Volume 106 — Kentucky Reports

<p>Case 1 — SETTLEMENT OE ASSIGNED ESTATE —</p> <p>APPEAL PROM MONTGOMERY CIRCUIT COURT.</p> <p>I. It was a reversible error on the part of the circuit court to. refuse, as it did, to refer the case de novo to the Master Commissioner to take proof .in order to have a more complete presentation of the facts, and a better preparation of the case, the court overruling motion of defendant 'and appellant, to which exception ■was taken at the time.</p> <p>2. It was also a reversible error for the circuit court in this case on appeal to disregard section 88 of the Kentucky Statutes, and fail or refuse to certify 'its judgment to the county court or to make an order directing the county judge or court what order to have entered in the case.</p> <p>3. Schwaniger never had the face or courage to resist the collection of the $200 rent on store which he had agreed to pay and which was a very low rent for the store part of the building, with all the fixtures and bakery included, until after he had fallen out With his assignee -and sought the advice of attorney long after the making of the settlement.</p> <p>4. As to motion and exceptions of the Chiles, Thompson & Co. debt, and reducing it to $12 from about $85, this was merely a clerical error and corrected on the face of the record.</p> <p>1. The assignor, Schwaniger, was entitled to " the payment of his homestead in full.</p> <p>2. The assignee, McNamara, was not entitled to collect the rent from the appellee after he had made a settlement in which he was not charged with it. Further, the appellee was not liable for rent of the property until his homestead had been assigned.</p> <p>3. The allowance to the assignee for a credit of $3,208.05 as having been paid to the building 'and loan association is erroneous-, he should only have had credit for $2,843.25. The allowances to the assignee and to his attorney were excessive.</p>

<p>Case 2 — LIQUIDATION OF AFFAIRS OF INSOLVENT CORPORATION —</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVIVION.</p> <p>'Counsel discussed seriatim the points urged for reversal and cited Morawetz on Private Corporations, secs. 600, 680, 689, 695, 696, 711; National Bank v. Matthews, 98 U. S., 624; Silver Lake Bank v. North, 4 Johnson Chan. Reps., 370.</p> <p>1. The opinion delivered is erroneous in holding the deed and mortgage to ibe void. Ky. Stats., sec. 542; Thompson on Corps., secs. 6133, 6136, 6179, 6184, 6165, 5318; Pools, v. West Point Butter Assn., 30 Fed. Rep., 513; McElroy v. Minnesota Percheron Horse Co., 96 W5s., 317; Central Trust Co. v. Columbus' Railroad, 87 Fed. Rep., 815; Cook on Stockholders, (4th ed.), sec. 716 and note; Morawetz on Corps. (2d ed.), secs. 689 to 700; same) secs. 673, 678, 680; Sherman Center Town Co. v. Morris, 19 Am. St. Rep., 134; Sherman Center Town Co. v. Swigert, 19 Am. St. Rep., 137; Sherman Natl. Bank v. Butchers’ Hide and Tallow 'Co., 97 Ky., 40; Natl. Bk. of Cynthiana v. Mattingly & Sons, 18 Ky. Law Rep., 425; Trapp v. Fidelity Natl. Bk., 19 Ky. Law Rep., 1114.</p> <p>2. The opinion is erroneous in holding that because the indebtedness which the mortgage .secures is .in excess of $8,000, limit of the Glass Works’ 'Charter, therefore the mortgage to secure it is void ■in toto, even for the $8,000. Garrett v. Burlington, 59 Am. St. Rep., 461; Warfield v. Marshall, 2 Am. St. Rep., 263; Thompson on Corps., sec. 5705; Ossipe Hosiery Co. v. Canney, 54 N. H., 55; Wood v. Corey Water Works, 44 Fed. Rep., 146; Allis v. Jones, 45 Fed. Rep., 148; Shermantown Co. v. Morris, 19 Am. St. Rep., 134; Humphrey v. Patrons’ Assn., 50 la., 607; Jones on Mortgages, sec. 127; Sioux City Terminal v. Trust Co., 82 Fed. Rep., 133; Cook on Stockholders (4th ed.), sec. 760; Hervey V. Illinois R. T., 28 Fed. Rep., 169; Barret v. Pollock, 108 Ala., 390; Alabama Co. v. McKeevier, 112 Ala., 134; Antitam Paper Co. v. Chronicle Co'., 115 N. C., 143; Bebe v. Richmond Light Co., 3 N. Y. App. Div., 334; Hamilton Co. v. Ciernes, 17 N. Y. App. Div., 152; Cook on Stockholders (4th ed.), sec. 708.</p> <p>3. The opinion is wrong in holding the warehouse receipts to be ivoid. Ky, Stats., sec. 4768; Black’s Law. Diet., title “Ware-housemen;” Greenbaum v. Megibben, 10 Bush, 419; Cochran & Fulton v. Ripy, 13 Bush, 495; Ray v. Com., 12 Bush, 397; Colebrooke on Collateral Securities, sec. 420; Merchants’ Bank v. Hibbard, 48 Mich., 118; Ferguson v. Northern Bank, 14 Bush, 561; Greenbaum v. Burns, 15 Ky. Law Rep., 710; Block v. Oliver, 19 Ky. Law Rep., 1278; Northrop v. First Natl. Bk. of Chicago, 27 111. App., 527; Ky. Stats., secs. 4771, 4772, 4773, 4774, 4775.</p> <p>(On December 15, 1898, the Court of Appeals in an opinion by Judge Guffy reversed the judgment of the court below. Judge Paynter dissenting.</p> <p>On March 8, 1899, the former opinion of the court was withdrawn and the following opinion 'by Judge DuRelle delivered, Judge Guffy dissenting from so much of the opinion as holds the mortgage valid for any purpose. Judge Paynter also dis.senting.)</p>

