Volume 104 — Kentucky Reports

<p>Case 1 — ACTION FOR. PERSONAL INJURIES</p> <p>APPEAL FROM NELSON CIRCUIT COURT.</p> <p>1. Both the opening and closing statements of counsel for appellee, which were objected to at the time, were gross misconduct, and defendant’s motion to discharge the jury should have beqn sustained. Weeks on Attorneys, sec. 114; Am. & Eng. Enc. of Law, vol. 16, p. 524; Enc. of Pleading and Practice, vol. 2, p. 751; Brown v. Swineford, 44 Wis., 282; s. c. 28 Am. Rep., 587; Dickerson v. Burk, 25 Ga., 227; Insurance Co. v. Cheever, 36 Ohio St., 210; Tucker v. Henniker, 41 N. H., 317; Rolfe v. Rumford, 66 Me., 564; Berry v. State, 10 Ga., 511; Koelges v. Guardian L. Ins. Co., 57 N. Y., 638; State v. Smith, 75 N. C., 306; Coble v. Coble, 75 N. C., 589; 28 Am. Rep., 338; Hennies v. Vogel, 66 111., 401; L. R. & F. S. R. Co. v. Cavanesse, 48 Ark., 106.</p> <p>2. The trial court erred in permitting the plaintiff to prove, indirectly, but successfully, that defendant had an accident policy upon the plaintiff. Winlock v. Hardy, 4 Litt., 273; Rice v. Lo-wan, 2 Bibb, 150. It has been universally held that the defendant in damage cases will not be allowed to show that a decedent has his life insured. The converse of that proposition is equally true, and for the same reason, to-wit: It is a matter not at issue, and tends to mislead and prejudice the jury. B. & O. R. R. Co. v. Wightman, 20 Gratt., 431; Althorpe v. Wolfe, 22 N. Y., 355; Ferry’s Admr. v. Jewett, Rec., 78 N. Y., 338; Kellogg v. N. Y., &c., R. R„ 79 N. Y., 72; N. P. R. Co. v. Kirk, 90 Pa. St., 15; P. & C. R. R. Co. v. Thompson, 56 111., 138.</p> <p>3. The Circuit Court erred in permitting the plaintiff to prove, .over defendant’s objection, that the elevator was mended after the accident. Standard Oil Co. v. Tierney, 92 Ky., 378; Terre Haute R. R. Co. v. Clem, 123 Ind.. 15; Moss v. R. R. Co., 30 Minn., 465; Langv. Sanger, 76 Wis., 71; Nally v. Hartford Carpet Co., 51 Conn., 534; 50 Am. Rep., 47; Paine v. Boston & Troy R. R. Co., 9 Hun., 527; Ely v. St. L. & K. R. R. Co., 88 Mo., 34;. Reed v. N. Y. Cent. R. R. Co., 45 N. Y., 574; Texas Trunk R. R. Co. v. Ayres, 83 Texas, 268; Slottowe v. R. R. Co., 22 Ore., 430; Sappenfield v. Main St. Ry. Co., 91 Cal., 61; Columbia Ry. Co. v. Hawthorn, 144 U. S., 202; Isaacs v. Sou. Pac. Ry. Co., 49 Fed. Rep., 797.</p> <p>4. The trial court erred in permitting plaintiff to prove a conversation between his witness, O’Bryan, and the contractor, Panke, who was an independent contractor, in which Panke said that come one would get killed on the elevator, which Panke was then using for himself and not for the defendant.</p> <p>5. The Circuit Court erred in overruling defendant’s .motion made November 7, 1894, and renewed three times thereafter on November 8, 1894, upon affidavits filed showing the necessity to require the plaintiff, who had testified as to his injuries, to ■permit himself to be examined by physicians to be selected by the court, as to the extent of his injuries and his physical condition. Thompson on Trials, sec. 859; Schroeder v. C., R. I. & P. R. Co., 47 Iowa, 375; White v. Milwaukee & C. R. R. Co., 61 Wis., 536; 50 Am. Rep., 154; McGuff v. State, 80 Ala., 147; Ala. G. S. R. R. Co. v. Hill, 90 Ala., 71; Sibley v. Smith, 46 Ark., 295; St. L. & S. W. Ry. v. Dobbins, 60 Ark., 481; 30 S..W. R., 887; Joliet St. R. R. Co. v. Call, 143 111., 177; Chicago & E. R. v. Holland, 122 111., 461; Atchison, &c., R. R. Co. v. Thul, 29 Kan., 466; 10 A. & E. R. R. Cas., 783; Graves v. City of Battle Creek, 95 Mich., 266; 35 Am. St. Rep., 561; R. & D. R. R. Co. v. Childress, 82 Ga., 719; Shepard v. Mo. & Pac. R. R. Co., 85 Mo., 629; 55 Am. Rep., 390; Sidekum v. W. St. L. & P. R. R. Co., 93 Mo., 400; Owens v. Kansas City, &c., R. R. Co., 95 Mo., 169; Haynes v. Town of Trenton, 123 Mo., 326; Sioux City & P. R. R. . Co. v. Finlayson, 16 Neb.., 578; 18 Am. & Eng. R. Cas., 68; Stuart v. Havens, 17 Neb., 221; -Miami & T. Co. v. Bailey, 37 Ohio, 104; I.&G.U.R.R. Co. v. —, 64 Texas, 463; Hatfield v. St. Paul R. R., 33 Minn., 130; 18 A. & E. R. Cas., 292; Union Pac. ,R. R. Co. v. Bottsford, 141 U. S., 256; (criticised in 47 Am. & Eng. R. Cas., 441; 43 Cent. Law Jour., 442; 4 Am. R. R. & Corp. Rep., by Lewis, p. 654).</p> <p>6. Instruction “Y” offered by defendant, giving the law as between fellow servants, should have been given. Instruction 9 as given, is not only misleading and confusing, but by inserting therein the clause providing that the fellow servant law was not applicable if the injury was caused “by reason of defective, machinery,” the case was tried without any instruction whatever upon that important question.</p> <p>7. The plaintiff having received no permanent injuries, the verdict for $4,250 is excessive. L. & P. R. R. Co. v. Smith, 2 Duv., 556; L. & N. R. R. Co. v. Sickings, 5 Bush, 1; L. & N. R. R. Co. v. Fox,. 11 Bush, 495; Street Ry. Co. v. Ware, 84 Ky., 267; L. & N. R. R. Co. v. Wilsey, 9 Ky. Law Rep., 1008; Standard Oil Co. v. Tierney, 92 Ky., 368.</p> <p>8. As the plaintiff admitted that he knew or thought the elevator was dangerous, his getting upon it while loaded was contributory negligence upon his part, and the motion for a peremptory instruction to find for the defendant should have been sustained. Plaintiff having been expressly directed not to get upon the elevator, and having violated the order, he can not recover. Busweil on Personal Injuries, sec. 153; Beach on Contributory Negligence, secs. 360, 373; Alexander v. L. & N. R. R. Co., 83 Ky., 589; Belt Elec. Line Co. v. Allen, 44 S. W. R., 90.</p> <p>1. It was not error in the trial court to assume jurisdiction to try the case a second time after the first verdict had been set aside and an appeal entered from the order setting it aside. Miller v. Ashcraft, 98 Ky., 314.</p> <p>2. Misconduct of counsel did not constitute an error in the trial court for which this court should reverse. Kisten v. Hildebrand, 9 B. M.„ 72.</p> <p>3. The court did not err in the admission of evidence of the physical condition of the plaintiff or the defective condition of the elevator machinery.</p> <p>4. It was not error in the trial court to refuse to require the plaintiff to submit to a physical examination to ascertain the extent of his injuries. Hess v. Lowery, 7 L. R. A., 90; Stewart v. Havens, 17 Neb., 211; Miami & M. Turnpike Co. v. Bailey, 37 Ohio St., 104; McQuigan v. D. L. & W. R. R. Co., 14 L. R. A., 466; Sioux City & P. R. R. Co. v. Finlayson, 16 Neb., 578; 49 Am. ■ Rep., 724; Lloyd v. Hannibal & I. R. R. Co., 53 Mo., 515; Lyon v. Manhattan R. R. Co., 142 N. Y., 298; 25 L. R. A., 406; Union Pac. R. R. Co. v. Botsford, 141 U. S., 250; Gulf C. & R. F. Ry. Co. v. Nelson, 24 S. W. R., 590 (Texas).</p> <p>5. Upon the instructions. Mitchell v. Marker, 25 L. R. A., 33; Goodsell v. Taylor, 41 Minn., 207; Wise v. Ackerman, 76 Md., 388; Bartley v. Troríich, 49 Mo. App., 231; Northern P. Ry. Co. v. Herbert, 116 U. S., 642; Union Pac. R. R. Co. v. Snyder, 152 U. S., 684; Hough v. Tex. & Pac. R. R. Co., 100 U. S., 213; Ohio Valley R. R. Co. v. McKinley, 16 Ky. Law Rep., 445; L. & N. R. R. Co. y. Hinder, 16 Ky. Law Rep., 841; Railroad Co. v. Fóley, 94 Ky., 220; 15 Ky. Law Rep., 17; Bogenscbutz v. Smith, 84 Ky., 330; Quaid v. Cornwall & Bro., 13 Bush, 604; L. & N. R. R. Co. v. Collins, 2 Duv. 114; L. & N. R. R. Co. v. Robinson, 4 Bush, 507; L. & N. R. R. Co. v. Filbern’s Admx., 6 Bush, 574; L. & N. R. R. Co. v. Brooks’ Admr., 83 Ky., 129; L. & N. R. R. Co. v. Moore, 83 Ky., 675; L. & N. R. R. Co. y. Hinder, supra; Sedgwick on Measure of Damages, p. 35; Parker y. Jenkins, 3 Bush, 587; Lou., Cin. & Lex. R. R. Co. v. Case’s Admr., 9 Bush, 728; L. & N. R. R. Co. y. Fox, 11 Bush, 495.</p>

Case 2 — APPEAL FROM CONTEMPT PROCEEDING APPEAL FROM ERANKLIN CIRCUIT COURT. 1 The appellant has rendered valuable and important legal services to the Commonwealth, resulting in the payment of large sums of money into the treasury.

Case 3 — ACTION FOR EJECTION FROM TRAIN APPEAL PROM LEE CIRCUIT COURT. Upon all of the issues in this case, the evidence being conflicting, the finding of the jury is conclusive.

Case 4 — IN EQUITY APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. X. After filing a mandate of this court on a former appeal, no new ■defense was admissible and it was the duty of the lower court to render such a judgment as should have been rendered originally, or to proceed to a literal and strict obedience of the instructions contained in the opinion.

<p>1. Summons—Return, Amendment of by Ex-Sheriff.—An ex-sheriff may, by leave of court, amend a return upon a summons executed during his term of office, by signing it and by making it conform to the facts. , (Newton v. Prather, 1 Duv., 100, reaffirmed.)</p> <p>2. Summons — Service Upon' Agent. — Under section 51 of the Civil Code, subsection 4, which requires the summons in an action against a common carrier operating a railroad to be served upon its passenger or freight agent at the county seat or the 'station nearest thereto, service of a summons upon one who-sold tickets was sufficient, though such, selling was merely incidental to his other business.</p> <p>3. Statutes — Constitutionality of — Act Requiring Railway Companies to Whistle at Crossings. — Section 786 of the Kentucky Statutes, requiring railway companies to have the bell rung or the whistle sounded upon every locomotive engine approaching a highway crossing at a distance of fifty rods from such crossing, and section 793, imposing a penalty for their failure do not violate the provision of the Constitution against, excessive fines and cruel punishments.</p> <p>4. Highway — Meaning of — By Prescription. — To constitute a highway within the meaniiig of the statute, formal acceptance by the County Court is unnecessary. Continued, uninterrupted and adverse use of a highway by the public creates a conclusive, presumption of dedication and acceptance.</p>

Case 6—EQUITY APPEAL FROM OLDHAM CIRCUIT COURT. 1. The Circuit Court of Oldham county had no jurisdiction to recover the possession of land lying in Jefferson county. Civil Code, sec. 62. 2. In an action for a settlement of the estate all persons having claims against the estate may be made parties, but persons against whom the estate has a claim occupy a very different position. Citizens Nat. Bank v. Boswell’s Admr., &c., 93 Ky., 92. 3.

