Volume 105 — Kentucky Reports

Case 1 — ACTION FOR INJURY CAUSING DEATH The doctrine of contributory negligence pertains peculiarly to the remedy and the lex fori controls. Code of Tennessee, Secs. 3130, 3132, 3133, 3134; Story on Conflict of Laws, Secs. 571-579; Wharton on Conflict of Laws, Secs. 747-8-9; 3 Ency. of Law, 575; Scudder v. Union Nat’l Bank, 91 U. S., 406; Nonce v. Richmond & Danville Ry. Co., 33 Fed. Rep., 429; Herrick v. Railway Co., 31 Minn., 11; Northern Pacific Ry.

<p>Case 2 — ACTION TO SUPPLY LOST DEED</p> <p>1. The lower court erred in overruling the demurrer to the petition because according to the allegations of the petition, taking them as true, the defendants were not necessary parties to the action.</p> <p>2. It was further error to refuse to permit defendants to file an amended answer pleading the statute of limitations. The period of limitation is fifteen years.</p> <p>3. Under the facts, the judgment is erroneous. There is no competent evidence to establish the fact that the deed was ever recorded.</p> <p>1. Lapse of time in equity is only permitted to bar an action upon the ground of reason and presumption that the right has been abandoned, and this presumption will never prevail against opposing facts and circumstances outweighing it. 50 N. Y., 337; 107 same, 111; 98 U. S., 486; 109 Penn. St., 177; 16 Fed. Rep., 350.</p> <p>2. The deposition of E. Winn, taken in another case between the same parties litigant, and concerning the same subject matter was competent evidence in this case, it appearing that Winn was dead. 1 Greenl. on Evidence, Sec. 163-4, and notes.</p> <p>3. The appellants were necessary parties to the action.</p>

Case 3 — EQUITY 1. The power of appointing the trustees of the town of Brandenburg was in the county judge and not in the county court. Act March 19, 1894. This act repealed the act of March 16, 1894. 2. Section 3665 of the Kentucky Statutes is unconstitutional. Con. Sec. 27; Dillon on Mun. Corp., Sec. 9; Beach Pub. Corp., vol. 1, Sec. 80; Cooley on Const. Lim.

Case 4 — PETITION FOR NEW TRIAL The filing of the petition for a new trial was proper because nothing remained to be done but to enter judgment in accordance with tbe mandate of tbis court, and the filing of tbe petition for a new trial reached tbe result directly. McLean v. Nixson, 18 B. M., 768; Maddox’s Exr. v. Williams, 87 Ky., 147; Scott v. Scott, 9 Bush, 174; Civil Code, Secs. 518-520. 1.

Case 5 — ACTION FOR TAXES 1. The city of Henderson has no power to collect taxes by suit. Johnson v. Louisville, 13 Bush, 527; Baldwin v. Hewitt, 88 Ky., 673; Louisville Water Co. v. Com., 89 Ky., 244. The appellant is not a railroad, and if it were, the assessments must have been made by the railroad commissioners, which was not done. Gen. Stat. (Bullitt & Feland, 1883) p. 1021. 2.

<p>Case 6 — INDICTMENT FOR RAPE</p> <p>1. The court erred in refusing a change of venue. Ky. Stat., Sec. 1110; Constitution of U. S., Arts. V., VI., Amendments; Ky. Con. Bill of Rights, Secs. 1, 2.</p> <p>2. A continuance should have been granted.</p> <p>3. It was error to refuse an instruction that the Commonwealth must show to the exclusion of a reasonable doubt that the prosecutrix was under twelve years of age. The allegation of age being descriptive must be proved as laid.</p> <p>The change of venue was properly denied. Even common law grounds were not made out. Rex v. Cowle, 2 Burrowes, 834; State v. Howard, 31 Vt., 414; See also Con., Sec. 11; Ky. Stat., Sec. 1145. The right to a-change of venue, however, is statutory. Wilkerson v. Com., 10 Ky. Law Rep., 656.</p> <p>I. The indictment charges but one offense. Time of the offense was immaterial. Crim. Code, Sec. 129; Faustre v. Com., 92 Ky., 34; Jones v. Com., 1 Bush, 34; Richey v. Com., 81 Ky., 524.</p> <p>2. The charge of rape did not include the statutory offense of carnally knowing a female under twelve years of age. Ky. Stat., Secs. 1152, 1155; Penston v. Com., 82 Ky., 549.</p> <p>3. Change of Venue was properly denied. Ky. Stat., Sec. 1110; Wilkerson v. Com., 10 Ky. Law Rep., 656; Higgins v. Com., 14 Ky. Law Rep., 729; Dilger v. Com., 88 Ky., 550.</p> <p>4. Grounds for a continuance were not made out. Crim. Code., Sec. 189; Hardesty v. Com., 11 Ky. Law Rep., 43; Prewitt v. Com., 5 Ky. Law Rep., 861.</p> <p>5. The instructions given defining the offense were proper and the rejected instructions of which error is predicated were substantially included in those given.</p>

Case 7 — MANDAMUS 1. The agent for the reclamation of a fugitive from justice, being the mere agent of the Commonwealth, with no personal interest in the return of the fugitive, the State of Kentucky is liable for his expenses whether successful or unsuccessful through no fault of his own. Sec. 1934 of Ky. Stat. Public policy requires this construction of the statute. 2.

<p>Case 8 — IN EQUITY</p> <p>1. On lis pendens: Clarkson v. Morgan, 6 B. M., 441; Park v. Jackson, 11 Wend., 442; Satterfield v. Malone, 1 L. R. A., 35; Clary’s Heirs v. Marshall’s Heirs, 5 B. M., 266; Hart v. Hayden, 79 Ky., 348; Stone & Warren v. Connelly, 1 Met., 654.</p> <p>2. On sufficiency of petition. Rodgers v. Rodgers’ Admr., 17 Ky. Law Rep., 358; Harlammert v. Moody’s Admr., 15 Ky. Law Rep., 839.</p> <p>On Us pendens: Bennett on Lis Pendens, 153; Leavell v. Poore, ■91 Ky., 324; Am. & Eng. Enc. of Law, Vol. 13, pp. 877, 889; Harlammert v. Moody’s Admr., 15 Ky. Law Rep., 840; Secs. 429, 430, Civ. Code; Hames v. Orr, 10 Bush, 437; Jones v. McNarrin, 28 Am. Rep., 66; Freeman on Judgments, Vol. 1, Secs. 198, 193; Norris v. lie, 43 Am. St. Rep., 243; Clarkson v. Morgan, 6 B. M., 441-454; Murray v. Ballou, 1 Johnson’s Ch., 577; Bouvier’s Law Diet., Vol. 1, 112; Macey v. Fenwick’s Admr., 9 Dana, 200; Fen-wick’s Admr., v. Macey, 2 B. M., 470; Pomeroy’s Eq. Jur., Vol. 2, Sec. G33; Gossom v. Donaldson, 18 B. M., 191; Wallace v. Marquett, 88 Ky., 134.</p> <p>On Us pendens: Leavell v. Poore, 13 Ky. Law Rep., 52; Am. & Eng. Enc. of Law, vol. 13, p. 877; Evans v. Miller, 5 Ky. Law Rep., 609; Rothschild’s Admr. v. Kohn Bros., &c., 14 Ky. Law Rep., 36; Gibbons v. G. & H. C. T. Co., 14 Bush, 392; Meyer v. Zotel’s Admr., 16 Ky. Law Rep., 507, Rodgers v. Rodgers’ Admr., 17 Ky. Law Rep., 358.</p>

Case 9 — CONVERSION 1.If one of two joint owners of personal property does such an act or acts in reference to the common property as to induce the conclusion that he is disregarding the rights of his co-tenant by the destruction of the property or by the appropriation of it to his own. use, then he is guilty of conversion for which an action of trover will lie. Freeman on Partition, Secs. 307-9, note to Bowling v. Kirby, 24 Am. St. Rep., 795-819; Lucas v. Wasson, 24 Am.

<p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>1. Descent and Distribution — Damages fob Decedent’s Death.— Damages recovered by a personal representative for the death of his intestate recovered prior to the act of the General Assembly giving such damages to the mother (Sec. 6 of Ky. Stat.) were properly distributed under the law in force prior to that enactment.</p> <p>2. Statutes Construed to be Prospective in their Operation.— The act of 1893 (Sec. 6, sub-sec. 3, Ky. Stat.) giving the recovery of damages for the death by negligence to the mother in the absence of widow, child or children and father, has no application to a recovery had prior to its enactment.</p> <p>8. Distribution Between Mother, and Sisters of the Half Blood. — Under a statute in force prior to the enactment of Sec. 6 of the Kentucky Statutes, where a decedent lost his life by the negligence of another, a recovery was properly divided one-half to his mother and the other half to his sisters of the half blood in equal parts.</p>

