Volume 103 — Kentucky Reports

Case 1 — PETITION ORDINARY APPEAL PROM HENDERSON CIRCUIT COURT. 1. Millet having drawn the hill of exchange on the Hominy Mill Company in his own name, and not merely as their agent, it must be assumed that he intended to bind himself personally thereon, although it appears that he was in fact acting as their agent.

Case 2 — PETITION EQUITY APPEAL PROM MADISON CIRCUIT COURT. 1. Appellee having sold the cash register to Weekerser, and he having sold same to , appellant, Welch, for a valuable consideration, Welch having no -notice of appellee’s unrecorded lien, appellees -lost their lien on the property in Welch’s hands. Ford & Warren v. Sproule, 2 Marshall, 533; Vaughn v. Hopson, 10 Bush, 338; Baldwin & Co. v, 'Crow, &c., 86 Ky., 679. (No brief in the record.)

Case 3 — PETITION EQUITY APPEAL FROM MONTGOMERY CIRCUIT COURT. 1. Parrish having paid off the encumbrance upon the land in which Ross had a life estate, he or his surety were entitled to plead the same in this suit as a counterclaim against the rents claimed by the holder of the life estate. 1.

Case 4 — PETITION EQUITY APPEAL FROM MARION CIRCUIT COURT. 1. The levying and collecting of taxes can only be done under a positive law for a special purpose, and when either the purpose or the law ceases the tax must cease. A sheriff has no authority to make a levy for a railroad tax which has been paid, and there is no one authorized to receive the tax from the sheriff becausa there are no bonds or coupons to pay off with it. 1.

<p>Case 5 —INDICTMENT</p> <p>APPEAL PROM BARREN CIRCUIT COURT.</p> <p>1. Evidence of tracking human beings by dogs is inadmissible. Hodge v. State, 13. South Rep., 385; Simpson v. State, 20 South Rep., 572; Jones on Evidence, sec. 371; Whitaker v. Parker, 42 Iowa, 586.</p> <p>2. A witness can not be crcssexamined as to collateral or incompetent matter for purposes of impeachment. Kennedy v. Commonwealth, 14 Bush, 357; Loving v. Commonwealth, 80 Ky., 511.</p> <p>3. Courts will not speculate as to effect of incompetent evidence. Kennedy v. Commonwealth, 14 Bush, 361; Cappage v. Commonwealth, 3 Bush, 532.</p> <p>(No brief in the record.)</p>

Case 6 — 'PETITION ORDINARY APPEAL FROM NELSON CIRCUIT COURT. 1. When in an action for trespass upon land the title is put in issue, the right of appeal exists irrespective of the amount of damages assessed. Casliy v. Lewis, 15 B. M., 27; 7 Bush, 26; 88 Ky., 254; 90 Ky., 96. 2. Appellee’s possession was obtained by force, and was not such possession as will authorize him to maintain an action for trespass quare elaumrn freglt.

Case 7 — PETITION ORDINARY APPEAL FROM KENTON CIRCUIT COURT. 1.

Case 8— PETITION EQUITY — APPEAL FROM M’CRACKEN CIRCUIT COURT. 1.

<p>Case 9 — PETITION EQUITY —</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>1. A representation by the maker of a promissory note to an assignee thereof raises no estoppel. Hoover v. Kilander, 83 Ind., 420; IMcCall v. Powell, 64 Ala., 254; Behrens v. German Insurance Co., 64 la., 19; Straus v. Mingesheimer, 78 111., 492; Galinghouse v. Whitnell, 51 Barber, N.»Y., 208.</p> <p>2. In order for a letter of representation to operate as an estoppel there must be a false representation or a concealment of material facts; the representation must be plain and certain and, ordinarily, in reference to past or present facts only, and not as to matters of law or opinion. -Phelps v. 111. Central R. R., 94 111., 548; McGuin v. Sell, 60 Ind., 249; Heminesbough v. Kansas City Ass’n, 79 Mo., 81; Chatfield v. Simonson, 92 N. Y., 209; Birdsay v. Battersfield, 34 Wis., 52.</p> <p>3. The party relying on the representation as an estoppel must have been ignorant of the facts.</p> <p>4. In order to constitute an estoppel the representation must have been relied upon.</p> <p>5. An agreement not to claim usury already paid is void and of no' effect. Lewis v. Barton, 106 N. Y., 70; Union Bank of Rochester v. Gilbert, 31 N. Y. S., 945 (83 Hun., 417).</p> <p>6. The agreement between the parties as to the payment of seven per cent, semi-annually -was in affect a new contract, and that rate being at the time usurious only the legal rate can be collected. Story v. Kimbrough, 33' Ga., 21; Watson v. Mims, 55 Tex., 451; Thompson v. Baird, 17 Ky. Law Rep., 403; Carliss v. McLaughlin, 1 D. Chif. (Vt.), Ill; Woolen v. Green, 2 N. H., 333; Rosenbraugh v. Ainsley, 35 Ohio State, 137; Shirley v. Mettie, 19 111., 623; Crawford v. Johnson, 11 Ind., 258; McAllister v. Jerman, 32 Miss., 142; Mitchell v. Dogett, 1 Fla., 400; Gray v. Belchen, 3 Fla., 110; Carter v. Brand, Cam. N., N. C., 28; Patterson v. Clark, 28 Ga., 526; Hopkins v. Koonce, 6 Gratt (Va.), 378; Barnes v. Pilgrim, 24 Tex., 385.</p> <p>1. Appellant’s lien note was dated December 15, 1877, and matured two years thereafter. It bore interest at the rate of “eight per cent, per annum after maturity until paid.” Eight per -cent, was then legal interest. The six per cent, interest law went into effect in April, 1878.</p> <p>The appellee bought the note at appellant’s request on April. 15, 1890, and interest was paid thereon at the rate of seven per cent., up to October 15, 1894. The lien was barred as to strangers on December 15, 1894, although good as between the parties by reason of the partial payments. 'Tate v. Hawkins,'81 Ky., 577; McCracken Co. v. Mercantile Trust Co., 84 Ky., 353; Kendall, Adm’r v. Clarke, 90 Ky., 178.</p> <p>Appellant paid interest to Mrs. Del Vecchio, the original payee, and her heirs at the rate of eight per cent., from December 15, 1877, to April 15, 1890. Appellant paid to appellee under the new contract from April 15, 1890, to October 15, 1894, at the rate of deven per cent. Even if. the interest prior to 1890 were usurious appellant did not pay it to the appellee, and, therefore, can not recover from the appellee.</p> <p>Eight per cent, interest being legal when contracted for, is good! until the note is paid. White’s Adm’r v. Curd, 86 Ky., 191.</p> <p>The fact that the maker of the note died does not reduce the rate of interest after his death. The old statute so providing was long since repealed. Fenley v. Kendall, 13 Ky. -Law Rep., 836.</p> <p>2. The original. note bore interest “at the rate of eight per cent. per annum after maturity until paid.” The question of interest depends upon the wording of the contract. Under the wording of this original contract, the principal bore interest at the rate of eight per cent, per annum until the principal was paid. Rilling v. Thompson, 12 Bush, 310; Posey v. Mayer’s Adm’r, 3 Ky. Law Rep., 613; Farmers Bank of Kentucky v. Henry Co. Trust ■Co., 15 Ky. Law Rep., 96.</p> <p>This last case is conclusive. See certified opinion appended, hereto. McCrae v. Gunter’s Ex’r, 14 Ky. Law Rep., 5.</p> <p>3. Appellant gave a written request and statement to the appellee,. stating all the facts, requesting the appellee to buy the note, and promising to pay a reduced rate of interest, and to pay it semiannually. He is now estopped from denying that contract. Short v. Jackson, Snead, 193; Morrison v. Clay, Hardin, 431; Gerault v. Anderson, 2 Bibb., 542; Barnes v. Wise, 3 Mon., 169; 'Morrison v. Beckwith, 4 Mon., 73; Woolridge v. Cates, 2 J. J. M„ 223; Smith v. Stone, 17 B. M., 171; McBrayers v. Collins, 18 B. M., 838; Wells v. Lewis, 4 Met., 272; Stone v. Werts, 3 Bush, 490; Foster v. Shreve 6 Bush, 530; Ferguson v. Smith, 7 Bush, 530; Alexander v. Ellison, 79 Ky., 148; Rudd v. Matthew, 79 Ky., 479; Crabtree v. Atchison, 93 Ky., 338.</p>

Case 10 — PETITION ORDINARY APPEAL FROM LEWIS CIRCUIT COURT.' (Brief withdrawn.) 1. Appellant and appellee both claim under the same title, and appellant is, therefore, estopped to deny that the party through whom they claimed had title at the time of the grant to the company of the right of way. 2.