Case 3 — -INDICTMENT FOR SELLING- LIQUOR — APPEAL PROM OWSLEY CIRCUIT COURT. 1. The indictments in cases Nos. 256, 255, 254, 251, 250, 249, 248, 247, and 246 are bad and the demurrer to each of them ought to have been sustained, by the trial court. 2. The instructions of the court were erroneous in each case. The court should have instructed the jury under the general liquor law instead of under the local option statute. 3.

Case 4 — ACTION FOR NEGLIGENCE — APPEAL PROM CAMPBELL CIRCUIT COURT. In both cases counsel argued that the damages were excessive, appearing to have been given under the influence of passion and prejudice, and in support of the contention cited: L. & N. R. R. Co. v. Fox, 11 Bush, 495; Same v. Shivell’s Admr., 13 Ky.

<p>Case 5 — WRIT OF PROHIBITION —</p> <p>APPEAL PROM M’CBACKEN CIRCUIT COURT.</p> <p>1. Section 1701 of the Kentucky Statutes is special or class legislation and is in conflict with the general exemption law of the State. Schoolcraft’s Admr. v. L. & N. R. R. Co., 13 Ky. Law Rep., 517; Kentucky Trust Co. of Louisville v. Lewis, 82 Ky., 579; Winchester Bldg. & L. Assn. v. Gordon, 12 Bush, 110; Smith v. Warden, 4 Ky. Law Rep., 553.</p> <p>2. The writ of prohibition was a proper remedy. Gould v. Capper, 5 East, 345; Spelling on Extraordinary Relief, vol. 2, sec. 1732; Arnold v. Shield, 5 Dana, 20; Pennington v. Woolfolk, 79 Ky., 13; 3 Ky. Law Rep., 42; Civil Code, sec. 479.</p>

Case 6 — IN EQUITY — APPEAL FROM HELL CIRCUIT COURT. 1. If a judgment be procured and rendered under a mutual and simple mistake of law and fact as to the interest of the parties and a mutual and simple mistake of facts as to the extent of the mutual rights and obligations of the parties to each other will equity afford relief and correct the mistake?

Case 7 — REPLEVIN—- APPEAL FROM MARION CIRCUIT COURT. The statute does not confer the right to sell or offer impounded animals, nor does the statute make any provision for the redemption by owners of animals -impounded and sold. The ordinance was therefore invalid. Dillon on Municipal Corporations (4th ed.), vol. 1, p. 222, sec. 150.

Case 8 — ACTION ON CONTRACT — APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. The appellant company did not assume the guarantees of the Kentucky Building & Loan Association, but merely took its assets and agreed to* manage them and mature the stock. 2. There is no substantial difference between the companies as to the contract and if the written evidence of the contract does not express the true agreement, evidence is competent to show the actual agreement. 3.

