Volume 102 — Kentucky Reports

<p>Case 1 — PETITION ORDINARY</p> <p>APPEAL PROM BELL CIRCUIT COURT.</p> <p>1. The Constitution left to the General Assembly the duty of prescribing the manner of -election of school trustees, hut provided in section 147 that all other elections shall he by secret official ballot. The framers of the charter for cities of the fourth class, by not prescribing the viva voce manner of electing members of the board of education evidently intended thereby to leave their election to be held- under the provisions of th© Constitution, which, prescribed the manner of holding it unless it was otherwise provided by the General Assembly. Sections 147, 155, Kentucky Constitution; and sections 1446, 3588, 3589, 3596, 3606, 4364, 4434, 4471, Kentucky Statutes.</p> <p>1. The whole viva voce system which prevailed under the Constitution of 1849 continues in force in all elections of common school trustees, and in the district school elections, until changed by the General Assembly.</p> <p>2. The members of the board of education in, cities of ttha fourth class are nothing more nor less than school trustees.</p> <p>3. Even if the charter for cities of the fourth class, had provided in express terms that elections of school trustees therein, should be by secret ballot, it would have been a local law and in violation of section 59 of Constitution, Am. & Eng. Ency. of Law, vol. 3, p. 695..</p>

Case 2 — PETITION ORDINARY APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. The thirty days of grace allowed the assured to pay his assessment were for his convenience only, and he must have known, and understood that his policy would determine, unless he paid premiums as stipulated.

Case 3 — PETITION ORDINARY APPEAL FROM CAMPBELL CIRCUIT COURT. 1. The evidence shows where most of the money paid by the wife as premiums on the policy came from, and the evidence of ap-pellee fails to show that any part of it was his money. I. The appellee was never examined by a physician of the company and his life was insured without his knowledge or consent, and the policy was absolutely void.

Case 4 — PETITION ORDINARY APPEAL FROM LOGAN CIRCUIT .COURT. 1. Upon the evidence introduced the change of venue should have been granted. 2.

<p>Case 5 — PETITION EQUITY</p> <p>APPEAL FROM JEFPEBSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>1. The arrangement, entered into by the appellant and appellee was merely a device for the purpose of evading the usury laws; the laiw will purge such transactions of usury without regard to what may he 'their form. Tyler on Usury, p.p. 324, 361, 362, 364 and 365; Endlich on Building and Loan Associations, secs. 357 and '358; Amer. & Eng. Erne, of Law, vol. 27, under head of “Usury;” Shanks v. Stevens, 4 Ky. Law Rep.; Herbert v. Kenton Building a/nd Loan Association, 11 Bush; Gordon v. B. & L. Ass’n, 12 Bush; Henderson Building and Loan Ass’n v. Johnson, 88 Ky., 191; Southern Building and Loan Ass’n v. Harris, 17 Ky. L. R., 721; U. S. B. and L. Ass’n v. Scott, 17 Ky. L. Rep., 1244; Smith v. Berry, 5 B. M., 318; Greel v. Smalley, 1 Duval,. 359; Tousy v. Robinson, 1 'Met., 664.</p> <p>1. The payments under the contract are the consideration for the sale and conveyance of land and can not, therefore, he deemed '■usurious. And even if a greater rate than the legal rate of interest is charged to that extent the interest is part of the consideration for the purchase. Tousey v. Robinson, 1 .Met., 663; Greel v. Smalley, 1 Duval, 358; Smith v. Berry, 5 B. M., 318; Askins v. Lebus, 9 Ky. L. Rep., 162; Rh.des v. Henderson B. and L. Ass’n, 13 Ky. L. Rep., 778; Eddy v. Nortliup, 15 Ky. L. Rep., 435.</p>

Cast: 6 — INDICTMENT APPEAX. FROM CARTER CIRCUIT COURT, 1. Under the evidence of ¡the Commonwealth the appellant was clearly, entitled to the peremptory instruction; the State’s evidence not only failed to show that he sold the liquor, hut on the contrary showed that he did not. 2. There can he no such thing as an agent delegated to commit crime or violarte the law; and the instruction, that refers to agency ' was, therefore erroneous. South v. Commonwealth, 89 Ky., 494. .3.

Case 7 — BASTARDY WARRANT APPEAL FROM ROBERTSON CIRCUIT COURT. I. The statements of the affidavits, if they show anything, prove only that the appellant was guilty of a contempt, and the law does not authorize a court to punish one in contempt hy rendering a judgment against him in the case in which the contempt was committed without a trial thereof. Arnold v. Commonwealth, SO Ky., 300; in re Wooley, 11, Bush, 95; Amer.

Case 8 — PETITION EQUITY APPEAL PROM HENDERSON CIRCUIT COURT. 1. A 'chancellor ‘will promptly afford relief in a subsequent action from fraud or mistake occurring in judicial sales. Miller v. Craig, 83 Ky., 624; Dawson v. Goodwin, 15 B. M., 439; Cosby v. WicklifiCe, 12 B. M., 202. 2.

<p>1. Limitation op Actions — Confrict op Laws — Statutory Construction. — Under the provisions of section 2542 of the Kentucky Statutes that “when a cause of action has' arisen in any other State or country between residents of such State or country o!r between them and residents of .another State or country, and by the laws of the State or country where the cause of action accrued, an action can not be maintained therein, by reason of the lapse of time, no action thereon can be maintained, in this. State,,” an action between citizens of another State upon a, cause of action which accrued in another State can be maintained in Kentucky if the action would not be barred! in such) state if it had been brought there, although, it would be 'bahred if the cause of action had accrued in this State,</p>

Case 10 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. The marriage of the appellee to the plaintiff, Geo. F. Barth on March 16, 1892, while her first husband, George Tannehill, was living and undivorced, was absolutely void. Kent’s Commentaries, vol. 2, star page 79; Fenton v. Reed, 4 Johnson, 52 (4 Am. Dec., 244); Williamson v. Parisen, 1 Johns.

Case 11 — PET1TION ORDINARY APPEAL PROM MONTGOMERY CIRCUIT COURT. 1. The transaction between the appellants and the Farmers’ Bank lacked the chief requisite necessary to comprise a discounting, and 'that was that there was no chose in action or evidence of debt in existence which could be the subject of an assignment and no negotiable paper or other evidence of debt which was or could have been transferred to the bank.

Case 12 — ¡PETITION ORDINARY APPEAL EllOM CALDWELL CIRCUIT COURT. 1. To authorize a magistrate under the provisions of section 1930 of the Kentucky Statutes to imprison an alleged fugitive from another state, it must be shown to' him by complaint in writing on oath that the crime has been committed in a foreign state, anid that the accused stands charged with the commission of the crime and has fled therefrom. 2.

Case 13 — PETITION ORDINARY APPEAL IiROJt MASON CIRCUIT COURT. 1. Appellee was presumed to know the law and has not presented a case entitling him to relief on account of ignorance of it, which, comes within the equitable rule laid down in the case of Ray & Thornton v. tbe Bank of Kentucky, 3 B. M., 510. As to any mistake of fact, there could have been none because the facts, were peculiarly in his knowledge. 2.