Case 11 — PETITION EQUITY APPEAL PROM LINCOLN CIRCUIT COURT. , 1.

Case 12 — PETITION ORDINARY APPEAL FROM NELSON CIRCUIT COURT. 1. A judge of an inferior court acts in both a judicial and ministerial capacity; he is his own clerk, and in so far as his acts are those of a clerk, they are ministerial, and he is liable in all cases where a clerk would be liable. 2.

<p>Case 13 — PETITION EQUITY —</p> <p>APPEAL EROM BRACKEN CIRCUIT COURT.</p> <p>1. Section 157 of the Constitution is only a limitation on the power-of a county or other municipality, to become indebted in any one year to an amount exceeding the income and revenue provided for that year, without the assent of two-thirds óf. the voters thereof; in this case there is no creation of a debt, except the twenty-five cents tax provided for in the year 1895.</p> <p>2. The surplus taxes remaining under the control of the fiscal court after the accomplishment of the purposes for .which they were» collected, may be used by the court in the erection of necessary public buildings; the constructon of sec. 180 of the 'Constitution, contended for by appellees, would cause such funds to lie idle forever in the county treasury, and be of no service to anybody.</p> <p>1. The authority given the commissioners to make] a contract for the erection of a court house, not to cost exceeding $25,000, was the creation of an indebtedness in excess of the revenue for that yeaii and was therefore void, under the provisions of sec. 157 of the Constitution. The fact that all the money was’ not to be paid in! any one year, or raised by taxation in any one year, does not take it out of the operation of that .section. It is an indebtedness incurred whenever it is to be paid. Beard v. City of Hopkinsville,. 95 Ky., 239; City of Richmond v. Powell, 101 Ky., 7.</p> <p>2. The surplus taxes remaining on hand after the purposes for which they were levied have been fulfilled, were illegally exacted from the taxpayers and belonged to them and not to the county. Sec. 180 of the Constitution.</p> <p>3. The fiscal court had no power to delegate to the commissioners the right to' make the contract for the building of the court house; where the exercise of judgment or discretion devolves upon one in the performance of a duty, he can not, in the absence of express or implied authority, delegate his power to another. Mechem on Public Offices, sec. 557; Russell v. Cage, 66 Texas, 428; Hyatt v. Joyce, 4 Bush, 464; Henderson v. Lambert, 14 Bush, 428; Nervin v. Roach, 86 Ky., 492; Fruntz v. Jacobs, 88 Ky., 526; Roberts v. Louisville, 92 Ky., 89.</p>

Case 14 — PETITION EQUITY APPEAL PROM HOPKINS CIRCUIT COURT. 1.

nASP. 15 — PETITION EQUITY APPEAL PROM GRANT CIRCUIT COURT. 1.

Case IS — PETITION EQUITY — APPEAL FROM MONTGOMERY CIRCUIT COURT. X. Personal representatives are liable for the management of their trusts as bailees and agents are generally, and must answer, and only answer, for such losses as are occasioned by actual or constructive negligence, or wilful misconduct; in this case the allegations of the petition conclusively negative the existence of any single element of negligence, actual or constructive.

Case 17 — SPECIAL PROCEEDING APPEAL FROM M’LEAN CIRCUIT COURT. 1.

Case 18 — PETITION EQUITY appeal prom hart circuit court. 1. Parol evidence is competent to show that a conveyance absolute-on its face was intended only as a mortgage. Pomeroy’s Equity Jurisprudence, vol. 3, sections 1195 and 1196; Langhorn v. Payne, 14 B. M., 502; Mercer v. Blaine & Hamilton; Littell’s Select -Cases, 412; Seiler v. Northern Bank, 86 Ky., 131. 2.

Case 19 — PETITION ORDINARY — APIU3AL FROM BELL CIRCUIT COURT. 1.The guaranty of the Middlesboro Town and Lands Co., -well known as a large, wealthy and prosperous corporation, was the direct and immediate cause of the sale of a great deal of the stock of the other corporation, and the language used in the guaranty was plain and unequivocal, and constituted an original, independent and separate undertaking as between that corporation and the purchaser of the stock.

Case 20 — PETITION ORDINARY APPEAL PROM MONTGOMERY CIRCUIT COURT. 1. Where the president of ai bank sells his own stock therein, upon representations made at the time of the sale, and embraced in a printed statement of the condition of t‘he bank, which he refers to and approves, if the vendee relies upon these representations, they are in effect a warranty for which he may institute an action in damages, if broken. Lamme v. Greeg, 1 iMet., 444; Trimble v. Reid, 17 Ky.

<p>Case 21 — PETITION EQUIT Y —</p> <p>APPEAL PROM BOYD CIRCUIT COURT.</p> <p>(Briefs not in record.)</p>

Case 22 — PETITION ORDINARY APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. (Brief not in the Record.) 1. A plea in abatement that another action between the same parties, ■and upon the same facts was then pending and undisposed of, can not be defeated by the subsequent dismissal of the first action. Frogg’s Exrs. v. Long’s Admr., 3 Dana, 157; Gist v. Shean, 8 Ky. L. Rep., 509; Herndon v. Campbell, 9 Ky. L. Rep., 681; Draughn. v. Wolf, 11 Ky.

Case 23 — PETITION ORDINARY APPEAL FROM HENDERSON CIRCUIT COURT. 1. Upon the whole evidence the court should have directed the jury to find for the defendant, at any raté the verdict is palpably against the weight of the evidence. 2. A road company is only bound to use ordinary car© and diligence in keeping the road in repair, and is not an insurer of the safety of persons traveling over it. Am. Se Eng.

Case 24 — PETITION EQUITY appeal prom carter circuit court, 1.

<p>Case 25 — MOTION</p> <p>APPEAL l-ROM MADISON CIRCUIT COURT.</p>

Case 26 — PETITION ORDINARY Appeal from: jefferson circuit court, law and equity division. 1. The petition does not set out a cause of action; and therefore the motion made in the court below for a “judgment notwithstanding the verdict,” should have been sustained; and this court should reverse the case, aim direct the lower court to enter a judgment for defendant notwithstanding the verdict.

Case 27 — PETITION ORDINARY APPEAL EROM CHRISTIAN CIRCUIT COURT. 1.

Case 28 — PETITION ORDINARY APPEAL FROM LAUREL CIRCUIT COURT. I. The appellant’s intestate was ejected from the train at 1 o’clock at night when he was unable to take care of himself on account of his physical and mental condition; no directions were given him as to which way to get to a hotel, and when the conductor of the train knew that in a short time other trains would he passing both, ways on the track; under the circumstances appellant was liable.