Case 7 — IN EQUITY APPEAL PROM LOGAN CIRCUIT COURT. The act of 1894, March 15, was intended by the Legislature to1 readjust marital rights, as well existing ones as those thereafter to be acquired; and is no violation of the Constitution of the United States. Constitution, see. 10 art. 1; Ky. Stats., sec, 2128; Cabell, et. al. v. Cabell’s Adrar., 1 Met., 319; Maguire v. Maguire, 7 Dana, 184; Gaines v. Gaines, 9 B. M., 308; Prichard! v. Citizens’ Bank, 28 Am.

Case 8 — IN EQUITY APPEAL FROM CARLISLE CIRCUIT COURT. 1. At common law tenancy by the curtesy initiate became a vested estate upon the birth of issue; 2 Blackstone, 126; 2 Kent, 130; subject to be defeated, however, by divorce a vineulo. Hays v. Sanderson, 7 Bush, 489.

Case 9—ORDINARY APPEAL EROM MARION CIRCUIT COURT. I. The mortgagee, Christie, acquired his lien with full knowledge of appellant’s. 2. The appellant was entitled to a landlord’s lien under his contract with Sullivan; and this lien he could enforce either by attachment or distraint. Ky. Stat., secs. 2299, 2302, 2303, 2309. 3.- It was error to refuse appellant a personal judgmenL and an attachment lien after satisfying Christie’s mortgage. 4.

Case 10 — MOTION TO CONTINUE AN INJUNCTION PENDING - AN APPEAL APPEAL PROM PIKE CIRCUIT COURT. The plaintiff has been in the continued control and management of the ferry without interruption for a period exceeding ten years. During all this time she has maintained it at large expense.

Case 11—ATTACHMENT APPEAL PROM MONTGOMERY CIRCUIT COURT. 1. The Circuit Court never obtained jurisdiction over any property of the defendants, Pidcocks and Rogers, in this State. 2. The Circuit Court could not assume or obtain jurisdiction over the stock of a non-resident debtor in a corporation organized under the laws of some other State.

Case 12 — ACTION ON NOTE APPEAL FROM WARBLE CIRCUIT COURT. 1. Payment by Operation of Law. — It is not the (possession of the equitable right to the proceeds, by one of the obligors, that satisfies a promissory note, hut the inability to maintain an action at law on the obligation that raises a presumption of its payment. Long,. &c., v. Bank of Cynthiana, 1 Littell, 290; Bridges v. Reed, 9 Bush, 329.

Case 13—INDICTMENT APPEAIj FROM SCOTT CIRCUIT COURT. 1. In an indictment for murder it is necessary for the indictment to state truly the time of the commission of the offense. Bouvi'er’s Law Dictionary, title Materiality. 2. It was error in a second trial for the same offense to permit the jury to take to its room the indictment upon which the former verdict had been written. Crim. Code, sec. 270; Com. v. Arnold. 83 Ky., 4. 3.

<p>1. Equity—Granting Reliee Not Prayed eor.—Plaintiff, owning an undivided third interest in a tract of land, instituted an action against two other joint owners (1) to enforce a mortgage lien against the undivided interest of one of the defendants, and (2) for a sale of the entire tract on the ground of indivisibility. The prayer of the petition was “that all thereof he sold, one-third of the proceeds he adjudged to plaintiff, one-third to defendant, George Gill, and a sufficiency of the remainder, for the purpose he applied to the payment of the claim of the plaintiff, and the costs of this action; ‘and the remainder, if anything, be adjudged to defendant, Mrs. Blanche Miller, and plaintiff asks for all other proper relief to which he may appear to be entitled.” Upon this petition being taken pro oonfesso, it was error to enforce the mortgage lien against the undivided third interest without adjudging a sale of the entire property.</p> <p>2. Appraisement Not Prejudicial. — The appráisement, fairly considered, is an appraisement of the one-third interest which was mortgaged to the plaintiff, but if not, the appellant would not be prejudiced by the appraisement of the entire tract.</p>

Case 15—EQUITY— APPEAL PROM CAMPBELL CIRCUIT COURT. 1. The liability of the vendees to the vendor for accruing annuities. is too uncertain and intangible to become the subject of attachment. Drake on Attachments, secs. 555, 551, 552, 559; Kramer v. Bull, 16 Ky. Law Rep., 183; Baird, &c., v. Dietz, 11 Ky. Law .Rep., 759; Bridgeford v. Keenehan, 8 Ky. Law Rep., 268. 2. The plaintiffs failed to conform to the requirements of the statute on the subject of attachments.

Case 16 — CONTESTED WILL APPEAL PROM MASON CIRCUIT COURT. 1. The Circuit Court has no .power to set aside a verdict and grant a new trial in a will case. Acts 1797; Ky. Stats., sec. 4859; Wills v. Lochnane and Wife, 9 Bush, 647; Pryor v. Mihor, 2 Ky. Law Rep., 255; Maxwell v. Maxwell, 3 Met., 101; Singleton v. Singleton, 8 B. M„ 350. 2.

Case 17 — ACTION OF COVENANT APPEAL PROM SCOTT CIRCUIT COURT. 1. The provision in the policy that non-payment of the premium note at maturity should void the policy could be waived by the company; and it was waived by its insisting on the payment of ^he note after the forfeiture accrued. McAllister, Admx., v. New England Mutual Life Ins. Co., 101 Mass., 558; s. e., 3 Am. Reps., 405; Farnum v. Phoenix Ins. Co., 83 Cal., 246; s. e., 17 Am. St. Rep., 238; Union Central Life Ins.

Case 18 — ACTION FOR CONTRIBUTION APPEAL PROM PXEMING CIRCUIT COURT. 1. The petition stated a cause of action. It was not necessary to allege an assignment by the United States to the appellant of the judgments obtained against the sureties. It was an action for contribution and not an action to enforce the judgments. Chenault, Receiver, v. Bush, 84 Ky., 528.

<p>1. Election — Inconsistent Causes of Action. — An action to enforce a right of way by necessity is not inconsistent with an action to reform the deed by which the dominant estate is conveyed so as to make it include a right of way alleged to have been omitted by mistake.</p> <p>2. Easements — Right of Way' from Necessity. — A sale of land from which egress to a public highway can only be had over the lands of the grantor or over those of him and others carries with it by operation of law a convenient passway over the grantor’s other lands.</p> <p>3. Easements — Right of Way — Waiver—Estoppel.—A grantee, entitled to a right of way by implication of law, will not be es-topped to claim same by purchasing another passway from another than the owner of the servient estate.</p> <p>4. Easement — By Agreement. — The grantee in this case was entitled to a passway by express agreement with the grantor.</p>

<p>1. Contempt—Appeals.—Where, in a civil action, an order is made directing one of the parties to the litigation to perform some act for the benefit of the other, the failure or refusal to perform the act is a civil contempt and an appeal lies to this court from a judgment or order punishing the recalcitrant party for such failure or refusal.</p> <p>2. Statutes—Construction op—Act Directing Court to be Held at Covington.—The act of February 1, 1850, providing for holding Circuit Court at Covington contained a section providing-that “so soon as the council give notice to the judge that the court room, clerk’s office, and jail are ready for said court, and. the judge, upon personal inspection, shall be satisfied thereof, he shall direct the clerk to remove the papers aforesaid, and open an office in said city.” Under this section it is held by the court:</p> <p>First—That it is the duty of the city council of the city of Covington to maintain a court room, clerk’s office and other offices with suitable furniture for holding and conducting the business of the Kenton Circuit Court in that city.</p> <p>Second—That the Kenton Circuit Court has not power to enforce that obligation by a rule as in case of contempt, but that the remedy is by indictment for non-performance of the duty-</p>

Case 21—COVENANT— APPEAL PROM CAMPBELL CIRCUIT COURT. 1. Surety can not withdraw in absence of statutory provision. Murfree on Official Bonds, sec. 776; 11 Wend., 28; 3 Houston (Del.), 474. 2. This was the rule at common law. Murfree on Official Bonds, secs. 776, 779. 3. Mere inaction of the obligee will not discharge surety; it must amount to fraud, or concealment.

Case 22—EQUITY— APPEAL FROM PAYETTE CIKCUIT COURT. Under the provisions of section 3 of the act of April 19, 1890, (Acts of 1889-90, vol. 2, 1899), it was necessary in order to the imposition of a lien upon the abutting property for the cost of street reconstruction that the general council should actually make a levy of the special tax to pay for the improvement.

Case 23—EQUITY— APPEAL FROM WOODFORD CIRCUIT COURT. 1. Appellant, by the contract between itself and Hawkins & Co., became the owner and holder of the wheat in pledge. Acts April 28; 1880, Gen. Stat., p. 1266; Mar. 6, 1869, Acts 1869, vol. 1, p. 56; or under the common law. 2. A pledge or hypothecation is governed by the same rules of construction, as an absolute sale at common law, except that the receipts are placed on the footing of bills of exchange.

Case 24—MOTION— APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. The intention of counsel for the appellant to prosecute a writ of error to the Supreme Court does not remove this case from the operation of sec. 759, Civil Code. 1. An appeal can not be said to be prosecuted for delay within the meaning of sec. 759, Civil Code, when the judgment of the Court' of Appeals is a conditon precedent to a writ of error to the Supreme Court. 2.

Case 25—EQUITY— APPEAL PROM JEFFERSON CIRCUIT 'COURT, COMMON PLEAS DIVISION.. Under the will of John Bakrow, the widow took a life estate' in the entire estate, which was subject to her debts. Sale v. Thornberry, 86 Ky., 266; Rhett v. Mason, 18 Grat., 541; Brand v. Rhodes, 17 Ky. Law Rep., 97; Davis v. Hardin, SO Ky., 672; Koenig v. Kraft, 87 Ky., 95; Frank v. Unz, 91 Ky., 621; Jones v.. Jones, 93 Ky., 532; Stillwell v. Leavy, 84 Ky., 379. 1. Injunction was the proper remedy.

Case 26 — PETITION ORDINARY APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION, 1. It was error to overrule a demurrer to the petition and then instruct the jury peremptorily to find for the defendants after the plaintiff had proved the substantive averments of the petition. 2. Plaintiff had a right to recover against defendants for damages caused by the prudent operation of their trains. Exodus, chap. 6, verse 22; Lou. So. R. R. v. Cogar, 15 Ky.

Case 27—MANDAMUS— APPEAL PROM WHITLEY CIRCUIT COURT. The act of March 14, 1898, changing the lines of the third, fifth and seventh appellate court districts must he held valid, unless prohibited by the Constitution. Cooley on Constitutional Limitations, 5th ed., pp. 105-6. Section 116 does not constitute such a prohibition. A change of district lines is not a redistriccing within the meaning of that section. Compare sec. 33 with sec. 116.

Case 28 — ACTION TO ENFORCE STREET ASSESSMENT APPEAL PROM JEPEERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. The city of Louisville has authority to contract for construction, reconstruction and repairs of its streets, and is liable to the contractor for so much of the cost of same as the city has no authority to charge against owners of abutting ground.

<p>1. Practice in Court op Appeals — Motion to Appirm as Delay Case. — The Court of Appeals will not consider a motion to affirm as a delay case, unless counsel have made the statement required by sec. 759 of the Civil Code.</p> <p>2. Jurisdiction op Court op Appeals — Accrued Interest. — Under sec. 950 of the Kentucky Statutes defining the jurisdiction of the Court of Appeals in judgments for money, the language “exclusive of interest and costs” includes as well interest accrued at the time of the institution of the suit as that accruing pendente lite.</p>

Case 30—INDICTMENT— 'APPEAL FROM DAVIESS CIRCUIT COURT. 1. Stone was not criminally liable under sec. 1202 Kentucky Statutes. 2. Where one under arrest confesses he is guilty as charged and he is charged with embezzling funds of the National Life Insurance Company, such confession is not competent evidence on trial under a subsequent indictment charging him with embezzling funds of the National Life Association. Gabriel v. State, 40 Ala., 357; Youra v. Territory, 29 Pac.

Case 31—MOTION— MOTION ON APPEAL PHOM LOSAN CIRCUIT COURT. 1. The motion was entered in this case before a final determination by this court of the appeal. In the interest of justice and fair dealing, the court should permit supersedeas bonds to he filed herein, a supersedeas to issue upon each of said bonds and ten per cent damages he awarded upon same. 2.

Case 32 — INDICTMENT FOR VIOLATING LONG AND SHORT HAUL STATUTE. APPEAL FROM MARION CIROUTT COURT. 1. Section 820, Kentucky Statutes, on which the indictment was based, is inconsistent with sec. 218 of the Constitution, and, therefore void, and, consequently, the demurrer to the indictment should have been sustained. 2. The indictment is fatally defective for a variety of reasons, and, therefore, the demurrer to it should have been sustained. 3.