<p>1. Building and Loan Associations — Liquidation—Rights of Withdrawing Members. — In the liquidation of the affairs of an insolvent building and loan association, members who- have given notice of withdrawing more than thirty days before the assignment are not entitled to priority in the distribution of assets. By-laws declaring the rights of withdrawing members and section 860 of the Kentucky Statutes are limited in their application to going concerns.</p> <p>2. Same — Jurisdiction to Foreclose Mortgage. — In an action to liquidate the affairs of an .insolvent building and loan association, the court has no jurisdiction to foreclose a mortgage on land situated in another county.</p> <p>3. Same — Settlement With Borrowing Members. — In settling with borrowing members of an insolvent building and loan association, 'the borrower is to be charged with the amount of his loan and legal -interest and credited by his payments of premium and .interest on a partial payment basis, and where the value of his stock is shown by him with reasonable certainty, be should ■be credited with that also.</p>

Case 10 — ACTION TO ENFORCE LIEN — APPEAL FROM HARRISON CIRCUIT COURT. 1. Kentucky is the only State in the Union that has failed to sustain as constitutional an act similar to the Kentucky building association law. Simpson v. The Ky. Citizens Bldg. Assn., 19 Ky. Law Rep., 1176. 2.

Case 11 — STREET IMPROVEMENT — APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. If i-t be that the property owner is not responsible, then it is clear that the municipality is, because the ordinance for the improvement and the contract for the improvement were passed and entered into after April 1st, 1880, and prior to July 1st, 1893. City of Louisville v. Meyer, 17 Ky. Law Rep., 666. The ordinance for the construction of Highland avenue was legally passed.

Case 12 — ACTION FOR USURY — APPEAL EKOJI JEEEERSON CIRCUIT COURT, CHANCERY DIVISION. 1. Usury may be recovered as long as it can be traced, whether exacted by the lender or by the agent of the lender. Bank of U. S. v. Owens, 2 Peters (U. ¡S.), 531; Smith v. Berry, 5 B. M., 317; Rudd v. Planters’ Bank, 78 Ky., 513; Fitzpatrick v. Apperson, 79 Ky., 272; Magill v. Mercantile Trust Co., 81 Ky., 130. 2.