<p>Case 29 — .PETITION ORDINARY</p> <p>APPEAL EROM HENDERSON CIRCUIT COURT.</p> <p>1. Affirmative statutes of a general nature do not repeal by implication charters and special acts passed for the benefit of particular municipalities, unless the purpose to do so clearly appears; and such parts of charters should be read and construed in the light of the general legislation and policy of the State, and of the object of the legislation. Dillon on Municipal Corporations, 4th ed., yol. 2, sec. 87.</p> <p>2. While it is true the act itself only provides a specific penalty, or liability, as to officers of municipalities, yet a municipal corporation, independent of the statute, is answerable in damages to any person injured by its officers in enforcing a void ordinance or by-law. McGraw v. Town of Marion, 17 Ky. Law Rep.; Haag v. ■Commissioners Vanderburgh County, 28 A. R., 654; Wood on ■Nuisances, page 68, sec. 66.</p> <p>1. The charter for cities of the third class was designed to regulate by one general system the entire government of cities of. that class, and to repeal all.detached and varying enactments. Bndlich on Interpretation of Statutes, sec. 231.</p> <p>2. Under the general term “hospital” there is included pest houses, or places for the treatment of smallpox. Am. & Eng. Bnc. of ' Law, vol. 9, page 771 and-note; Richmond v. Supervisors (Va.), 18 Am. & Eng. Corporation Cases, 520.</p> <p>3. Section 3909, even if in force, does not make the municipality liable for the erection of a pest house within the forbidden limits, but only its officers.</p> <p>4. Acts ultra vires though done under color of office impose no-corporate liability; and the corporation is bound by the acts of its officers only when acting within the1 charter, or scope of theiii general powers. 1st Dillon on Municipal /Corporation, sections 89 and 91, and note; Willard v. Kellingwort, 8 Conn., 247; Barltmon v. Eichback, 18 Md., 276; State v. Kirkley, 29 Md., 85; Howell v. Buffalo, 15 N. Y., 363; 2d Dillon on Municipal Corporations, sec. 969.</p> <p>1. When two acts are not in express terms repugnant, and the latter covers the whole subject matter of the earlier, and plainly shows it was intended as a substitute' for it, it will operate as a repeal thereof, although all the provisions of the two may not be repugnant. Am. & Eng. Ency. of Law," vol. 23, page 485; Gorman v. Luckett, 6 B. M., 154; Rogers v. Walrous, 8 Tex., 62, (58 Am. Decisions, 100); Bartlett v. King, 12 Mass., 536, (7 Am. Decisions, 99).</p> <p>2. Provisions of the former law not contained in the latter will be presumed to have been intentionally omitted. In re Weyloek, 3 N. Y. Sup., 890.</p>

<p>Case 30 — PETITION ORDINARY</p> <p>APPEAL EROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>1. It is not necessary that there should he a separation of the conclusions of law and fact in order to enable this court to review the judgment; nor is a motion for a new trial necessary to enable the party to maintain an appeal. Union Ins. Co. v. Groom, 4 • Bush, 289; Hartford Ins. Co. v. Haas, 87 Ky., 540; Helm v. Coffee, 80 Ky., 176; Henderson v. Dupree, 82 Ky., 678.</p> <p>2. Although there is no separate findings of law and fact the judgment will he reversed by this court if there is no evidence to-sustain it. William Glenny Glass Co. v. Taylor, 17 Ky. Law Rep., 1332.</p> <p>8. Appellee haying shipped the goods to appellant without allowing the discount as stipulated by him in the order, there was no sale unless appellant assented to paying the list price; this he did not do, but sent the goods back, and under the circumstances there was no contract for the sale of the goods, because there was no meeting of minds. Rupley v. Doggett, 74 111., 351; Rovegno. v. .Deffarari, 40 Cal., 459; New Haven R. R. Co. v. Jackson, 24 Conn., 514; Green v. Bateman, 2d W. & N., 359.</p> <p>1. In an ordinary action in which the law and facts are submitted to the court without the intervention of a jury, without a separation of the findings of law and fact this court will only review the sufficiency of the pleadings. Osborn Co. v. Reeves, 16 Ky. Law Rep., 239; Muncy, &c. v. DeJarnett, 15 Ky. Law Rep., 879; Cream City Sash Co. v. Cochran, 15 Ky. Law Rep., 45; Fowler v. Archibald, 15 Ky. Law Rep., 270; Billington v. Fayette National Bank, 15 Ky. Law Rep., 59; Utley v. Sisk, 15 Ky. Law Rep., 605; Feland v. Sterman, 15 Ky. Law Rep., 271; Wilson v. Brown, 14 Ky. Law Rep., 240; Life Ins. Co. v. Gividen, 13 Ky. Law Rep., 970; Planters National Bank v. Imzgav, 13 Ky. Law Rep., 972; American Aid Society v. Bronger, 91 Ky., 406.</p> <p>2. The separation of the conclusions of law and fact provided for by sec. 332 of the Civil Code, should be asked for before the motion for a new trial is made, and before the judgment is entered. Mutual Life Ins. Co. v. Gividen, 13 Ky. Law Rep., 970; Planters National Bank v. Imzgav, 13 Ky. Law Rep., 972; Weir v. Dicker, 31 Ky. Law Rep., 523; Martin v. L. & N. R. R. Co., 12 Ky. LaW Rep., 985; Seeley'v. Potter & Co., 11 Ky. Law Rep., 485; Ward v. Johnson, 11 Ky. Law Rep., 525; Feland v. Sterman, 15 Ky. Law Rep., 27; Harbor v. Harris, 8 Ky. Law Rep., 965.</p> <p>3. The goods were kept by the defendant a month or more and were shipped back to plaintiff without any notice whatever of his rejection of them, or any explanation; when the purchaser refuses to accept goods because they are not equal to the sample, notice of non-acceptance is requisite. Benjamin on Sales, sections 977, 918 and 793; Wartman v. Breed, 117 Mass., 18; Suit v. Bamell, 33 Wis.; Exhaust Ventilator Co. v. Chicago R. R., 69 Wis., 454; Rodman v. Gifford, 112 Mass., 405; Lent v. Paddleford, 10 Mass., 230; Am. & Eng. Enoy. of Law, vol. 20, page 71; Waite y. Moffet, 21 111., 110;.Nichols v. Moss, 100 Mass., 523.</p>

Case 31 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1.

Case 32 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. The enforcement of warrants for local improvements' is a branch of the taxing power, and all proceedings therefor must be tested as proceedings to collect a tax; in this case the work was not inspected and received by the parties whose duty it was by law to do so, and the warrants were not issued by any one having authority of law to do so.

Case 33 — PETITION ORDINARY APPEAL FROM CLARK CIRCUIT COURT. 1. The case of U. S. Savings & Loan Co. v. Scott, 17 Ky. Law Rep., is conclusive of this case; the contract in that case, except as to dates and amounts, was exactly like the one in this case, both, being made in the same company and in the same way. 1. While under the decision in the Scott case in 17 Ky.