Case 33 — AGREED CASE APPEAL FROM FRANKLIN CIRCUIT COURT. 1. The act creating the prison board is a violation of see. 107 of the Constitution in that it creates á six-year office. 2. The penitentiary officials in office when the act was passed could not be deprived of their offices during the terms for which they were elected without charges. Ex parte Hennen, 13 Pet., 225. 1.

Case 34 — ACTION TO VACATE JUDGMENT APPEAL PROM TODD CIRCUIT COURT. 1. Submission of the case was premature. Moreland’s Assignee, v. Citizens’ Bank, 16 Ky. Law Rep., 860; Civil Code, 364. 2. Special judge not eligible beyond the term at which elected. Childers v. Little, 16 Ky. Law Rep., 521; 96 Ky., 376. 3. The affidavit of T. P. Small disqualified the special judge. Massie v. Com., 93 Ky., 588 (14 Ky. Law Rep., 564); German Insurance Co. v. Landram, 88 Ky., 433 (10 Ky.

<p>Case 35—INDICTMENT—</p> <p>APPEAL PROM GRAVES CIRCUIT COURT,</p> <p>(No brief in the record.)</p> <p>(No brief.)</p>

Case 36—INDICTMENT— APPEAL FROM HARRISON CIRCUIT COURT. 1. The indictment should have been quashed because it was returned at a term when a grand jury could not be impaneled. Ky. Stat., secs. 964, 965; State Con., secs. 11, 12; Bishop Crim. Proc., vol. 1, 3d ed., sec. 860 (and authorities cited); Same, secs. 888, 889; Crim. Code, sec. 340;.Rutherford v. Com., 78 Ky., 642; Avirett v. State, 76 Md., 510; Green v. State, 59 Md., 123; Downs v. Com., 13 Ky.

Case 37—INDICTMENT— APPEAL PROM PULTON CIRCUIT COURT. The offense of breaking into a warehouse with intent to steal therefrom and the offense of receiving stolen goods are entirely separate and distinct offenses, and where the same evidence might be competent upon both charges, the offenses are essentially different. Ky. Stats., secs. 1164 and 1199. The defendant might have been convicted upon the second indictment upon the evidence introduced upon the first. Wharton’s Crim.

Case 38 — ACTION ON FORFEITED PEACE BOND APPEAL PROM MONROE CIRCUIT COURT. In an action to recover the penalty of a peace bond a judicial conviction is not a condition precedent to a recovery. To so hold would defeat, in some instances, the purpose of the bond. Crim. Code, secs. 384, 391, 262, 263, 264; Rankin v. Com., 9 Bush, 553. To the same point, Crim. Code, sec. 391-2; Rankin v. Com., 9 Bush, 553; Am. & Eng. Enc. of Law, vol. 3, p. 723.

Case 39 — ACTION ORDINARY APPEAL FROM MONROE CIRCUIT COURT. (No brief on file.} 1. The bill of exceptions was not filed in time and can not be considered. Padgett v. Mays, 2 Ky. Law Rep., 213; Linden v. Haddix’s Admr., 4 Ky. Law Rep., 633; Civil Code, sec. 334; Freeman v. Brenham, et. al., 17 B. M., 603. 2. The grounds for a new trial are too general to raise any question.

Case 40 — INDICTMENT FOR SELLING INTOXICATING LIQUOR APPEAL FROM METCALFE CIRCUIT COURT. 1. It was error to permit the defendant to prove his license by parol. The license itself was the best evidence. 2. The place of sale must he named and designated in the license and the county court is the tribunal to fix the place of sale. Ky. Stat., 4203.

Case 41—INDICTMENT— APPEAL PROM METCALFE CIRCUIT COURT. 1. The defendant’s license was invalid. Kentucky Statutes, section: 4224. 2. The sale was unauthorized, even assuming the validity of the license. Moody v. Com., 6 Ky. Law Rep., 219; Gnadinger v. Com.,, 4 Ky. Law Rep., 514.,

<p>1. Criminal Law—Rape—Sufficif.ncy of Indictment—Omission of “RxWisir.”—In an indictment for rape committed upon tke person of a female over the age of twelve years, as defined hy Kentucky Statutes, sec. 1154, the use of the word “ravish” in the indictment is not necessary.</p> <p>2. Same—Sufficiency of Indictment—Use of “Feloniously.”—It was necessary in an indictment for rape under sec. 1154, Ky. St., to use the word “feloniously.” Hall v. Com., 15 Ky. Law Rep., 856.</p> <p>2. Same—Name of Person Injured—“Jennie” and “Jane.”—In such an indictment the use of the name “Jennie Tyre” as the name of the prosecutrix in one part of the indictment and “Jane Tyre” in another, did not create a confusion as to the-identity of the person.</p> <p>4. Same — Venue—Evidence of. — Evidence that the crime was committed in “Rhea’s wheat field, about four hundred yards distant from the residence of Joe Tyre” is insufficient ü> 'prove the venue.</p>

Case 43—EQUITY— APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. The language, “then living children,” can not be construed to in-elude grandchildren, because the father of these grandchildren was dead when the will was made. Ky. Stat., sec. 2064; Chenault v. Chenault, 88 Ky., 83; Fuller v. Martin, 96 Ky., 500. 2. The legacy to the grandchildren raised the presumption that they were not to be included in the final distribution. 3.

Case 44—LIBEL— APPEAL FROAT UNCOIL CIRCUIT COURT. 1. The facts of the case show that there was no express malice, and there were no facts from which express malice or gross malice could be inferred and, therefore, it was error to give the instructions for punitive damages. 2.

<p>1. Action to Cancel Assignment of Insurance Policy—Fraud— Ignorance of Facts.—In this action to cancel an assignment of an insurance policy executed by the appellant, in whose favor the policy upon the life of her son had been issued, to the son’s wife upon the ground of fraud and undue influence, it is not necessary that the asserted fraudulent misrepresentations of fact should have been known to the assignee to have been false, if she had the means and ability to ascertain the truth, and it was her duty to tell it.</p> <p>2.. Payment of Premium by Wife of Lunatic—Agent.—When a legal and moral obligation rested on an insured to keep a policy of insurance alive, payments of premium by his wife out of his money, he having been adjudged a lunatic, will be treated as. having been made by her as his agent.</p> <p>3. Assignment Cancelled for Ignorance of Material Facts.— Where the beneficiary of an insurance policy had encumbered her real estate in the faith of the insurance policy’s standing as an indemnity, it would be inequitable to permit an assignment of the policy to stand without a complete knowledge of the material facts by the assignor.</p> <p>4. Misrepresentation of Effect of Covenants of Policy.—A representation by the assignee of such policy that the policy would become void if the premium should not be paid at maturity when the policy contained the clause obligating the insurance company to issue paid-up policy in proportion to premiums paid, was a material misrepresentation.</p>

Case 46—EQUITY— APPEAL PROM ROBERTSON CIRCUIT COURT, 1. The appellees were not entitled to the appointment of a receiver. Douglass, &c., v. Cline, &c., 12 Bush, 608; Wooley v. Holt, 14 Bush, 788; Civ. Code, see. 299. 2. Holmes’ partnership lien was superior to that of the appellees. Hodges v. Holeman, 1 Dana, 50; Pearson v. Keedy, 6 B. M., 128; Wilson v. Soper, 13 B. M., 411; Bindley on Partnership, 779; Crooker v. Crooker, 83 Am.

Case 47 — INDICTMENT FOR NUISANCE APPEAL from iiakdin circuit coubt. Errors complained of as follows: 1. The error of the court in admitting testimony to show- an obstruction of a way in Vine Grove, when the charge was obstructing a public highway of Hardin county, near Vine Grove. 2. The further error of the court in admitting evidence of obstructions prior to November. •3. The still further error of the court in admitting verbal testimony to establish a public highway. 4.

Case 48 — INDICTMENT FOR NUISANCE APPEAL FROM CARLISLE CIRCUIT COURT. The contention of the appellee that by the passage of the act incorporated in the Kentucky Statutes, chapter 110, entitled roads and passways (and more particularly section 4335 of said chapter) repealed or took away the common law remedy of nuisance created by the obstruction of the public highways, is not sound.

Case 49 — ACTION FOR SALARY APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. The General Assembly is prohibited from passing special or local statutes of limitations. Ky. Const., 59, sub-secs. 5 and 29. 2. Special statutes of limitations contained in the charter of the-. city of Louisville. Secs. 2752 and 2882, Ky. Stats. 3.

Case 50—INJUNCTION— APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. The relation of the public printer to the State is that of an officer with a fixed term. At the expiration of his term his powers cease. All manuscript in the printer’s hands remained the State’s property and the printer was a mere bailee.

Case 51—ATTACHMENT— appeal from jeeferson circuit court, chancery division. An affidavit for an attachment by a corporation may be made by an executive officer. Civ. Code, secs. 51, sub-sec. 3; 117, sub-sec. 2; 732, sub-sec. 33. 1. An affidavit for an attachment by the vice-president of a corporation is insufficient without showing that the president is absent from the county. Civ. Code, sec. 550; Pool 'v. Webster, 3 Met., 278; Civ.

Case 52—EQUITY— APPEAL FROM BULLITT CIRCUIT COURT. 1. Limitation.—Under chapter 86, Revised Statutes, where the guardian of the infant, who was the 'father and tenant by the curtesy, petitioned for the sale of his ward’s real estate, and there was no order of court for reinvestment of the proceeds of sale, the surety on the bond is released, no action having been instituted on the bond by the infant within seven years after arrival at age. 2 Stanton, pp. 304-310, sec. 1,…

<p>Petition—Demurrer—Dependant Improperly Named as Guardian.—It Is error to sustain a general demurrer to a petition - which states a cause of action against the defendant individually merely because in the caption he is improperly named as guardian. t</p>

Case 54 — ACTION FOR PERSONAL, INJURIES APPEAL FROM CAMPBELL CIRCUIT COURT. • 1. While a child will not be held to the same degree of care as a matured person, it can be guilty of contributory negligence, and its negligence, can bar a recovery. 2. While this court has recognized the doctrine of imputed negligence in only one case, to-wit: L. & P. Canal Co. v. Murphy, 9 Bush, 530, it has never in any case announced that it would not still recognize this doctrine.

Case 55 — ANNEXATION OF TERRITORY TO MUNICIPALITY. APPEAL PROM KENTON CIRCUIT COURT. 1. The original petition against the trustees of Latonia was bad, and the court had no power to permit an amendment making the municipality a defendant. Hill v. Barrett, 14 B. M., 67; Richmond, &c., T. P. Co. v. Rogers, 7 Bush, 532; L. & P. Canal Co. v. Murphy, 9 Bush, 522; Young v. Barden, 90 N. C., 424.

Case 56 — ACTION FOR DAMAGES APPEAL PROM CAMPBELL C33CUIT COURT. Appeal — Final Order — Order Granting New Trial. — An order granting a new trial is not a final order from which an appeal lies. 1. The trial court in granting a new trial, delivered an opinion which indicated on a subsequent trial he would instruct the jury peremptorily to find for the defendant on the ground of contributory negligence. This was a final order. 2.