Case 14 — PETITION EQUITY APPEAL PROM MARION. CIRCUIT1 COURT. !L Neither of the conditions upon' which the policy holder was entitled to, the paid-up policy were complied with. He neither surrendered the policy before default nor within six months af-terwards, and did not demand the paid-up policy within that time. He can not come into a court and enforce this right which he has lost under the terms of the policy.

Case 15 — PETITION ORDINARY APPEAL FROM POWELL CIRCUIT ■ COURT. 1. There being no provisions in the charter for cities of the fifth class for an educational board, the powers granted to the city council under 'its old charter, were expressly preserved intact by the provisions of the common school law. Section 4433 of the Ky. Stats. 2.

<p>1. Practice in Criminal Cases — Appeals—Bills oi? Exception— Orders Made in Vacation. — The judge of the circuit court has no power during Vacation to make an order further extending the time for filing a hill of exceptions beyond the .time fixed-by an order of .court made in term time, and such an order does not operate to extend the time for filing the bill.</p> <p>2. Same, — Under the provisions of subsec. 4 of sec. 336 of the Criminal Code, that “if time be given beyond the term at which the judgment is rendered to present a hill of exceptions, the tran- • script of the record may be filed in the clerk’s office of the Court of Appeals within sixty days after the hill of exceptions is made a part of the record,” orders made or attempted to be made by the circuit judge in vacation further extending the tinUfc for the filing of the bill of exceptions are void, and the transcript not having been filed 'in the clerk’s office of the Court of Appeali within sixty days from the expiration of the time originally given by an order of court in term time in which to file the hill of exceptions, the Court of Appeals has no jurisdiction to try the appeal, and the same will he dismissed.</p>

<p>Case 17 — INDICTMENT</p> <p>Appeal fbom eockcastle circuit coubt.</p> <p>1. The demurrer to the indictment should have been sustained; it ■alleged a sale of liquor “by the jugs full,” when the local option act, under which the indictment was framed expressly permits . the salé of not less than twenty gallons, and the jugs may have contained that much.</p> <p>2. Under the facts in this case the sale was in Lincoln county and not Rockcastle county. Black’s Intoxicating Liquors, sees. 267-268; Benjamin on Sales, secs, 181, 327;; Commonwealth v. Russell; 11 Ky. Law Rep., 576; Buckman v. Commonwealth, 11 Ky. Law Rep., 526; Duncan v. Lewis, 1 Duvall, 184; Crawford v. Pish, 7 Dana, 60; Sweeney v. Owsley, 14 B. M., 332.</p> <p>3.. The soliciting of orders by appellant from citizens of Rockcastle county, and the distribution by him of printed orders on postal cards directed to* him, show that the whole scheme was merely ■a device to evade the local option law. If such plain evasions OÜ the law are permitted to become successful the very purpose and •intention of the law itself will he defeated. 26 Fed. Rep., 515, 58 Vt., 140; 23 Fed. Rep., 134; Commonwealth v. Burgett, 136 Mass., 450.</p>

Case 18 — PETITION EQUITY APPEAR PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. Where a subcontractor gives the required' notice to the owner or employer he acquires a lien only from the date of notice, and if before that time an attaching creditor of the contractor has ac•quired a lien, the lien thus acquired is superior to that of the contractor. Meier v. Lewis, 10 Ky. Law Rep., 773; Hardin t. Paul, 9 Ky. Law. Rep., 489. 1.

Case 19 — SPECIAL PROCEEDING APPEAR PROM BOONE CIRCUIT COURT. 1. It is not the duty of the commissioners to determine, either as a hoard or otherwise, the necessity for the condemnation of the land, that was the duty of the court, and the only duty of the commissioners was to view the premises and award the damages. (See sec. 836, Ky.

Case 20 — PETITION ORDINARY APPEAL FROM CLARK CIRCUIT COURT. 1. All provisions of the statute are mandatory upon the persons who are intrusted with -their execution and.such officers.are liable for their violation. ' McCreary on Elections, p. 127; Bowers v. Smith (Mo.), 33 Am. State Reps., 501; State eco reL, Brooks v. Fran-scham (Mont.) 40 Pacific Rep., 1. 2.

Case 21 — PETITION ORDINARY APPEAL FROM WHITLEY CIRCUIT COURT. 1. The evidence clearly shows that the Lawsons were partners in the transaction, sharing in the profits of speculation in county and State claims, and that they knew J. L. Lawson was acting in violation of the statutes, and the amended answer setting up these facts presented a complete defense and should have been permitted to be filed.

Case 22 — PETITION ORDINARY APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND 'EQUITY DIVISION. 1. The plaintiffs do not come into court with clean hands, because they 'are members of an organization which was at the time engaged in boycotting ’the appellees, and parties so engaged iff an illegal proceeding will not be heard in equity. Nash v. Page, 80 Ky., 539; State v. Stuart, 59 Am. Reps., 710 and note; Sherry v. Perkins, 9 Am. State Reps., 689; Spies v. The People, 3 Am.

Case 23 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT. 1. Evidence as to son assault demense is not admissible, unless such assault be set up by the defendant. Newman’s Pleading and Practice, 531; 2 Chitty's Pleading (Am. Ed.), 501; Rogers v. Wajts, 44 Me., 245. 2. If the party first assaulted uses excessive force beyond, what is necessary for self-defense he is liable for the excess.

Case 24 — PETITION ORDINARY APPEAL FROM ROBERTSON CIRCUIT COURT. 1. A tenant is estopped to deny his landlord’s title or set up any claims adverse to it. Barbour’s Digest, vol. 2, p-. 901; Trabue v. Lamage, 80 Ky., 323; Saunders v. Moore, 14 Bush, 97. 2. The judgment in the forcible entry and detainer suit of Evans v. Lytle is in full force and effect, and is conclusive of the right of Mrs. Evans to the possession of the land.

Case 25 — PETITION ORDINARY APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. L In levying on the property of appellants for the debt of another and detaining same, the sheriff is liable for such detention whether or not he .had notice of the ownership; a notice to his bailiff in charge of the property was notice to him.

Case 26-PETITION EQUITY APPEAL FROM FAYETTE CIRCUIT COURT. I. If a lien creditor exhausts the lien estate without full payment, the general creditors have the reciprocal right to make as much of their debt out of the individual or general estate as the lien creditor has out of the lien estate* and if then any individual or general assets of the dead debtor should remain undisposed of, they shall be distributed pari passu among all the creditors, regardless of class.

Case 27 — SPECIAL PROCEEDING APPEAL PROM HART CIRCUIT COURT. 1. Appellee had full knowledge of appellant’s understanding with' Cull that Cull would not use the note until he got two other co-sureties on it with appellant, and appellee can not violate it and escape responsibility. 2. The allegations of appellant’s answer stand uncontroverted and must be taken for confessed. Section 126 Civil Code; Carpenter v. Hackney, 1 Mar., 155. 1.