<p>Case 13 — RESCISSION FOR FRAUDULENT MISREPRESENTATION —</p> <p>APPEAL PROM DELL CIRCUIT COURT.</p> <p>1. The facts developed by the testimony show actual fraud on the part of the promoters of the Middlesborough Company in the contract in which the notes sued on were executed.</p> <p>2. If a statement olf fact actually is: not true, is> made by a person who honestly believes it to he true, 'but under such circumstances as devolved upon him the duty of knowing its truth, such representations are fraudulent in equity, as nothing overcomes a preexisting duty of knowing and telling the truth.</p> <p>Citations: Peyton v. Butler, 3 Hayw., Tenn., 141; Barnard v. Rorer Iron Co., 1 Pickle, 139; Smith v. Harrison, 2 Heiskill, 241; Lewis v. McLemore, 10 Yerger, 238; Baldwin v. Franklin, 8 Lea, 67; Bigelow .on Frauds, 484; 50 American St. Rep., 285; 3 Yerger, 178; 50 Am. Dec., 130; 2 Pom. Eq. Jur., 879-880; Cooley on Torts, 494, 501; 8 Am. & Eng. Ency. of Law, 642; Bigelow, 497-535, 44, 5; Lawson R. R. & P., 2356, 2342; Bullett v. Farran, 18 Am. St. R., 485; Haxter v. Bast, 11 Am. St. R., 877; Winston v. Gwathmey, 8 B. M., 19; Babcock v. Case, 61 Pa. St., 427; Prewitt v. Trimble, 92 Ky., 176; 36 Am. St. R., 586; Greenleaf on Ev., 1 vol., 441; Rohrschneider v. Knickerbocker Ins. Co., 76 N. Y., 200-16; 2 Pom., 88; Carter v. McNutt, Trustee, 13 Ky. Law Rep., 922.</p> <p>1. In support of the second point made by Mr. Saulsberry, counsel cited: Tiedeman on Sales, p. 161, see. 160; Prewitt v. Trimble, ■ 92 Ky., 176; Bigelow on Fraud, vol. 1, p. 411, 414, 415; Pendaris v. Gray, 41 Tex., 326; Wilson v. Carpenter, 91 Va., 183; Carter v. McNutt, 13 Ky. Law Rep., 879; Bigelow on Fraud, p. 425; Tarkington v. Parvis, 128 Ind., 182.</p> <p>2. In response to the point made in oral argument that appellant was estopped by his connection with the appellee company to iplead the fraud which was practiced upon him by it, counsel urged that appellant had no sort of connection with any of said corporations at all after the sale of lots which was sought to be rescinded.</p> <p>From the papers as shown in the record, there has been no fraud perpetrated by this company upon appellant in this transaction. Pidcock v. Swift, 51 N. J. Eq. (6 Dickinson 405); Tinsley v. Ogg, 7 Dana, 385; 21 Am. & Eng. Ency. of Law, 84-90; 2 Pom. Eq., 881; 8 Am. & Eng. Ency. of Law. 653; notes; Musick v. Gatzmeyer, 47 111. App., 329; 8 Am. & Eng. Ency. of Law, 637; Southern Development Co. v. Silva, 125 U S. Supt. Ct., 680; Pom. Eq., secs. 855, 856; -Jasper v. Hamilton, 3 Dana, 284; Wakeman v. Dailey, 51 N. Y., 27; Marsh v. Falker, 40 N. Y., 566; Meyer v. Amidon, 45 N. Y., 169; Kuntz v. Kennedy, 79 N. Y. Sup. Ct., 314; Wade v. Ringo, 25 S. W. R., 907: Breemerseh v. Linn, 59 N. W. R., 314; Lawson’s Rights, Remedies and Practice, vol. 5, secs. 2344, 2345; Brandt Surety & Guaranty, sec. 404; First Natl. Bank of Stanford v. Mattingly, 14 Ky. Law Rep., 69; Sawyer v. Prickett, 86 U. S., 107; Ball v. Lively, 4 Dana, 370; Tanner v. Clark, Carter v. McNutt, 13 Ky. Law Rep., 922; Huís v. Black, 14 Ky. Law Rep., 805; Turner v. Cape Fear Co., 2 Devereux, 239; 61 Penn. St. R., 427; 10 Yerger, 238; 3 Yerger, 178; 3 Hayward 141;' 1 Pickle, 141; 2 Heiskell, 243; 18 Am. St. R., 485; 11 Am. St. Rep., 877; Prewitt v. Trimble, 92 Ky., 176; Stewart v. Dougherty, 3 Dana, 481; Buford v. Brown, 6 B. M., 553; Marksbury v. Taylor, 10 Bush, 520; Campbell v. Hillman, 15 B. M., 518; Phelps v. Quinn, 1 Bush, 378; English v. Thomas-son, 82 Ky., 280; Nell v. Nell, 16 Ky. Law Rep., 195; Rufner v. Riley, 81 Ky., 166; Wood v. Wood, 78 Ky., 628; Fisher v. May, 2 Bibb., 450; Gore v. Peak 15 Ky. Law. Rep., 279; Brannin & Co. v. Loving, &c., 16 Ky. Law Rep., 331; Trimble v. Reid, 17 Ky. Law Rep., 494; Same v. Ward, 17 Ky. Law Rep., 509; Banque Franco, &c., v. Browne, 34 Fed. Rep., 190; Ewing v. White, 6 Fed. Rep., 451; Slaughter v. Gerson, 13 Wallace, 235; Company v. Newland, 39 Pac. Rep., 36.</p> <p>1. Under the pleadings the judgment is correct and should be affirmed regardless of evidence. The plea of estoppel should be .sustained.</p> <p>2. The appellant can not be heard to ask a rescission because he has ratified the contract and because he has waited too long and because his counter-claim for rescission is not good in that it fails to show prompt intention to disavow the contract.</p> <p>3. If all representations and promises which failed of performance were representations and promises and mere statements of hopes and expectations, and not made with purpose of deceiving, but in good faith, they can not 'be made the basis of an action or defense.</p> <p>4. There is an entire failure of proof of fraud in the failure to prove knowledge that the statements were not true or intended to deceive.</p> <p>'Citations: Stwart v. Dougherty, 3 Dana, 481; Ball v. Lively, 4 Dana, 373; Buford v. Brown, 6 B. M., 553; Lightburn v. 'Cooper, 1 Dana, 275; Marksbury v. Taylor, 10 Bush, 520; Campbell v. Hillman, 15 B. M., 518; Phelps v. Quinn, 1 Bush, 378; English v. Thomasson, 82 Ky., 280; Prewitt v. Trimble, 13 Ky. Law Rep., 581; Neel v. Neel, 16 Ky. Law Rep., 195; Ruffner v. Ridley, 81 Ky., 166; Wood v. Wood, 78 Ky., 628; Fisher v. May, 2 Bibb., 450; Waters v. Mattingly, 1 Bibb., 245; Jasper v. Ham- ¡ ilton, 3 Dana, 280; Peak v. Gore, 15 Ky. Law Rep., 279; Brannin & Co. v. Loving, &c., 6 Ky. Law Rep., 331; Trimble v. Reid, 17 Ky. Law Rep., 494; Same v. Ward, 17 Ky. Law Rep., 509; Banque Franco Egyptienne v. Brown, 34 Fed. Rep., 190; Ew-ing v. White, 69 Fed. Rep., 451; Slaughter v. Gerson, 13 Wall., 235; Company v. Neiwland, 39 Pac. Rep., 36.</p>