<p>Case 57—RESCISSION—</p> <p>APPEAL PROM DAVIESS CIRCUIT COURT.</p> <p>1. The Daviess Circuit Court had no jurisdiction of the action. Massie v. Watts, 6 Cranch, 148; McQuerry v. Gilliland, 89 Ky., 434; Dunn v. McMillen, 1 Bibb., 409; Lewis v. Morton, 5 Mon., 1; Williams v. Burnett, 6 Mon., 322; Kendrick, &c. v. Wheaily. 3 Dana, 34; Parrish v. Oldham, 3 J. J. M., 544; Page, &c. v. McKee, &c., 3 Bush, 135; Thompson v. Elmore, &c., 13 Ky. Law Rep., 692; Bullitt, &c. v. Eastern Kentucky Land Company, IS Ky. Law Rep., 230.</p> <p>'2. Assuming the jurisdiction, the facts did not warrant a rescission. There was no defect in the title to the lands conveyed in Florida. But if there were the alleged defects were cured before the hearing. Daniel v. Smythe, 5 B. M., 347; Cotton v. Ward, 3 Mon., 304; Finley’s Exr. v. Lynch, 2 Bibb'., 566; Duvall v. Parker, 2 Duv., 182; Winston v. Gwathmey. 8 B. M., 19; Delivery of patent from the United States to the patentee is not essential to vest title. Am. & Eng. Enc. of Law, vol. 19, p. 350; U. S. v. Schurz, 102 U. S., 378; Marbury v. Madison, 1 Cranch, 137.</p> <p>3. The contract was an executed one and the parties were mi juris. Buford’s Admr. v. Guthrie, &e., 14 Bush, 690; Simpson, &c. v. Hawkins, 1 Dana, 303; English v. Thomasson, 82 Ky., 280.</p> <p>4. The testimony does not warrant a rescission. The plaintiff had made an actual examination of the land and relied on his judgment. Peak v. Gore, 94 Ky., 533.</p> <p>1. An action to rescind a contract for land may be brought against a non-resident in the county where the land lies. Newman’s PI. & Pr. 38, and authorities cited; Freeman v. Alderson, &c., 119 U. S., 185-190. If this were not the law,' the fact that a mortgage debt, past due at the time of the action to rescind was brought, in which its enforcement is sought by the mortgagee, which the non-resident assumed in such contract, and failed to pay as he agreed, would give jurisdiction to rescind In the county where the land, upon which the mortgage is, lies.</p> <p>2. A plea to the jurisdiction over the person and over the subject matter, it being clear the court possessed jurisdiction over the subject matter, is a general,, appearance. 2 .Enc. of PI. & Pr., 621; Fitzgerald v. Fitzgerald, 137 U. S., 98 (bk. 34 L. Ed., 611); Civil Code, sections 92 and 118; 2 Enc. of PI. & Pr., 639; C. Ü. & S. W. R. R. Co. v. Heath, 87 Ky., 651; s. c. 9 S. W. R. 836.</p> <p>3. When the petition shows the defendant is a non-resident, a plea to the jurisdiction, instead- of a special demurrer, is a general appearance. Civ. Code, sections 92 and 118; C. O. & S. W. R. R. Co. v. Heath, 87 Ky., 651; s. c. 9 S. W. R., 834.</p> <p>4. Lancaster was entitled to a rescission on the following grounds: (a.) Fraudulent and false representations. 21 A. & Eng. Enc. of Law, 27-34; Foard v. McComb, 12 Bush, 723; Shackleford v. Handley, 1 A. K. Mar., 496; Rhea v. Yoder, Sneed, 87; Dietz v. Sutcliffe, 80 Ky., 650; Havlin v. Reed (Ky.), 5 S. W. R„ 554; Waters v. Mattingly,1 Bibb, 244.</p> <p>(b.) Inadequacy of consideration, in connection with circumstances evidencing an effort to procure an advantage. Peals v. Gore, 94 Ky., 533; Howard v. Howard, 87 Ky., 616; McHarry v. Irvin’s Exr., 85 Ky., 322; 21 A. & Eng. Enc. of Law, 34, 53j Cruse v. Christopher’s Admr., 5 Dana, 181; Beard v. Campbell, 2 A. K. Mar., 125; Newton v. Nanss (Tex.), 26 S. W. B., 81-82.</p> <p>(c.) The failure of Todd to pay the mortgage debt to Herr as his stipulation bound him to: 21 Am & Eng. -Enc. of Law, 44-46, and a note on 46; Peak v. Gore, 94 Ky., 537-539.</p> <p>(d.) Where insolvency is considered in decreeing a rescission, non-residency, under the same circumstances, has the same legal effect. English & Thomasson, 82 Ky., 280; 8 Ky. L. B., 422. Insolvency or non-residency is immaterial in an action for rescission.</p> <p>(e.) As to a portion of the land conveyed to Lancaster, the title was defective. 28 Am. & Eng. Enc. of Law, 153-154; 154 note; Bailey v. Corley, (Ky.) 26 S. W. K., 391; Brady v. Harper, (Ky.) 30 S. W. B., 664.</p> <p>(f.) Instead of certain parts of the lands conveyed to Lancaster being in one tract as sold, they were disconnected tracts, and the conveyances to him did not cover the same lands, in some instances, he contracted for, and in others, did not cover a desirable portion which was embraced in the boundary pointed out and sold to him by Todd. 21 Am. & Eng. Enc. of Law, 63n., 8.</p> <p>(g.) One tract sold as containing a pool of water and a frontage on a lake, was purchased by Lancaster for the special purpose of a residence, and he would not have made the contract except that such pool and frontage were procured. Damages are not involved in such case, nor an inquiry of how it came about. 21 Am. & Eng. Enc. of Law, 63, 37-39; 38n.; 39n.; Lytle v. Breck- ' inridge, 3 J. J. M., 663; Durrett v. Simpson, 3 Mon., 517; Winston v. Gwathmey, 8 B. M., 19; Moore v. Cross, (Tex.) 26 S. W. B., 122.</p> <p>g>. It is certain that the minds of Lancaster and Todd did not meet, and, hence, there was no agreement, or else the transaction is. different, with respect to its subject matter, from that which, was intended. In either event, the right of rescission is clear, whether this result arose by reason of mistake of both or only one of them, or by reason of any other circumstance. 2 Pomeroy’s Eq. Jur.,. 870; Cruse v. Christopher’s Admr., 5 Dana, 181; Beard v. Campbell, 2 A.' K. M., 125.</p> <p>6. A vendee may rely upon the statements of his vendor in regard to the latter’s title. Upshaw v. Debow, 7 Bush, 442-443.</p> <p>7. Total inability on the part of Todd to fulfill his contract, or gross negligence for an unreasonable time to do so, is equivalent to fraud, and authorizes a rescission. Bullock v. Bemiss, 1 A. K. M„ 433.</p> <p>8. Representation can be made of a matter of opinion. 21 Am. & Eng. Enc. of Law, 29n. 2; Pomeroy on Contracts, p. 291, §212; Newton v. Gauss (Tex.) 26 S. W. R., 81 and 82.</p> <p>9. The findings of the Chancellor in regard to the facts, as the evidence is sufficient to sustain same, will be adopted by this court.</p>

Case 5S — ACTION FOR DAMAGES APPEAL EROM CHRISTIAN CIRCUIT COURT. 1. A common carrier has a right to make reasonable regulations, for the separation of white and colored passengers. Com. v. Power, 7 Met. (Mass.), 596; 41 Am. Dec., 465; West Chester & Phila. R. R. Co. v. Miles, 55 Penn. St., 209; 93 Am. Dec., 744; Bass v. The Chicago N. W. Ry. Co., 36 Wis., 450; 17 Am.

Case 59 — ACTION FOR DAMAGES APPEAL FRCOI CHRISTIAN CIRCUIT COURT. 1. The demurrer to the petition should have been sustained because it fails to allege that appellee’s perilous position was discovered in time by the exercise of reasonable care to have avoided the injury, or that it was the duty of appellant to have discovered appellee’s peril Shearman & Redfield on Negligence, sec. 25; Little Rock &c. R. Co.v. Pankhurst, 5 Am. & Eng.

Case 60 — ACTION TO DECLARE AN ASSIGNMENT appeal erom bracken circuit court. It was error to render judgment at the appearance term, the answer traversing some of th.e substantive averments of the-petition. Civ. Code, sec. 366; Gruell, &c.,'v. Smalley, 1 Duv., 358. I. The intention to prefer lying solely within the knowledge of Tee-garden, his failure to deny such intention concludes that question.

Case 61 — INDICTMENT FOR SELLING LIQUOR APPEAL FROM HART CIRCUIT COURT. 1. ..The demurrer to the indictment should have been sustained. (1) Because of duplicity. Crim. Code, secs. 126, 127, 165, 168. (2) Because not direct and certain. Crim. Code, sec. 124. 2. Incompetent evidence, viz.: Certificate of the county court, was. admitted. 3. Competent evidence was rejected. (1) As to whether the act was ratified and -approved or not..

Case 62—EQUITY— ATPBAT. FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Upon TnE appeal oe Mrs. Cooke against the Fidelity Trust & Saeety Vault Co., executor oe George E. Cooke, deceased. 1. The devise made by Dr. Cooke to his wife did not operate as a satisfaction of the debt which he owed her. 13 Am. & Eng. Enc. of Law, 82; 1 Pom. Eq.

Case 63—EQUITY— APPEAL PROM HARDIN CIRCUIT COURT.- 1. Subrogation. Am. & Eng. Enc. of L., title “Subrogation,” pp. 190, 191, 192 and 197; Harris, Law of Subrogation, general definition, sec. 6; as to sureties, sec. 173; effect of fraud on right, sec. 813.

Case 64—ATTACHMENT— APPEAL JfROM CALDWELL CIRCUIT COURT. The attachments ought to have been discharged because, (1) not properly issued, (2) executed, or (3) sustained by proof. In a petition for a rehearing, same counsel argued that the facts sustained the grounds of attachment and on the question of the debtor’s intention cited: Dunn, &c. v. Salter, &c., 1 Duv., 342, and Lewis v. Wright, 3 Bush, 311.

<p>1. Evidence — Statements oe the Dependant Siiowixo Motive1. — ■ It was not error to permit tlie Commonwealth, to prove a statement made by the accused a few hours after he hadbeen. put in jail tending to show the defendant’s motive for the commission of the crime, it appearing that such statement was voluntarily made without influence or constraint of either threats or promise.</p> <p>2. Sane — Instructions—Insanity.—It was not error in the trial court to refuse to instruct the jury that before they could convict they must believe to the exclusion of a reasonable doubt that the accused was at the time he committed the act of sound mind.</p> <p>3. Same.- — The jury was properly instructed that if at the time the defendant shot Perkins, if he did shoot him, he did not have mental capacity sufficient to enable him to know and understand that it was wrong to shoot said Perkins, he — the defendant — was of unsound mind. Or, if at the time the defendant shot Perkins, if he did shoot him, he was prompted to do such shooting by an impulse resulting from a diseased mind of such violence that it overcame the will of the defendant and constrained him to shoot the said Perkins when he did not wish to do so, the defendant was of unsound mind. If, however, at the time the defendant shot Perkins, if he did shoot him, he — the defendant — had mental capacity . sufficient to enable him to know right from wrong and will power sufficient to enable him to choose between shooting and refraining from shooting, then the defendant was' of sound mind. Or, if the defendant at the time he shot Richard Perkins, if he did shoot him, had mental capacity sufficient to enable him to know right from wrong and if his mind was free from disease, then no impulse to shoot said Perkins no matter how violent and® no matter how completely it dominated the will of the defendant, was unsoundness of mind.</p>

Case 66 — ACTION FOB DEATH APPEAL EB01I CARTEE CIKCÜTT COURT, 1.

Case 67 — ACTION FOR DEATH APPEAL EROM HOPKINS CIRCUIT COURT. 1. The verdict of the jury is not sustained by sufficient evidence and is contrary to the evidence. 2. A peremptory instruction should have been given. Citations: Hughes v. Cincinnati, &c. R. R. Co., 91 Ky., 526; Cotton v. Wood, 8 Com. B., N. L., 568 (Thompson on Negligence, 364); Johnston’s Admr. v. B. T., V. & G. Ry. Co., 17 Ky. Law Rep., 67; Wintuska’s Admr. v. L. & N. R. R. Co., 14 Ky.

<p>Case 68—EQUITY—USURY—</p> <p>APPEAL FROM WASHINGTON CIRCUIT COURT,</p> <p>A plea of usury is tendered by the answer. Kendall v. Crouch, 88 Ky., 199; Fitzpatrick v. Apperson’s Exrs., 79 Ky., 272; and a change of payees is not a payment of the usury.</p> <p>A submission of an equity action at the appearance term confesses the substantive averments of the answer. Civ. Code, Bullitt’s Ed., sec. 366 and notes. On reversal, therefore, the mandate should direct judgment in accordance with the facts as averred in the answer.</p> <p>1. Defendant’s rejoinder was a sham pleading.</p> <p>2. The commissioner’s report of sale can not be attacked except in a direct proceeding or upon an allegation of fraud or mistake. Ky. Stats., sec. 3760.</p> <p>The defendant’s pleading presented no defense. Smith v. Young, 11 Bush, 393; Fitzpatrick, &e. v. Apperson’s Exr., 79 Ky., 272; Kendall v. Crouch, 88 Ky., 199; Sutherland y. Owensboro Bank, 8 Ky. Law Rep., 431.</p>

Case 69 — ACTION FOB DAMAGES APPEAL PROM CARROLL CIRCUIT COURT. 1. The relation of the city to the so-called lessee under the pleadings is not a pure question of law, but is a question of both law and fact, because Houghton is alleged to be a servant and agent as well as a lessee; and that he was representing the city as wharfmaster. 2. The relation between the city and Houghton was not that of landlord and tenant.