Case 28 — PETITION ORDINARY APPEAL PROM LAUREL CIRCUIT COURT. 1. The word “slander” does not embrace libel. Ky. Statutes, Sec. 1661 and 2516; Civil Code, Secs. 123 and 124; Townshend on Slander and Libel, chap. 1. 1. The word slander as used in the statute embraces libel; one may be slandered by words spoken, or by words written. Bacon’s Abridgement Title Slander.

Case 29 — PETITION ORDINARY APPEAR FROM BREATHITT CIRCUIT COURT. 1. Where something remains to be done for the purpose of testing the property, or fixing the amount to be paid, by selecting, weighing, measuring, counting or the like, the property will pass before that act,is done where it is plain from the contract that such was the intention of the parties.

Case 30 — PETITION ORDINARY APPEAL FROM PLOY'D CIRCUIT COURT. 1. The writing was not a proposition1 to guaranty ‘which would have required notice of acceptance, but was an actual guaranty and required no notice. Brandt on Suretyships and Guarantees, 2d ed. vol. 1, pages 289-90. 2.

<p>*Case 31 — PETITIONS ORDINARY</p> <p>THE FIRST FIVE APPEARS FROM THE DAVEISS CIRCUIT COURT; THE NEXT THREE FROM THE NICHOLAS CIRCUIT COURT, AND THE LAST-NAMED FROM THE SIMPSON CIRCUIT COURT.</p> <p>1. Where there is a grant of privileges and franchises to a corporation in consideration of a bonus to the State, and there are words which manifest an intention upon the part of the State to relinquish the right of taxation, there is a contract which can not be changed or altered by subsequent legislation. Franklin County Court v. Deposit Bank of Frankfort, 81 Ky., 870; Farmers’ Bank v. Commonwealth, 6 Bush, 127; N. J. v. Yard, 5 Otto; Greenwood v. Union Freight R. R. Co., 105 U. S., 13; Maine Central R. R. Co. v. Maine, 5 Otto.</p> <p>2. Incorporation of the act of 1856 as part of the contract made between the banks and the State under the provisions of the Hewitt bill can not have the effect of nullifying the plain language of the latter; the act is to be considered as a whole, and when the court finds a plain intent to exempt from further taxation, plainly and unequivocally expressed, it must consider any reservations of power as applying to other legislative enactments which will not contradict the agreement in respect to the right of taxation. N. J. v. Yard, 5 Otto.</p> <p>3. The Hewitt law should be considered as. a general amendment to the charters of all banks who might accept provisions of the same; and surely an agreement on the part of the State to surrender the right of further taxation, plainly and unmistakably surrendered, can not have a proviso inserted by construction to the effect that the Legislature nevertheless retains the right of further taxation. State Bank of Ohio v. Knoop, 16 Howard, 369; Dodge v. Woolsey, 18 Howard, 331.</p> <p>4. The questions presented in these appeals have been decided by this court (Bank tax cases, 97 Ky., 590). And the Supreme Court of the United States has held the same way in the cases of Bank of Commerce v. Tenn., 163 U. S., 416.</p> <p>1. The contract rights of the banks have been settled by the opinion of this court in the bank tax cases (97 Ky., 590), and the people of the State have adjusted themselves to the same, and the doctrine of stare decisis should prevail.</p> <p>2. Money paid under a mistake of law or fact may be recovered; and this is especially applicable where laxes have been paid under illegal taxation, because the tax payer has no voice in the imposition of the burden and has the right to presume that the power of taxation has been lawfully exercised. Gallatin v. Bradford, 1 'Bibb, 209; Underwood v. Brockman, 4 Dana, 314-317; Ray v. Bank of Kentucky, 3 B. M., 513-514; Gratz v. Redd, 4 B. M., 190; City o,f Louisville v. Zanone, 1 Met., 151; MdMurtry v. Ky. Cen. R. R. Co., 84 Ky., 462; Gibson v. Ky. Grangers’ Mut; Ben. Soc., 8 Ky. Law Rep., 520; Montgomery v. Provance, 10 Ky. Law Rep., 635; Davezac v. Seiler, 12 Ky. Law Rep., 599; First Nat. Bank v. Behan, 91 Ky., 560; Clore & Sons v. Davis, 15 Ky. Law Rep., 399; Titus v. Rochester Ger. Ins. Co., 97 Ky., 567; City of Cov-ington v. Powell, 2 Met., 226; City of Louisville v. Henning & Speed, 1 Bush, 381; City of Louisville v. Anderson, 79 Ky., 334; Fecheimer Bros. & Co., v. City of Louisville, 84 Ky., 307; Tor-bett, Trustee, v. City of Louisville, 9 Ky. Law Rep., 202; City of Newport v. Ringo’s Ex’trix., 87 Ky., 635; L. & N. R. R. Co. v. Hopkins Co., 87 Ky., 605; L. & N. R. R. Co. v. Commonwealth, 89 Ky., 531; Trustees of Stanford v. Hite, 2 Ky. Law Rep., 386;1 City of Louisville v. Anderson, 79 Ky., 339.</p> <p>3. If tax is paid' voluntarily it can not be recovered, but if paid involuntarily it comes within the rule and may be recovered. If the property owner may be coerced by summary proceedings, such as the sale of property by the tax collector without judicial proceedings, or by fine against the owner, then the payment is not voluntary, but involuntary. Tyler v. Smith, 18 B. .M., 799; City of -.Covington v. Powell, 2 Met., 229; City of Louisville v. Anderson, 79 Ky., 343; L. & N. R. R. Co. v. Hopkins Co., 87 Ky„ 613; Southern Div. C. & O. R. R. Co. v. Marion Co., 11 Ky. Law Rep., 329; Mills’ Guardian v. City of Hopkinsville, 11 Ky. Law Rep., 165; Fecheimer Bros. & Co. v. City of Louisville, 84 Ky.,, 307-308; City of Newport v. Ringo’s Ex’trix., 87 Ky., 635.</p> <p>4. In the absence of express legislative authority taxation, can not be recovered by suit. Turnpike Commissioners v. L. & N. R. R. Co., 8 Ky. Law Rep., 348; Baldwin v. Hewitt, Auditor, 88 Ky.,' 673; Louisville Water Co. v. Commonwealth, 89 Ky., 244.</p> <p>1. The power of taxation is a sovereign power delegated by the people to their representatives to be exercised only for the benefit of the people at large; and is one which the Legislature can not divest itself of, and which can not be taken from it by implication.</p> <p>,2. The taxes were paid voluntarily by the banks into the State Treasury; no coercive measures were used by the city or could ■have been, for it had no power to coerce the collection of same. Kentucky Statutes, sec. 3629; L. & N. R. R. Co. v. Hopkins Co., 87 Ky., 605.</p> <p>3. The city could not have recovered interest upon taxes from the banks, and interest should not have been adjudged against it upon the recovery of the taxes paid by the bank.</p> <p>1. Appellant having in the past borne the- burden of its contract with1 the city should now be allowed the benefits thereof. Bank tax cases, 97 Ky., 590.</p> <p>I. Even ujnder the decision of the court in the bank tax cases (97 Ky., 590), the Simpson County Bank, having been organized since the Hewitt law went into effect, can not claim a binding -contract made and entered into for a consideration, under the provisions of that act; it not then being in existence could not have surrendered anything under the provisions of . that act.</p>

Case 32 — PETITION ORDINARY APPEAL PROM MONTGOMERY CIRCUIT COUR-. 1. The preponderance of the evidence shows conclusively that appellant only signed tHe note as surety. 2. The right of contribution as between co-ohligors does not grow out of a contract relation, hut is an equity.