<p>Case 34 — PETITION EQUITY</p> <p>APPJLAL PROM DAVIESS CIRCUIT COURT.</p> <p>1. An analysis' of the petition demonstrates that the present action. is under sec. 439 of the Civil Code, simply upon an execution returned “no property found” in order to coerce M. Y. Monarch, as garnishee, to pay so much on the debt he is owing appellant as will satisfy the judgment, recovered by appellee, the Bank of Hardinsburg, against appellant, and the summons, with the object of the action indorsed. therein, served on M. V. Monarch, there being no attachment, created a lien or lis pendens only as to any debt owing by him, or any property held by him belonging to appellant.</p> <p>As the bank had secured the payment of its debt in this way, the appointment of a receiver to take charge of all the assets of •appellant, was unauthorized. Civil Code, secs. 439 and 442; 20 Am. & Eng. Ency. of Law, 18 and 33.</p> <p>2. As the Bank of Hardinsburg only acquired a lien or Ms pendens on the debt owing by Monarch, and had no lien or Us pendens as to any other, property or assets of appellant, the only process issued being a summons with the object of the action indorsed thereon, which was served upon said Monarch, there being no description of any other asset or property in the petition, which was essential to the creation of such lien or Us pendens, in the absence of an attachment and levy, the assignment by appellant for the benefit of creditors equally was valid, and vested the title in the assignee, except as to the debt owing by Monarch, and the appointment of a receiver to take charge of the assigned property was not authorized. Ward’s Admr. v. Robinson, &e., 1 Bush, 295; ?rabue, &c. v. Conners, 84 Ky., 287 and 288; Newport and Cincinnati Bridge Co. v. Douglass, &c., 12 Bush, 710 and 711; Civil Code, secs. 439 and 442.</p> <p>3. It is error to appoint a receiver where the person in possession of the property is no party to the action. 20 Am. and Eng. Ency. of Law, 29 and 30.</p> <p>4. To authorize a receivership there must be (1) a lien or lis pendens, and (2) the property or fund, touched by such lien or Us pendens, must be shown clearly to be in danger of being lost, removed or materially injured. Civil Code, sec. 298; 20 Am. and Eng. Ency. of Law, 33 n. 1 and 22 n.; Bucher v. Bininger, 7 Blatchf. (U. S.) 173.</p> <p>5. A receiver may be appointed before answer; but the appointment can not be made upon the face of the petition alone, especially in a case where the answer is not due at the time of the appointment. Civil Code, sec. 298; 20 Am.' and Eng. Ency. of Law, 27 notes, 16 n. 4.</p> <p>6. In this State, previous to the Code provision in sec. 439, choses in action were not reachable by a creditors’ bill, (Buford v. Buford, 1 Bibb, 305; Curd v. Letcher, 3 J. J. Mar., 443), and it was enacted to authorize a creditors’ bill for that purpose, and a proceeding under it is in the nature of an equitable attachment or garnishment, (5 Ency. of PI. and Pr., 394 notes), and is covered by the legal principles applicable to a creditors’ bill of its class, in which plaintiff can only satisfy his judgment, and can obtain no other right or relief. 5 Ency. of PI. and Pr., 393; Civil Code, sec. 439.</p> <p>7. A 'Creditors’ bill is not maintainable where there are two- or more joint debtors, and the legal remedies have not been exhausted against all of them, and the petition must show such exhaustion or an excuse for failing to do so. 5 Ency. of PI. and Pr., 463 and notes, and 562 and notes; Halbert v. Grant, 4 T. B. Mon., 581 and 582.</p> <p>As this is an equitable attachment, this view is sustained by Dunn v. McAlpin, 90 Ky., 78.</p> <p>8. The power to appoint a receiver is of a high and unusual character, and will never be exercised except in cases of pressing apparent necessity, and never where there is other remedy. 20 Am. and Eng. Ency. of Law, 18 and notes.</p> <p>1. The only asset, or property, of the M. Y. Monarch Co. referred to in the petition is an alleged indebtedness of M. V. Monarch to the M. V. Monarch Co., on account of unpaid stock subscription; and therefore as to that alleged indebtedness only was a lien created upon the property of the M. V. Monarch Co., and the power of the court to appoint a receiver was only with respect to that indebtedness, but it in fact appointed a receiver for all the property and assets of that company. Ward’s Admr. v. Robinson, 1st Bush, 295; Trabue v. Conners, 84 Ky., 287; Tuck v. Deweese, 15 Ky. Law Rep., 62.</p> <p>1. There are no such allegations in the petition as constitute a valid Ids pendens, and the creditors of the ÜVL V. Monarch Co. were by the assignment vested with the equitable title to the entire assets of the corporation save to the extent that appellee had acquired a lien upon the indebtedness of M. V. Monarch; to constitute a valid Us pendens, the property must be of such character as to be subject to the rule, the court must have jurisdiction both of the person and the property, and the property must be sufficiently described in the proceedings. Leavell v. Poore, 91 Ky., 324.</p> <p>1. It is w 11 settled that a creditor of a corporation who has obtained a judgment and a return of “no property found” may go into a court of equity and seek the aid of a chancellor in the collection of his debt and the usual and favorite remedy afforded such creditor is the appointment of a receiver to take charge of the corporate property under the direction of the court, and either to sell the same, or operate the affairs of the corporation until sufficient assets are obtained to satisfy the debts. Morawetz on Private Corporations, vol. 2, sec. 867; Smith on Receivers, page 354; Hervey v. The 111. R. R. Co., 28 Fed. Rep., 169; Union Trust Co. v. 111. R. R. Co., 117 U. S., 434; Sage v. Memphis, &c. R. R. Co., 125 XJ. S.,361; Palmer v. Clarke, 4th, Abb. (M. C.) 25; Minkler v. XJ. S. Sheep Co., 4 N. D., 507; 2 A. & E. Corporation Cases, XJ. S., 368; Child v. Brace, 4 Paige, 309; Taylor v. Bowker, 111 XJ. S., 110; A. & Eng. Enc. of Law, yol. 20, page 273; Covington Draw Bridge Co. v. Shepherd, 21 Howard, XJ. S., 112; Adleb v. Milwaukee Mfg. Co., 13 Wis., 571; Turnhill v. Prentice Lumber Co., 55 Mich., 387; Bailey v. Pittsburg R. R. Co. (Penn.), 21 Atlantic Rep., 72.</p> <p>2. The allegation that M. Y. Monarch is diverting the assets of the M. V. Monarch Co., with its connivance and consent, into the hands of other corporations in order to make the M. V. Monarch 'Co. insolvent, is of itself a sufficient ground to warrant the court in appointing a receiver. Clarke on Corporations, page 552; Covington Drawbridge Co. v. Shepherd, 21 Howard, XJ. S., 112.</p> <p>3. The court had acquired jurisdiction of the whole subject matter before the appointment was made, and the manifest purpose of the assignment was to defeat the appointment of a receiver and take the matter out of the hands of the court; but such assignment can not defeat the equity which appellee had already acquired. Bowles v. Bowles, 80 Ky., 529; Heidritter v. Oil Cloth Co., 60th XJ. S., 730; Wallace v. McCormick, 10th XJ. S,; Ward v. ■Todd, 103 XJ. S., 339; Owen v. R. R. Co., 20th Fed. Rep., 10.</p> <p>4. The appointment of a receiver for a corporation at the instance of a creditor is for the benefit of all creditors, and the party procuring the same can not have him discharged against the protest of a non-satisfied creditor. Lenoir v. Linville Improvement Co., 117 N. C., 471.</p> <p>5. No proof except the verified pleadings is necessary to authorize a chancellor to appoint a receiver. Woodward v. Woodward, 17 Ky. Law Rep., 464; Goldsmith v. Feeheimer & Co., 16 Ky, Law Rep., 432.</p>

Case 35 — PETITION ORDINARY APPEAL PROM MADISON CIRCUIT COURT. 1. The peremptory instructions asked for by defendant should have been given (1) because the plaintiff failed to prove substantially the words as charged. Sproule v. Reed, 1 Ky. Law Rep., 229; (2) the facts proved by plaintiff’s witnesses showed the communication or statement was a privileged one, made to the stepfather, an agent of the plaintiff, in answer to his inquiry. Am. & Eng.

Case 36 — PETITION EQUITY APPEAL PROM SHELBY CIRCUIT COURT. 1. The provisions of section 507 of the Civil Code only apply ta •actions where land is sought to be subjected to the payment of a debt of the defendant who dies pending the action; in this-case no judgment was sought subjecting the property of Mrs. Doyle, or seeking any judgment against her, but she was merely a necessary party in the suit to sell the testator’s property for the payment of his debts.

Case 37 — PETITION EQUITY APPEAL EBOJI PAYETTE CIRCUIT COURT. 1. The testator’s devise to his son of the land to do with as he might think proper is inconsistent with any intention upon his part tot make the payment of the $500 a lien or charge upon the land; he merely intended to make his son personally liable for the payment of that sum. Schmehl’s Appeal (Pa.), 8 Atl. Rep., 874. 2.

Case 38 — PETITION ORDINARY — APPEAL PROM TAYLOR CIRCUIT COURT. 1. The plaintiff is not barred from recovering damages on account of the want of care on his part, which want of care was produced by the defendant’s own wrong. Thompson on Negligence, 1173; Pa. R. R. Co. v. Ogier, 35 Pa. State, 60; 78 Am. Decs., 322); Fowler v. R. R. Co. 85 Am. Decs., 701; Lawson’s Rights, Remedies and Practice, vol. 3, sec. 1201. 2.