Case 70 — IN EQUITY APPEAL FROM FRANKLIN CIRCUIT COURT. 1. The proof does not sustain the allegations of the petition that the release was procured by fraud. 2. The proof shows that Mrs. Welch was the meritorious cause of the accumulation of the property which constituted the estate of James Welch. 3.The transfer to Mrs. Welch constituted a valid gift. Brown v. Brown, 4 B. M., 535; Payne v. Powell, 5 Bush, 248; Roche v. George’s Exrs., 13 Ky.

Case 71—INJUNCTION— APPEAL PROM NICHOLAS CIRCUIT COURT. 1. It is the duty.of the court to carefully re-examine a decision when the question involves important public or private rights, Cooley’s Const. Lim. (¡5 ed.), note to page 65. 2. It is always permissible, in construing a constitutional provision, to inquire into the prior state of the law and the circumstances attending the making of the Constitution.

<p>Case 72 — ACTION FOR INJURIES BY A DOG</p> <p>Appeal from Jefferson circuit court, law and equity division.</p> <p>1. It was error to set aside the first verdict of the jury and grant a new trial; the newly.discovered evidence was merely cumulative. Respass v. McClanahan, Hardin, 342; Chambers v. Chambers’ Admr., 2 A. K. M., 348; Daniel v. Daniel, 2 J. J. M., 52; Ewing v. Price, 3 J. J. Mar., 520; McFarland’s Admr. v. Clark, 9 Dana, 134; Leonhart v. Stalzenberger, &e., 7 Bush, 209; Houston v. Kidwell, 83 Ky., 301; Graham & Waterman on New Trials, vol. 1, p. 486; vol. 3, pp. 1046, 1063.</p> <p>2. Where a new trial is improperly granted the verdict should be set aside and judgment entered on the first verdict. Brevard v. Graham, 2 Bibb, 177; Legrand v. Baker, 6 Mon., 235.</p> <p>3. The appellant was entitled to the concluding argument. L. & N. R. R. Co. v. Brown, 13 Bush, 475; Civ. Code, sec. 526; Royal Ins. Co. v. Schwing, 87 Ky., 410; Caskey v. Lewis, 15 B. M., 27; Daviess v. Arbuekle, 1 Dana, 525; Higdon’s heirs v. Higdon’s Dev., 6 J. J. M., 48; Denny v. Booker, 2 Bibb., 427; Wheatly v. Phelps, 3 Dana, 302; Young v; Haydon, 3 Dana, 145; Page v. Carter, 8 B. M., 192; Crabtree v. Atchison, 93 Ky., 338. ■</p> <p>4. Plaintiff was not required to negative, in his petition, the exceptions in the statute; and such matter was surplusage. P. & M. R. R. Co. v. Hoehl, 12 Bush, 41; Bliss, Code Pleading, p. 102; L. & N. R. R. Co. v. Copas, 95 Ky., 460.</p> <p>5. On Construction of statute. Cooley on Torts, p. 349. 6. Refusal of trial court to permit amended answer alleging that . the dog was in possession of the Kennel Club Bench Show was error.</p> <p>1. The trial court did not err in granting a new trial to appellee after the trial and verdict for appellant. Such action by the court is within the sound discretion and will not be disturbed except for abuse of discretion. People v. Sutton, 15 Pac. R.» 86 (Cal.); Myers v. Brownell, 16 Am. Dec., 729; s. c. 2 Aikens, 407 (Vt.); Hicks v. Deposit Bank of Glasgow, 12 Ky. Law Rep., 605; Wilcox Silver Plate Co. v. Barclay, 48 Hun., 54; Barker v. French, 18 Vt.,’460; Clegg v. N. Y. Newspaper Union, 51 Hun., 232; Anderson v. State, 43 Conn., 514; Mudd River Coal Co. v. Tipton, 12 Ky. Law Rep., 940; L. & N. R. R. Co. v. Wade, 11 Ky. Law Rep., 953; Railway Co. v. Crayton, 69 Miss., 158; L. & N. R. R. Co, v. Coniff’s Admr., 16 Ky. Law Rep., 296; C., O. & S. W. R. R. Co. v. Hicky, 15 Ky. Law Rep., 112; Caldwell v. Wright, 8 B. M., 525; Ewing v. Price, 3 J. J. M., 520; Ky. Stats., sec. 68.</p> <p>2. Teasing a dog was not such an unlawful act as brought plaintiff within the exception of the statute.</p> <p>3. It was necessary for plaintiff in his petition to negative the exceptions in the statute. Chicago, &c. R. R. Co. v. Carter, 20' 111., 390; Ohio, &c. R. R. Co. v. Brown, 23 111., 94; Illinois, &c. R. R. Co. v. Williams, 27 111., 48; Chitty on Pleading, p. 223;: Great Western R. R. Co. v. Bacon, 30 111., 347; Greenleaf on Evidence (14th Ed.), sec. *78; Becker v. Crow, 7 Bush, 198; Goodwin v. Smith, 72 Ind., 113; Royal Ins. Co. v. Schwing, 87 Ky., 410; Denny v. Booker, 2 Bibb, 427; L. & N. R. R. Co. v. Brown, 13 Bush, 475; Paducah, &c. Railroad Co. v. Hoehl, 12 Bush, 47.</p> <p>4. On the construction of the statute. Koestel v. Cunningham, 97 Ky., 421; 17 Ky. Law Rep., 296.</p> <p>5. There was no error on the part of the trial court in refusing to permit the amended answer to be filed. Patrick v. Swinney,. 5 Bush, 421..</p> <p>1. Parties suing under a statute must negative exceptions where they are contained in the same section governing the right or fixing the liability. Burden of proof in such case is on plaintiff to prove the negative. L. & N. R. R. Co. v. Belcher, 89 Ky., 193.</p> <p>1. Contributory negligence is no defense to an action under our statute for injuries done by a dog. Shearman & Redfield on Negligence, secs. 61, 62 and 64; Woolf v. Chalker, 31 Conn,, 121; s. c„ 8'l Am. Dec., .175; Koestel v. Cunningham, 97 Ky., 421; 17 Ky. Law Rep., 296; B. & M. R. R. Co. v. Webb (Neb.), 22 Am. & Eng. R. R. Cases, 617; B. & M. R. R. Co. v. Brinkman (Neb.), 11 Am. & Eng. R. R. Cases, 438; Spencer v. C. & N. W. R. R. Co., 25 Iowa, 139; Corwin v. N. Y. & E. R. R. Co., 13 N. Y., 42; Welt v. I. & Y. R. R. Co., 105 Ind., 55; s. c. 24 Am. & Eng. R.-R. Cases, 372; Laird v. R. R. Co., 62 N. H., 254; s. c. 13 Am. St. R., 564; Rowell v. R. R. Co., 57 N. H., 132; s. c. 24 Am Rep., 59; Broom’s Legal Maxims, 592; May v. Burdett, 9 Q. B., 101; Murray v. Young, 12 Bush, 337; McCaskill v. Elliott, 5 Strobhart’s Law, 196; s. c. 53 Am. Dec., 706; Williams y. Moray, 74 Ind., 25; Smith v. Pelah, 2. Stra., 1264; Muller v. McKesson, 73 N. Y., 195; s. c., 29 Am. Rep., 123; Eake v. Addicks, 45 Minn., 37.</p>

Case 73—ATTACHMENT— APPEAR FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. When, by the bill of lading, goods consigned are deliverable to the shipper’s own order, there is a strong, and almost conclusive presumption that the shipper intended to reserve to himself the jus dlsponendi, and not to part With his title. Benjamin on Sales (4th Am. Ed.), vol. 1, secs. 541, 542, 567; Am. •& Eng. Enc. of Law, vol. 21, p. 508; Am. & Eng.

Case 74 — ACTION ON COUNTY LEVY BOND APPEAL, FROJI BRACKEN CIRCUIT COURT. 1. From an examination of the statutes in force prior to the enactment of the act of November 1892 and the decisions construing them it is apparent that under the latter act but two bonds are now required of the sheriff, (1) his official bond and (2) his revenue bond. 2.

Case 75 — ACTION FOR DAMAGES APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. The six month’s Imitation in the act for the government of cities of the first class is constitutional. City of Covington v. Voshotter, 80 Ky., 219; Ky. Statutes, secs. 2752, 2742, 2515, 2516, 2546, 547, 2998, 3184, 3400, 3544; Const., secs. 59, 156; City of Covington v. Hoadley, 83 Ky., 444; Preston v. City of Louisville, 84 Ky., 118; Nichols v. City of Minneapolis, 2 Eng. Sc Am. Cor.

Case 76 — INDICTMENT FOR OBTAINING PROPERTY UNDER FALSE PRETENSES APPEAR E.ROM BREATHITT CIRCUIT COURT. 1. The false pretenses alleged in the indictment had reference to a fact to take place in the future and therefore was not a false pretense within the meaning of the statute. Glacken v. Com., 3 Met,, 232; Com. v. Haughey, same, 223, 2. The false representation alleged must be such as is calculated to deceive persons of ordinary prudence and discretion.

Case 77—INJUNCTION— APPEAL PROM MERCER CIRCUIT COURT, The county had no power to issue refunding bonds unless the old bonds were; (1), matured or subject to call; (2), legally issued; (3), prior to September 28, 1891; and (4), for railroad or other purposes. The bonds sought to be refunded were neither matured nor subject to call.

Case 78 — MOTION TO AFFIRM AND FOR DAMAGES APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.,.. (In addition to matters urged on former consideration of the' motion to affirm, page 179 of this volume.) The judgment appealed from is in personam and not in renv; hence damages should be awarded on the supersedeas bond.

Cabe 79 — ACTION FOR INJURY APPEAL FROM CLARK CIRCUIT COURT. It is the duty of a carrier of passengers to protect and care for a passenger who, without fault on the part of the carrier, receives injuries of such a serious nature as to render him unable to protect or care for himself. 2 Am. & Eng.

<p>1. Removal to Federal Court — Joint Tort-Feasors. — In an action against a railway company for negligence causing death, the engineer and fireman of the train causing the injury who are charged with being guilty of the negligence causing the injury are properly joined as joint tort-feasors with the railway company; and where the individual defendants are citizens of the same State as the plaintiff a petition for removal by the non-resident railroad company into the United States Circuit Court is properly denied.</p> <p>2. Injury^ Causing Death — Excessive DxYMages. — In an action for injury causing death a verdict for $10,000 can not he said to he so excessive as to indicate passion or prejudice on the part of the jury. ■</p> <p>3. Negligence — Evidence—No Flagman at Crossing Where Accident Occurred. — The trial court did not err to the prejudice of appellant in admitting evidence that there was no flagman at the crossing where the accident occurred. The rule confining a recovery to the particular acts of negligence charged, does not render such evidence incompetent when no specific acts of negligence are alleged in the petition.</p>

<p>Injunction—Infringement of Trade Mark—Laches.—Where plaintiff and defendant have both used the same trade mark for ten years and the defendant with expense and labor has built up a trade for its goods with the plaintiff’s knowledge, the latter will be denied an injunction to protect his alleged ownership of the trade mark, without regard to the rightful ownership of same.</p>

Case 82—EQUITY— APPEAL PROM CARROLI. CIRCUIT COURT. 1. The Gallatin Academy Company (the plaintiff in the action) is dead. It was abandoned and dissolved over thirty years ago, and has had no existence since that time. This is alleged in the answer and is taken as true from the plaintiff’s failure to deny it. Civ. Code, sec. 126; Bigelow on Estoppel (3d ed.), 484. 2.

Case 83—INJUNCTION— APPEAL PROM MONTGOMERY CIRCUIT COURT. The principle declared in the Belknap case (99 Ky., 474) should be overruled. Constitution, secs. 157, 148; F. Tr. & S. V. Co. v.. City of Morganfield, 96 Ky., 563. Points and citations identical with those made in Maysville & Lexington T. P. Co. v. Wiggins, reported in this volume, p. 540. (No brief on file.)