Case 33 — PETITION ORDINARY APPEAL PROM JEFPERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. No objection having been made in the lower court to the filing of the hill of exceptions, the question can not he raised for the first time in tlie Court of Appeals. Downing v. Bacon, 7 Bush, 684; Smith y. Blakeman, 8 Bush, 480; Freeman v. Bremhan, 17 B. M., 608; Vandever v. Vandever, 3 Met., 137; Civil Code, sec. 333, •sub-section 3. 1.

<p>Case 34 — INDICTMENT</p> <p>APPEAL PROM DAVEISS CIRCUIT COURT.</p> <p>1. It was error to refuse defendant’s offer 'to prove specific acts of unchastity. Franklin v. Com., 92 Ky., 616; Carroll v. State, 32 Tex. Crim. Rep., 431 (40 Amer. St. Rep. 786); Woods v. People, 55 N. Y„ 515; State v. Johnson, 28 Ver., 512; State v. Reed, 39 Ver., 417; State v. Murray, 63 N. C., 31; Benstine v. State, 2 Lea, 169 (31 Amer. Rep., 593.)</p> <p>■2. Under the provisions of section 596 of the Civil Code, the party introducing a witness may contradict him by other evidence, and! by showing that he had made statements different from his testimony. Champ v. Com., 2 Met., 17; Loving v. Com., 80 Ky., 507.</p> <p>4. The intercourse must have been “forcible and against her will” in, order to constitute rape; under instruction No. 1, if defendant carnally knew her against her consent he wras guilty, without any force and not necessarily against her will, but against hen consent. Blackstone, Vol. 4, 210; Hale’s Pleas of Crown, Vol. 1, 628; Blair v. Com., 7 Bush, 228; Whitaker v. State, 36 Amer, Rep., 856.</p> <p>1. Specific acts of unchastity by the prosecutrix, can not be shown. 19 A. & E. Enc. of Law, 962; McDermott v. State, 13 Ohio St., 334; 8 Ohio St., 643; 15 Ark., 624; 3 Kelly (Ga.), 422; 58 Ind., 355; Rex v. Hodgson, Russell & Ryan, 211; Underhill on Evidence, p. 25, 84 Ala., 435; 29 Nev., 123; 63 Ind., 149; 52 Amer. Rep., 501; 113 Mass., 210.</p> <p>,2. A party who introduces a witness to prove certain facts, and he testifies they did not transpire, can not introduce other witnesses to show that he had stated differently. 2 Met., 17; 80 Ky.. 507; 12 Bush,' 181.</p> <p>3. The instructions taken as a whole and considered together presented the issues fairly to the jury.</p>

Case 35-dPETITION ORDINARY APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1.

<p>Case 36 — PETITION ORDINARY</p> <p>APPEAL PROM HARLAN CIRCUIT COURT.</p>

Case 37 — PETITION ORDINARY APPEAR PROM LETCHER CIRCUIT COURT. 1.If thei certificate of the clerk is thought to be technically insufficient, the motion to dismiss should be overruled and appellant given leave to have the clerk correct the certificate. 1. The certificate of the clerk to the transcript does' not come within the requirements of the Civil Code, secs. 737-738-739. 2.

Case 38 — PETITION EQUITY APPEAL FROM BULLITT CIRCUIT COURT. I. The affidavit of the claimant and the witness, Phelps, were in accordance with the requirements of the statute, and the claim should have been allowed. 1. The affidavit of the witness, Phelps, fails to 'give the reasons why he believes the claim of appellant to be just, and is therefore 'insufficient under the provisions of section 3870, of the Kentucky Statutes. 2.

Case 39 — INDICTMENT APPEAR PROM KNOX CIRCUIT COURT. 1. The evidence by the police officers that appellant some time after the shooting attempted to draw his pistol on them was not competent, as part of the res gestae; was highly prejudicial to appellant, and must have poisoned the minds of the jury against him. Hallo,well v. Hallowell, 1 Monroe, 130; Am. & Eng. Ene. of Law, vol. 21, pages 99-111; Coppage v. Com., 3 Bush, 532. ■ 2.

Case 40 — -PETITION ORDINARY APPEAL FROM PULASKI CIRCUIT COURT. 1. Under the provisions of the charter under which appellee was operating, it was the duty of the company to erect fences and cattlegaps at all points where it might be necessary. See Acts of 1871-2, page 23. 2.

Case 41 — PETITION ORDINARY APPEAL 1?R0M MONTGOMERY CIRCUIT COURT. . l. The evidence shows conclusively that appellant was only surety on the note sued on, and that the bank had knowledge that such was the case. i2. The payment by Mitchell, the principal, of the interest in advance without the knowledge or consent oí the surety, releases the surety. Norton v. Roberts, t Monroe, 492; Edwards v. Coleman, 6 Monroe, 57?; Cooper v. Fisher, 7 J. .1.

Case 42 — PETITION EQUITY APPEAL EROM MASON CIRCUIT COURT. 1. The declarations of the dedicator in selling ofE lots around the meeting house square which he had dedicated should be admitted to show the extent and scope of the dedication. Rowan v. Portland, 8 B. M., 282; Beatty v. Kirk, 2d Peters, 212; Barclay v. Howell, 6 Peters, 498; Westfall v. Hunt, 8 Ind., 174. 2.

Case 43 — PETITION EQUITY APPEAR PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1.

Case 44 — PETITION ORDINARY APPEAL FROM DAVEISS CIRCUIT COURT. 1. All who participate in misdemeanors are principals, and therefore, if appellant was a “whore house drummer” he was punishable as a whore house keeper, and an indictable offense was charged against him. Bishop’s Crim. Law, 2d ed. vol. 1. sec. 483; Ross v. Com,, 2 B. M., 417. 2. But if the plaintiff sustains actual damage, whether the words were actionable per se or not, he may maintain, his action.

<p>1. Indictments — Limitation.—An indictment charging amisdemeanor is good without the formal averment therein that it was committed within twelve months before the finding thereof, if the date alleged for the commission of the offense was within twelve months before the finding of the indictment.</p> <p>2. Plea on Former Acquittal. — A plea that a demurrer had been sustained to a former indictment for the same offense is not a good plea of former acquittal, unless it be further pleaded that ithe former indictment contained matter which was a legal defense or bar to the present one.</p>

Case 46 — -PETITION ORDINARY APPEAL FROM CHRISTIAN CIRCUIT COURT. 1. The screen and spark-arrester are not required to be such as will absolutely under all circumstances prevent the escaping of sparks. Kentucky Statutes, sec. 782; K. C. R. R. Co. v. Barrow, 6 Ky. Law Rep., 242; K. C. R. R. Co. v. Threlkeld, 10 Ky Law Rep., 323; L. & N. R. R. Co. v. Taylor, 13 Ky. Law Rep., 374; N. N. & M. Y. R. R. Co. v. Terry, 16 Ky. Law Rep., 316; L. &. N. R. R. Co. v. Mitchell, 17 Ky.