<p>(The opinion in this case was delivered in response to a petition for a rehearing.)</p> <p>Corporations — Report for Franchise Taxes. — A private trading ■corporation not “having or exercising any special or exclusive privilege or franchise not allowed by law to natural persons or performing any public service” is not required to make a report to the Auditor as a basis for the ascertainment of, and tax upon, its franchise.</p>

<p>Case 15 — ACTION TO ENFORCE LIEN —</p> <p>APPEAL FROM BELL CIRCUIT COURT.</p> <p>1. As to insufficiency of description of property. Ross v. Adams, 13 Bush, 370; Faught v. Henry, 13 Bush, 471.</p> <p>2. As to invalidity of proceedings against nonresident. Brownfield v. Dyer, 7 Bush, 505; Max Meadows L. & I. Co. v. Brady, Virginia Court of Appeals, Va. Law Reg., 1895.</p> <p>3. As to the sufficiency of answer, set-off and counterclaim. Wilson v. Carpenter, 91 Va., 184; Max Meadows L. & I. Co. v. Brady; Benjamin on Sales, vol. 1, 643, 644, 645, 646, notes 11 and 12; Herman on Estoppel, vol. 2-., par. 1169; par. 772, p. 898.</p> <p>1. The description of the land in the petition was good. It refers to the map of record.</p> <p>2. Lloyd was not a necessary party to the action and no judgment was rendered in any way affecting him.</p> <p>3. The second paragraph of the answer is not good. It attempts to plead a want off consideration for the execution of the notes by Lloyd and the assumption of the same by Ryan, when at the same time its .admits possession, of the land for which the notes were executed.</p> <p>4. The third and fourth paragraphs are not good because they fail to state wherein the fraud, ccrvin and misrepresentations of the plaintiff consisted.</p> <p>5. The fifth paragraph was not good; >t did not state that the plaintiff had misrepresented a material existing fact. Sawyer v. Frickett, 19 Wall., 146; First Natl. Bank of Stanford v. Mat-tingly, 14 Ky. Law Rep., 69. Nor does this paragraph state anywhere that the alleged misrepresentations were made for the purpose of deceiving defendant or any one. Misrepresentations, unless they be of existing facts, are the mere expressions of opinion, of hope or expectation and can not be the basis of an allegation of fraud. Wade v. Ringo, 25 S. W. R., 901; Gage v. Lewis, 6 111., 604; Ball v. Lively, 4 Dana, 370; Huís v. Black, 14 Ky. Law Rep., 805; Brandt, on Suretyship, &c., 404; Fisher v. May, 4 Bibb, 450.</p> <p>6. The pleading is further defective in failing to show the defendant relied on the alleged misrepresentations as true, and that the Town Companies’ agents knew them to be false. Marksbury v. Taylor, 10 Bush, 520; Ball v. Lively, supra; Jasper v. Hamilton, 3 Dana, 280; 'Stewart v. Dougherty, 3 Dana, 479; Buford v. Brown, 6 B. M., 5'53; Campbell v. Hillman, 15 B. M., 518; English v. Thomasson, 82 Ky., 280.</p>

Case 16 — ACTION TO ENFORCE BUILDING AND LOAN MORTGAGE — APPEAL I-ROM HENDERSON CIRCUIT COURT. A building and loan association has a right to charge its members fines for failure to comply with its by-laws, and reasonable sums as expense dues for maintaining and carrying on the business. Ky. Stats., sec. 867; Herbert, &c., v. Kenton Bldg. & L. Assn, of Covington, 11 Bush, 304; Henderson Bldg. & L. Assn. v. Johnson, 88 Ky., 197; Rogers, Recr., v. Rains, 18 Ky.