<p>1. Homestead — Natural Enhancement in Value — Revaluation. —Where a homestead has been allotted to an insolvent debtor, no subsequent enhancement in value in the realty allotted will authorize a creditor to have an execution levied and the homestead revalued. Whether an increase in value produced by the fraud of the homesteader, or by any extraordinary circumstance, such as the discovery of a mine, would authorize a creditor to relief in a court of equity is not necessary now to determine.</p> <p>2. Same — Valuation—Fraud and Mistake. — It is settled law that the action of persons appointed to appraise a debtor’s homestead can not be impeached except for fraud or mistake; and mere mistake in value is not enough.</p> <p>3. Same — Limitation.—It is too late to impeach the appraisers’ finding of value for fraud or mistake after the expiration of ten years'from the allotment of homestead.</p> <p>4. Same — Practice—Demurrer to Raise Question of Limitation. —Where it appears from the pleading asserting the fraud or mistake that same occurred more than ten years before the action of the appraisers was attacked it is proper to sustain a demurrer to the pleading.</p> <p>5. Homestead — Family.—A homestead right once acquired will not be lost by the homesteader’s ceasing to have a family.</p>

<p>Case 85 — WILL CONTEST</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>1. The judgment of a County Court probating or rejecting a will is a judgment in rem, binding not only on parties and privies, but on all the world. Statute of 1797, Morehead & Brown’s Statutes; Ky. Stat., secs. 4850, 4851, 4859, 4961; W. & A. Singleton v. Singleton, et. al., 8 B. M., 340; Wells’ Will, 5 Lit., 275; Jacob v. Pulliam, 3 J. J. M., 200; Tibbatts, &e., v. Berry, &c., 10 B. M., 473; Mitchell and Wife v. Holder, &c., 8 Bush, 362; Reed y. Reed, Trustee, &c., 91 Ky., 267.</p> <p>2. When an appeal is prosecuted to the Circuit Court from an order of the County Court probating or rejecting a will, the order of the Circuit Court made on the appeal has precisely the same effect as the order of the County Court, and binds not only those who were before the court, but also any omitted heir or devisee who was not before the court. Singleton v. Singleton, 8 B. M., 340; Tibbatts, &c., v. Berry, &c., 10 B. M., 473, and cases cited.</p> <p>S.When a suit or action is dismissed by agreement, the legal deduction from the judgment is, that the parties had by their agreement adjusted the subject matter of the controversy in that suit, and the legal effect of such a judgment is, that it is a bar to another suit between the same parties on the same cause of action. Bank of Commonwealth v. Hopkins, &c., % Dana, 395; Jarboe v. Smith, 10 B. M., 257; United States v. Parker, &c., 120 U. S., 89.</p> <p>4. The dismissal of a suit by agreement is equivalent to a retraxAt at common law, and is a bar to another action. United States v. Parker, &c., 120 U. S., 89; 1st Freeman on Judgments, sec. 262.</p> <p>5. A retraxit at common law is the open and voluntary renunciation of his claim by a plaintiff in court, and by this “he loses his action.” 3 Blaclcstone’s Com., 296.</p> <p>6. Where a judgment is not only dismissed by agreement, but is dismissed “settled” by agreement, it is still more conclusive that it is a bar to another action between the same parties.</p> <p>7. If the judgment in the Circuit Court was a bar as to John C. Schrader it was likewise a bar, under the rule established by this court, as to James P. Schrader, as it was a sentence in rem, whether based on a hearing or on consent; and it was the expression of the power of a peculiar jurisdiction, operating on an indivisible question and defining the status of the thing. The peculiar quality of such an order depends not at all on the form or basis of the judgment, but wholly on the subject matter of the controversy.</p> <p>8. The case of Hughey v. Sidwell’s Heirs, repiprted in 18 B. M., 259, cited by appellee, simply decides that an equitable action to annul a will can not be maintained without an appeal to the Circuit Court, and does not sustain the conténtion of the appellee in this case at all. Hughey v. Sidwell’s,Heirs, 18 B. M., 259; Abbott, &c., v. Traylor, &c., 11 Bush, 335.</p> <p>9.There is no evidence whatever in the record to justify an instruction on the subject of undue influence, and no instruction should have been given on that subject.</p> <p>1. The will was freely executed and rational and just in all its details.</p> <p>2. The animus of this contest — a pretermitted daughter-in-law.</p> <p>3. The will did not cut off the unborn children of testatrix’s sons.</p> <p>4. A devise by a mother to her son for life, with remainder over to her other children in the case the life tenant died childless, is an implied devise to the children of the son, if any are living at his death. 28 Am. & Eng. Enc. of L., 386; Bently v. Kaufman, 12 Phila., 435; Still v. Spear, 3 Grant’s Cas., 307; Sturges v. Cargill, 1 Sandf. Ch., 318.</p> <p>5. Words and limitations may be transposed, supplied, or rejected where warranted by the immediate context or the general scheme of the will. 3 Jarman on Wills, 708.</p> <p>6. An estate given by will may be extended or enlarged where it is apparent to the court that such a course is necessary to effectuate the intention of the testator. Kirkland v. Cox, 94 111., 400; Latham v. Udell, 38 Mich., 238.</p> <p>7. The children of appellee were not at his death limited to his interest in the McLean county farm.</p> <p>8. The best possible proof of a sound and disposing mind is a rational act done which reason could alone have conceived and accomplished. Weir’s Will, 9 Dana, 434.</p> <p>9. Insanity is characterized by fits and lucid intervals. 1 Williams on Executors, 23.</p> <p>10. Although insanity once shown may authorize the jury to infer its continuance, yet the presumption that it continues is only prima facie, and may be rebutted.</p> <p>11. When a prima facie presumption is rebutted by competent evidence, the jury can not disregard such evidence. Ky. Cent. R. R. Co., v. Talbott, 78 Ky., 621.</p> <p>12. Notwithstanding mental aberration, if the will is evidently rational and the product of the testator’s own mind, it will he upheld. Weir’s Will, 9 Dana, 434; Turner’s Will, 4 J. J. M., 536; Schild v. Rompí, 9 Ky. Law Rep., 120; Williams v. Williams, li> Ky. Law Rep., 432.</p> <p>13. No evidence of undue influence.</p> <p>14. The relation of parent and child gives rise to no presumption, of undue influence. 27 Am. Sc, Eng. Enc. of L., 504.</p> <p>15. Undue influence can he inferred from other facts proved, but never from mere opportunity. Cudney v. Cudney, 68 N. Y., 148; Kimball v. Cudney, 117 111., 213.</p> <p>16. It is immaterial that a provision in a will was suggested by another if adopted by testatrix of her own free accord. 27 Am. & Eng. Enc. of L., 497.</p> <p>17. Abstract instructions tend to mislead and confuse juries and should never be given.</p> <p>18. In neither Bledsoe v. Bledsoe’s Exr., 8 Ky. Law Rep., 55, Lucas v. Cannon, 13 Bush, 650, or Barlow v. Waters, 16 Ky. Law Rep., 426 (cited by appellee’s counsel), are the facts sufficiently stated to sustain the instruction as to undue influence given in this case. The question is not as to the correctness of the abstract rule, but as to its application.</p> <p>19. Overall v. Bland, 11 Ky. Law Rep., 371; Bush v. Lisle, 89 Ky.r 393; and Fry v. Jones, 95 Ky., 148 (cited by appellee’s counsel) afforded no support to the instruction referred to.</p> <p>20. Where four or five witnesses are offered to prove want of testamentary capacity, and over forty unimpeached witnesses contradict them and support capacity, a verdict against the will is against the weight of evidence and should be set aside. Zimlich v. Zimlich, 90 Ky., 657.</p> <p>1. No appeal was taken by John, as, in the absence of the issual of summons, or if issued, having it placed in the hands of an officer, there was no action in court. The steps taken were merely preparatory to an appeal, which was compromised out of court, and the entry of the agreement of the order book was a nullity.</p> <p>2. Appellants claim that the agreement and order was a judgment in rem, and a final decision, establishing the paper as the will of the testatrix, and that appellee’s only remedy was by petition in equity to set aside that order and try the question as to the validity of the will, in so far as it affected his rights, as provided in section 4861, Kentucky Statutes. Section 4859,. Kentucky Statutes provides, that upon appeal to the Circuit Court a jury, or if no jury is demanded, the court, shall determine whether the paper produced is the last will of the testator, and the final decision given shall be a bar to any other proceeding to call the probate into question. The agreement entered of record in this case is not a decision as to whether the paper produced js, or is not, the last will of the testatrix. The court never considered the matter, and consequently never rendered any decision. Section 4861, Kentucky Statutes, provides that any one interested, and who at the time of the final decision in the Circuit Court was not served with process, or a party by actual appearance, might within three years after such final decision impeach the decision, and have a re-trial of the question of probate.</p> <p>Appellee could not proceed in equity to impeach that agreement or order, because it was not a final decision as to whether the paper produced was the last will of the testatrix, and his., only remedy was by appeal from the order probating the will. Ky. Stats., secs. 4859 and 4861; Hughey v. Sidwell’s heirs, 18 B. M., 259; Tibbatts v. Berry, 10 B. M., 473.</p> <p>3. If the attempted appeal of John Schrader had been perfected, and it had been compromised before a trial and dismissed, such proceedings could not be construed into a final decision of will or no will. The parties to the compromise might be estopped as between themselves from afterwards appealing, but their , action in the matter could not convert their compromise into a final decision so that any other interested party, and being neither a party to the compromise nor a party on the record, would be forced to or could resort to an action in equity.</p> <p>4. The agreement plead could not operate as a bar, for if it had any validity at all, it was only an estoppel as between the parties who made it.</p> <p>5 Appellee alleged in his response to the plea in bar that the compromise and the entry thereof as an order was obtained by fraud. Appellants never denied that allegation. It being admitted to be fraudulent, can not possibly be a bar to any proceeding by appellee.</p> <p>6. It is not a bar or an estoppel between the parties who made' it, because not mutual, as under it none of the parties excepting,; John agreed to not appeal. It is at least certain that appellee, James Schrader, could not have plead that agreement or order in bar or in estoppel of any appeal that John or any of the other parties to it might have thereafter taken from the order of probate, as he paid no part of the consideration, and if he could plead it they could not do so.</p> <p>7. The agreement, if binding at all, is binding only upon John Schrader and his wife, because it in express terms says that the payment made to them is “a satisfaction and bar of any contest of said will by them or either of them.” ,</p> <p>8. The entry on the order book of the Circuit Court made on February 22, 1894, of .the compromise, agreement, did not convert the agreement into a judgment, and it was a nullity because there was no action in court. John Schrader simply filed with the clerk during the January term, 1894, of the Daviess Circuit Court a transcript for an' appeal upon which no summons was issued, or if issued, was never placed in the hands of an officer, and was never served, and the steps taken were simply preparatory to an appeal to the next term of court, which he never perfected but compromised out of court with some of the persons he contemplated making parties to his attempted appeal.</p> <p>Effect of Verdict. — In the Court of Appeals “the same effect shall be given to the verdict of a jury in will cases as is given to the verdict of a jury in other cases,” Ky Stats., sec. 4850; Williams v. Williams, 8 Ky. Law Rep., 419. In this action the jury found against the plea in bar, thus finding that appellee was not a party to John Schrader’s appeal, never assisted in procuring or procured the compromise plead, and was not bound by it.</p> <p>The jury also found a verdict in his favor as against the will. There was not only sufficient evidence to sustain both verdicts, but enough to overwhelm appellant’s contention, and-we apprehend this court will not disturb the verdict; and,</p> <p>9. The instructions complained of by appellants (those given and those refused are analyzed at pages 20 and 25, both inclusive.) The correctness of the instructions given by the lower court are sustained by the authorities cited at the foot of each instruction; also the correctness of the court’s ruling in refusing to give certain instructions asked by appellants is sustained by the authorities cited at the foot of said instructions.</p>

Case 86—RESCISSION— appeal from letoher circuit court. John Holcomb can not escape liability on his warranty unless Sibley or his authorized agent fraudulently misrepresented the contents of the deed; and not then if Holcomb was grossly negligent in not acquainting himself with the provisions of the deed. The deputy county clerk, Fairchild, was not Sibley’s, agent. Borden v. Richmond & Danville Ry. Co., 113 N. C., 570; 37 Am.

Case 87 — ACTION FOR PERSONAL INJURY APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. The plaintiff was entitled to a submission of his case to the jury upon proof that the partition between the berths fell and struck him without any fault on his part upon the maxim, res ipsa loquitur. Ray Negligence of Imposed Duties of Passenger Carriers, 691, 694, 698; Railroad Co. v. Walrath, 38 0.