Case 47 — PETITION EQUITY APPEAR PROM PAYETTE CIRCUIT COURT. 1. The living separate and apart without co-habitation for five consecutive years next before the application for divorce entitles either party who has been during that time a resident of this State to a divorce, whether in fault or not. Beckett v. Beckett, 17 B. M., 370.

Case 48 — INDICTMENT APPEAL PROM WIItTLEY CIRCUIT COURT. 1. With respect to those through night trains which pass through .Williamsburg in the dead hours of night when the depot building was never open or occupied, there was no regular passenger depot at that point within a fair and reasonable construction of the statute. Sec. 784 of the Ky. Stat.; Terre Haute & I. R. R. Co. v. State, 41 N. E. Rep. (Ind.), 952; Brady v. The State, 15 Lea. (Tenn.), 628. 2.

<p>Case 49 — PETITION EQUITY</p> <p>APPEAL PROM HOPKINS CIRCUIT COURT.</p> <p>(Case argued orally.)</p>

<p>1. Slander of Unmarried Woman. — Where the reasonable and well understood effect of words spoken of and concerning an unmarried woman amount to the statement that she is unchaste the words are actionable per se.</p>

Case 51 — PETITION ORDINARY APPEAL FROM KNOX CIRCUIT COURT. 1. The exception in the statute applies to the nurse in charge of an invalid or child, but not to the invalid or child, and applies to the officer in charge of the prisoner, but not to the prisoner. The officer may follow the prisoner, but the prisoner can not follow the officer into the car provided for his race. 2.

Case 52 — PETITION EQUITY APPEAL FROM MUHLENBERG CIRCUIT COURT. 1. At the time Mrs. Baker created the debts she was a married'1 woman and had no power to bind herself, and therefore at the time of the conveyance to Covington the claims of appellees were not existing demands against her, and the homestead was* exempt as against them. 1.

Case 53 — -PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION, 1. A suit under the act of 1856 has a two-fold purpose; first, to adjudge the assignment; second, to settle the estate. Ky. Stats., secs. 1910 to 1917; Civil Code, secs. 426 to 438. 2. The jurisdiction of the court that first appoints a receiver in a preference suit is exclusive and extends to the whole estate of the insolvent, wherever situated. McAlister v. Savings Bank, 80 Ky., 694. 3.

Case 54 — PETITION EQUITY APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1.

Case 55 — AGREED CASE APPEAR PROM JESSAMINE CIRCUIT COURT. 1. The principle announced in the case of Covington v. Southgate, 15 B. M., 491, and in similar cases, has no application under the provisions of our plresent Constitution. It was the policy of its framers, plainly and clearly expressed, to make all property within the taxing district alike subject 'to taxation, unless it should be expressly exempted. Ky. Constitution, secs. 170, 171, 174 and 181.

Case 56 — PETITION EQUITY APPEAL FROM KENTON CIRCUIT COURT. 1. Appellant’s vehicles, as shown by the allegations of the petition,. were used exclusively for the purpose of delivering coal to its customers, and not for hire, and they were not, therefore, required to pay the license fees under the terms of the ordinance. 2.

Case 57 — PETITION EQUITY APPEAR PROM JEPPEBSOÍÍ CIRCUIT COURT, CHANCERY DIVISION. 1. .The act of Congress, under which the money was recovered, was entitled! “an act for the relief of the estate of C. M. Briggs, deceased,” and not for the relief of Walker or Shotwell or any one else; the claim was barred by limitation long before the passage of that act, and the loyalty of the claimant was required to be established before the claim could be considered by the court of…

Case 58 — PETITION ORDINARY APPEAL FROM ESTILL CIRCUIT COURT. 1. This is an action for an injury to character and reputation, and was properly brought in the county in which the acts causing the injury occurred. Secs. 72, 74 and 78 Civil Code. 2. The order quashing the summons was a final order because it put an end to the litigation. Dudley v. Ky. High School, 9 Bush, 576. 1. The order quashing the return of the sheriff was not a final order. 2.

Case 59 — INDICTMENT APPEAL PROM LAUREL CIRCUIT COURT. I. The demurrer to the indictment should have been sustained because of its failure to allege that the Louisville & Nashville Railroad Company was a corporation, and had authority to' operate in this State. , 2. The evidence of the witness, Johnson, with reference to the printed rules of the company, which were not produced on the trial, was certainly incompetent. Greenleaf on Evidence, vol. 1, secs. 8 to 13. 1.

Case 60 — INDICTMENT APPEAT. PROM KNOX CIBCUIT DOUBT. 1. Shooting and wounding in sudden heat and passion under section 1242 of the Kentucky Statutes is not a degree of the offense of malicious shooting and wounding with intent to kill, under section 1166; to make it a case of malicious shooting andl wounding with intent to kill, the Commonwealth must make out a case such as would he murder if death had been caused by the wound, and therefore malicious shooting and wounding…

Case 61 — MOTION APPEAR PROM KNOX CIRCUIT COURT. 1. Under the provisions of sections 1142 and 361 of the Kentucky Statutes, appellant was entitled to the same compensation for the services performed by him as special bailiff as are allowed ■to sheriffs for expenses, etc., in transporting prisoners to the penitentiary.

<p>1. Fraud in Procuring Note — Negligence—Estoppel.—Where one' is induced (to sign a promissory note by the fraud of another, he, thinking at the time that he was signing an official document, hut negligently failed to put on his glasses so that he might see what was the character of the paper he was signing, and' the note fell into the hands of an innocent party, he is estopped as against such party to deny the execution of the note, or bis• liability thereon in the hands of such third party,</p>

Case 63 — PETITION EQUITY APPEAL FBOW FLOYD CIRCUIT COURT. 1. It was the duty of the chancellor to allot dower for the whole estate out of the unalienated lands of which the husband died the owner and in possession. Scribner on Dower, voi. 2, page 638, and authorities there cited; Moran v. Conn., 3 Bush, 58; Lawsor v. Moore, 6 Dana, 471; Dembitz on Land Titles, vol. 2, page 833. 2.

