</p>

Case 86 — Petition Equity 1. The original petition does not allege that the act was done “with the design to prefer one or more creditors to the exclusion in whole or in part of others” as is required by the statute, and was therefore defective. Heidriek & Co. v. Silva, 89 Ky., 423; Grimes v. Grimes, 86 Ky., 511. 2.

Case 87 — Petition Ordinary 1. If the tax debtor redeems his land within the two years provided by the statute, he is required to pay the costs, and if he does not, the State owns the land, so the State either gets the taxes and the costs or the land; and it is provided by the statute where the State is the litigant, in the event of collection that the fees “shall be the same as for similar services in civil cases,” (Gen. Stat., p. 942).

Case 88 — 1. If the offenses charged are so distinct that the evidence of the one will not support a conviction under an indictment for the other, then the one conviction will not bar the other. Ruble v. State, 10 S. W. Rept, (Ark.), 262; State v. Faulkner, 39 La. (Ann.), 811; Right v. State, 17 Texas Appeals, 152.

Case 89 — Forfeiture op Bail Bond 1. The sureties in the bond were deprived by the pardon of the right to re-arrest the accused and surrender him to the court, as they had a right to do before the pardon was granted under the provisions of section 98 of the Criminal Code; and having been deprived of this right, they should not he held liable. Little v. Commonwealth, 3 Bush, 22; Commonwealth v. Radford, 2 Duvall, 9. 2.

Case 90 — Agreed Case 1. It is not essential that the citizen should receive all the benefits of a. city government, before he can he taxed by it. Dillon on Municipal Corporations, vol. 2, sec. 795. 2. The agreed facts show that appellant’s lands within the city limits are not used strictly for agricultural purposes, but that it is a beautiful, modern, handsomely improved residence with yard and garden attached, and gets the practical benefits from the city government.

Case 91 — Petition Equity 1. Considering the excessive intercourse during menstruation, the avowal of the husband’s purpose never to live with her again, and the infidelity charged with the unsuccessful effort to prove it, there is such conduct when taken together as entitles the wife to an absolute divorce with alimony. Hutell v. Hutell, 80 Ky., 364; Butler v. Butler, 4 Littell, 206; Rogers v. Rogers, 13 Ky. I.aw Rept., 526; Litton v. Litton, 16 Ky.

Case 92 — Petition Ordinary 1. Where employes in a mine have notice of danger attendant upon doing work at a particular place, and have investigated and conferred among themselves and conclude that it is safe, they are acting upon their own judgment, and can not recover from the master in event of injury. Bunt v. Sierra Buttes Gold Mining Co., 24 Fed. Rept., 848. 2.

<p>Case 93 — Petition Equity</p> <p>1. The appellee knew at the time of the sale that the title was in doubt, and one who accepts a quit claim deed takes only the interest of the grantor. Peters v. Gratier, 20 Amer. St. Rept., 508; Stelle & Son v. Sioux Valley Bank, 18 Amer. St. Rept., 370; Garrard v. Crusipher, 15 Amer. St. Rept, 850; Johnson v. Williams, 1 Amer. St. Rep., 243; 35 Neb., 361; 53 N. W. Rept., 140.</p> <p>2. A matter of opinion, such as expressing an opinion that the title to property is good, does not amount to fraud. Lawson’s Rights, Remedies & Practice, 5 Book, p. 3930, sec. 2345; Curry y. Keiser, 30 Ind., 214; Drake v, Latham, 30 111., 270.</p>

Case 94 — Contested Election I. The evidence shows conclusively that appellant was a citizen and a housekeeper of Lee county, of proper age, and had resided therein all his life, and at the time of the election; and that he received the highest number of votes, and was duly and lawfully elected jailer of said county. 2.

Case 95 — Petition Ordinary 1. The petition fails to disclose who was the owner of the glass, or who was the real party hr interest, or that there was any contract or agreement either expressed or implied between appellants and appellees; and the demurrer to the petition should havo been sustained. 2.When a carrier accepts goods for carriage directed to a destination beyond its own lines it becomes exclusively responsible, and any attempt to bold a connecting carrier liable…

Case 96 — Petition Ordinary 1. The act applicable to cities of the fourth class was approved after the general law relating to crimes and punishments was passed, and the provisions of the charter of such cities, even if in conflict-with the general law could not have been repealed by it.

<p>Case 97 — Petition Ordinary</p> <p>1. Tke petition meets all the requirements of the Code in actions of claim and delivery, and the prayer is broad enough to entitle the plaintiff to the restoration of the property or its value. Civil Code, sec. 181; Bates v. Buchanan, 2 Bush, 118.</p> <p>J.. A bond of indemnity having been given by the execution plaintiff to the sheriff before a levy under the execution, no action can be maintained by any one against the officer for the goods levied on or for damages for the taking, detention, or sale thereof. Civil Code, secs. 643, 645; Gunn v. Gordehas, 15 B. M., 447; Wátron v. Cably, 18 B. M., 660; Williams v. Smith, 4 Bush, 540; Harrison v. Shanks, 13 Bush, 620; Green v. Hackley, 3 Met., 387; Carrington v. Harris, 4 Bush, 624; Dixon v. Bacon, 3 Bush, 534; Jerroll v. Miller, 3 Bush, 62; Secrets v. Marlcwell, 11 Bush, 316; Snoddy v. Foster, 1 Met., 160; 78 Ky., 33.</p>

Case 98 — Petition Ordinary 1. Scienter can be shown by past behavior and reported history. Findley v. Bauer, 37 Cent. Law Jour., 452. 2. Peremptory instruction is improper unless both the facts and all the inferences clearly show tha.t there is no liability. Peltier v. R. R., 16 Ky. Law Rept., 500; Wright v. R. R., 14 Ky. Law Rept., 788; Romwell v. Dilworth, 2 All. Rept., 356. 3.