<p>Case 11 — AGREED CASE</p> <p>1. What is an officer? Bac. Abr., title “Offices and Officers,” Blackstone Com., Book 2, chap. 3, p. 36; Finch’s Law, 162; 3 Kent. Com., 454; 8 Cal. 39; U. S. v. Maurice, 2 Brook, 96; Shelby v. Alcorn, 36 Miss., 273; Bunn v. People, 45 111., 397; United States v. Hartwell, 6 Wall-, 385; 20 Johns. (N. Y.), 492; People v. Nostrand, 46 N. Y., 375; Rowland v. Mayor, 83 N. Y., 272; City of Louisville v. Wilson, 99 Ky., 598; Mechera on Public Offices, Sec. 1; Porter v. Pillsbury, Howard’s Practice Reports, vol. 11, p. 241; Throop on Public Officers, book 1, Secs. 1, 2, 3, 4, 5.</p> <p>2. Legislative Powers. Constitution, Secs. 27, 28, 29; Spirit of Laws, Book 11, chap. 6; Blackstone Com., vol. 1, p. 146; Sutherland on Stat. Con., p. 5, Sec. 6; Taylor v. Com., 3 J. J. M., 401; State, ex rel. Holt v. Denny, 118 Ind., 449; State ex rel. Jameson v. Denny, 118 Ind., 382; State, etc., v. Noble, 118 Ind., 350; Evansville v. State, ex rel., etc., 118 Ind., 426; . State v. Yancey, 121 Ind., 20; Smith v. Myers, 109 Ind., 1; Low v. Towns, 8 Ga., 360; Cooley Con. Lim., Star pages 87, 88, 89, 93, 114, 175; Sedgw. Const. & Stat. Con., (2d ed.) pp. 132, 138, 184; 10 Wheat. 1; Greenough v. Greenough, - Pa. Stat., 489; Am. & Eng. Enc. of Law, vol. 3, p. 386.</p> <p>3. Constitution, Secs. 23, 93, 107, 160; People v. Perry, 79 Cal., 110; Howard v. State, 10 Ind., 100; Connors v. State, 5 Kan., 688; Throop on Public Officers, book 3, Sec. 305 and notes.</p> <p>4 Joint Assembly not authorized to elect. Prison Act, 1898, Sec. 1; 31 Neb., 262; North Carolina, ex rel. v. Ellington, 30 L. R. A„ 532.</p> <p>1. The Goebel Election Law is unconstitutional.</p> <p>(a) It is an act amendatory in letter and effect, materially and intentionally changing an existing law, and attempting to ■extend certain provisions thereof without re-enacting and publishing the law as changed and extended, made mandatory by Sec. 51 of the Kentucky Constitution.</p> <p>(b) If it be considered an independent act, complete in itself, not intending to modify or change an existing law, or to extend any of its provisions as modified and changed, it violates Sec. 6 of the Bill of Rights; it exceeds the power given to regulate and uses it to advance selfish, factional partisan interests to the denial of free and equal elections.</p> <p>2. It is contrary to the fixed principles of republican institutions; it destroys local self government; it so concentrates powers as to create a political machine, which, in effect, may be controlled by one man; it is undemocratic, autocratic and despotic in its tendencies; it is cowardly, corrupt and dishonest in its real purpose; it is repulsive to the intelligent and courageous manhood of freemen.</p> <p>Citations: Ky. Con., Sec. 51; Am. & Eng. Ency of Law, vol. 23, p. 278; People v. Mahaney, 13 Mich., 497; State v. Trenton, 53 N. J. L„ 570; Fite Y. Black, 85 Ga., 413; Todd v. State, 85 Ala., 339; Rogers v. Torbut, 58 Ala., 523; Bolling v. LeGrand, 87 Ala., 482; Stewart v. Hale County, 82 Ala., 209; Tuskaloosa Bridge Co. v. Olmstead, 41 Ala., 9; Judson v. Bessemer, 87 Ala., 240; Watkin v. Eureka Springs, 49 Ark., 131;, Smith v. State, 29 Fla., 408; Walker v. Caldwell, 4 La. Ann., 297; Duverge v. Salter, 5 La. Ann., 94; State v. Hackett, 5 La. Ann., 91; Kohn v. Carrollton Tp., 10 La. Ann.* 719; Arnoult v. New Orleans, 11 La. Ann., 56; Halher v. Caldwell, 4 La. Ann., 297; State v. Miller, 100 Mo., 439; Smith v. State, 34 Neb., 689; State v. Corner, 22 Neb., 265; 3 Am. St. Rep., 267; Portland v. Stock, 2 Ore., 70; Com. y. Mercer, 9 Pa. Co. Ct. Rep., 461; McKeever v. Victor Oil Co., 9 Pa. Co. Ct. Rep., 284; Johnson v. Martin, 75 Tex., 33; Evansville v. State, 118 Ind., 426; Campbell v. Board of Pharmacy, 45 N. J. L., 241; 47 N. J. L., 347; Evernham v. Hulit, 45 N. J. L., 53; Haring v. State, 51 N. J. L., 386; Colwell v. Chamberlin, 43 N. J. L., 388; State v. McNeal, 48 N. J. L., 407; Pittsburgh’s Petition, 138 Pa. St., 401; Gilbert v. Moody, 25 Pac. Rep., 1092; People v. Judge, 39 Mich., 195; Callaghan v. Chipman, 59 Mich., 616; People v. Detroit, 38 Mich., 636; People v. Pritchard, 21 Mich., 236; Fenton v. Yule, 27 Neb., 758; State v. Babcock, 23 Neb., 128; Wilkinson v. Ketler, 59 Alá., 309; Callaghan v. Jennings, 16 Col., 471; Edwards v. Denver, &c., R. Co., 13 Col., 559; Booneville v. Trigg,. 46 Mo., 288; Martinsville v. Frieze, 33 Ind., 509; Smailes v. White, 4 Neb., 353; Sovereign v. State, 7 Neb., 409; Stricklett v. State, 31 Neb., 674; In re House Roll, 284, 31 Neb., 505; Batman v. Megowan, 1 Met., 533; Cooley’s Con. Lim., p. 602; City of Owensboro v. Hickman, 90 Ky., 629; Com. v. McClellan, 83 Ky., 686; Capon v. Foster, 12 Pick., 488; Page v. Allen, 58 Pa. St. Rep., 346; Section 6, Bill of Rights.</p> <p>(Brief not in the record.)</p> <p>1. By section 153 of the Constitution the Legislature is given power to enact any law in regard to elections, except as to the qualification of the voter, manner of voting (by ballot) and between certain hours, and the trial of contested elections for Governor and Lieutenant-Governor and members of the General Assembly.</p> <p>2. The contesting boards for the State nor county are courts withiu the meaning of Sec. 135 of the Constitution, prohibiting the establishment of other courts. Thompson v. Koch, 98 Ky., 400; Gibbs v. Board of Aldermen, decided June 16, 1896; as also the fact that the first Legislature after the adoption of the Constitution interpreted this section 135 differently, and made boards of contest that were not the courts of the Constitution, and these boards have been recognized by this court repeatedly as legal bodies, and their action has been affirmed by this court.</p> <p>3. The right of suffrage is not one of the necessary privileges and immunities of the citizen, the abridgement of which is prohibited by the Federal Constitution. Williams v. State of Mississippi U. S. Supreme Ct., Apl. 25, 1898; Minor v. Happersett, 21 Wallace, 162; Murphy v. Ramsay, 114 XJ. S., 43.</p> <p>4. The old law as to elections, as to appeals in contested cases, is not repealed, but is still the law.</p> <p>5. The manner of the passage of the act and the election of the State Commissioners is identical with the facts in the prison question and the opinion in that case is conclusive of this one.</p> <p>Additional Citations: Geisen v. Heiderich, 104 111., 537; State v. Bennett, 102 Mo., 356; Anderson v. Com., 18 Gratt., 295; Home Ins. Co. v. Taxing District, 4 Lea., 644; Lehman v. McBride, 15 O.St., 573; State v. Miller, 100 Mo., 439.</p> <p>IN A SUPPLEMENTAL BRIEF.</p> <p>1. The Goebel election law does not violate the provisions of the Bill of Rights with reference to free and equal elections. Com. v. McClelland, 83 Ky., 686. The objections urged by counsel to . the existing law would be equally applicable to the old law.</p> <p>2. The act in question is not unconstitutional in violating the provisions of the section requiring amendatory acts to set forth in full the act as amended. Cooley Con. Lim., Williams v. Mississippi, U. S. Sup. Ct., April 25, 1898; Minor v. Happersett, 21 Wal., 162; Murphy v. Ramsay, 114 XL S., 43; State v. Miller, 100 Mo., 439; Lehman v. McBride, 15 O. St., 573; Home Ins. Co. v. Taxing District, 4 Lea., 644; State v. Bennett, 102 Mo., 356.</p>

Case 12 — ACTION FOR DAMAGES 1. The boiler -which, exploded did not belong to the Gas Company, and the men who operated it were not employed by the Gas Company; and, therefore, there could be no liability on the Gas Company for the explosion. There was no judgment rendered against the Electric Light Company; and it is not before the court on this appeal. 2.

Case 13 — TORT (Brief withdrawn.) I. The petition does not state a cause of action for wrongful discharge because it is not 'alleged that there was any contract of employment, or that plaintiff ever made any effort to get other employment. 2. The petition is defective in failing to allege any fact showing that plaintiff was injured by the alleged conspiracy. 3.

<p>APPEAL FROM CARLISLE CIRCUIT COURT.</p> <p>Pleading Private Acts. — The act incorporating the Grand Lodge of the Independent Order of Odd Fellows of Kentucky, is a private act, and under Sec. 119, sub-sec. 2, Civil Code of Practice, must be specially pleaded where the corporate existence of the order is a substantive fact in the litigation.</p>

<p>Case 15 — INJUNCTION</p> <p>1. Under the provisions of the act to encourage the building of railroads in this State, Acts 1883-4, p. 195 — the Cumberland Valley Branch R. R. Co. was exempted from taxation for a period of five years from the date of the beginning of its construction.</p> <p>2. By the express provisions of the act extending the corporate limits of Barbourville “lands used for farming purposes” were excepted from the power given the town to tax for municipal purposes, and a railroad running through these farming lands was likewise exempted.</p> <p>3. The purpose of the -extensions was to- include the property of the railroad company for the purpose of taxation, although such property derived no corresponding benefit. . For this reason the said acts are unconstitutional. City of Covington v. Southgate, 15 B. M., 491; City of Pineville v. Creech, 16 Ky. Law Rep., 172; Cheaney v. Hooser, 9 B. -M., 330; L. & N. R. R. Co. v. Com., 17 Ky. Law Rep., 136; Briggs v. Town of Russellville, 18 Ky. Law Rep., 393.</p> <p>1. The act of 1883-4 exempting railroads from taxation for five years from the beginning of their construction is not applicable to this case, because the five years had expired before the taxation sought to be enjoined herein.</p> <p>2. There is no presumption that the extensions of the corporate limits of Barbourville were made for the purpose of including the railroad.</p> <p>3. The lots through which the. appellant’s railroad runs were not used for farming purposes, but were in fact and law town lots.</p> <p>Cases commented on: L. & N. R. R. Co. v. Com., 17 Ky. Law Rep., 138; Briggs v. Town of Russellville, 18 Ky. Law Rep., 389.</p>

Case 16 — INDICTMENT FOR UNJUST DISCRIMINATION 1 The sections of the statutes on which the indictment is based are unconstitutional, as they relate solely to railroad corporations, and because that statute assumed regulation of the subject completely regulated by the Constitution itself, and on -these grounds the demurrer to the indictment should have been sustained. 2.

<p>Case 17 — ACTION FOR NEGLIGENCE</p> <p>(Transcript and briefs not in the office.)</p>

<p>Case 18 — ACTION FOR DAMAGES FOR INJURY TO LAND</p> <p>(No briefs in the office.)</p>

<p>APPEAL PROM PAYETTE CIRCUIT COURT.</p> <p>1. Constitutional Law — Habitual Criminal Act. — Section 1130 of the Kentucky Statutes imposing a life sentence in the penitentiary for the third conviction óf a felony Is not unconstitutional in imposing a second punishment for a former offense.</p> <p>2. Eppect op Pardon. — The fact that the defendant was pardoned of the offense for which he was first convicted does not operate to prevent the imposition of a life sentence for the third conviction. :</p> <p>3. Same — Form op the Verdict. — A verdict iii 'form, “We, the jury, find the defendant, Ben Herndon, guilty as charged in the indictment, and fix his punishment at confinement in the penitentiary for life” is a sufficient finding of the former convictions to warrant the imposition of a life sentence.</p>

Case 20 — ACTION ON NOTE The assignee Caldwell even .if the assignment of the note to him be conceded, had no right to fill up the blank assignment after the maturity of the note. Geni. Stat., Sec. 13, chap. 22; Allin, Exr., &c. v. Shadburn’s Heirs, 1 Dana, 68; Morrison v. Stockwell’s Admr., 9 Dana, 172; Muhling v. Sattler, &c., 3 Met., 285; Pace v. Welmending, &c., 12 Bush, 141. .

Case 21 — ACTION FOR TAXES 1. School districts' are not included in SecT57 'of the Constitution of Kentucky. The language in the last clause of the section “nor shall any, municipality be .authorized to assume the same” prer eludes the idea that school districts were to be included. The case of City of Richmond v. Powell, 16 Ky.

<p>APPEAL PROM WEBSTER CIRCUIT COURT.*</p> <p>1. Promissory Notes — Consideration—Surrender of Old Note.— , The surrender of a past due note* is a sufficient consideration for the execution of new notes renewing same, with, new sureties.</p> <p>2. Appeals — Finding of tiie Chancellor -on Questions of Fact not Conclusive. — “It is a well settled rule of law that in equity cases this court will consider the evidence introduced, and determine therefrom what judgment should have been rendered.”</p> <p>3. Fraud — Evidence Insufficient. — The evidence in this case fails to sustain the allegations of such fraudulent misconduct upon the part of the principal as will release the sureties from liability upon the notes sued on.</p>

<p>APPEAL tfKOM MONTGOMERY CIRCUIT COURT.</p> <p>Bills and Notes- — Pleading—Departure.—In an action on a promissory note given in renewal of a prior note, it is not a departure to declare on the original note by amended petition after a plea of non est factum by a surety in the renewal note.</p>

Case 24 — INDICTMENT FOR MISDEMEANOR 1. The order made filing away the prosecutions against Bottoms did not operate as a discontinuance and final disposition of said cases. Ashlock v. Com., 7 B. M., 44; Henry v. Com., 4 Bush, 427. 2. Limitation did not run in favor of the defendant while the indictment was filed away with his consent., (No brief on file.)