<p>1. Apportionment oe School Funds — Statutory Construction.— Under the provision of section 2974 of the Kentucky Statutes (being a part of the charter for cities of the first class) the school board in cities of the first class stands in the place of a county superintendent of schools with reference to the returns which said superintendents are required to make as to the number of school children in each district under the provisions of section 4375 of the Kentucky Statutes.</p> <p>2. School Census — Returns—Statutory Construction. — Under the provisions of section 2974, a census of the children of school .age is required to be taken at least once every five years, and: in such years a return of the census must be made to the Superintendent of Public Instruction; but for the years in which no actual census is taken, it is sufficient if the board makes the certificate to the superintendent of the number of children of school age as shown by the last census with such an increase as has been ascertained in the manner prescribed by the statute; since the provisions of section 4449 of the statutes requiring trustees to certify to the superintendent the name, age, sex, etc. of the children of school age does not apply to cities of the first class.</p> <p>3. Constitutional Construction. — The provision of section 186 of the Kentucky Constitution that “each county in the Common wealth shall be entitled to its proportion of the school fund on its census of pupil children for each school year,” does not require a.n actual census every year of the school children as a condition precedent to the right of a county or school district to receive its proportion of the school fund; the chief purpose in view in that section was to declare each county entitled annually to a share of the funds in proportion to the number of pupil children living therein, and the manner of ascertaining that number wa3 . not the subject matter in view.</p> <p>4. Constitutional Law. — 'Legislation is not to be regarded as special merely because it in fact applies to only one city in a State, that city being the only one of its class.</p> <p>5. Constitutional Construction. — When there has been an addition of territory to the city since 'the former school census the consequent) increase of children is not to be taken into account in fixing the ratio of natural increase as prescribed by the statute.</p> <p>■C. Estoppel. — The Superintendent of Public Instruction is not es-topped to question the accuracy of a school census by the fact that one distribution of the school fund has been made based upon such census.</p>

Case 65 — PETITION ORDINARY APPEAL. FROM HENDERSON CIRCUIT COURT. 1. A municipal corporation has authority to grade or regrade a street for any public purpose without incurring any responsibility to holders of adjacent lots, though a street may be raised several'feet thereby; nor is this rule changed by any provision' of the present Constitution.

Case 66 — DISTRESS WARRANT APPEAL PROM BOURBON CIRCUIT COURT. (Brief not in the record:) 1.

Case 67 — PETITION EQUITY APPEAI. FROM BELT. CIRCUIT COURT. 1. Locke left no bid with the sheriff on this lot and the act of the sheriff in crying such a bid was fraudulent and void, and his return to the’ effect that the lot was sold to appellant was void. Brannin, etc. v. Broadus 94 Ky., 33. Addison on Contracts, page 1. 2. This is not a collateral attack on the officer’s return, but a direct attack by petition to set it aside for fraud. Commonwealth v..

<p>1. Public Officers — Statutory Constbuctiox. — The provisions of sections 1761 — 1764 with reference to certain officers and their ■deputies in counties of this State having a population of 75,000 or over, and requiring monthly reports by them to the auditor of public accounts, apply to the commissioner, and receiver of Jefferson county, that being the only county in the Statei having such population.</p> <p>2. Constitutional Law — Delegation oe Authority. — Section. 1762 is not unconstitutional because it delegates the power to tha circuit court and county court to fix the number and compensation of deputies of certain public officers and the amounts to be allowed for their office expenses.</p> <p>3. Constitutional Law. — The provisions of the sections referred to are not unconstitutional as violative of section 59 of the 'Constitution, forbidding local or special laws, because they apply to only one county; the statute in fact applies to all counties of the same class, and is not special legislation because there happens to be only one county of that class in the State.</p>

Case 69 — PETITION EQUITY 1.- An unrecorded mortage or a bond for title has precedence over a lien created by execution or attachment where actual notice has been given the creditor before the sale under the execution or attachment. Baldwin v. Crow, 86 Ky., 679; Schmidt v. Carter, 95 Ky.. 4. 2.

Case 70¡ — PETITION EQUITY APPEAR PROM WOODFORD CIRCUIT COURT. 1. The provisions of section 2120 of the Kentucky Statutes, and those of the Civil Code, section 423, sub-section 3, both treating . of limitation of actions for divorce, should be construed and harmonized, if there is any conflict between , them, on reasonable grounds.

Case 71 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT. 1.The provisions of sections 2064 and 4841 of the Kentucky Statutes were intended to do away with survivorship under wills, and the spirit and intention of these statutes have been construed by the court as modifying or changing the common law doctrine of survivorship, and the wordi “children” held to include descendants, unless the will showed a contrary intention.

<p>1. Evidence — Transactions with Decedent. — In an action by one ' against the administrators o£ a decedent for the possession of notes payable to the deceased,'claiming! that they were given to him by her a short time before death and afterwards, taken from him by her said administrators, it was not proper to permit ■ plaintiff to testify on the trial to statements made by him to one of the administrators when the latter demanded possession of the notes as to what occurred between him and the deceased at ' the time of the alleged gift and delivery.</p> <p>2. Instructions. — Upon the trial of such an issue an instruction by the court to the jury that they should find for the plaintiff if they believed that deceased delivered the notes to plaintiff . with the purpose of giving them to him, even though they were not assigned in writing, was erroneous and misleading, the lat- ‘ ter clause thereof being calculated to make the impression upon ■ the jury that the written assignment of them was wholly unnecessary, and was of no consequence.</p> <p>3. Same. — It was also error to instruct the jury that the mere declarations of the decedent of her purpose to give the plaintiff her property, or some portion of it, would not vest him with any right or interest in the notes, unless they believed from the ■ evidence that the decedent delivered the notes to the plaintiff . for the purpose and with the intention of giving, them to him.</p> <p>4. Peremptory Instruction. — In view of the fact that the plaintiff had possession of the notes after the death of the decedent and of the evidence of declarations by her to make provision for him, the case was properly submitted to the jury, and a peremptory in- ' struction was properly refused.</p>

Case 73 — PETITION ORDINARY APPEAL PROM POWELL CIRCUIT COURT. 1. A municipality being purely a creates! of statute can: not impose a license tax unless it is expressly authorized so to do by the legislature, and even when this authority is given, the power to license can not he extended beyond the terms of the municipal charter. 13 Am. & Eng. Ency. of Law, pages 529-530, and note on page 531; Commonwealth v. Voorhies, 12 B. M., 361. 2.

Case 74 — PETITION ORDINARY APPEAL EROM BREATHITT CIRCUIT COURT. 1.

Case 75 — PETITION EQUITY APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. A. A contingent remainder may be conveyed under the provisions: of section 6, art. 1, chap. 16, General Statutes (White’s Trustee v. White, &e., 86 Kentucky, 604;) but if the grantor or devisor dies before it becomes effective, and no estate has ever vested in him, the grantee takes, nothing. Leppe v. Lee, 92 Kentucky, 21. . 2.

Case 76 — AGREED CASE APPEAL PROM FRANKLIN CIRCUIT COURT. 1.

Case V —PETITION EQUITY ■ AT PEAL FROM MONTGOMERY CIRCUIT COURT. 1. The demurrer to each separate paragraph of the petition should have been sustained; each separate paragraph of a petition' should contain allegations sufficient to authorize a judgment if it stood alone. Spencer v. Babcock, 22 Barbour, 356. 4, The court erred in refusing to permit the first answer to be filed, the same having been tendered the same day demurrer to the-...petition was overruled. 3.

Case 78 — PETITION ORDINARY Appeal from jepperson circuit court, law and equity division. 1, Actions sounding in tort are distinctively transitory in their nature, and according to the well-known rule of common law, which ■is inforced in this State, governing the venue of transitory actions, that court has jurisdiction of the subject matter which obtains jurisdiction of the person.