<p>Case 88 — WILL CONTEST</p> <p>APPEAL FROM CLARK CIRCUIT COURT.</p> <p>1. Provisions of statute of wills as to probate and the effect of such probate. Gen. Stat., Chap. 113, secs. 26-28.</p> <p>2. No man can have at the time of his death more than one "last will and testament,” but this may consist of several testamentary papers executed at different times. 1 Williams on Executors, 199; 142 (6 Am. E.); Masterman v. Maberly, 2 Hagg., 235; Stoddart v. Grant, 1 Macq. H. of L„ 163; Richards v. Queen’s Proctor, 18 Jurist, 540; Sanford v. Vaughan, 1 Phillim., 39, 128; Harley v. Bagshaw, 2 Phillim, 48; Hitchins v. Wood, 2 Moore’s P. C., 355; In re Foreman’s Will, 54 Barb., 274; s. c. 1 Tuck (N. Y. Sur.), 205; Tonelle v. Hall, 4 Comst., 140; Phelps v. Robbins, 40 Conn., 250; Van Wert v, Benedict, 1 Bradf. Sur., 114; Wikofi’s Appeal, 15 Pa. St., 281; In re Graham, 3 Sw. & Tr., 69; Greaves v. Price, lb., 71; In re Budd, lb., 196; Birks v. Birks, 4 Sw. & Tr., 23; Eemage v. Goodban, L. R. 1, P. & D., 57; In re Nickolls, 4 Sw. & Tr., 40.</p> <p>3. A’codicil is merely a supplement to and a part of a testator’s will. 1 Williams on Executors, 9 (6 Am. Ed.); Puller v. Hope, 2 Ves. Sr., 242; Crosby v. McDoual, 4 Ves., 610; Evans v. Evans, 17' Sim., 108; Hartley v. Tribber, 16 Beav., 510; 4 Kent Com., 531; Tilden v. Tilden, 13 Gray, 103-108; Wetmore v. Parker, 7 L.ansing, 121-129; Masterman v. Maberly, 2 Hagg., 103; Harley v. Bagshaw, 2 Phillim., 48; Gladstone v. Tempest, 2 Curties, 650; In re Foreman’s Will, 54 Barb., 274; Van Wert v. Benedict, 1 Bradf. Sur., 114.</p> <p>4. The probate of an original will alone excludes under our statute all codicils and other testamentary papers. Gen Stats., chap. 113, sec. 28; Hardy v. Hardy, 26 Ala., 526; Watson v. Turner, 89 Ala., 526; Adsitt’s Est., Myrick’s Probate Rep., 266 (Cal.); Straub’s Will, 24 Atl. Rep., 569; Bent v. Thompson, 138 U. S., 114; Story v. Story, 11 N. E. R., 209; State v. McGlynn, 20 Cal., 223; Bent v. Thompson, 23 Pac. Rep., 234.</p> <p>5. The making and due execution of the codicil must be clearly proven. No competent evidence was offered on this point. Starkie on Evidence, ——; Best on Evidence, see. 236; Wharton on Evidence, sec. 707; Mercer’s Admr. v. Mackin, 14 Bush, 434.</p> <p>■6. If the codicil was duly executed and in testator’s possession the law presumed that he cancelled it, if not found after his death. Brown v. Brown, 8 E. & B. 875, and note; Baptist Church v. Robbarts, 2 Pa. St., 110; Weeks v. McBeath, 14 Ala., 474; Holland v. Perries, 2 Bradf. Sur., 334; Bulkeley v. Redmond, 2 Bradf. Sur., 281; Loxley v. Jackson, 3 Phillim., 376; Halyar v. Halyar, 3 Hagg., -; Davies v. Davies, 1 Cas. Temp Lee., 444; Lillie v. Lillie, 3 Hagg., 184; 1 Williams on Executors, bottom page 379; Grant v. Grant, 1 Sandf. Ch. 235-243; Voorhies v. Voorhies, 39 N. Y., 4.63; Martin v. Laking, 1 Hagg., 244; Davis v. Davis, 2 Add., 224; In re Thornton, 2 Curties, 913.</p> <p>7. This presumption prevails unless a fraudulent suppression is proven. Idley v. Bowan, 11 Wend., 227; s. c. 1 Edw., 148; Bulkeley v. Redmon, 2 Bradf. Sur., 281; Holland v. Ferries, lb., 334; Clark’s Estate, 1 Tucker (N. Y.), 445.</p> <p>8. The declarations of J. A. and J. D. Couchman were inadmissible. Beall v. Cunningham, 1 B. M., 399; Rogers v. Rogers, 2 B. M., 324.</p> <p>9. The instructions given were erroneous.</p> <p>1. After probating a will a County Court can not, at a subse-' quent term, admit to probate, as a codicil thereto, a paper containing provisions inconsistent therewith. Wells’ Will, 5-Litt., 273; Taylor v.. Tibbatts, 13 B. M., 177; McCarty v. McCarty, 8 Bush, 504; Hardy v. Hardy’s Heirs, 26 Ala., 524; Watson v. Turner, 89 Id., 220; Note to Waters v. Stickney, 90 Am. Dec., 137; Adsit’s Estate, :Myriek Prob. Rep. (Cal.), 266.</p> <p>The County Court has jurisdiction to probate a codicil after having probated the testator’s original will. Gen. Stats., Ch., 113, sec. 26, 28, 36; Civil Code, 470, 726; Thompson v. Beadles, 14 Bush, 47; Jacobs’ Admr. y. L. & N. R. R. Co., 10 Bush, 263; Montgomery’s Admr. v. Miller, 4 B. M., 470; Thomas v. Arthur, 7 Bush, 245; Taylor v. Tibbatts, 13 B. M., 177; Reed’s Will, 2 B. M., 79; Arterburn’s Exrs. v. Young, 14 Bush, 509; McCarty v. McCarty, 8 Bush, 504; Am. & Eng. Ene. of L., vol. 3, p. 292; Beall v. Cunningham, 1 B. M. 399; Youse Forman, 5 Bush, 337; Davis’ Heirs v. Taul, 6 Dana, 53; Armstrong v. Armstrong, 14 B. M., 269; Moore’s Admr. v. Smith, 88 Ky., 151; Waters v. Stiekney, 12 Allen, 14; Abbott v. Traylor, 11 Bush, 335; Rev. Stat., Ch., 106, sec. 36; Schultz v. Schultz, 10 Grattan, 373; Ky. Stats., secs. 4833-4852; Mercer v. Mackin, 14 Bush, 434; Chisholm’s Heirs v. Ben, &c., 7 B. M., 408; Baker v. Dobyns, í Dana, 220.</p>

Case 89—EQUITY— APPEAL FROM KENTON CIRCUIT COURT. The questions in this case are concluded by the decision of this court in Dressman v. Farmers, &c., Bank, 100 Ky., 571. 1. This court has no jurisdiction of the appeal. 2. Dressman is entitled to no lien because: (1) His pleadings do ■ not sustain his proceeding in this way. (2) The ordinance is fatally defective in not naming the owners of this lot. (3) Said ordinance was repealed. 3.

<p>Case 90—LIBEL—</p> <p>APPEAL PROM HENRY CIRCUIT COURT.</p> <p>Defamatory matter set up in a pleading is only privileged when the pleader asserted it in good faith. Harward v. Keeeh, 4 Hun., 389; Lucas v. Case, 9 Bush, 297; Hilliard on Torts,. 355; Hart v. Reed, 1 B. M., 166; Dada v. Piper, 41 Hun., 254;, Hoar v. Wood, 3 Met. (Mass.), 193; Ring v. Wheeler, 7 Cowan»» (N. Y.), 725; Hastings v. Lusk, 22 Wend., 410.</p> <p>No defamatory matter is privileged where it is uttered maliciously and without probable cause. Woods v. Finnell, 13 Bush, 628.</p> <p>(No brief on file.)</p> <p>The alleged defamatory matter contained in the answer was pertinent and relevant to the issue and was therefore absolutely privileged. Cooley on Torts, p., 211; Townshend on Slander and Libel (4th Ed.), sec. 221; Odger on Libel & Slander, s. p. 187, 191, 192; Lawson v. Hicks, 38 Ala., 279; s. c. 81 Am. Dec., 49; Am. & Eng. Enc. of L., vol. 13, p. 406; Hardin v. Cumstock, 2 Mar., 480; Forbes v. Johnson, 11 B. M., 48; Morgan v. Booth, 13 Bush, 482; Stewart v. Hall, 83 Ky., 375; Runge r. Franklin, 72 Tex., 585; s. c. 13 Am. St. R., 833; Hart. v. Baxter, 48 Mich., 197; 10 N. W. R., 198; Hastings v. Lusk, 22 Wend., 410; s. c. 34 Am. Dec., 330; Gilbert v. People, 1 Denio, 41; s. c. 43 Am. Dee., 646; Link v. Moore, N. Y. Supp., vol. 3, p. 461; Lucas v. Case, 9 Bush,’297; Hart v. Reed, 1. B. M., 166; Harwood v. Keech, 4 Hun., 389.</p>

Case 91 — CONTESTED ELECTION APPEAL FROM OHIO CIRCUIT COURT. 1. The appellant Anderson was not bound by the judgment rendered by the Ohio Circuit Court in the mandamus proceedings because he was not a party or privy to said action and had no notice of its existence. 2. The ruling in refusing Likens leave to amend his ground of contest was correct. Sec. 1535 Ky. Stat.; Cowan v. Prowse, 93 Ky., 156; 14 Ky. Law Rep., 273; Wilson v. Hines, 99 Ky., 221; 18 Ky. Law Rep., 233. 2.

<p>1. Conveyance- — Construction—Reversion in Personalty. — A conveyance by a husband to a trustee for the benefit of his wife of real estate and sundry articles of personal property, including household and kitchen furniture, books, pictures, plate, silver, carpets, tables, chairs, piano, rockaway, horse, phaeton, milch cows and other like articles, for the natural life of the wife, as' her sole and separate estate, with remainder over as to the realty, but with no ulterior disposition as to the personalty, vested in the trustee, an estate for the wife’s life in the personalty which reverted to the grantor after the wife’s death.</p> <p>2. Damages Excessive1 — Power op the Court to Require Remittitur. — Where the items constituting the damages recoverable are separable so that the court may eliminate those not properly recoverable from those recoverable, the court has power to require the plaintiff to remit so much of the damages as represent the items which are not properly recoverable.</p> <p>3. Presumption on Appeal. — In the absence of a bill of evidence this court will indulge the presumption that a remittitur ordered by the trial court embraced those items which were separable and not recoverable.</p>

Case 93—EQUITY— APPEAL PROM DAVIESS CIRCUIT COURT. . 1. Personal judgment against Mudd was unauthorized by the pleadings. There is no allegation in the petition of any agreement between Mudd and Carico. 2. There is no allegation that Mu'dd’s undertaking to Carico was in. writing. 3. There is no denial of defendant’s allegation of waiver. 4.

Case 94 — IN EQUITY APPEAL FROM MADISON CIRCUIT COURT. No brief on file for the appellant. The questions of law at issue in this case are all settled in the case of Smith v. Mercer County, recently decided, 20 Ky. Law Rep., 812. See also Commissioners of the Sinking Fund of Louisville v. Zimmerman, 19 Ky. Law Rep., 689.

Case 95—INDICTMENT— APPEAL PROM ERANKLIN CIRCUIT COURT. 1. The court below erred in holding the statute to mean that the-ferry company was not entitled to receive any notice from, the auditor as to what form of tax blanks he had prepared for-the current year; and that the'ferry company was not entitled to have any tax blanks furnished it to file it; and that the ferry company was not entitled to be first called on to make its return before it could be considered as in…

<p>1. Assessment — Excessive Valuation — Method op Correction.— A court of equity has no jurisdiction to enjoin the collection of taxes upon what is alleged to he an excessive valuation. The remedy provided hy the act of March 15, 1894, of appeal to the county judge within ten days after the final adjournment of the Board of Supervisors, is exclusive.</p> <p>2. County Taxes to be Paid on Valuation Fixed by Board op Equalization. — When, a county levies an ad mlorew tax, it is to he collected upon the valuation as finally fixed hy the State Board of Equalization.</p>

Case 97-—EQUITY— APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. The trust sought to be enforced in this case is invalid, (1st), because there is no identification of the fund sought to be declared in trust; and (2d), because the evidence is insufficient to show the donor’s intention to create such trust. Perry on Trusts, secs. 77, 96, 97; Roche v. George’s Exr., 93 Ky., 609; s. c. 13 Ky.

Case 9S — ACTION FOR LUNATIC’S BOARD APPEAL PROM. GREEN CIRCUIT COURT. Pension Money — Liability op, por Treatment in Insane Asylum. —Pension money collected by a committee of á lunatic con- . fined in a State asylum is liable for such lunatic’s board in an action brought by the commissioners under section 257 of the Kentucky Statutes. The petition stated a cause of action under section 257 of the Statutes and it was error to sustain a demurrer to it. Ky.