Case 25 — INJUNCTION 1. It was a sufficient compliance with the free turnpike act to file the applications for a vote on the regular county court day and at subsequent called terms during the same month. 2. The election was duly advertised, the vote counted and certified. 3. The omission to spread the certificate upon the record at the next county court day was a mere irregularity. 4. The vote was sufficient.

<p>Case 26 — FERRIES</p> <p>1. The notice should have apprised the defendant as to who the plaintiff in the motion would he, and it was also insufficient in other respects.</p> <p>2. The variance between the notice and the motion is fatal and the proceeding should have been dismissed either on demurrer or on the motion to dismiss.</p> <p>3. The motion having been made originally only two months after the fixing of the previous rates, it should have been dismissed because unreasonable and contrary to the spirit of the law.</p> <p>4. The circuit court erred in trying “the discretion of the county court;” the opinion should have been based on the law and facts, without putting upon appellant the burden of proving that the county court abused its discretion.</p> <p>5. This honorable court, as well as the circuit court, is also judge of the law and facts, and is to try the case on its merits. The decision of the circuit judge is not equivalent to the verdict of a jury in this case.</p> <p>StriorAnx of Facts.</p> <p>The circuit court is in error in almost every fact found.</p> <p>1. Instead of this ferry accommodating about all the travel from the lower end of the county, the proof shows clearly that two other ferries also accommodate the same territory.</p> <p>2. The court finds five cents a round trip to be a fair rate when there is not only no competent proof to that effect, but when all the competent proof in the case shows directly the contrary.</p> <p>3. The court finds in substance that the net income of this ferry is $1,500 per year, when, in fact, the proof in the case shows less than $750 per year.</p> <p>4. The court finds $800 to be the expense from July 1, 1894, to January 1,1895, but that this is largely more than the ordinary and legitimate expenses for maintaining and operating said ferry. The only two witnesses who testify on this point are Mrs. Troutman and Frank Mitchell. They both say that it is a fair average six months’ expense — that frequently it is larger.</p> <p>5. The court finds the value of the tangible property to be only $1,500. The proof shows that $3,500 is a low estimate, which would bring the value of the property to at least * $11,500.</p> <p>6. According to the proof as above stated, the ferry is paying a very small fraction over six per cent, merely on the investment.</p> <p>7. Mrs. Troutman is entitled to something additional for her time and trouble in superintending the ferry, and for the responsibility she is under in owning and managing it.</p> <p>8. The readiness of plaintiff’s witness to give opinions in regard to matters concerning which - they know nothing, shows their bias and prejudice in the matter.</p> <p>BULLITT AND SHEILD also rob appellant.</p> <p>1. The notice under which Mrs. Troutman was brought before the county pourt to try the questions assumed to be involved in this case, was entirely insufficient under the law to give jurisdiction to the county court to render the judgment which it has seen fit to render in this action. Bunnell v. Thompson, 12 Bush, 117; Johnson v. Bradley, 11 Bush, 667; Sharp v. Row, 13 Bush, 461; Brown v. Givens, 1 Dana, 261.</p> <p>2. The reduction of the rates as to foot passengers made by the county court is practically a confiscation of the appellant’s property.</p> <p>GAUNT & DOWNS rob appellee.</p> <p>1. It was proper to commence this proceeding in the county court which alone had jurisdiction of the subject of ferries. Ky. Stat., sec. 1813, sub-sec. 1.</p> <p>2. The trial in the circuit court was regular and in accordance with the law and rules of evidence governing such trials.</p> <p>3. The notice was properly given by the county attorney.</p> <p>4. In this court, the same effect will be given to the finding of a judge on questions of fact as would be given to the verdict of a properly instructed jury.</p>

<p>Case 27 — INDICTMENT FOR HOMICIDE</p> <p>1. The illegality of the presence of the county attorney in the grand jury room during the examination of witnesses was ground for quashing the indictment'and was good in arrest of judgment.</p> <p>2. The court had no power to extend the term over Sunday for the purpose of giving the jury an. opportunity to deliberate and of receiving the verdict.</p> <p>3. The court should have permitted the defendant an opportunity to inspect the minutes of the testimony taken before the grand jury.</p> <p>4. The court erred in -admitting and rejecting evidence.</p> <p>Citations: Ky. Stat., Art. 2, Chap. 8; Secs. 127, 135, 963, 964, 965; Rice, Criminal Evidence, pp. 389, 501; Underhill on Criminal Evidence, Secs. 122, 124, 212, 213, 263, 332; Morgan v. Com., 14 Bush, 114; Kennedy v. Com., Id., 361; Coppage v. Com., 3 Bush, 532; Arthur v. Mosby, 2 Bibb., 589; Coleman v. Henderson, 5 Lit. Sel. Cases, 171; Meece v. Com., 78 Ky., 586; Bales v. Com., 11 Ky. Law Rep., 297; Reid v. State-, 22 Gratt., 924 (See also 1 Green’s Crim. Law. Rep., p. 267); Reid v. State, 53 Ala., 402; s. c. Am. St. Rep., vol.-, p. 290; 25 A-m. Rep., 627; 12th. Am. Dec., 291; 7 Am. Dec., 576; 36 Maine, 466; 5 Ind., 370; 9 Ind., 587; 14 Ind., 39, 34 N. H., 202; 74 N. C., 187; 41 Kan., 336; Crim. Code., Secs. 110, 253, 254; Central Law Journal, vol. 11, p. 447; in re Millington, 24 Kas., 224.</p> <p>(Brief not in the record.)</p>

Case 28 — DAMAGES 1. The court erred in its instructions. 2. The court erred in admitting incompetent evidence. 3. The court erred in refusing a new trial on the ground of misconduct and irregularity upon the part of the jury and the appellee. 4. The verdict was flagrantly against the evidence.

Cabe 29 — INSURANCE CASE 1. A plaintiff must recover upon his petition and his right of recovery can not be enlarged or extended in any way by the proof offered. If the plaintiff was entitled to the issual of the policy his action should have been in equity to compel the defendant to issue a policy.

<p>Case 30 — MISDEMEANOR</p> <p>I. Sections 2980, 3011, 3012 and 3058 are within the authority .of sections 174, 181 of the Constitution and the license ordinance is within those sections. City of Covington v. Wood, 17 Ky. Law Rep., 927; Levi v. City of Louisville, 16 Id., 872.</p> <p>2. Appel and the Platt Company are liable because they make direct contracts for the laundry work.</p> <p>1. A municipal corporation must show express authority in its charter for the acts it assumes to perform. It is a government of enumerated powers, and acts by a delegated authority. Cooley’s Constitutional Limitations (6th ed.), p. 227.</p> <p>2. By section 181 of the Constitution, the General Assembly may authorize the city (by charter) to impose and collect a license fee on “trades, occupations and professions;” but instead of following the Constitution and putting the tax upon the occupation, the charter (sec. 3012 Ky. Stat.) merely authorizes a license tax upon the laundry. The ordinance, therefore, which attempts to tax the person who runs or operates a laundry (instead of “each laundry,” as provided by the charter), is not pursuant to the charter and is invalid. To hold otherwise would enable the United Laundry Company to continue to run its three separate laundries under one license, when the charter requires “each laundry” to pay the Icense.</p> <p>1. The provision qf the ordinance of the city of Louisville making it conclusive evidence of the liability of a person for laundry license to hold itself out as engaged in that business is beyond the city’s charter powers, and it is beyond the power of the Legislature to confer such powers. Cooley’s Con. Lim. (6th ed.), p. 452; City of Louisville v. Cochran, 82 Ky., 15.</p> <p>2. A license tax on each laundry is not a tax on the business, but on the instrumentality through which the business is conducted. Every laundry pays ad valorem taxes and an additional license tax on the laundry itself is double taxation.</p> <p>3. The city ordinance based on the legislative grant, if it be held to embrace appellee, who merely collected and delivered, exceeded the power delegated by ‘the charter. The Platt Company does not do a laundry business.</p> <p>4. Any attempt to impose a license upon the Dayton Laundry of Ohio, doing business through the Platt Company as an agent, is a violation, of the interstate commerce feature of the United States Constitution. Crutcher v. Kentucky, 141 U. S., 47; Robbins v. Shelby County, 120 U. S., 489; Com. v. Smith, and same v. U. S. Express Co., 13 Ky., Law Rep., 362; Brennan v. Titusville, 153 U. S., 289; McCall v. California, 136 U. S., 104; Ex parte Holman, 36 S. W. Rep., 441; Ex parte Hough, 69 Fed. Rep., 330.</p> <p>1. This court has no jurisdiction of an appeal from a judgment for a fine of only twenty dollars. Ky. Stat., secs. 2922, 950; Broad-well v. Com., 98 Ky., 16; Thompson v. Koch, Id., 403.</p> <p>2. It is well settled that a person having no interest affected by a judgment, has no right to appeal. Ky. Stat., sec. 2917; 2 Enc. of PI. & Pr., 151, 152, 159, 161; Elliott’s Appellate Procedure, secs. 132, 133, 134, 135, 142; Civil Code, sec. 18; Payne &c., v. Niles &c., 20 How., 219; Connor v. Pugh’s Lessee, 18 How., 394; Cuyler v. Moreland, 6 Paige Ch., 273; McGregory v. Pearson, 51 Wis., 122; Harrison v. Nixon, 9 Pet., 483; Lafette v. Duncan, 4 Mart., 622; Ex. parte Dorr, 3 How., 103; Davenport v. Fletcher, 16 How., 142; McGinnis' v. Wheeler, 26 Wis., 651; Hackley v. Hope, 4 Keyes, 123; Mills v. Hoag, 7 Paige, 18; Hone v. Van Schaick, 7 Paige, 221; Arrowsmith v. Rapalje, 19 La. An., 327; Gettings v. Moale, 21 Md., 135; Bush v. Rochester Bank, 48 N. Y., 659; Schwackhamer v. Kline’s Admr., 25 N. J. Eq., 503; Raleigh, v. Rogers, 25 N. J. Eq., 507; Parker v. Raynolds, 32 N. J. Eq., 290; South’s Heirs v. Hoy, 3 Bibb., 523; Marr v. Hanna, 7 J. J. M., 643; Stevens v. Stevens, 2 Dana, 428; Combs v. Jefferson Pond Draining Co., 3 Met., 72; Ragland v. Wickware, 4 J. J. M., 531; Marr v. Stevens, &c., 1 Bibb, 292; Civil Code, sec. 734; Mitchell, &c., v. Kinnaird, 17 Ky. Law Rep., 1250; Murphy, &c., v. O’Reiley, 78 Ky., 263; Lyle v. Bradford, 7 T. B. M., Ill; Williams v. Tyler, 13 Ky. Law Rep., 392; Meyler v. Bolsclaw, 4 Ky. Law Rep., 904; Broseke v. Pendleton Bldg. Assn., 7 Ky. La.w Rep., 660; Tibbatts v. Berry, Sec.., 10 B. M., 473; Meadors v. Brown, 16 Ky. Law Rep., 620; Ky. Stat., sec. 2915; City of Owensboro v. Sparks, 99 Ky., 351; Ky. Stat., sec. 3360.</p> <p>I. The Commonwealth has no interest in this appeal. The recovery is for the benefit of the city of Louisville. Barnett v. Feichheimer, 5 Ky. Law Rep., 183; Hersperger v. Smith, 15 Ky. Law Rep., 605; Alford v. Stanford, 13 Ky. Law Rep., 876; Daum v. Hackett, 10 Ky. Law Rep., 38; Newcome v. Turner, 15 Ky. Law Rep., 573; Hanauer, Sec., v. Oberlin, 15 Ky. Law Rep., 878.</p> <p>2. The amount of the judgment is not sufficient to authorize an appeal; and the act authorizing an appeal to test the validity of ordinances of cities of the first class is unconstitutional. Topeka v. Gillett, 32 Kansas, 435; State v. Smith, 48 O. S., 217; 'State v. Pugh, 43 O. St., 112; State v. Mitchell, 31 O. St., 607; State v. Constantine, 42 O. St., 437; s. c., 51 Am. Dec., 833; Devine v. Cook, 84 111., 592; State v. Hermann, 75 Mo., 352; Com. v. Patton, 88 Pa. St., 260; State v. Hammer, 42 N. J. L., 439; Contieri v. New Brunswick, 44 N. J. L., 59; Gorley v. City of Louisville, 20 Ky. Law Rep., 602.</p> <p>The purpose of this appeal is to test the validity of a city ordinance and the amount of the fine is immaterial. Kentucky Statutes, secs. 2922, 2917, 2912, 2934, and 2943.</p>