Case 39 — PETITION ORDINARY — APPEAL FROM SIIELBY CIRCUIT COURT. I. The agreement set up by the defendant that Wilson who sold the stock for which $400 of the note sued on was given, agreed that he would furnish the pedigrees of the stock as a part of the sale was a condition precedent, and there could he no recovery on the notes, to that extent, until that condition was complied with.

Case 40 — PETITION EQUITY APPEAL. EROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. The covenants embodied in the several deeds to lots in St. James Court subdivision, without regard to extraneous 'circumstances, prohibit the erection of the building proposed by appellees. Gillis v. Bailey, 21 N. H., 156, 157. 2.

Case 41 — PETITION EQUITY APPEAL EROM MADISON CIRCUIT COURT. 1.

Case 42 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT.

Case 43 — PETITION EQUITY APPEAL FROM HENEt CIRCUIT COURT. 1.

Case 44 — WRIT OF PROHIBITION 1. Section 181 of the Constitution mentions the things or subjects, which may be licensed, and as vehicles are not included in that enumeration, the ordinance imposing a license upon them is void. Levi v. City of Louisville, 97 Ky., 397; Taylor, McBean & Co. v. Chandler, 9 Heiskell (Tenn.), 349; City of Covington v. Woods, 17 Ky. Law Rep., 927. 2. Section 3011 of Ky.

<p>1. Final Order — Attachment Suit — Order Directing Garnishee to Pat. — In an attachment suit an order entered by the court directing the numerous garnishees to pay to the1 plaintiff the sums owing by them to the defendant, and adjudging that they should be discharged pro tanto from the payment to the defendant of such indebtedness to the extent thus paid under t'he judgment, was a final order, and binding upon one who had previously come into the action and filed his answer claiming the attached funds.</p>

Case 46 — -PETITION EQUITY APPEAL PROM MAGOEPIN CIRCUIT COURT. 1. The allegation that the mortgage was executed in consideration of an agreement to dismiss an indictment for felony is not sustained by the evidence. 2. The appellant alone was the party to be benefited by the execution of the mortgage and he alone could compound the felony; anything done or said by others in procuring the execution of the mortgage can not prejudice his rights.

'Case 47 — PETITION ORDINARY APPEAR FROM MASON CIRCUIT COURT. 1. Section 3492 of Ky.

-Case 48 — MOTION APPEAL FROM PERRY CIRCUIT COURT. I. The act fixing -the limitation on appeals in will cases at one year is in conflict with the 5th clause of sec. 59 of the Constitution. City of Frankfort v. Scott, 101 Ky., 615. 1. The judgment of the circuit -court was rendered on the 9th day of March, 1895, and the appehl was not taken until the 4th of February, 1897; under the express provisions of sec. 4850 of the-Ky.

Case 49 — PETITION EQUITY APPEAL FROM HARDIN CIRCUIT COURT. 1. The absence of either, or both, of the names of the grantors in, the body of the mortgage does not affect its validity;the pronoun “I” in a note or mortgage signed by several will apply to and bind each one of them. Withers v. Pugh, 91 Ky., 522; Randolph: on Commercial Paper, vol. 1, page 104, sec. 87; Harrow v. Dugan, 6 Dana, 341; Hemmeway v. Stone, 7 Mass., 57. 2.

CASE 50 — PETITION EQUITY APPEAL PROM SHELBY CIRCUIT COURT. 1. The endorsements on the note were not made in- the presence of the decedent, and appellant’s testimony as to how he happened -to make them was not testifying “concerning any yerbal statement of, or any transaction with, or act done or omitted to be done by the decedent;” he was simply explaining an act done by him When the decedent was not present and with which decedent had nothing to do. 2.

Case 51 — PETITION EQUITY — APPEAL PROM MASON CIRCUIT COURT. 3. In order to entitle the plaintiff to a judgment in an action under the provisions of sec. 692 of the Civil Code, under Which all the liens may be enforced, it must be alleged in the petition that the defendant lien holders actually have liens and what those liens are at the time of the filing of the suit and that they are unsatisfied and have not been discharged. 2.

Case 52 — PETITION ORDINARY APPEAL PROM LYON CIRCUIT COURT. 1. Where a note is executed for the purpose of enabling the payee to raise money on it, the maker can not, in an action by the assignee, set up as a defense a debt due 'him by the payee. Barbaroux v. Barker, 4 Met., 47; Gano v. Finnell, 13 B. (M., 39Ó. 2. The note given in renewal of the acceptance- was at once discounted by appellant at a Kentucky bank, and no defense can be made to it. 1.

<p>1. Fire Insurance — Dwelling House. — A house described in a policy of fire insurance as one occupied as a boarding house, is a dwelling within the meaning of a policy, declaring the same to be void, if the. building insured was intended for occupancy and remained unoccupied for ten days.</p> <p>2. Vacancy. — A hoúse is vacant within the meaning of a fire insurance policy which is merely left under the supervision and control of parties living in the same inclosure.</p> <p>S. Waiver of Forfeiture. — The acceptance after the loss of the property by fire of the premium by the company is not a waiver of the forfeiture, part of the premium having been earned before the forfeiture.</p> <p>4. Vacancy Permit. — A vacancy permit granted for thirty days by an indorsement on the policy expired at the expiration of that time, although it was orally agreed by the agent at the time, that a further extension ’ would' he granted if desired, no request having been made for-such extension.</p>

Case 54 — PETITION ORDINARY APPEAL PROM KNOX CIRCUIT COURT. 1. The charter provision requiring actions'to be brought against appellant within six months after the injury is constitutional and has been upheld by this court. O’Bannon v. L., C. & L. R. R. Co., 8 Bush, 388; Mortimer v. L. & N. R. R. Co., 10 Bush, 485. 2. The evidence is insufficient to show negligence 1.

Case 55 — WRIT OF PROHIBITION APPEAL FROM NICHOLAS CIRCUIT COURT. 1. The statutes do -not prescribe any penalty for the breach of a city-ordinance, and the provisions of section 168 of the Constitution were intended to prevent the fixing of different penalties by the city from those fixed by the State for the same offense. 2. The city had the authority to enact the ordinance imposing the license fee. Ky. Cons., sec. 181; Ky. Stats., sec. 3637, subsec. 4. 1.

CASE 56 — FORFEITED BAIL BOND APPEAL PROM WOODFORD CIRCUIT COURT. 1 The sureties in a bail bond are released whenever the defendant is actually in the custody of the court in which the indictment is pending. Willis v. Caldwell, 85 Ky. 68; Criminal Code, sec. 183; Commonwealth v. Thomson, 9 Ky. Law Rep., 439. 2.

Case 57 — BAIL BOND — APPEAL FROM LIVINGSTON CIRCUIT COURT. 1. The money deposited in lieu of bail with the county judge vested in the Commonwealth when the order of forfeiture was made. Arnsparger v. Norman, Auditor, 101 Ky., 208. 2. As to the county judge’s right to receive money in lieu of bail. See Dean v. Commonwealth 1 Bush, 20; sec. 68, Criminal Code. 1.

Case 58 — PETITION EQUITY appeal from bath circuit court. I. If the 300 acres of land devised to Spencer Boyd, Jr., was liable to be subjected in the suit to settle Spencer Boyd’s Sr., estate to the payment of the testator’s debts to the extent of the contributive share of Spencer Boyd, Jr., then the title acquired by Banta ■was not absolute, but notwithstanding his purchase in another action brought to foreclose a mortgage the land held by him should be subjected to the…

Case 59 — PETITION EQUITY — APPEAL PROM MARION CIRCUIT COURT. 1. Where there is a total loss by fire and, the interest of the life tenant is less than the amount of the insurance, the latter should! be used in rebuilding, or else go to the remainderman, reserving the interest or income thereon to the life tenant.