<p>1. Construction of Wills — Contribution.—A widow who takes under her husband’s will takes as any other devisee and is liable to contribution to pay the debts of the estate in proportion to the value of the realty and personalty devised and bequeathed to her.</p> <p>2. Same. — There is nothing in the will construed in this case to indicate an intention on the part of the testator that the widow should be exempt from the burden of contribution for the payment of his (testator’s) debts.</p>

<p>3. Rescission — Fraud of Remote Vendor. — A vendee of lands, when sued for unpaid purchase money, can not rely for a rescission upon the fraud df a remote vendor, but is limited to fraud of h‘is immediate vendors or 'their agents.</p> <p>2. Rescission for Fraud. — In order to establish fraud against which equity will relieve, it must appear that the misrepresentation •was of a material fact (as distinguished from opinion), at the time or previously existing (and not a mere promise for the future); must be relied upon by the person whose action is intended to be influenced, and must be made with knowledge of its falsity, or under circumstances which did not justify a belief of its truth. Tested by this rule the defendant failed to make out a case of fraud entitling him to a rescission of his contract of purchase. (Livermore v. Middlesborough Town Lands -Co., page 140 herein.)</p>

Case 19 — FER/RY CASE — APPEAL ER01I ESTILL CIRCUIT COURT. 1. Where a purchaser of a ferry toy executory contract has not paid ¡for the property, a contract by him with an individual for ferrying him and his family is a mere personal contract and does not attach to the ferry proper, nor s will it be affected if reduced to writing and recorded. ¡Siuch instrument is not recordable. Ky. Stats., ch. 29, sec. 500. 2.

<p>Case 20 — MOTION FOR DAMAGES —</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>(No brief on the motion.)</p> <p>(No brief on file touching the motion.)</p>

<p>Constitutional Law — Municipal Ordinance Imposing License Fee. —Under sections 174 and 181 of the Constitution, section 3011 of the Kentucky Statutes, conferring authority upon cities of the first class to require casualty and indemnity companies to pay into the sinking'fund not less than two dollars nor more than three dollars on every one hundred dollars of premiums received on business during the previous year, is a valid exercise of power; and an ordinance enacted pursuant to such section of the statutes is valid.</p>

Case 22 — HOMICIDE— APPEAL FROM KNOX CIRCUIT COURT. 1. There is no exception to the rule as to separation of the witnesses where it is demanded by either party. One who is a prosecutor and also a 'witness should not be present where the other witnesses are testifying, especially when his presence would have the effect of intimidating witnesses. Salisbury v. Com., 79 Ky., 425; Walker v. Com., 8 Bush, 89. 2.

Case 23 — ACTION FOR NEGLIGENCE CAUSING DEATH— APPEAL FROM M’CRACKEN CIRCUIT COURT. A municipal corporation with control of public common trav-. ersed by foot-paths on which the public may rightfully travel is liable to a common law action for damages caused by a dangerous and unguarded excavation made by the corporation for its own purposes in the ground adjoining one of the paths to a person walking thereon and who was at the time using due care. Dillon’s Munic. Corps.

Case 24 — ACTION TO FORECLOSE' MORTGAGE — APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. The agreement by the obligor, embraced in this deed of trust for the appellant of a reasonable attorney’s fee and compensation to the .trustee, is neither usurious- nor against public policy. New-port & Cin. Br.