Care 31 — EQUITY 1. The judgment below was wrong in adjudging to Black a lien^ superior to that of Cooley upon the hotel and lot for material furnished and labor done. Gen. St., Chap. 70, Art. 1, Secs. 1, 2, 3, 9 and 14; Trustees Caldwell Institute v. Young, 2 Duv., 582; Nazareth, &c. Inst. v. Lowe, &c., 1 B. M., 257; Foushee, &c. v. Grigsby, &c., 12 Bush, 75; Brown v. Story’s Admr., 4 Met., 316. 2. The action was prematurely submitted.

Case 32 — ACTION FOR NEGLIGENCE CAUSING DEATH 1. The service of the summons on Smith was void because he was not at the time, or at any time, an officer or agent of the Bridge Company. Civil Code, Secs. 51 and 732-33; Harper v. N. N. & M. V. Ry. Co., 90 Ky., 359; G. W. Mining Co. v. Mining Co., 12 Colo., 46; s. c. 13 Am. St. Rep., 204; Daviess Oounty v. Dickerson, 117 U. S., 664; Dixon County v. Field, 111 U. S!, 83. 2.

Case 33 — INJUNCTION 1. The law taxing franchises for municipal purposes in unconstitutional and void. Constitution, secs. 171, 172, 174, 181; Louisville City Ry. Co., v. City of Louisville, 4 Bush, 478; Ky. Stat., secs. 4077, 4078, 4079, 4080, 4081, 4082, 4084 and 4087. 2. If the taxation of franchises for municipal purposes should be sustained, the proper proceedings have not been taken by appellee herein to assess and collect such taxes. Ky. Stat., sec. 3481, el scq. 3.

<p>APPEAL FROM WOLFE CIRCUIT COURT.</p> <p>School Trustees — Term of — Effect of Act of 1898. A school trustee duly appointed and qualified on June 14, 1897, was continued in office until July 1, 1899, by virtue of the act of 1898 which changed the time of electing trustees from June to October in each year, and provided that the trustees thus elected should go into office the following July.</p>

Case 35 — INJUNCTION The burden of showing that appellee was within District 28 of Bourbon county, was upon him, and the evidence fails to show that he was within that district. In order to he included within a district outside of the county of his residence, there must have been joint action hy the commissioners of the two counties under paragraph 4, article 6, chapter 18 of. the General Statutes, and this action was not had.

Case 36 — APPEAL PROM TAX ASSESSMENT 1. - The circuit court has no power to review an assessment. The action of the county judge is special and not judicial, and section 978 of the Kentucky Statutes has no application. 2. The burden of proof was on the taxpayer. 3. The court erred in refusing to compel Mrs. Wilson to answer questions asked her on the taking of her deposition. 4. There was no certified judgment and taxation of costs. Civil Code, sec. 724. 1.

<p>Appeal prom Chancery Division op Jefferson Circuit Court.</p> <p>1. Special Commissioners — Right to Select. — Under section 400 of the Kentucky statutes the court has a discretion to refuse to appoint a special commissioner selected by the parties, and that discretion will not be interfered with unless a clear abuse is shown.</p> <p>2. Master Commissioner- — Fees op. — Under the Act of June 15, 1893, which is applicable to the Master Commissioner of the Jefferson Circuit Court, the fees of such Commissioner are fixed, and the court has no power to prescribe rules giving him compensation in excess of the amounts fixed by that act.</p>

<p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>Limitation — Sureties in Replevin Bond. — The running of the statute of limitation in favor of a surety in a replevin bond is not stopped by bringing an action in the nature of a bill of discovery to enforce the bond.</p>

Case 39 — ACTION ON INSURANCE POLICY 1. The evidence showed the change of ownership. 2. The provision for forfeiture was a. valid one. Blackerby v. Continental Insurance Co., 83 Ky., 579. 3. There is no. evidence showing that the company warned the forfeiture incurred by non-payment of the note. Sympson had no authority to make such a waiver, and if he did so it was without consideration. The instrúctions should have conformed to this condition of the evidence.

Case 40 — INJUNCTION 1. The corporate powers, of the city of Jellico ceased when the ■ Legislature adjourned in 1896 without assigning it to its proper class. Ky. Stat., secs. 3715, 3716; Con., secs. 156, 27. 2. The Attorney-General is the proper party to bring the action. Black’s Const. Law, p. 373, secs. 131-138; Ky. Con., sec. 156; Jernigan v. City of Madisonville, 19 Ky.

Case 41 — EQUITY 1. The widow of Jordan Meaux was a necessary party and the court should have required her to be made a party or should have dismissed the action. Civil Code, secs. 118, 92-4, 371-2, 24; Carpenter v. Miles, 17 B. M., 598; Vanbuskirk v. Levy, 3 Met., 133; Ogle v. Clough, 2 Duv., 145; Shawhan, &c., v. Zinn, &c., 79 Ky.,, 300. 2. The judgment is erroneous in holding that the action was not barred by limitation.

<p>Case 42 — ACTION ON GUARANTY</p> <p>1. The notes sued on are simply promissory notes and in order to recover against the appellant the holder of the notes must have sued the maker at the first term of court after the same became due. Ky. Stat., sec. 483; Carlisle V. Chambers, &c., 4 Bush, 268.</p> <p>2. The amended petition seeking to recover upon the guaranty is a departure from the original cause of action which sought to recover upon the notes upon the assumption that they had been placed upon the footing of foreign bills of exchange'. Ky. Stats., sec. 475; Humphrey v. Hughes’ Guardian, &c., 79 Ky., 487.</p> <p>3. After permitting the plaintiff to amend, the court should have sustained defendant’s motion to require it to elect.</p> <p>4. The court should have sustained the general demurrer to the petition as amended.</p> <p>1. The contract between the parties as shown by their correspondence imports an absolute guaranty of the payment and not a guaranty of the solvency of the makers of the discounted paper. Douglas v. Howlang, 24 Wend., 35; Oxley v. Young, 2 H. Black., 613; Lowe & Co. v. Beckwith, 14 B. M., 150; Wilson v. Hengages, 28 Minne., 102; Smart v. Smart, 97 Ky., 559; Thompson v. Glover, 78 Ky., 193; 'Levi v. Mendell, 1 Duv., 77; Memphis v. Brown, 20 Wallace, 289; Railroad Co. v. Howard, 7 Wallace, 407; Zabriskie v. Railroad Co., 23 How., 381; Leggett v. Raymond, 6 Hill, 641; Bowman v. Curd, 2 Bush, 565; 9 Am. & Eng. Enc. of Law, p. 27; Beach, Modern Law Contracts, vol. 1, sec. 34.</p>

Case 43 — ASSESSMENT FOR TAXATION Neither prior to nor since the adoption of the present Constitution was any of the property sought to be assessed herein liable to taxation.

Case 44 — EFFECT OF FORMER ADJUDICATION This appeal involves questions essentially different from those considered on the former appeal. Were it otherwise, the former opinion in this case is wrong and ought not to be adhered to. 60 Miss., 432; 136 Mass., 406. This case is controlled by the former ruling. Adam Roth Grocery Co. v. Hopkins, 16 Ky. Law Rep., 678.

Case 45 — ACTION FOR TAXES 1. The court erred in permitting appellees to file grounds for a new-trial at a term of court subsequent to the term during which the judgment was rendered and the court should have sustained the motion of the appellant to set aside the order filing said grounds. 2. The court erred in assuming as true, in its instructions, questions of fact put in issue by the pleadings. 3.

<p>APPEAL PROM DAVIESS CIRCUIT COURT.</p> <p>1. Libel — Jurisdiction.—Under sec. 74 of the Civil Code, fixing the venue of actions for injury to the character of the plaintiff against a resident defendant in the county where the defendant resides, or in which the injury is done, an action for libel against a newspaper may be brought in any county where the paper circulates.</p> <p>2. Same — Pleading.—In an action for libel it is not necessary to allege extrinsic facts for the purpose of showing the application to the plaintiff of the alleged defamatory matters. Under sec. 123 of the Civil Code it is sufficient to allege that the publication was meant to, and did, refer to the plaintiff.</p> <p>3. Same — Malice.-—Malice in law is imputed to a person who does a wrongful act without just cause or excuse, and does not imply ill will or personal animosity.</p> <p>4. Same — Instruction.—In defining actual malice it is improper to add the abbreviation “etc.” to the definition as “actual ill-will," hatred, etc.,” but such impropriety is not reversible error, unless it appears that the defendant was actually prejudiced.</p> <p>5. Same — Measure op Damages. — The rule is well settled that the publication of a libel exposes the publisher not only to compensatory damages for the plaintiff’s loss of business, but also to a judgment for the mental suffering that the libel or slander inflicts upon the plaintiff, and if the publication is malicious, or made in reckless disregard of the rights of the plaintiff, the defendant is also liable for punitive damages.</p> <p>G. Same — Defense—Good Faith of the Publisher. — It is no defense in law to an action for libel for the publication of defamatory matter in a newspaper that the publisher believed that the statements or charges made were true.</p>

<p>Case 47 — ACTION FOR DAMAGES FOR LEVY OF AN EXECUTION</p> <p>At the time the tobacco was levied on, Kenton was the owner of it. Tiedeman on Sales, sec. 87; Sweeney v. Owsley, 14 B. M., 332; Newcomb, Buchanan, &c., v. Cabell, 10 Bush, 462; Allen, &c. V. Feland, 10 B. M., 306; Com., &c., v. Stockton, 5 T. B. M., 192; Tiedeman on Sales, sec. 84; Cummins v. Griggs, &c., 2 Duv., 87.</p> <p>1 The title to the tobacco did not pass to Kenton at the time of the contract of December, 1894.</p> <p>2. If the title did pass, the sale was void as to the creditors, possession not accompanying the sale.</p> <p>Citations: Benjamin on Sales, secs. 358, 359; Chitty on Contracts, p. 375; Wells v. Maley, 6 Ky. Law Rep., 77; Ky. Stats., secs. 1908, 1709.</p>

Case 48 — EQUITY 1. The statute begins to run against each ward as he attains majority. Murrell’s Admr. v. McAllister, 79 Ky., 311'. There was no new promise to take the case out ot the statute and if there had been it must have been a written one. Gilmore v. Green, 14 Bush, 792. 2. There is nothing to take the case out of the statute of limitations nor can the statute be construed otherwise than literally.