Case 99 — Petition Ordinary 1. The carrier owes to the passenger the duty of protecting him from the violence and assaults of his fellow passengers, or intruders, and will be held responsible for neglect in this particular. Quinn v. L. & N. R. R., 17 Ky. Law Rept., 811; Britton v. Atlanta, &c. Air Line R. R. Co., 43 Amer. Rept., 752, and authorities there cited. 1.

Case 100 — Petition Ordinary 1. The petition for removal to the federal court was on the ground that the suit arose under the Constitution and laws of the United States, being one against the receivers appointed by the federal court for an alleged wrongful and negligent act of their employes in the operation of the road by them as the officers of the United States Court,, and the petition should have been granted. Hardwick v. Kean Rec’r., 95 Ky., 529. 2.

<p>Case 101 — Petition Ordinary</p> <p>1. The demurrer to the petition should have been sustained because it fails to show that the bond sued on was executed at the term at which the county levy was made, or at a subsequent term, and therefore is not binding upon the sureties. Minnaird v. Commonwealth, 80 Ky., 587; Wilson v. Lynnville, 93 Ky., 250; Gen. Stat., sec. 4, art. 2, chap. 27.</p> <p>2. The conduct of the county officers, the county court itself, and the taxpayers of the district as set out in the answer was a material interference with the sheriff in the performance of his duties, and delayed and rendered more difficult the collection of the tax, which was levied for the benefit of the residents of the district, and they thereby increased the hazard of the sureties on the sheriff’s bond, which operates to release them. Martin v. Dailey, 8 Bush, 3S6; Craig v. Cox, 2 Bibb, 309; Howes v. Sanders, 3 Bibb, 360; Calloway v. Snapp, 78 Ky., 561; Aaron v. Mendel, 78 Ky., 428; Taylor v. Bank of Ky., 2 J. J. M., 568.</p> <p>3. In the^original action, which was a suit both on the county levy and the general official bonds of the sheriff, the same parties being sureties in each, the plaintiff was required to elect and elected to proceed against the general official bond, and no order was made dismissing the action on the county levy bond, until the final judgment which dismissed the whole action; the petition should have been dismissed without prejudice as to the county levy bond. Jones v. Johnson, 10 Bush, 649.</p> <p>4. Under certain contingencies provided for in section 9, article 3, chapter 27 of the General Statutes, the general official bond of the sheriff might be liable, and having elected to proceed on that bond, they can not pursue fin inconsistent remedy. 6 Amer. & Eng. Enc. of Law, p. 250.</p> <p>1. If the sheriff neglected to collect the taxes he and his sureties are liable for this plain breach of the bond, and the allegation by the sureties that they lacked knowledge or information as to-whether he collected the list was therefore insufficient.</p> <p>2. Settlements once mude can not be opened except by showing the particular fraud or the particular item constituting the mistake;. (81 Ky., 139, 147; 11 Bush, 120), but in this case there is not even a general allegation of fraud or mistake.</p> <p>3. The term of the county court may in fact extend over several days, but in law it is considered as one day and one term; (Dye v. Knox, 1 Bibb, 375; Garrard County Court v. McKee, 11 Bush, 238; Wilson v. Linnville, 93 Ky., 254), and the motion to make the levy having been made in November, 1890, at the regular meeting of the county court, and having been acted upon at the adjourned meeting of that term held in January, 1891, the levy was in contemplation of law made at the November term, 1890. Minnaird v. Commonwealth, 80 Ky., 578; Wilson v. Linnville,. 93 Ky., 254.</p> <p>4 There is no such allegation as shows that the sheriff was prevented or hindered in any way from collecting the taxes; mere expressions of opinion that they were illegal and void could not have hindered him.</p> <p>5. A judgment rendered in the action on the official bond is not a bar to this action on the county levy bond; the one contains entirely different covenants from the other, and was executed for entirely different purposes; a judgment in a former suit can never be successfully pleaded as a bar except as it is based upon the facts of the latter case. Freeman on Judgments, secs. 252, 256; Bell v. Melfield, 109 N. Y., 202; (4 Amer. St. Rept., 436).</p>

Case 102 — Petition Equity I. The appellant had a subsisting claim against Davis at the time of and before the execution of the conveyance, and just prior to its execution had sent him written notice of her intention to sue him and the conveyance was therefore fraudulent, as to the appellant’s claim. Dehony v. Dehony, 7 Bush, 217; Brady v. Briscoe, 2 J. J. M„ 212; Hawkins v. Moffit, 10 B. M., 81;!

Case 108 — Petition Equity 1. The exemptions provided in sec. 1697 of the Kentucky Statutes are given only to persons who have a family resident in this commonwealth. The appellee has a living husband and it is not shown that the moral duty and necessity devolves upon her to support herself and family, and it is the husband who has the family. 2.

Case 104 — Petition Equity 1. Under the provisions of section 4840 of the Kentucky Statutes, if a will is made when a testator has a child living, and a child is horn afterwards, such after-horn child or any descendant of his as shall not be provided for nor expressly excluded by the will, shall succeed to such portion of the estate as if the person had died intestate.