<p>Bankruptcy' — Motion to Stay' Proceedings in Court op Appeals. —The appellee, who was adjudged a bankrupt, October 14, 1898, moves this court to stay proceedings on an appeal from a judgment rendered more than four months before that date until the appellee he granted his discharge, and then for a final dismissal of the appeal. The judgment appealed from dismissed an action brought to subject the property of appellee’s wife to the payment of appellee’s debt. It is held by the court that the motion he denied because while the judgment appealed from remains unreversed the property sought to be subjected can be reached neither by the plaintiff (appellant) nor by the appellee’s assignee in bankruptcy.</p>

<p>Divorce and Alimony — Basis of Allowance. — While this court can not reverse a judgment granting a divorce, it can revise so much of the judgment as grants alimony; and in this case where it appears that the husband’s net estate was worth about $19,000 in agricultural lands alimony at the rate of $75 a month in addition to the costs, ordinary and extraordinary of the action was held excessive. The trial court was directed, to change the allowance to $325 in gross and $175 per annum, payable quarterly, without additional allowance for attorney’s fee in this court,</p>

Case 101 — INDICTMENT FOR HOMICIDE APPEAL PROM IIARLAN CIRCUIT COURT. 1. The trial court erred to the prejudice of the appellant when it refused him a continuance. 2. The trial court erred in admitting the statements claimed to be dying declarations. 3. The court erred in instructing the jury Citations: Greenleaf on Evidence, vol. 1, sec. 158; Commonwealth v. Matthews, 89 Ky., 287; 11 Ky. Law Rep., 505; Peoples v. Commonwealth, 87 Ky., 487; Luker v. Commonwealth, 9 Ky.

Case 102 — INDICTMENT FOR HOMICIDE APPEAL PROM MUHLENBERG CIRCUIT COURT. 1. It was error to refuse the defendant a continuance. Crim. Code, sec. 189; Hardesty v. Com., 88 Ky., 537; Murphy v. Com., 92 .Ky., 485. 2. It was error to refuse the defendant the right, of peremptory challenge as to jurors who had been passed silently in filling the panel. 3. The juror, Divine, was incompetent. 1. The refusal to continue the case was proper. Crim.

Case 103 — ACTION FOR DAMAGES APPEAL PROM BULLITT CIRCUIT COURT. 1. The proof in this case shows clearly that the damage, if any, which resulted to appellee was caused by an act of God and-not by that of appellant. Section 784 of the Kentucky Statutes did not require the appellant to .keep a waiting room for the protection of passengers after they had reached the end of their journey. 2.

<p>Case 104 — ACTION FOR INJURY CAUSING DEATH</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>1. Negligence — Peremptory Instruction. — In an action for negligence causing the death of plaintiff’s intestate, a brakeman on defendant’s freight train, it appeared that the decedent after going to the top of the caboose to remove a lantern was, in some manner, knocked from the ladder on the side of the caboose and killed. The body was found on tjie track of the railroad where it crossed a bridge whose girders were some seventeen inches from the ladder of the caboose. A strip of the intestate’s trousers about four inches long was found on the bridge and some lint from his clothes was found adhering to the girder. Under these facts it is held that the question of defendant’s negligence should have been submitted to the jury.</p> <p>2. Same* — Evidence.—Statement made by brakeman after the train had run a mile and a half and the brakeman had returned to the bridge, that the decedent had been knocked from the train is not competent as part of the res gestae.</p> <p>3. Same. — So the statement that the conductor had said immediately after the train had stopped that the bridge “got him,” being a mere matter of opinion, is not competent as part of the res gestae.'</p> <p>(Transcript and briefs withdrawn from the clerk’s office.)</p>

Case 105 — ACTION AGAINST STOCKHOLDERS OF INSOLVENT CORPORATIONS APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. A distribution of corporate assets among stockholders, leaving corporate debts unpaid, may be recovered back by creditors, (a.) Assets of a corporation can not be parcelled out among-its stockholders when there are no net earnings to divide. Union Natl.

Case 106—INJUNCTION— APPEAL PROM KENTON CIRCUIT COURT. 1. The evidence shows the dedication of Ferry street, and an acceptance by the city. 2. A riparian owner can assert title only to the water’s edge.

Case 107 — ACTION TO SET ASIDE FRAUDULENT PREFERENCE APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. A mere guarantor of the payment of a debt is not a debtor” cf the party whose debt is guaranteed, within the meaning of that term as used in the act of 1856. Brandt on Suretyship and Guaranty, sec. 1; Daniel on Negotiable Instruments, sec. 1753; Reigart v. White, 52 Pa. St., 440; Kramph’s Ex. v. Hatz’s Ex., 52 Pa. St., 525; Campbell v. Sherman, 31 Am.

<p>Case 108 — MOTION FOR DAMAGES ON SUPERSEDEAS BOND</p> <p>APPEAL PROM FAYETTE CIRCUIT COURT.</p> <p>The supersedeas stopped,the distribution of $1,500. Appellee is therefore entitled to dam'ages to the amount of $150. Civ. Code, sec. 764.</p> <p>(No brief against the motion.)</p>

Case 109 — SHERIFF’S COMMISSION APPEAL FROM, PENDLETON CIRCUIT COURT. On commissions allowed sheriff: Ky Stats., sec. 1729; Henry v. Hillock, 12 Ky. Law Rep., 795; Little v. Marshall County, 13 Ky. Law Rep., 969. The sheriff for collecting the county revenue shall receive ten per cent, upon the first $5,000 and 4 per cent, upon the residue. Ky. Stats., sec. 17'29. And “revenue” includes all taxes and assessments imposed by public authority.

Case 110 — ACTION OP COVENANT APPEAL FROM WOODFORD CIRCUIT COURT. 1. The clerk of the bank was not an officer of the institution, whose office was an annual one. Com. v. Wyman, 8 Met. (Mass.), 247. 2. Even though it be conceded that Stone was an officer, his surety was not released at the expiration of one year, if no successor was ever elected. Cassell v. Lex., H. & P. T. Co., 10, Ky.

Case 111 — IN EQUITY 1. The former opinion of this court declaring the liability of the executors, having been delivered uppn a demurrer to the petition, is no… Held: and then he can he held only as surety on S. R. Grundy’s trustee bond. Laurel County Court v. Trustees, Sea., 93 Ky., 379 and 383. 3. An executor who is also trustee, holds the fund as trustee, as soon as he assents to the legacy; S. R. Grundy was executor and trustee, and his estate alone is primarily liable.

<p>Case 112 — CONTESTED ELECTION</p> <p>APPEAL PROM LETCHER CIRCUIT COURT.</p> <p>1. The vote of the Whitesburg precinct should be rejected because enough votes were cast after 4 o’clock to affect the result. Varney v. Justice, 86 Ky., 596; Ky. Stats., sec. 1469.</p> <p>2.Appellant should be credited by ten votes in precinct' No. 2, of which the testimony shows he was unjustly deprived. Houston v. Steele, 98 Ky., 596.</p> <p>1. The law fixing the hours between which election shall be held is mandatory. McCrary on Elections, secs. 161-2-3; Varney v. Justice, 86 Ky., 596.</p> <p>2. Where the deviation from the statutory hours is great, or even considerable, the presumption is that it has affected the result. McCrary on Elections.</p> <p>3. The contestee as well as the contestant is restricted to the. ground set up in his counter notice. Cowan v. Prowse, 93 Ky., 156; Wilson v. Hines, 99 Ky., 221; 18 Ky. Law Rep., 233.</p> <p>4. A ballot stenciled under the Democratic device and in the square opposite the name of a candidate in the Republican column should be counted for that candidate. Houston, County Judge v. Steele, 98 Ky., 596.</p> <p>1. The vote of the Whitesburg precinct should not be rejected on. account of votes received after 4 o’clock because it does not appear for whom those votes were cast.</p> <p>2. Appellant is not entitled to eighty-seven votes instead of seventy-five in precinct “I” because this claim was not set up in the notice but in the amended notice. Ky. Stats., sec. 1535; Wilson v. Hines, 99 Ky., 221; 18 Ky. Law Rep., 233. It further appears that the certificate under which that vote was claimed was a “doctored” one.</p> <p>3. The object of an election is not to benefit candidates but to ascertain the public will, to have a fair expression of it, and unless irregularities by the officers of election affect this, they are to be disregarded.</p> <p>4. If a given end be accomplished and the real merits not affected by the non-compliance, then the statute is directory only. Anderson v. Winfree, 85 Ky., 597; McCrary on Elections, sec. 126; Ky. Stats., sec. 460. The case of Varney v. Justice, 86 Ky., 596, is unlike this case. The argument of that case supports the contention of the appellee. It draws the distinction very clearly between the constitutional and the statutory provision. Constitution, 1850, art. 8, sec. 16; present Constitution, sec. 148.</p> <p>1. Appellee claims that appellant abandoned his original notice of contest and therefore abandoned his contest.</p> <p>2. That he, the appellee, received a majority of the legal votes cast at said election and was rightfully declared elected.</p> <p>3. That the election held at precinct No. 5 was not held under the secret ballot system and is void.</p> <p>4. That at precinct No. 5, 75 per cent, of the ballots counted for appellant were irregular, having been stenciled by the clerk of said election, the voters not being disqualified by reason of physical inability to stencil their own ballots, that by reason thereof contestant received not exceeding 33 per cent, of the legal votes, if any votes, at said precinct. That only 25 per cent, counted for contestee at said precinct were stenciled by the clerk and his legal vote at said precinct was thirty-one legal votes.</p> <p>Citations: Ky. Stats., see. 1535; Cowan v. Prowse, 93 Ky., 156; Wilson v. Hines, 99 Ky., 221; 18 Ky. Law Rep., 233; Varney v. Justice, 86 Ky., 599; Major v. Barker, 18 Ky. Law Rep., 106; Ky Stats., sec. 1475; Constitution, sec. 147.</p> <p>1. If the contestant’s notices of contest were inconsistent with each other, the contestee should either have demurred specially or should have pleaded one in bar of the other. Civ. Code, sec. 92, sub-sec., 3; Same, 118; Gist v. Shun, 8 Ky. Law Rep., 509; Frogg’s Exr. v. Long’s Admr., 3 Dana, 157. And a failure to raise such objection by demurrer or plea is a waiver.</p> <p>2. The contestee having given counter notice of contest was restricted by the allegations made in it. Gossom v, Badgett, 6 Bush, 97; Boone v. Chiles, 10 Peters, 177.</p>

<p>Case 113 — ACTION FOR USURY</p> <p>APPEAL FROM TODD CIRCUIT COURT.</p> <p>The assumption of the debt by Mimms in consideration of the conveyance of the land to him by Mann constituted a complete novation. Bouvier’s Law Diet., Title, “Novation;” Daniel on Neg. Inst., sec. 1268; Morse v. Wilcoxen, 17 Ky. Law Rep., 29.</p> <p>1. Novation — What Constitutes. Anderson’s Law Dictionary, p. 716.</p> <p>2. The facts in this case disclose a complete novation. Morse v. Wilcoxen, 30 S. W. R., 612 (Ky. Case); Smith v. Young, 11 Bush, 393; Fitzpatrick v. Apperson’s Exr., 79 Ky., 272; Rudd v. Planters’ Bank, 78 Ky., 513; Am. & Eng. Enc. of L., vol. 16, 826.</p> <p>3. A complete novation amounts to a payment and puts into operation tlie statute of limitations. 30 S. W. R., 612; Smith v. Young, 11 Bush,, 393.</p> <p>4. Limitation does not begin to run until the whole of the debt is paid. Sub-sec. 3, sec. 2219, Ky. Stats.; Martin v. Martin, 12 B. M., 304; Ellis v. Brannin, 1 Duv., 48.</p> <p>The assumption of the debt by Mimms constituted a payment by Mann and the latter at once became entitled to sue for the usury paid. Spencer v. Lou. Banking Co., 4 Ky. Law Rep., 997; Smith v. Young, 11 Bush, 393; McGill v. Mercantile Trust Co., 81 Ky., 129; 4 Ky. Law Rep., 927; Roberts v. Thomas,'4 Ky. Law Rep., 227; Neal v. Rouse, 93 Ky., 151.</p> <p>The giving of a new note by one or more of the original obligors is a mere renewal and not a novation. When Mimms assumed the notes he assumed the notes ‘not at their face value, but with accrued interest. This operated to assign to Mimms the claim for usury paid.</p> <p>Citations: Kendall v. Crouch, 88 Ky., 199; Shirley v. Stephenson, 20 Ky. Law Rep., 767.</p>

Case ll&wkey;WILL CONTEST APPEAL PROM DAVIESS CIRCUIT COURT. 1. The paper in dispute was dated November 22, 1891, and Daniel Ward, the testator, died January, 1894, at the age of eighty-nine years. If it becomes necessary for the court to pass upon the question of Daniel Ward’s capacity to make a will, and the question of undue influence, the testimony of the witnesses should be carefully consulted. 2.