<p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>Superintendent of Common Schools — Power to Revoke Teacher’s Certificate. — The county superintendent of common schools has no power to revoke a teacher’s certificate, because such teacher furnished assistance to an applicant for a certificate, while he was being examined for that purpose. Rendering such assistance is neither “incompetency, neglect of duty, immoral conduct or other disqualification” within the meaning of sec. 4417 of the Kentucky Statutes; nor is it within the meaning of sec. 4503 of same, providing “if at any time the holder of a county certificate should be found incompetent, inefficient, immoral or otherwise unworthy to be a teacher the county superintendent shall revoke the certificate of such person.” Nor Is it inhibited by sec. 4425 of same providing that the examiners “shall see that the applicants are seated at the proper distance from each other, and shall take care that no assistance is. given or obtained by any applicant during the examination, and shall refuse to grant a certificate to any applicant who may either obtain or give such assistance.”</p>

<p>Case 50 — ACTION ON APPORTIONMENT WARRANT</p> <p>(No brief in the record for either the appellant or appellees. 1</p>

Cash 51 — RULE ON CIRCUIT JUDGE TO ENTER JUDGMENT FOR DAMAGES in support of his application for a rule against the circuit judge, cited: Watson v. Avery, 3 Busk, 635; Gorham v. Luckett, 6 B. Mon., 638; Smith v. Cochran, 7 Bush, 555; Scott v: Scott, 9 Bush, 175. filed a response to the rale nisi, and the appellees’ motion to make the rule absolute was thereupon denied.

Case 52 — ACTION FOR DAMAGES AGAINST CARRIER 1. The bill of lading was a through one and the attempt to limit the liability was a violation of sec. 198 of the Constitution. Owens v. L. & N. R-. R. Co., 9 S. W. R., 700; 16 S. W. R., 775. 2. The court erred in instructing the jury on the question of jurisdiction. The appearance of the C., O. & S. W. R. R. Co. was entered. 1.

Case 53 — ACTION ON NOTE Mrs. Turner could not b'e bound as surety, because she was a married woman. Her right to bind herself as feme sole, is not alleged. Bidwell v. Robinson, 79 Ky., 29. 1. Any defect in the reply was cured by the rejoinder. Bliss on Code Pleading, sec. 438. 2. Mrs. Turner’s status as feme sole is shown by the record. Drake’s Admr. v. Semonis, 82 Ky., 291; Wilson v. Hunt’s Admr., 6 B. M„ 379. Additional citation: Stevens v. Deering, 10 Ky.

Case 54 — APPORTIONMENT WARRANTS I. Breed’s testimony was incompetent, because he was not the custodian of the record. 2. The plea of res judicata barred plaintiff’s action against the city of Louisville. Citations: Burnett’s City Code, pp. 505-6, 509-510; Ky. Stats., sec. 2838. (Brief not in the record.) (Brief not in the record.) Citations: Johnson v. Ferrill, S Ky. Law Rep., 218; City of Louisville v. Cochran, 5 Ky. Law Rep., 833; Kendall v. Thomason, 2 Ky.

Case 55 — ACTION ON BILL OF EXCHANGE 1. A corporation has not, as a general rule, the right to enter into a contract of suretyship; and this rule is without exception where the corporation has no interest in the contract. 24 Am. & Eng. Enc. of Law, 727-729. 2.

<p>APPEAL PROM DAVIESS CIRCUIT COURT.</p> <p>1. Usury — Pleading.—Where plaintiff, in response to defendant’s motion that the petition be made more definite and specific so as to show dates and amounts of notes and renewals of same and amounts of payments in order to purge said notes of usury, has filed an amended petition giving such information in detail, an answer on information and belief denying the correctness of said amended petition but not traversing any of the substantive averments, is not good.</p> <p>2. Judgment — Against one as Agent. A judgment against one as agent for an estate is not a judgment against the individual named, but is collectible only by an execution to be levied of assets in his hands as agent.</p> <p>3. Bills and Notes — Pleading—Promise.—An averment that a bill of exchange beforp its maturity “was sold, discounted and endorsed to the plaintiff” by the indorser, in connection with an averment of a promise to pay by the acceptor, is a sufficient averment of a promise by the indorser.</p> <p>4. Corporations — Pleading—Averment of Act of Incorporation.-— The failure of the petition to allege the plaintiff’s charter as required by sub-section 2 of sec. 119 of the Civil Code is not ground for general demurrer.</p> <p>5. Bills and Notes — Notice of Protest — Description of Bills. A notice of protest of a bill of exchange is sufficient if on the whole it so designates or distinguishes the paper as to leave no reasonable doubt in the mind of the party notified what paper was intended.</p>

Case 57 — ACTION ON EXECUTOR’S BOND 1. The surety of an executor is not responsible for a breach of trust duties imposed on the executor by the will. (Brandt on Surety-ship and Guaranty, Sec. 586 and note 8; Warfield v. Brand’s Admr., 13 Bush, 93; Jones v. A., T. & S. F. R. R. Co., 5 L. R. A., 538; Allen, etc., v. Kennedy, etc., 10 Ky. Law Rep., 336; Lasley’s Exr. v. Lasley, 1 Duv., 117; Mercer, etc., v. Glass’ Exr., 15 Ky.

Case 58 — ACTION AT LAW 1. Appellee waived the right to forfeit the contract by continuing to execute it for seven days after the right to forfeit accrued. 2. The tender of the State warrants was an, offer to' satisfy the demands due, and in arrear at the time of the alleged forfeiture, and the appellee had no right to refuse the tender. 2.

<p>Case 59 — NEGLIGENCE</p> <p>The case should have been taken from the jury. Hullehan v. Green Bay, Wmona & St. Paul R. R. Co., 31 Am. & Eng. R. R. Cases, 322; Ragon v. Toledo A. A. & N. M. Ry. Co., 97 Mich., 265; s. c. 9 Am. R. R. & Corp. Reps, 431; Hayden v. Manufacturing Co., 29 Conn., 548; De Forest v. Jewett, 88 N. Y.', 264; Gibson v. Railway Co., 63 N. Y., 450; Cooley’s Torts, 650; Shearman & Redfield on Law of Negligence (4th ed.) sec. 185; Finnell v. Railroad Co., 129 N. Y., 669; s. c. 29 N. E. R., 825; Pennsylvania Co., v. Hankey, 93 111., 580; Thompson v. Railroad Co., 153 Mass., 391; s. c. 26 N. E. R., 1070; Hughes v. Winona & St. Paul R. R. Co., 27 Minn., 137; Volz v. Chesapeake, &c. R. R. Co., 95 Ky., 188; Bogenschutz v. Smith, 84 Ky., 338; Kelly, &c., v. Barber Asphalt Co., 93 Ky., 363; Wood on Master and Servant, pp. 680-791; Thompson on Neg., vol. 2, p. 1008; C., N. O. & T. P. Ry. Co. v. Mealer, 50 Fed. Rep., 725.</p> <p>Vv here the employe knows, or ought by ordinary diligence to know of the obstruction, he can not recover for an injury received therefrom. But, on the other hand, if the facts and circumstances are such that the servant can not be charged with this knowledge, then the liability upon the part of the master whose negligence caused the injury will arise. Bogenschutz v. Smith, 84 Ky., 338; Shearman & Redfield on Negligence, p. 126, sec. 96; Snow v. Housatonic R. R. Co., 8 Allen, (Mass.), 441;- Hullehan v. Green Bay, Winona & St. Paul R. R. Co., 68 Wis., 528; Fish v. Illinois Cent. R. R. Co., 65 Iowa,-; Kennedy v. Lake Superior Terminal, 66 N. W. R., -; Plank v. N. Y. C. R. R. Co., 60 N. Y„ 607; C., N. O. & T. P. Ry. Co., v. Sampson, Admr., 97 Ky., 65; Hughes v. Winona & St. Paul R. R. Co., 27 Minn., 137.</p> <p>The rule invoked by the appellant has been repudiated by the later decisions in England and in this country. But even if it were the law, it had no application here because the appellee had no knowledge of the defect which caused the injury. Hullehan v. Green Bay, &c., R. R. Co., 58 Wis., 319; C., N. O. & T. P. Ry. Co. V. Sampson’s Admr., 97 Ky., 65; Kane v. Northern Cent. R. Co., 128 TI. S., 91; Hough v. Texas, &c., R. Co., 100 U. S., 213; Patterson v. Pittsburg, &c., R. Co., 76 Pa. St., 389; Dwyer v. St. Louis, &c., R., 52 Fed. Rep., 87; Northern Pacific R. R. Co. v. Everett) 152 U. S., 107; Wallace v. Cent. Vermont R. Co., 138 N. Y., 302; Plank v. N. Y. Central, &c., R. Co., 60 N. Y., 607; Greenleaf v. Illinois Cent. R. Co., 29 Iowa, 47; Snow v. Housatonic R. Co., 8 Allen, (Mass.), 441; Hannah v. Conn. R. R. Co., 154 Mass., 529; Richmond, &c., R. Co. v. Norment, 84 Va., 167.</p>

Case 60 — INJUNCTION I. The act of the General Assembly creating the Board of Valuation and Assessment is unconstitutional. II. The assessment of appellant’s franchise by said board for county purposes is unconstitutional. III. The tax levied by the county of McCracken on the said assessment of appellant’s franchise is unconstitutional. 1.

<p>APPEAL FROM HARRISON CIRCUIT COURT.</p> <p>1. Negligence — Fellow-servants—Conductor and Engineer. — The engineer is a fellow-servant of the conductor, and the widow of the latter can not recover against their common employer on account of the former’s negligence for an injury causing death.</p> <p>2. Same — Defective Brake — Proximate Cause. — No recovery can' be had in an action for negligence causing death on account of a defective brake in the absence of proof showing that such defective brake contributed to the injury.</p> <p>3. Appeals — Depositions No.t Copied. — In the absence of the depositions from the transcript this court can not assume that the evidence contained in them is different from that contained ih the bill of evidence.</p>

Case 62 — ACTION FOR NEGLIGENCE CAUSING DEATH (Brief withdrawn). 1. The State court was right in declining to surrender jurisdiction to the federal court. 2. Although the judgment is joint, it may be reversed as to one of the defendants, the Louisville Southern Railway Company, and affirmed as to the receivers. Civil Code, sec. 763; Black on Judgments, secs. 160 and 207; same, sec. 211; Pfaffinger v. Gil-man, 28 S. W. R., 1089. 3.

Case 63 — ACTION TO QUIET TITLE 1. The deed from Abbe T. Crawford and her husband to the appellee did not become effective until the moment when it was lodged for record, and as this did not occur until after the death of the feme covert grantor, her title passed by descent to her heir.