<p>Case 25 — STREET ASSESSMENTS —</p> <p>APPEAL PROM SHELBY CIRCUIT COURT.</p> <p>Counsel contended that the judgment below must be reversed:</p> <p>1. Because the city pretended by its notice to afford appellant an opportunity to build tne pavement himself, and yet denies him that opportunity by failing to have any plans or specifications by which he could do the work.</p> <p>2. The ordinance is void because it did not fix the grade of the street or pavement.</p> <p>3. Because there is no allegation or proof that the ordinance was ever published as required by the charter.</p> <p>4. Because the entire burden of this improvement is placed upon the life tenant, and none of it upon the estate in remainder.</p> <p>5. Because the mayor in the terms of the advertisement and letting departed from the terms prescribed in the terms of the ordinance.</p> <p>6. Because by. the terms of the charter, public ways are -to be reconstructed at the cost of the city. Ky. Stats., sec. 3565. And public ways are defined to include side-walks by the charter, Ky. Stats., sec. 3560.</p> <p>7. 'The -ordinance requiring this pavement -to be built also required ‘the owners to be notified. The owners in this case, Hackwor-th’s children, were not notified at all.</p> <p>8. The grade of the street and pavement were materially changed without any authority of the city.</p> <p>9. The contract was let, to- put in new curbstones and the price of new curbstones was charged, and yet the contractor, O’Leary merely repaired the old curbing.</p> <p>Citations: Hydes, &c., v. Joyes, 4 Bush, 464; Ky. Stats., secs. 3565, 3560, 3563, 3487; Presbyterian Church v. Pithian, &c., 16 Ky. Law Rep., 581; Daviess v. Myers, 13 B. Mon., 511; City of Henderson v. Lambert, 14 Bush, 28; McGraw v. City of Marion, 17 Ky Law Retp., 1255; Feliler v. Gosnell, 18 Ky. Law Rep., 239.</p> <p>1. The city has the right and authority to order side-walks constructed or reconstructed and fix the cost thereof upon the abutting lot owners. Loeser v. Redd, 14 Bush, 18; Starling v. City of Hopkinsville, 12 Ky. Law Rep., 558; Droege v. Woods, 14 Ky. Law Rep., 431; Purdy v. Drake, 17 Ky. Law Rep., 819; Board of Councilmen of Frankfort v. Murray, 18 Ky. Law Rep., 279; Ky. Stats., secs. 3565,- 3566, 3560.</p> <p>2. The 'specifications of the pavement were sufficiently definite. The term “granitoid” has a fixed and definite meaning, which any man with ordinary intelligence could ascertain. Board of Councilmen of Frankfort v. Murray, 18 Ky. Law Rep., 279; 24 Am. & Ehcy. of Law, 58, citing State v. New Brunswick, 30 N. J. L., 395; and note to page'59, citing Adams v. Quincy, 130 111., 560; and note to page 60, citing Harney v. Heller, 47 Cal., 15 A life tenant should bear the burden of reconstruction in a case like this. Dillon on Mun. Corps., sec. 798; 24 Am. & Eng. Ency. of Law, 72, citing Keller v. Stanley, 86 Ky., 242. ’</p> <p>3. The question whether the. work was nqcessary or not, or whether .it was properly done or not, was .a question for the city council to determine. Town of West Covington v. Schultz; 16 Ky Law Rep., 831; Purdy v. Drake, 17 Ky. Law Rep., 819.</p> <p>4. The grade was not changed.</p>

Case 26 — ACTION TO ENFORCE MORTGAGE — APPEAL FROM LEE CIRCUIT COURT. 1. The right of appellees to enforcement of a lien against the land depends upon their right to recover their debt of E. G. Creech and as against Creech the petition is fatally defective, first, in failing to-allege any promise to pay, or, second, any contract, from which a.promise may-be implied. Moxley’s Admr. v. Moxley 2 Met., 309; Howard v. Chiles, 8 B. M., 377.

Case 27 — ACTION TO CANCEL DEED AND RECOVER LAND— APPEAL PROM OWSLEY CIRCUIT COURT. 1. The appellee Seale by the attachment against Chambers did not acquire any greater interest in the land in contest than the de- • fendant Chambers, at the time the attachment issued, and was placed in the hands of the sheriff, had. That interest was only an equity.

Case 28 — ACTION FOE MANDAMUS — APPEAL FROM FRANKLIN CIRCUIT COURT. 1. The record s-hows that the- arrest of Franklin was made by the sheriff of Marshall county and not by the appellee. 2. The receipt of -the jailer for the prisoner is not certified by the circuit court as required by the Statute to authorize its payment. 3.

<p>Building and Loan Associations — Liquidation—Common and Preferred .Stock. — In the liquidation of the affairs of an insolvent building and loan association the preferred stock is not entitled to preference over the common stock in the distribution of assets in the absence of an express provision' of the charter to that effect, the preference being limited to dividends alone in a going concern.</p>

Case 30 — HOMESTEAD— APPEAL from bath CIRCUIT COURT. 1. The court erred lin refusing to 'adjudge that the appellant was entitled to a homestead in the land descended from his mother. Dwelly v. Galbraith, &c., 5 Ky. Law Rep., 209; Jewell v. Clarke, 78 Ky., 388; Miller v. Bennett, 11 Ky. Law Rep., 391; Meador v. Meador, 10 Ky. Law Rep., 784. 2. The appellant was not entitled to a homestead in the land of his wife while the latter was yet living. Summers v. Sprigg,, 18 Ky.