Case 60 — PETITION EQUITY APPEAL FROM PULASKI CIRCUIT. COURT. 1. Unless it is shown that a member of a benevolent order has violated some rule, by-law, or regulation thereof by which he has forfeited his rights as- a member, the courts will take and exercise whatever jurisdiction is necessary to protect him in hia rights as such. Am. & Eng. Ency. of Law, vol. 22, page 812 and notes; Supreme Lodge v. Johnson, 78 Ind., 110; Am. & Eng.

Case 61 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. As long as the injunction stands the school hoard can not take a school census under the provisions of the -act of March, 1898, ■and an early decision of the question involved is urged for that reason.

Case 62 — PETITION EQUITY APPEAL PROM MASON CIRCUIT COURT. 1. According to sec. 2543 of the Ky. Statutes, which says that the provisions of the chapter concerning limitations shall not apply in, a case of continuing and subsisting trust, an assignment for the benefit of creditors is such a trust as will continue and subsist so long as the trust property remains in the hands of the trustee undisposed of, and the rights of creditors thereto are clear and certain.

Case 63 — CONTESTED ELECTION — APPEAL PROM PULASKI CIRCUIT COURT. 1. Held: does not prevent the holding of the election, in the county as a whole. Ky. Statutes, sec. 2560. 4. It was not necessary that the questions submitted to the voters on the ballot should specifically include druggists, if the provisions) of the statute necessary to include them had been complied with. Gayle v. Owen Co., 83 Ky., 61. 5.

Case 64 — PETITION EQUITY — APPEAL FROM KENTON CIRCUIT COURT. 1. Appellee, together with more than two-thirds of tlhe owners of the property affected, petitioned the council to- -have this improvetment made, and is therefore -estopped from claiming that the! assessment is invalid. Elliott on Roads & Streets, pages 387, 388, 420, 421, 422 and 423. Daniels v. Tierney, 102 U. S., 415; Herman on Estoppel and Res. Adjudicata, secs. 1220 and 1221; Budwell v. Pittsburg, 85 Pa.

Case 65 — PETITION EQUITY — APPEAL FROM IIENDERSON CIRCUIT COURT. 1. The appellee, beyond a doubt, has a right of action against the county for t)he recovery of his salary, and if he had -assigned part thereof to appellant, there is no doubt but that she might have enforced the collection thereof as against the county; then, what principle of law or equity will exempt the county from the process of garnishment? 2.

Case 66 — PETITION OEDINAEY APPEAL PROM HENDERSON CIRCUIT COURT. (Brief not in Eecord.) 1. Whether alighting from a moving train constitutes negligence on not is a fact to be determined by the jury. Passamaneck’s Admr. v. L. & N. R. R. Co., 17 Ky. Law Rep., 767; 74 Iowa, 732; L. & N. R. R. Co. v. Bird’s Admr., 17 Ky. Law Rep., 1110; Redfield on ■Railways, 2 vol., page 231; 91 Ky., 49. 2.

Case 67 — PETITION EQUITY APPEAL FROM si’OR ACKER CIRCUIT COURT. 1. Equity will not interpose for tbe prevention of crime, or to enforce moral obligations. Spelling on Extraordinary Relief, vol. 1, secs. 24, 394, 396, 385; Attorney General v. Insurance Co., 2 Jobnsonis Cby., 371; Anderson' v. Doty, 33 Hun., 160, (48 Amer. Rep., 276; Stetson v. Faxon, 19 Pick., 147, (31 Amer. Dec., 123); Wood on .Nuisances, 4; Bryant v. Fall River, 113 Mass., 219 (18 Amer.

Case 68 — PETITION EQUITY APPEAL FROM JESSAMINE CIRCUIT COURT. 1. The act of 1894, in so far as it undertook to change.the order of distribution of assigned estates, and directed that certain debts should first be paid before the general .creditors could participate in the insolvent’s estate, impaired the obligation of then existing! contracts held by general creditors and is in contravention o£ both the State and Federal Constitutions.

Case 69 — PETITION ORDINARY APPEAL PROM SCOTT CIRCUIT COURT. 1. The writing sued on was a guaranty, and the signers thereof' guarantors for Pullen, although they were referred to therein as. sureties. (Bell & Terry v. Kellar, 13 B. M., 382; Lowe. v. Beck-with, 14 B. M., 189; Thompson v. Glover, 78 Ky., 195.) And being guarantors the appellant was entitled to- notice of the-acceptance thereof by the bapk.

<p>1. Subrogation — Payment op Taxes — Injunction.—The principle of subrogation rests mainly upon the fact that a party pays the debt of another which he was legally bound to pay; and if a sheriff voluntarily pays taxes assessed against one who owns both, real and personal property, and without) objection .allows the owner to dispose of the personal property, which was more than ¡sufficient in value to have paid his taxes, he will be enjoined from selling the real estate to pay all the taxes upon the application of a lien holder on the real estate, wha held the lien prior to the ¡time the taxes accrued thereon.</p> <p>2. Statutory Construction — 'Payment op Taxes — by Lienholder. —The'provision of section 4032 of the Kentucky Statutes authorizing any person having a lien on> .property upon which the ■owner has failed to pay the taxes, to .pay .the same, and providingf that he shall be subrogated to the; ,l|en- of the Commonwealth, does not authorize one holding a lien oh land to pay off all the faxes of the owner thereof, and thereby' be subrogated to the lien of the Commonwealth on his personal property.</p> <p>3. Injunction to Prevent Sale op Land. — The owner of land may maintain, an action for injunction to prevent the threatened sale of his land, which would cast a cloud upon his title which could only be removed by an equitable proceeding, as he would have no adequate remedy at law.</p> <p>1. If there is sufficient personal property to pay the taxes', the sheriff has no right to sell real estate to pay the same under the express provisions of section 15, article 9 of chapter 92 of the Kentucky Statutes, and as the petition alleges that during each of the years the taxes for which the sale is attempted McAtee had sufficient personalty to pay the same, the petition stated a good •cause of action.</p> <p>2. Subrogation is an equitable doctrine and is only applied where t-he party who is subrogated has been compelled to pay the debt of another. 24 Am. & Eng. Enc. of Law, pp. 187, 190, 192 and 193.</p> <p>1. The law does not contemplate that the taxes should be lost by a mere failure to levy on the personalty when real estate remains out of which they may be made. Smith v. Mitchell, 9 Ky. Law Rep., 813; Husbands v. City of Paducah, 5 Ky. Law Rep,, 193.</p> <p>2. Equity will not interfere by injunction with the enforcement, or collection of taxes because of irregularities, illegalities or errors in an assessment, or in the proceedings incident to collection; in such cases it is presumed that an adequate remedy may he-found at law. High on Injunctions, see. 486; Cooley on Taxation, chap. 24, pp. 536 and 561; sec. 4155, Ky. Stats.</p>

Case 71 — PETITION ORDINARY — APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. The allegation that the defendants, who were only sureties in the supersedeas bond, have not satisfied the same, is insufficient; if the principal therein has satisfied it, the plaintiff has no- cause of action against the sureties.

Case 72 — PETITION ORDINARY APPEAL FROM MONTGOMERY CIRCUIT COURT. 1. Agreement to take stock is not a subscription, and parties are only liable for damages. Bullock v. Falmouth, &c., 7 Ky. Law Rep., 591; Mt. S. Coal xtoad v. Little, 14 Bush, 431; Thrasher v. R. R., 25 111., 393; Strasburg v. Echterncht, 21 Pa„ 220. 2. A party may deny making a contract at all, and yet may rely upon any defense which he ¡has to the contract which the plaintiff claims he made.

Case 73 — PETITION ORDINARY APPEAL PROM WARREN CIRCUIT COURT. 1. The jury was authorized by the court to find1 punitive damages and the _ verdict was for largely more than the actual damages, the larger portion of it being intended by the jury as punishment of all the defendants; surely, it can not he said that if the jury •had thought that the whole of the .punitive damages would fall on one of the defendants, the verdict would not have been different. 2.