<p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>Municipal Corporations — Constitutional Law — License to Contractors. — A municipal ordinance requiring every person, firm or corporation engaged in the business of contracting for public, municipal, railroad or bridge work to pay a license fee of $100 for the privilege of carrying on such business is unconstitu- . tional and invalid.</p>

<p>APPEAL FROM JEFFERSON CIRCUIT COURTj LAW AND EQUITY DIVISION.</p> <p>Municipal Corporations — Constitutional Law — License to Claim-buyers. — An ordinance of a municipality requiring the payment of a license fee as a condition precedent to the right to huy claims against the city is unconstitutional and void.</p>

Case 66 — MANDAMUS 1. The court erred in considering and trying plaintiff’s motion for a peremptory writ of mandamus because plaintiff had no motion, in court an'd the court had no jurisdiction over the same. Civil Code, secs. 445, 446, 447, 335, 362; Bent v. Maupin, 86 Ky., 271. 2. The court had no power to enter the plaintiffs’ motion nunc pro tunc. Stevens v. Wilson, 14 B. M., 88; Freeman on Judgments, secs. 61, 62, 63, and 68; Carlisle v. Killenbrew, 24 Am.

Case 67 — ACTION ON INSURANCE POLICY 1. The court below erred in overruling the defendant’s demurrer to the petition. The statement that the property was burned covered by said policy is a mere legal, conclusion. 2. For similar reasons, the court below erred in refusing on appellant’s motion to peremptorily instruct the jury to find for the defendant. 3.

Case 68 — INJUNCTION 1. Upon judges, as such, no duties can be imposed, except those of a judicial nature. Constitution, secs. 27, 28; Cooley’s Con. Law., 53. 2. A circuit judge is strictly a judicial officer. Muhlenberg Co. v. Moorehead, 20 Ky. Law Rep., 376; Fleming v. Trousdale, 85 Fed., Rep., 189; Pennington v. Woolfolk, 79 Ky., 13. 3. A grant of power carries with it the right to use means appropriate to the exercise of the power., Appeal of Norwalk St. Ry. Co., 37 Atl.

Case 69 — SETTLEMENT OP DECEDENT’S ESTATE 1. The mortgage is a mere incident to the debt and can not be barred by limitation until the debt is. Kendall v. Clark, 90 Ky., 178; Tate v. Hawkins, 81 Ky., 577; English v. Wathen, 9 Bush, 388; Hopkins v. Stout, 6 Bush, 379; Fields v. Fields, 16 Ky. Law Rep., 534. 1.

Case 70 — ACTION FOR INJURY CAUSING DEATH 1. The evidence failed to show appellant’s negligence in failing to give the proper signal as it appoached the crossing where the accident occurred. ■ 2. The proof showed contributory negligence on the part of the plaintiff’s decedent. Durbin v. Oregon R. R. & Nav. Co., 11 Am. St. Rep., 778; Cooley on Torts, pp. 679-80; Schofield v. Chicago M. & St. P. R. R. Co., 19 Am. & Eng. Ry. Cases, 353; 114 TJ.

Case 71 — EJECTMENT 1. In overruling appellant’s motion for a change of venue, the lower court at the outset committed an error to the prejudice of appellant which in our opinion, rendered impossible a verdict except in favor of appellees. Bowman v. Commonwealth, 16 Ky. Law Rep., 188. 2.

Case 72 — ACTION ON GUARANTY The language “right of way” was construed by the parties to embrace damages to abutting owners and costs. 19 Am. & Eng. Ency. of Law, 839; 21 Am. & Eng. Ency of Law, 405; Hortsnian v. Covington & Lexington R. R. Co., 18 B. M., 221; Shrews-bury v. Tufts, 23 S. E., 692; Rose v. Eclipse Carbonating Co., 60 Mo. App., 28; Crown Coal & Tow Co. v. Yoch Coal Min. Co., 57 111. App., 666.

<p>APPEAL FROM HARLAN CIRCUIT COURT.</p> <p>Sheriff’s Bonds — County Levy. The sureties in a sheriff’s bond executed under and according to the terms of sec. 4133 of the Kentucky Statutes are liable to the county for county revenue collected and not paid.</p>

<p>Case 74 — ACTION FOR DAMAGES</p> <p>I The court erred in giving and refusing instructions. Henderson Belt R. R. Co. v. Dechamp, 95 Ky., 219; Cosby v. O. & R. R. R. Co., 10 Bush, 288; J. M. & I. R. R. Co. v. Esterle, 13 Bush, 667; E. L. & B. S. R. R. Co. v. Combs, 10 Bush, 382; L. & N. R. R. Co. v. Orr, 91 Ky., 109; Central Passenger Ry. Co. v. Kuhn, 86 Ky., 578.</p> <p>2. The defendant’s plea in har was good. R. R. Co. v. Combs, 10 Bush, 282; J. M. & I. Ry. Co. v. Esterle, supra; L. & N. R. R. Co. v. Orr, supra.</p> <p>1. The causes of action stated in the former petition of plaintiff were inconsistent and a judgment upon one was no bar to the cause of action asserted in the other.</p> <p>2. The judgment is not a har to this action, because it does not appear to have been a decision upon the merits. Pepper v. Donnelly, 87 Ky., 262; Portland & Greenwood T. P. Co. v. Bohh, 88 Ky.„ 229; Coshy v. Owensboro & Russellville R. R. Co., 10 Bush, 282.</p> <p>3. On the Instructions. Henderson Belt Line R. R. Co. v. Dechamp, 95 Ky., 219; L. & N. R. R. Co. v. Orr, 91 Ky., 109.</p> <p>4. On Severing the Damages. Central Passenger Ry. Co. v. Kuhn, 86 Ky., 578.</p> <p>■Additional citations: 2 Am. & Eng. Ency. of Law, 231; Ky. Stats., sec. 1016; 5 Am. & Eng. Ency. of Law, 691; Alderman, et dl. v. U. S., 1 Otto, 584; Practice Act, sec. 23.</p>

Case 75 — SETTLEMENT OF TRUST ESTATE 1. Homestead should not be allowed out of real estate owned by a firm and used for firm purposes until firm debts are paid. 2. Proof shows that John Oliver, Richard Oliver and Simpson Oliver were partners in farming and distilling. Citations: Divine v. Mitchum, 4 B. M., 488; Lowe v. Lowe, 13 Bush, 695; Spalding v. Wilson, 80 Ky., 589.

Case 76 — INDICTMENT FOB MISDEMEANOR 1. The appellant had the right to sell the liquor, as he sold it, without any license. It was a right pertaining to the business of a registered pharmacist. The county court had issued to him as a druggist a license to sell spirituous, vinous and malt liquors. Com. v. Hawkins, 17 Ky. Law Rep., 743; Com. v. Fowler, 96 Kyy 166; Lindsay v. Com., 18 Ky. Law Rep., 49. 2. The appellant was protected by the license which had been issued to him.

<p>APPEAL FROM PULASKI CIRCUIT COURT.</p> <p>Partnership — Partner Restricting Liability by Notice. — A partner, by giving notice to persons dealing with the firm, not to extend credit to his co-partner, may limit his liability so that he will not be liable for goods furnished in violation of the notice.</p>

Case 78 — ALLOTMENT OF HOMESTEAD 1. Where the claimant of the homestead has resided away from the property claimed as a homestead for a period of five years and actively engaged in other business than farming, having rented the homestead from year to year, and having registered and voted in the precinct he lived in and not in that of the homestead, the law presumes an abandonment of the homestead; and especially so where the debt sought to be collected from the sale of the…

Case 79 — DIVORCE AND ALIMONY 1. A judgment granting a divorce is not appealable. Ky. Stats., sec. 950; Whitney v. Whitney, 7 Bush, 520; Evans v. Evans, 93 Ky., 510; Brown v. Brown, 16 Ky. Law Rep., 317; Morrison v. Morrison, 10 Ky. Law Rep., 683. 2.

Case 80 — LIFE INSURANCE 3. The assured held a life policy in the appellant company, containing this provision: “If any premium be not paid when due this policy shall be void and all payments made upon it shall be forfeited to the company.” 2.

<p>Case 81 — ACTION FOR UNPAID STOCK ASSESSMENTS</p> <p>Calloway was not a party to the action in the Virginia court by either actual or constructive service and was not bound by the judgment rendered in that action. In Hawkins v. Glenn, 131 U. S., 319, the question whether the stockholders were bound by the Virginia judgment was not suggested. The Maryland case involving a similar question is not sound law. Williams v. Preston, 3 J. J. M., 601; Trippe v.-, 82 Ind., 308.</p> <p>1. When a suit is brought by a judgment creditor against an insolvent corporation for the purpose of winding up its affairs, including a collection of its unpaid stock subscription and other assets, and a distribution thereof, the defendant corporation in such suit represents its stockholders; and a judgment therein making an assessment upon the stockholders on their unpaid subscriptions is conclusive upon the stockholders and can not be collaterally attacked; though of course when a stockholder is sued upon such a call, pursuant to such a judgment, he has the right to deny that he subscribed for the stock, or that he is a stockholder. Hawkins v. Glenn, 131 U. S., 332; Hambleton v. Glenn, 72 Md., 354; 20 Atl., 122. •</p> <p>2. In a direct attack which was made upon the decree now sought to be enforced here in the court upheld the decree. Hambleton v. Glenn, 85 Ya., 901; 9 S. E„ 129.</p> <p>3. The statute of limitations does not begin to run against a liability pursuant to a call made by judicial direction on such a stock subscription, until the order of court making the call is entered. Hawkins v. Glenn, 131 U. S., 332.</p> <p>4. The judgment of a court of competent jurisdiction is not only final as to all matters determined by it, but as to every other matter incident to the cause, or properly belonging to the subject of the litigation, and which the parties might have put in issue and had determined. Hall v. Foreman, 82 Ky., 508; Hambleton v. Glenn, 72 Md., 357; 20 Atl., 123.</p>