<p>Case 79 — PETITION EQUITY</p> <p>APPEAL FROM MASON CIRCUIT COURT.</p> <p>(Record and briefs not in the office.)</p>

Case 80 — PETITION EQUITY APPEAL FROM BELL CIRCUIT COURT. 1. The creditor is not compelled to look alone to the securities or sureties, or even joint obligors, where his debtor has made a transfer of property that brings his estate within the operation of the act of 1856; to do so would be to take from him some rights and privileges which are guaranteed to him, together with, all other creditors, without regard to what security they may have or hold for their debts.

Case 81 — WARRANT APPEAL PROM BOYLE CIRCUIT COURT. 1. Appellee had no right as a druggist to split a prescription for liquor and let thé party have one part at onei time and, another part at another; but he must have a separate prescription for each separate sale, Carrington v. Commonwealth, 78 Ky., 83; Commonwealth v. Day, 15 K. L. R., 456; Ky. Statutes Sec. 3490, Sub-sec. 27. 1.

Case 82 — PETITION EQUITY APPEAI, FROM FAYETTE CIRCUIT COURT. 1.

Case 83 — PETITION ORDINARY APPEAL FROM BREATHITT CIRCUIT COURT. 1.

<p>1. Accident Insurance — Weekly Indemnity — When Suit may be Brought. — Under an accident policy in which, the insured is, indemnified against loss of time “in a sum not exceeding $25 per week, or the money value of his time for such period of continuous! total disability as shal-l immediately follow thei accident and injuries aforesaid, not exceeding, however, fifty-two consecutive weeks from thel time of the" happening,” the insured is entitled to weekly payments after satisfactory proof of the injury, and is not required to wait until his disability ceased, on until the end of a year to bring his action for loss of time.</p> <p>2. Care Required of Insured — Practice in Civil Cases. — Under the stipulation in such a policy, that the insured shall use- due diligence for' his personal safety and protection, he is required to use only that degree of diligence, or care, that prudent persons are accustomed habitually to use, and it is a question for the jury to say whether he was exercising such care.</p> <p>8. Occupation of Insured. — The fact that one was insured as a “grocer, with desk and counter duties,” was injured while hunting, does- not deprive him of the right to indemnity under the policy, unless he was following the occupation of a hunter; the language of the condition upon which the indemnity was to be reduced in the event he was injured while following another occupation, has reference to acts or things done in following an occupation, or business, and not to individual acts.</p>

Case 85 — PETITION ORDINARY APPEAL FROM FULTON CIRCUIT COURT. 1. Actions on appeals irom inferior courts are begun by the execution of a supersedeas bond, and either the issuing of a summons, or the making of a warning order, and as all this must, under the statutes, be done within 60 days, there is no authority to do so after the expiration) of that time.

Case 86 — PETITION EQUITY •Appeal from jefeerson cikcuit 'court, law and equity Division. 1. Where a trustee by his own act — his own formal deed — estops himself from suing to recover the possession of real estate belonging to the trust, limitation will not commence to run against the remainderman in the trust, until the right of possession is in some one who has not by his own fraudulent act estopped, himself from asserting their right to it.

Case 87 — PETITION ORDINARY APPEAL FROM GREEN CIRCUIT COURT. 1. Every fact necessary to recover under the statute) has been carefully alleged and the language of the statute strictly followed. Where a right of action grows out of a statutory enactment it is sufficient in a suit thereon to follow the language of the statute. 2.

<p>1. Master Commissioners and Receivers — Fees—Statutory Construction. — Under the provisions of sec. 1740 of the Kentucky Statutes fixing the fees of commissioners and receivers for receiving and paying out money under an order of court, the mere fact that bonds are made payable to such commissioner or receiver does not entitle him m the fees for receiving and paying* out the money, unless he does in fact receive and disburse the same; and this was true under the General Statutes as well as: under our present statutes.</p> <p>2. Same. — A commissioner is not entitled to any compensation for extra services in preparing advertisements, etc., of a sale; thi fee prescribed by law for making the sale covers all such services.</p> <p>8. Same. — The mere fact that a commissioner was in court a number of days after the sale does not entitle him to extra compensation in the absence of anything to show in what the alleged extra labor consisted; it was his duty to report the sale to the court and he was not entitled to any extra compensation, therefor.</p>

Case 89 — PETITION EQUITY APPEAI. PROM BUSSELL CIRCUIT COURT. 1. The husband transferred the check which was nothing more nor less than an order for the money to his wife; the money never actually reached his hands or was paid to him; it was then exempt and its transfer to his wife could have been no fraud upon his creditors. Johnson v. Elkins, 90 Ky., 163. Simms v. Walt-ham, 9th Ky.

Case 90 — PETITION ORDINARY APPEAL FROM FAYETTE CIRCUIT COURT. 1. It is the right and duty of the court in an' action for permanent personal injuries to require the plaintiff to submit to a personal examination by experts, as the parties are entitled to the production of the very best evidence that can be had.

Case 91 — PETITION ORDINARY APPEAL FROM PIKE CIRCUIT COURT. t. Inasmuch as the property of the school district can not bs levied on and sold for debt, and the trustees have complied with the law so far as they are able to act, the appellant has no remedy except hy resort to legislation or the appointment of a receiver or collector hy the court. 2.

<p>Case 92 — PETITION ORDINARY</p> <p>APPEAL PROM GRANT CIRCUIT COURT.</p> <p>1. It is not the duty of the engineer of a train to exeroise any care to. discover the presence of a trespasser on the track. Given v. K. C. R. R. Co., 12 Ky. Law Rep., 951; L. & N. R. R. Co. v. Howard’s Adm’r., 82 Kentucky, 217; K. C. R. R. Co. v. Gastineau’s Adm’r., 83 Kentucky, 122; France’s Adm’r., v. L. & N. R. R. Co., 15 Ky. Law Rep., 244; L. & N. R. R. Co., v. Cooper’s Adm’r., 7 Ky. Law Rep., 102; McDermott v. K. C. R. R. Co., 93 Kentucky, 408; Brown’s Adm’r. v. L. .& N. R. R. Co., 17 Ky. Law Rep., 145; Baskin’s Adm’r. v. L. & N. R. R. Co., 17 Ky. Law Rep., 78; Gherkin’s Adm’r. v. L. & N. R. R. Co., 17 Ky. Law Rep., 201.</p> <p>2. The negligence of the parents or persons in charge of a child, but for which' the injury would’ not have occurred, may be imputed to the child and will bar recovery. L. & P. Canal Co. v. Murphy’s Adm’r., 9th Bush, 531; Schlenck’s Adm’r. v. Central ■Passenger Railway Co., 15 Ky. Law Rep., 410; Shearman & Red-field on Negligence, sec. 4g; Lynch v. Smith, 104 Mass., 52 Ihl v. Street Ry. Co., 47 N. Y.,32-3; Gibbons v. Williams, 135 Mass., 333; Hatfield v. Pogue, 21 Wendall, 615; Am. & lEng. Eccy. of Law, vol. 4, page 87, and authorities there cited. Grethian’s Adm’r. v. Railroad Company, 19 Am. & Eng. Railway Cases, 342. *Mc-Geary v. R. R. Co., 135 Mass. 363; Mangan v. Brooklyn City Railway Co., 36 Barber, 230.</p> <p>3. It was improper for the court to permit the evidence oí Mrs. Dickerson with reference to what some young man, who was not identified, said, as it tended to show that some officers of the train had admitted that the child had been seen as they entered the cut, and that therefore the accident could have been prevented.</p> <p>1. The failure of an engineer to perform his duty in maintaining* a reasonably vigilant lookout along the track in front of him will make the company liable for killing an- infant who was nomin-: ally a trespasser. Pickett v. Wilmington, &c., Co., 30th L. R. A., 257; Am. & Eng. Ency. of Law, vol. 4, page 45; Goetz’s Adm’r. v. L. & N. R. R. Co., 79 Kentucky; Harriman v. Railroad Co., 12 N. E. Rep., 451.</p> <p>2. The appellant failed to show, or offer to show, any negligence on the part of the parents on the day, or at the time of the injury;, and the fact that on occasions prior to that time there might have been some carelessness could have had no effect upon the accident. The train which killed the infant was more than two. hours late, and the mother did not expect it at that time of day.</p>