Case 74 — PETITION EQUITY APPEAL PROM BATH CIRCUIT COURT. 1. It was the manifest intention of the testator that the husbands of neither of his three daughters should have no interest in, or ■control, of 'the estate devised to 'them, and in the evemt of the death of 'either of them without children, her portion, was to vest in the one or both that should survive. Graves, &c., v. Spurr, Trustee, 17 Ky. Law Rep., 414. 2.

Case 75 — PETITION ORDINARY — APPEAL EROII ESTILE CIRCUIT COURT. 1. The statute prior to March 1, 1888, excepted from the judgments' wlhich should bear interest those rendered upon certain causes of action; but by the provisions of that act these exceptions were stricken from the statute, and the effect of 'this; action iwas to leave the law as to interest on judgments as though, such, exceptions had never been in the statute. 1.

Case 76 — PETITION EQUITY — APPEAL FROM KENTON CIRCUIT COURT. 1. A city council has not absolute power in matters of street improvements, which they can use arbitrarily, but they are limited in their exercise by facts and circumstances surrounding each case. 2. The city council haa no power to compel property holders on a street to pay for widening or extending the same for the benefit of one or two individuals. 3.

Case 77 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. I. The allegation of the petition that the city guaranteed the work should he paid off by the property owners, and that it would see that the same, was paid, is in conflict with the provisions of the contract sued on; and where there is such conflict between the) allegations of the pleading and .the exhibit sued on, the provisions of the latter must prevail.

Case 78 — PETITION ORDINARY appeal from: bell circuit court. 1. One may be the owner of. property and yet not entitled to the possession thereof. 2. The second paragraph states a cause of action in favor of appellant against appellees which is connected with the subject’matter of the petition and arose out of the transaction which .furnishecl the foundation for the cause of action stated in the petition. Civil Code, sec. 961. 1.

<p>Case 79 —MOTION</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>(Record and hriefs not in the office.)</p>

<p>1. Contracts — When Several. — Subscribers to the stock of a proposed corporation, the subscription to be used in the erection of a building for the corporation, who used the words “we, the subscribers hereto agree to pay the above .amount,” referring to ■the cost of the building, and winding up with the stipulation that “each stockholder shall be liable only for the amount subscribed- by him,” are bound severally and not jointly.</p> <p>2. Mechanic,’s Lien — When Effective. — A mechanic’s lien dates from the beginning of the work, or the furnishing the material.</p> <p>8. Statutory Construction. — The subscribers- to the capital stock of a corporation who had a contract to buy land, and were ins ■possession thereof, were “the owners” within the meaning of the) statute providing for a mechanic’s lien.</p> <p>4. Mechanic’s Lien. — 'The corporation subsequently organized! having accepted the benefit of the purchase and improvements with full knowledge of the facts as to the contract of purchase by the subscribers to the capital stock, and of the contract for building, and i^e corporation being composed of the same" parties that made the original contract, it took the property subject to (the mechanic’s lien.</p>

CASE 81 — PETITION EQUITY APPEAL FROM KENTON CIRCUIT COURT. 1. An ordinary hank check dated, and .executed in Kentucky and drawn upon a hank in Kentucky, is not a foreign bill of exchange, or upon the footing of a foreign bill of exchange, so as to be free from all equities. Bouvier’s Law Dictionary, page 212; A. & E. Enc. of Law, vol. 16, page 479; Ky.

<p>1. Taxation — Exemption by Charter — Repeal of by Constitution. — Tne provision in the charter of a corporation exempting its property and income from all taxation so long as the same ■shall be entirely devoted to Masonic and 'Charitable purposes, ■Was repealed by the provisions of secs. 170 and 174 of the Kentucky- Constitution, providing that all property shall be taxed’ in proportion to its value, unless exempted by that instrument and) that there shall he exempt from taxation institutions of “purely public charity;” after the adoption of the Constitution the right of such corporation to 'the exemption is to be determined by the constitutional provision.</p> <p>2. Res Adjudicata. — A judgment in an action for taxes accruing prior to the adoption of the present Constitution to the- effect that the corporation was exempt therefrom, does not determine the question as to whether there is liability for taxes under the -charter as amended by the new Constitution, accruing subsequent to its adoption.</p> <p>3. Taxation — Exemption.—The Constitution 'having taken effect in the year 1891, after property was required to he assessed under the city charter for 'that year, the adoption thereof did not aff-ectj the right of the corporation to the exemption as to the taxes for that year.</p> <p>4. Same. — Where the property and income of a corporation is exempt by its Charter, from taxation “so long as it shall he entirely ■devoted to Masonic and charitable purposes,” before it can be subjected to taxation it must be shown that the property andi income for that year were not so used.</p>

Case 83 — -PETITION EQUITY APPEAL FROM NICHOLAS CIRCUIT COURT. 1. Blake died before tbe first term of the court after the suit againsb ’ 'him was filed, and had therefore no opportunity to file an affidavit controverting the grounds of the attachment, or to file an answer claiming his exemptions; and upon his death the right to the property which the statute directs to be set apart to the widow-vested at once in her.

<p>Case 84 — INDICTMENT</p> <p>APPEAL FROM HARRISON CIRCUIT .COURT.</p> <p>1. Depots or stations as used in section 772 of Kentucky Statutes means “the place, the grounds and the buildings prepared for and used by the traveling public at such points in waiting for, taking and leaving trains, and by the company in operating the road at that point;” therefore an indictment, under section 772, which charges the defendant with a failure to provide a suitable water closet at its passenger depot is fatally defective upon demurrer.</p> <p>• The indictment should charge a failure to provide a "suitable and convenient water closet at the -defendant’s depot.” If this were mot true the word “convenient” used in the statute would be meaningless, because, if the statute required the water closet to be in or at the passenger depot, the element of “inconvenience”' could not be alleged or proven. Indiana & I. S. R. R. v. State, 133 Ind., 69.</p> <p>2. Where the indictment fails to charge that the water closet was not ' - convenient, no proof could be introduced on that point, it being admitted as a matter of law and fact that the water closet erected by the company was convenient.</p> <p>3. Where the indictment fails to allege in the body of the indictment the place at which there was a failure to provide as required by ithe statute, the indictment upon demurrer is defective.</p> <p>4. Tinder the statute r-ailroad companies may exercise a reasonable discretion as to the kind- of a structure to be used and the’ internal arrangement thereof; therefore, where the company has erected a water closet which the proof does not show to- be indecent or unclean, -the court should have granted a peremptory instruction to find the -defendant “not guilty.” L. & N. R. R. Oo. v. Commonwealth, 97 Ky., 208.</p> <p>5. Where, in the exercise of a “reason-able — scre-tion” -the» defendant, has provided .a water closet at its depot, the- defendant is not liable to indictment or 'conviction, under section 772, unless- the railroad commissioners have notified the accused as required byi section 830 of Statutes, that “additions to, improvements» or changes in the stations or terminal facilities are needed for th© convenience of the traveling public. -The 97 Ky. case does not ■decide this point, because it is .admitted -that the company had mo water closet at all, while the statute requires one- without notice.</p> <p>6. Instruction No. I is erroneous because it limits the “reasonable discretion” of the appellant in the erection of a water closet and requires the same to be at or in the passenger depot.</p> <p>7. The court erred in not instructing the jury as to- what constituted a “suitable water closet” at a place of the size and needs of Berry.</p> <p>8. The* verdict is so flagrantly against the weight of the testimony, that a new trial should have been granted.</p> <p>1. Where the failure to provide the -closet is in a city or town, it is not necessary to charge in the indictment that the company.had been notified -of the necessity therefor by the railroad commissioner. L. & N. R. R. Co. v. Commonwealth, 97 Ky., 208.</p> <p>2. It was not necessary to charge in the indictment that the defendant had not provided a suitable- and convenient closet; if it failed to ■provide a suitable closet, it was guilty under the terms of the statute, although it might have provided a convenient one, the statute requiring'it to be both suitable and convenient.</p> <p>1. The statute is void for uncertainty; it imposes a penalty fo-r a failure to provide a “convenient and suitable” waiting room and water closet without furnishing any standard of suitableness or convenience. L. & N. R. R. Co. v. Commonwealth, 99 Ky., 132.</p>

Case 85 — INDICTMENT appeal from mason circuit court. 1. It is error in a criminal case to allow testimony as to other offences of defendant not in issue under the indictment. Cornelius v. Com., 15 B. M., 545; Kennedy v.' Com., 14 Bush, 358-360; Crittenden v. Com., 82 Ky., 168; Rice on Evidence, vol. 3, page 66; Wharton on Criminal Evidence, 9th edition; Am. & Eng. Ency. of Law, vol. 29, page 677; Martin v. Com., 93 Ky., 192, 193; Stokes v. People', 53 N.' Y., 164; Am.