<p>Case 82 — MANDAMUS</p> <p>1. The demurrer to the petition should have been sustained. Bliss on Code Pleadings (3d ed.) sec. 448; Maxwell on Code Pleadings, p. 287. The petition raises a doubt on its face whether the text-books had been legally adopted. Lowe v. Phillips, 14 Bush, 642; Ky. Stats., sec. 4424; Atchison, County Judge, v. Lucas, Duncan v. Same, 83 Ky., 451; Merrill on Mandamus, 56.</p> <p>2. There was a defect of parties plaintiff; the action should have been in the name of some one of the patrons of the common schools of Laurel county, Kentucky. Civil Code, secs. 18, 25, 92; Maxwell on Code Pleading, 373; Newman’s Kentucky Pleadings & Practice, p. 658; Story’s Equity Pleading, sec. 543.</p> <p>3. It was error on the part of the circuit court to permit parts of the second paragraph to be stricken out and sustaining a demurrer to the remainder of said paragraph. Maxwell on Code Pleading, sec. 448; Merrill on Mandamus, sec. 66; Effingham v. Hamilton, 10 Sou. Rep., (Miss.), 39.</p> <p>4. The act under which the Board of Examiners is created is unconstitutional because it fails to fix the term for which such board is to hold-. Constitution, sec. 23; Worthington v- Crawford, 3 Met., 213. Wherever the power of appointment is conferred in general terms, as is done by this section (4422), the power of removal is in the discretion and at the will of the appointing power and always exists unless restrained by some provision of law. People v. Robb, 126 N. Y., 180; Kelly v. New York, 59 N. Y., 156; People v. New'York, 2 N. Y., 491; Kuna v. Pevey, 24 Tenn., 253.</p> <p>1, Where the petition alleges a material and jurisdictional fact without which the suit could not be maintained; and the answer denies the existence of such fact; and there is a total failure of proof to establish such material issue, the petition should ba dismissed.</p> <p>2, The legislature has the power to pass an act fixing the amount of the bond to be given by school book publishing houses, and to prescribe that the sureties on such bonds shall be residents of Kentucky, so that the courts may be able to guard the school-fund, and protect the patrons and pupils of the schools by having some responsible person within the jurisdiction of the courts in cases where frauds and imposition have been perpetrated on the schools.</p> <p>3. It is unlawful for any county board of examiners to adopt the books published by any publishing company until after such bond has been given by the publishing company “with good security resident in this State.” Ky. Stats., sec. 4424.</p> <p>4. The pretended adoption of a list of school books on the 14th of September, 1896, was a void and unlawful act because the lawful bond of the publishing company had not been then given, or if given, it had become void by the addition of other books afterwards, and such void act of adoption could not be ratified thereafter — it was not the subject of ratification. Thompson v. Warren, 8 B. M., 491.</p> <p>5. The bond of August, 1893, to which new books and therefore new obligations were afterwards added without th'e knowledge or consent of the sureties, was void, and did not authorize the adoption of any books named either in the original bond or in the list of books so added thereto.</p> <p>1. What is a legal adoption of text-books for common schools?</p> <p>2. What is a sufficient publisher’s bond?</p> <p>3. Is the execution of a publisher’s bond directory or mandatory?</p> <p>4. The power of the county superintedent to remove the examiners. Citations: Gen. Stats., (Ed. 1888) p. 1148; Senate Journal, April 20, 1892; House Journal, Nov. 23, 1892; Ky. Stats., secs. 4423, 4424; Black on Interpretation of Statutes, 333; Sutherland on Construction of Statutes, 447; State Board of Pharmacy v. White, 84 Ky., 626; Rodman v. Justice of Larue Co., 3 Bush, 145; Anderson Co. v.'Stone, 18 B. M., 852; Speed & Worthington v. Crawford, 3 Met., 207; Todd, Mayor, v. Johnson, &c., 18 Ky. Law Rep., 354.</p> <p>Additional citations: Re Bulger, 45 Cal., 553; Wait’s Actions and Defenses, vol. 5, p. 12; Collins v. Tracy, 36 Tex., 546; New-com v. Cocke, 44 Miss., 352; South v. Commissioners, 86 Ky., 457; Todd, Mayor, v. Dunlap, 99 Ky., 457; Webster’s International Dictionary, p. 880; School, English, by GSt>. P. Butler, p. 167; Con. of Ky., sec. 107; Indiana State Laws, sec. 4421, c. c.; Asher v. Beckner, 19 Ky. Law Rep., 521; Bradstreet’s Rep., for 1898; Tarbell’s Lessons in Language, book 1, p. 81.</p> <p>J. The bond of appellees under sec. 4424 of Ky. Stats., was not altered and was sufficient.</p> <p>2. The sureties on this bond were residents of Kentucky as required by the statute.</p> <p>3. It is not appellees, but the American Book Company, who are trying to secure a monopoly of the sale of text books.</p> <p>Citations: Ky. Stats., see. 4424; Lee v. Alexander, 9 B. M., 25; Todd, Mayor, v. Johnson, &c., 18 Ky. Law Rep., 354.</p> <p>Question of costs alone discussed.</p>

Case 83 — ACTION ON CONTRACT 1. The promise sued on was not established. 2. Such a promise, if it had been established, was within the statute of frauds. Citations: Birchell v. Neaster, 36 O. St., 331,' Gill v. Herrick, 111 Mass., 501; Haveriy v. Mercur, 78 Penn. St., 257; Horn-ham v. Davis (Me.) 1887, - Atl. Rep., 725; Warner v. Willoughby, 60 Conn., 468; Tanquary v. Walker, 47 111.

Case 84 — ACTION ON CONTRACT 1. Brown could sue J. C. Dalton upon the contract made by her for his benefit. Beach on Modern Law Contracts, vol. 1, p. 236; same, 247; Jones v. Higgins, 80 Ky., 409; Whalen v. Juda, 5 Ky. Law Rep., 316; Benge v. Hiatt’s Admr., 82 Ky., 667. 2.

<p>APPEAL FROM MERCER CIRCUIT COURT.</p> <p>School Taxation — Apportionment Between White and Colored Districts. — A tax collected from a railroad company under sec. 4101, of the Kentucky Statutes under a levy made by a white school district is apportionable to the white and colored school districts in proportion to pupils.</p>

Case 86 — AGREED CASE 1. Contract void because the council failed to approve, and mayor to sign the record. Ky. Stats., sec. 3503. 2. The contract void because made for more than twenty years. Con., sec. 164. 3. Contract void because of no estimate of costs. Ky. Stats., sec. 3585, 3580. 4. Contract void because mayor and three councilmen do not compose a quorum. Ky. Stats., secs. 3484, 3482, 3502, 3485', 3550, 3570, 3271, 3294; Con., secs. 160, 35, 37, 83. 1.

<p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>1. Liens — Priorities—Mechanics’ .and Mortgage Lien. — Under the act of March 2, 1869, providing for mechanics’ liens for the city of Louisville, the lien of the mechanic has precedence of a mortgage lien upon the building improved; and where the property is sold by consent and does not sell for enough to pay both liens, it is proper, to ascertain the value of the betterment created by the improvement made by the mechanics and after paying for the preferred charges, to satisfy the mechanics’ lien from that, leaving the residue for the mortgagee.</p> <p>2. Receiver’s and Commissioner’s Fees Preferred Charges. — Reasonable fees and charges of a receiver and of the commissioner in an action to enforce liens and determine priorities constitute a preferred claim to be satisfied (1) from the general assets, and if they are insufficient, (2) from the corpus of the property in lien.</p> <p>3. Same- — Amount Reduced. — In this case, the receiver’s charges and fees are held too large and reduced, those for personal services from $1,500 to $750, and his attorneys’ fees from $1,000 to $500, and the commissioner’s fees are reduced from $500 to $250.</p>

<p>Case 88 — PARTNERSHIP</p> <p>(Transcript and briefs not in the office.)’</p>

<p>Cask 89 — ACTION FOR DAMAGES FOR BREACH OF CONTRACT</p> <p>1. Tomlinson necessary party. Daugherty v. Smith, 4 Met., 279; Banks v. Bosler, 4 Bibb., 573; 1 Chitty Pleadings, 9; Com., &c., v. Hughes, 8 B. M., 400; Hawkins, &c., v. Com., 3 Mar., 339; Sander’s Heirs v. Jennings, &c., 2 Dana, 37; Singleton v. Singleton, 8 B. M., 340.</p> <p>2. Transfer by Tomlinson nothing but parol transfer. Gill v. Johnson’s Admr., I Met., 649; Perry v. Seitz, 2 Duv., 122.</p> <p>3. Motion proper proceeding. Civil Code, sec. 118; construed by: Johnson’s Heirs v. Chandler’s Heirs, 15 B. M., 589; Vanbuskirk, &c., v. Levy, 3 Met., 133; Justice v. Phillips, 3 Bush, 200; Wait v. McClure, 10 Bush, 763.</p> <p>4. Proof does not support allegations of petition. Dodd v. King, 1 Met., 433; Bowman v. Green, 6 Mon., 339.</p> <p>E. Under contract appellee should have delivered the staves at Cincinnati before suit. Hawkins v. Ball’s Admr., 18 B. M., 816; Escott & Son v. White, &c., 10 Bush, 169; Cleveland v. Moore, 9 B. M., 379; McCall v. Welch, 3 Bibb., 289; Chandler v. Robertson, 9 Dana, 291.</p> <p>6. True measure of damages difference between contract price and selling price at time of delivery and place of delivery. Miles v. Miller, 12 Bush, 134; Koch v. Godshaw, 12 Bush, 318; Smith v. W. U. Tel. Co., 83 Ky., 104; 5 Am. & Eng. Ency. of Law, 30: Frazier v. Clark, 88 Ky., 260; Barker v. Mann, 5 Bush, 673; Williams, &c., v. Jones, 1 Bush, 621; 6 Dana, 352.</p> <p>7. Profits never measure of damages. 5 Am. & Eng. Ency. of Law, 32.</p> <p>8. Parties should have demanded right to ship staves. Chamberlain v. McAllister, 6 Dana, 355; Blackwell v. Foster, 1 Met., 95.</p> <p>1. The assignee of Tate & Company was a necessary party. Cleveland Coal Co. v. Sloan & Dick, 90 Ky., 308; Cantrell v. Hewlett, 2 Bush, 314; Warner v. Turner, 18 B. M., 759; Civil Code, sec. 20; Jones, assignee, v. Johnson, 10 Bush, 651.</p> <p>2. The damages are excessive.</p> <p>3. The verdict is not sustained by sufficient evidence and is contrary to the law.</p> <p>4. It was error to permit plaintiffs to prove the profits they might have made of the staves if they had been permitted to ship them.</p> <p>5. The evidence shows that the appellees did not at any time after they quit shipping staves to the appellant have the ability or the material on hand with which to carry out and complete their contract.</p> <p>The profits which Tate & Company could have realized if they had been permitted to carry out their contract was a proper element of the damage. E. & P. R. R. Co. v. Pottinger & Brother, 10 Bush, 185; Masterson v. Mayor, &c., of Brooklyn, 42 Am. Dec., 38; U. S. v. Speed, &c., 8 Wall., 77; U. S. v. Behan, 110 U. S., 168.</p>

Case 90 — ACTION ON PROMISSORY NOTE 1. It was error to overrule plaintiff’s demurrer to the answer. The promise of Davis, if any was made, was not in writing. Ky. Stat., sec. 470-4. 2 The court erred in overruling plaintiff’s motion to- strike from the answer the averment that Thompson agreed to release defendants. It is not alleged that Thompson was acting for the hank. Morse on Banks and Banking, vol. 1, sec. 144. 3.

Case 91 — ACTION FOR TAXES. The act creating the Board of Valuation and Assessment for the assessment of specific corporations is unconstitutional. It is not a general law; it violates uniformity; it imposes penalties not imposed upon others; it requires payment one year before others are required to pay similar taxes. Citations: Turner v. The Town of Pewee Valley, 18 Ky.

Case 92 — INDICTMENT FOR HOMICIDE 1. The record shows that appellant killed Dudley Clinkenbeard in his necessary self defense. 2 The court erred in giving instruction No. 1 to the jury. Gill v. Com., 18 Ky. Law Rep., 562. 3. The court erred in instructing the jury as to the law of self-defense as contained in instruction No. 2. Gill v. Com., 18 Ky. Law Rep., 562; Allen v. Com., 86 Ky., 647; Cockrill v. Com., 95 Ky., 22; Mallicoat v. Com., 16 Ky.

<p>MOTION IN COURT OP APPEALS.</p> <p>Costs — Stenographer's Fees. The fees of an official stenographer taxed under sec. 4642 of the Kentucky Statutes, are taxable as costs in the trial court and not in this court.</p>

Case 94 — INJUNCTION The appellee, Wood, was not eligible because the statute defining eligibility prescribes three years’ residence in the city as one of the conditions of eligibility. City charter, sec. 261. 1. Wood was eligible to the office of Sinking Fund Commissioner. The annexation of Enterprise brought its citizens into the city with the same rights as if it had always been a portion of the city.

Case 95 — ACTION ON CONTRACT 1- The agreement sued on is not within the statute of frauds because it is strictly a personal contract and may possibly be performed within the year. Ky. Stats., sec. 470, sub-sec. 7; Stowers v. Hollis, &c., 83 Ky., 548; Myles’ Exr. v. Myles, 6 Bush, 237; Davis v. Brown, 17 Ky. Law Rep., 1429. CITED: Ky. Stats., sec. 470, sub-sec. 7; Dant v. Head, 90 Ky., 255; Davis v. Brown, 17 Ky.