Case 93 — -PETITION EQUITY APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. Appellants were in full possession of the strip of land which they were using as a road and pass-way, and claiming) the right to use the same, when the deed thereto was made from Kahlert to Johns, and the deed was therefore absolutely void. 2.

Case 94 — PETITION ORDINARY APPEAL FROM BALLARD CIRCUIT COURT- 1. The appellants knew at the time they accepted the money' in payment of the bond that the Governor had remitted the same, and in receiving the same they practiced a fraud upon the-appellant and should be made to account for the same.

Case 95 — PETITION EQUITY. APPEAL FROM SHELBY CIRCUIT COURT. 1.

<p>Case 96 — PETITION EQUITY</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>1. The jurat as originally prepared was sufficient under the provisions of section 117 of the Civil Code; but if they were not sufficient the affidavit subsequently filed cured the defect and restored the appellants to all the rights and priorities which it had .before the same was discharged on account of the alleged defect. ■See. 268 of the Civil Code. Bamberger, Bloom & Co. v. Moayon, 13 Ky. Law Rep., 102. It will be observed that there was no defect in the petition or in the allegations for attachment, but merely in the affidavit or-jurat. Allen v. Brown, 4th Met., 307.</p> <p>'2. A child has noi interest in a father’s estate during his father’s life, which he can mortgage, transfer or sell in any way. Wheeler v. Wheeler, 2d Met., 474; Alvis v. Schlesinger, 81 Ky., 290; McCall’s Administrator v. Hampton, 17 Ky. Law Rep., 713.</p> <p>1. The affidavit for attachment was fatally defective because it was sworn to by the attorney for the appellant, and there was no statement therein that appellant’s chief officer or agent was then absent from the county as required by section 196 of the Civil ■Code. Pool v. Webster, 3 Met., 278; Burgess v. Jacobs, 14 B. M., 520.</p> <p>2. Appellant’s attachment having been properly .discharged, the subsequent reinstatement of it on the filing of an amended affidavit did not affect any rights appellees may have acquired to the attached property before the filing of the amended affidavit. Sec. 268, sub-section 2 of the Civil Code.</p> <p>'2. T'h© mortgage of Chas. Lott to^ Lizzie Orr became binding on him by* way of estoppel immediately on the death of his father, and this estoppel was not only binding on him, but all persons claiming through him, and therefore the lien created by the mortgage is superior to that created by the attachment. Smith on Contracts, 21; Davis v. Tingle, 8 B. M., 543; Cox v. Lacy, 3 Lift., 336; Massy v. Sebastian, 4th Bibb, 436; Beard v. Grigg, 1st J. J. M., 27; Lawson’s Rights, Remedies and Practice, vol. 6, page 1408, Comstock v. Smith, 13 Pickering, 16. (27 Am. Decisions, 670); ■Bank of Utica v. Mersereou, 3 Barbour’s Chancery, 528; (49 Am. Dee., 197); Bohan v. Bohan, 78 Kentucky, 412; Perkins v. Coleman, 12 Ky. Law Rep., 501; Trull v. Eastman, 3 Met., 121 (Mass), (37 Am. Dec., 126); Terry v. Rodohon, 79 Ga., 278 (11 Am. State Reports, 431),- McPherson v. Cumliff, 11 Serg. & R„ 422; (14 Am. Dec., 6.42).</p>

Case 97 — PETITION ORDINARY APPEAL FROM BALLARD CIRCUIT COURT. 1. An examination of the books will show that in no instance was ■there any; sum of money entered or charged therein against anybody, and they could not be made the subject of any contract or gift; the delivery of these books was nothing more nor less than the delivery of blank paper and could confer no right upon ap-pellee. Ashbrook v. Ryan’s Admr., 2 Bush, 228. 2.

Case 98 — PETITION ORDINARY APPEAL PROM LYON CIRCUIT COURT. 1. It is immaterial whether the appellant’s appointment was regularly or properly made; appellee got the benefit of his services and the board ratified and recognized his appointment. 2. The appellee paid the money when it had full opportunity to know both the-law and the facts, and when there is such voluntary payment the money can not be recovered back. 1.

Case 99 — PETITION ORDINARY APPEAL FROM LAUREL CIRCUIT COURT. (Brief not in the record.) 1. Thd train men seeing the helpless condition of the appellee ana how she was encumbered, it was their duty not only to have assisted her on the train but to have awaited the starting of the train until she was seated. Shearman & Redfield on Negligence, sec. 508.

<p>Case 100 — MOTION</p> <p>APPEAL PROM WOLEE CIRCUIT COURT.</p>

Case 101 — PETITION ORDINARY APPEAL FROTt FAYETTE CIRCUIT COURT. 1. While technical rules of practice are necessary in the administration of justice, and ought to be substantially complied with, they should not be so strictly construed or rigidly enforced as to result in a miscarriage of justice or denial to the litigant of tbe right to have his case presented. 2.

Case 102 — PETITION ORBINARY APPEAL EUOM M’CRACKEN CIRCUIT COURT. 1. A motion for a new trial must under the provisions of sec. 342 of the Civil Code be made three days from the rendition of the judgment, unless it comes within some of the exceptions provided in sec. 340 of the Civil Code. .2. After default judgment has been rendered if the defendant desires a new trial on account of accident or surprise he should tender an answer presenting a good defense.

Case 103 — PETITION ORDINARY APPEAL FROM NELSON CIRCUIT COURT. 1. The attempt to plead as a counter-claim the fine and expenses growing out of the indictment in an action eso contractu can not be done. Pritchard v. Peace, 17 Ky. Law Rep., 665; Bowen v. Sebree, 2d Bush, 116. 2. Morris can not maintain a valid claim against Sutton for contribution growing out of their joint wrongful act. Am. & Eng. Enc. of Law, vol. 22, page 347, and authorities there cited. 1.