Case 86 — PETITION ORDINARY — APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1.

Case 87 — PETITION ORDINARY — APPEAL FROM WASHINGTON CIRCUIT COURT. 1. A material alteration of a contract must he such alteration as changes the legal effect of the instrument (Clark on Contracts, page 687), and inasmuch .as the undertaking to pay in excess of ‘6 per cent, interest was void, there was no change linl the legal effect of the instrument. Ky. Stats., see. 2219; Clark on Contracts, p. 17; .Hart v. Hayden, 79 Ky., 352; Sowders v. 'Citizens’ ■Bank, 12 Ky.

Case 88 — PETITION ORDINARY — APPEAL PROM KENTON CIRCUIT COURT. 1. While an office can not be regarded as a contract between the officer and the .sovereign, when the services to be performed are professional or private rather than public or official, an employment under an ordinance for a fixed time at a fixed sum is a contract that can not be impaired. Am. & Eng. Enc. of Law, vol. 19, p. 555. 2.

Case 89 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT. 1.

Case 90 — PETITION ORDINARY — appeal from rowan circuit court. 1. In an action of ejectment in equity, the legal title must prevail; a mere equity oan neither maintain nor bar an ejectment. Gilpin v. Davis, 2 Bibb, 416; Stineburgh v. Wisdom, 13 B. M., 468. 2. Appellees did not sufficiently plead tbe facts constituting am estoppel, which must always be pleaded. Kennemouth. v. Kinnel, 15 Ky. Law Rep., 125; Stacy v. Holliday, 9 Ky. Law Rep., 517; Ray v. Longshaw, 4 Ky.

Case 91 — PETITION ORDINARY — APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. There being no allegation in the pleadings, or evidence in. the record, to show that the note was endorsed by appellant for tbe accommodation of John W. Graham, the plaintiff can not. recover thereon as against appellant, the payor of the note having discounted it. Callahan v. First Nat. Bank, 78 Ky., 607. 2.

Case 92 — AGREED CASE APPEAL FROM PRANKLIN CIRCUIT COURT. 1. The judges are public officers, and their terms of office commenced before the adoption of the present Constitution, and continued (long afterwards, and the provisions of section 235 of the Oonstitu-tion meant to apply to them-.

Case 93 —INDICTMENT APPEAL EBOM ROCKCASTLE CIRCUIT COURT. 1. The special prohibitory act of April 4, 1884, is no longer in force, having been repealed by the provision of the Constitution that all special acts in conflict with its terms should -cease within six years after its -adoption. Schedule of the Constitution, see. Stamper v. Commonwealth, 102 Ky.; James v. 'Commonwealth, 102 Ky. 2.

Case 94 — PETITION EQUITY APPEAL FROM BATH CIRCUIT COURT. 1. In equitable actions to surcharge county court settlements, the plaintiff must specify the particular items objected to and must prove the exceptions he takes to them. Campbell v. Williams, 3 Mon., 324; Tanner v. Skinner, 11 Bush, 129. 2.

Case 95 — PETITION ORDINARY appeal erom grant circuit court. I. A common carrier is not liable for a loss caused by an act of bod, and a continued drought is an act of God. Am. & Eng. Ene. oí Law, vol. 1, pp. 173, 174 and 177; Ward v. Vance, 93 Pa. St., 499; Nugent v. Smith, L. R., 1; C. P. D., 19, 423; McPadden v. N. Y. Central R. R. Co., 44 N. Y., 478. 1.

Case'96 — PETITION EQUITY APPEAL PEOJt PAYETTE CIRCUIT COURT. 1. Where land is sold for other land and personalty, no liqn attaches at all, unless the transaction shows exactly how much money was to be paid, and the value at which the chattels were taken; there can be no vendor’s lien upon real -estate where it has- been sold for personal chattels, and the value of the chattels has not been ascertained and stated in the deed.

Case 97 — PETITION EQUITY APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. There can not be a dominant and a servient estate unless there be at least two tracts of land owned by different persons1. ¡When one person owns the two tracts neither is dominant or servient. Warren v. Blake, 54 Maine, 276; Keiffer v., Imhoff, 26 Penn.

Case 98 — PETITION ORDINARY 'APPEAL PROM HARLAN CIRCUIT COURT. 1. The evidence of Parks B. Howard as to the alleged conversation with Robert Helton, deceased, was incompetent. Civil Code, sec. 606, sub-sections 2 to 6. 2. The so-called deed relied on by appellees is neither sealed nor signed, and is therefore no deed, and passed no title from Robert Helton. Ky.

Case 99 — PETITION EQUITY APPEAL FROM BULLITT CIRCUIT COURT. 1. There must be an actual abandonment of the homestead by-the debtor and his family, without any intention of returning to it; and the abandonment is not consummated until the homestead’ is actually vacated by him and his. family. Gregory v. Oats, 92; Ky., 536; Brown v. Martin, 4 Bush, 47; Carter, Fisher & Co. v. Goodman, 11 Bush, 228. 2.

<p>'Case 100 — PETITION EQUITY</p> <p>APPEAL FROM SCOTT CIRCUIT COURT.</p> <p>1. There is no evidence in this record that there was any design upon; the part of B. J. Laughlin to prefer, his brother, or that be knew beforehand anything about the suit that was filed against him; ■the design to prefer one creditor to the exclusion in whole, or «in part, of others, is necessary before it can be declared to operate-as an assignment. Grimes’ Assignee v. Grimes, 86 Ky., 515;. Hampton v. Morris, 2 Met., 336.</p> <p>2. The statute should not be so construed as that the failure upon the part of the debtor to make an assignment after the- filing of suit against him should raise the presumption that he intended to prefer the judgment creditor,</p> <p>1. B. J. Laughlin was confessedly insolvent at the time of the judgment of his brother against him, and if he had not intended to prefer his brother, he would have immediately made an assignment before a judgment was rendered.</p> <p>2. Even though there he no direct evidence of collusion, a dlebtor will be presumed to have intended the usual result of his- act in permitting judgment to gO' against him. Grimes’ Assignee v. Grimes,. 86 Ky., 511; Thompson v. Heffner’s Exor., 11 Bush; 353.</p> <p>1. The facts and circumstances show beyond question that the judgment of the Fayette circuit court was the result of collusion between the Laughl'ins, and was intended by B. J. Laughlin. to operate as a preference for the benefit of his brother.</p>

•Case 101 — PETTmON EQUITY APPEAL PROM .JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. The evidence in this case establishes the statutory grounds of divorce alleged; but if it did not, It presents a strong case for ■the exercise of the judicial discretion in the chancellor to grant a divorce a mensa et ilwro, which he may do, although the statutory grounds are not established.

Case 102 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. Homestead exemption can only he waived in the manner pointed! out by the statute; and a married man can not mortgage his ¡homestead right without his wife’s joining with him, even though that homestead right be in land in which he only owns a life estate. Ryan v. Flynn, 14 Ky.

Case 103 — PETITION ORDINARY APPEAL EROM JEEEERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. Without an express covenant to be so liable the writer of a policy] of insurance on the interest of a reversioner is not compelled to contribute with other policies written on the interest of a tenant for life, or years, of the same property.