Case 90 — INJUNCTION I. The appellee was bound under the law to lay its water mains in accordance with the rules and regulations laid down by the board of public works. 2. The appellee’s charter did not give to it any exclusive privilege or power of regulation and control of the city of Louisville. 2.

<p>Case 97 — ON MOTION TO DISMISS APPEAL</p> <p>The taking of an appeal within the meaning of the act of 1898, is the filing of the transcript and not the praying of the appeal in the court below.</p> <p>No appearance for the appellant on the motion to dismiss.</p>

<p>Case 98 — SLANDER</p> <p>The Boyle Circuit Court had no jurisdiction of the action. Civil Code, secs. 763; 74, 78; Bliss on Code Pleading (2d. ed.), sec. 284; Sherrill v. C., O. & S. W. R. R. Co., 89 Ky., 302; Newman’s Pleading & Practice, p. 283; Freeman on Judgments- (2d. ed.) sec. 123; Black on Judgments, p. 261, sec. 215; Black on Judgments, vol. 1, sec. 218.</p> <p>Citations: Bosley v. Mattingly, 14 B. M., 73; Brace v. Shaw, 16 B. M., 80; Dazey v. Killam, 1-Duv., 407; Sedgwick on Statutory and Constitutional Law, chap. 6.</p> <p>The Boyle Circuit Court h-ad full jurisdiction of the subject-matter of the action and of the person of defendant, now appellant Bright, and question of jurisdiction of the -person can only be raised by special demurrer or by plea. Ky. Code of Practice, secs. 74, 118, 92; Baker v. L. & N. R. R. Co., 4 Bush, 619; Newman on Pld. & Prac., pp. 47-53.</p>

Case 99 — INJUNCTION AGAINST LIVERY LICENSE 3. City of Covington v. Woods, does not control the decision of this case. 2. When, the general council of city of Lexington fixed the trade or occupation license for livery stable keepers at $10.00, it exhausted its power to increase such trade license by adding thereto a special tax on the vehicles used by them in their business. Ky. Stats., sec. 3058; Livingston, &c., v. Paducah, 80 Ky., 656. 3.

Case 100 — EQUITY A debtor can not claim exemptions in partnership personal property as against an execution issued against an individual member of the partnership and levied upon partnership property. Civil Code, sec. 660, sub-sec. 3; 7 Am. & Eng. Ency. of Law, 133; Pond v. Kimball, 101 Mass., 105; Love v. Blare, 72 Id., 281; Guptil v. McFee, 9 Kan., 30; Kingsly v. Kingsly, 39 Cal., 665; State, Ex Bel., v. Spencer, 64 Mo., 355; Bonsall v. Conly, 44 Pa.

<p>Case 101 — ATTACHMENT</p> <p>1. The answer was not verified. The grounds of attachment were, therefore, not controverted.</p> <p>2. Under sec. 249 of the Civil Code it was not necessary for the plaintiff to state that his debt had matured.</p> <p>SAME COUNSEL IN A PETITION FOR A REHEARING.</p> <p>1. The proof sustains the grounds of attachment. Selling the mortgaged merchandise without keeping the stock renewed was within the meaning of section 240 of the Civil Code.</p> <p>2. The grounds of attachment under the Code must he controverted by an affidavit or a verified pleading.</p> <p>Citations: Gaar, Scott & Co. v. Lyon, 99 Ky., 672; Locke v. Boles, 14 Ky. Law. Rep., 573; Civil Code, secs. 196, 263; Talbot V. Pierce, 14 B. M., 158; Scott v. Doneghy, 17 B. M., 321.</p> <p>1. Under the judgment herein there' is nothing involved but the costs of the attachment and that is not sufficient to give this court jurisdiction. The appeal should, therefore, he dismissed. Civil Code, sec. 266.</p> <p>2. No ground for attachment was made out under section 249 of the Civil Code. The allegation is not made that the debt was due. Section 237 was intended to cover a case like this. Besides the grounds of attachment were not sustained by the proof. Defendant had a right to sell mortgaged property where the mortgage itself contemplated that he should do so.</p> <p>3. The filing of the unverified answer was a sufficient controverting of the grounds of attachment. If the plaintiff wished to object to the pleading for failure of verification he could have done so. Not having made objection and the attachment having been tried out as if the grounds had been controverted, plaintiff can not now complain.</p>

Case 102 — ACTION FOR SALARY 1. An officer who holds his office subject to the will of the appointing power, and being removable with or without cause, does not hold his office for a term. Mechem on Public Officers, sec. 385; Ky. Stats., sec. 3138; Speed & Worthington v. Crawford, 3 Met., 213; Somers v. State, 5 S. D., 321; State, ex rel.. v. Johnson, 123 Mo., 43. 2.

Case 103 — ACTION TO RECOVER PERSONALTY The assignee had no right to maintain the action without the execution of a bond. Act. Mch. 8, 1876, Gen. Stat (ed. ’87) ch. 109, p. 1251; Johnson v. Parker, 4 Bush, 149; Gen. Stat., Ch. 39, art. 2, secs. 6, 7, 8, now secs. 3898, 3999, 4000 of Ky. Stats.; Gen. Stat., ch. 39, art. 2, secs. 43-4-5, now secs. 3878, 9-80 of Ky. Stats.; Gen. Stat., ch. 48, art. 2, secs. 16, 17, 18, now secs. 2041-2-3 of Ky. Stats.

Case 104 — INJUNCTION 'Arthur had apparent authority to make the purchase, and uniform dealing is equivalent to actual authority in the absence of actual knowledge on the part of one dealing with him of any limitation on his express authority. 1 Am. & Eng. Ency. of Law, 410; Garrison v. Combs, 7 J. J. M., 85; Mechem on Agency, secs. 282, 283, 707; Com. v. Hawkins, 83 Ky., 246; Kentoiji Ins. Co. v. Bowman, 84 Ky., 446; Hartford Life & Annuity Ins.

<p>APPEAL PROM PAYETTE CIRCUIT COURT.</p> <p>1. Evidence to Explain Writing. — In an action to recover money paid for the service fee of a stallion, upon the ground that a foal had been insured and the mare had proved not to he in foal, it was not competent (1) for the defendant to testify that he cashed the check for the money containing the words “for service of Allerton to Amy King, foal insured,” because he did not consider them part of the contract, nor (2) was it competent for plaintiff to testify to his reasons for inserting them.</p> <p>2. Evidence — General Advertisement to Vary Express Contract. — • It was not competent for the defendant to introduce in evidence advertisements of the terms on which Allerton stood for the season of 1892, as they appeared in the horse papers, to illustrate the issue of special agreement or no special agreement, it not appearing that plaintiff ever saw the advertisements.</p>

Case 106 — FIRE INSURANCE 1. The right of property and the liability for the internal revenue tax on whisky in bond, are separate interests, and either or both may be the subject of insurance. Revised Statutes of U. S., sec. 3223; Germania Ins. Co. v. Thompson, 5 Otto, 547. 2. A policy of insurance embracing only the property right will not include recovery for the amount of the government tax. May on Insrfrance, vol. 2, sec. 434. 3.

Case 107 — ACTION FOR DAMAGES (No brief on file.) 1 The verdict of the jury is sustained by proper evidence and should not be disturbed. 2. Althougt the witnesses gave in gross the amount of damages, still by cross-examination the appellant got separately and distinctly the items constituting the amount. 3. The demurrer to the petition should have been overruled. 4.

<p>Case 108 — ON MOTION'TO DISMISS</p> <p>Admr. v. Johnson, 6 B. M., 409; Chiles v. Smith, 13 B. M., 460; Batman v. Megowan, 1 Met., 533; Long v. Hughes, 1 Duv., 387; White v. Crutcher, 1 Bush, 472; Mocar v. Covington City Natl. Bank, 80 Ky., 305; Handley v. Cunningham’s'Trustee, 12 Bush, 401; Mallory v. Hiles, 4 Met., 53; Bellaries v. Hester, 1 Lord Raymond, -; The King v. Adderly, 2 Doug., 463; Norris v. The Hundred of Cantris, 1 Brown-low, 156; Wood v. Patrick and Wife, Hardin, 457.</p> <p>Johnson, 6 B. M., 409; Chiles v. Smith, 13 B. M., 460; Batman v. Megowan, 1 Met., 533; Mallory & Co. v. Hiles, 4 Met., 53; Long v. Hughes, 1 Duv., 387; White v. Crutcher, 1 Bush, 472; Mooar v. Covington City Natl. Bank, 80 Ky., 305; Handley v. Cunningham’s Trustee, 12 Bush, 401.</p> <p>Citations: Civil Code, secs. 681, 102, 104, 105, 106, 461, 463; Morton’s Heirs v. Ridgeway, 3 J. J. M., 256; Sanders’ Heirs v. Norton, 4 Mon., 474; Pyle v. Maulding, 7 J. J. M., 207; Mooar v. Covington City Natl. Bank, 80 Ky., 305; Wood v. Patrick, Hardin, 457; Pollard v. Yoder, 2 A. K. M., 264; Ogden v. Red-man, 3 A. K. M., 234; 7 Mon., 521; Bowling Green v. Elrod, 14 Busk, 216; Wood on Limitations, pp. 144, 5, 6 and 157; Moss, &c. v. Hall, 79 Ky., 40; Code of 1854, secs. 752, 876 and 884.'</p> <p>In tkis case tke original opinion was set .aside and tke following opinion by Judge DuRelle »vas delivered in response to a petition for a rehearing.</p>

<p>APPEAL FROM HARDIN CIRCUIT ‘COURT.</p> <p>Corporations — Liability of, for Contracts of Promoters. — A corporation is liable on an implied assumpsit for services rendered by one of the promoters in organizing the corporation, securing and soliciting stock, superintending the work of build- • ing, writing the articles of incorporation and various services rendered before and after it commenced business, unless such services were rendered gratuitously.</p>

Case 110 — RULE FOR COLLECTION OF BOND 1. Dugan had been released from the bond executed for six thousand dollars in 1884 by lapse of time. Ky. Stats., sec. 2549; Turner v. Rankin, 80 Ky., 179; Reid v. Hamilton, 92 Ky., 623; Bowen v. Helm, opinion May 25, 1887. 2. He was not liable on the bond executed on the 5th of April, 1892, because the execution of that bond was not within the power of 'attorney sent by Dugan to Shinkle. 1 Am. & Eng. Ency. of Law, 351. 3.

Case 111 — FOR VIOLATING CITY ORDINANCES 1. The ordinances under which the appellants were punished was invalid. Horr & Bemis on Municipal Ordinances, secs. 84, 131, pp. 70-1-2, 97-8-9; 53 Mo., 580; Mayor v. Winfield, 8 Hump., 707; 54 Tex., 189. 2. This court has jurisdiction of an appeal under sec. 3519 Ky. Stats. (Brief on the merits withdrawn.) On a motion to dismiss the appeal, same counsel for appelleecited Criminal Code, sec. 347; Broadwell v. Com., 17 Ky.

Case 112 — ACTION FOR DAMAGES 1. The appellee is a corporation created by law and has all the attributes of a corporate body. Kreiger v. Shelby Railroad Co., 84 Ky., 78; Hancock v. The Louisville Railroad Co., 145 U. S„ 415. 2. The objection that this action is one virtually against the State can not be sustained.