Case 31 — ACTION ON NOTE — APPEAL FROM FAYETTE CIRCUIT COURT. 1. It was error to permit plaintiff to state that she saw Armstrong sign his name to the note as an attesting witness; and further, that she was familiar with the signature and hand-writing of Armstrong and that his name as it appeared in the note was in his hand-writing.

Case - 32 — LIQUIDATION OF BUILDING ASSOCIATION— APPEAL FROM COMMON PLEAS DIVISION OF JEFFERSON CIRCUIT COURT. The appellant, under the facts of this «ase, was a creditor, and not a stockholder, and as such was entitled to preference over the stockholders in the distribution of the assigned assets. 1. The relation cre'ated between appellant and the Globe Building & Loan Company was that of stockholder in the corporation,' and not creditor and debtor.

<p>Devises — Construction—“'Children,” Designating Purchasers.— Under the will of John R. Hill, which provided that his realty should he. rented for five years t'o pay his debts and after that period a certain portion of same should he given to his daughter Eva to vest in her to her separate use, but in the event she should marry and die without children and leave a husband surviving her," then remainder over to the husband for and during his natural life with remainder to the testator’s son; Bradley, if living, or, if dead, to his children, if any; or, if none, then to the grandson of the testator, Joe Smith; or, if the . said daughter should die leaving children, then the land should go to the said children, the child nf said Eva surviving her •and living beyond the five-year renting period provided for. in the-will, took as purchaser under the will of his grandfather; and uipon his death his brothers and sisters of the half-blood inherited the land to the exclusion (first) of the testator’s son, Bradley, and (second) of the devisees of his daughter, Eva.</p>

Case 34 — ON MOTION TO DISMISS — APPEAL PROM CALLOWAY CIRCUIT COURT. 1. The appeal granted below prior to the act of March 14, 1898, was abandoned. 2. The language “exclusive of interest” means interest accrued at the time of the judgment. Citations: Donaldson v. The Security Trust & Safety Vault Co., 20 Ky. Law Rep., 857; Tailor v. Shawley, 2 Ky.

Case 35 — ACTION ON IMPLIED CONTRACT — APPEAL FROM KENTON CIRCUIT COURT. 1. Under section 2178 Kentucky Statutes, as construed in the case of Thomas v. Arthur, 7 Bush, 245, an express contract must be alleged and proven, but a recovery for nursing, care, atten- ' tion, etc.,’ could be had «upon an implied contract.

-Case 36 — INDICTMENT FOR HOMICIDE — appeal prom grant .circuit court. 1. The court erred in refusing to discharge the jury. Crim. Code, sec. 244; and this error could not be waived. French v. Com., 18 Ky. Daw Rep., 575. 2. The instruction on the subject of self-defense was unduly qualified. 3. The court admitted incompetent evidence. 1. The error in the formation of the jury was waived. Pierson v. People, 79 N. Y., 424; Thompson on Trials, vol. 1, p. 115. 2.

Case 37 — INJUNCTION AGAINST FRANCHISE TAX — APPEAL FROM KENTON CIRCUIT COURT. The appellant is not liable for franchise tax under section 4077 of the Kentucky Statutes; either (1) because the section embraces all corporations, or (2) because it is of the same kind as the enumerated corporations, or (3) because it enjoys exclusive privileges. Citations: Ky. Stats., secs. 4077-4078; W. U. Telegraph Co. v. Norman, 77 Fed.

<p>Case 38 — ACTION FOR FRANCHISE TAX —</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>1. Without express legislative authority, a suit can not foe maintained by the Commonwealth to recover taxes. Baldwin v. Hewitt, Auditor, 88 Ky., 673; Louisville Water Co. v. Com., 89 Ky., 244; Same v. Same, 18 Ky. Law Rep., 2.</p> <p>2. There is no statute authorizing a suit by the Commonwealth to recover franchise taxes. Geni. Stats., Edition of 1887, Revenue and Taxation; Ky. Stats., — Revenue and Taxation; acts 1889-90, vol. 1, p. 149; Louisville Water Co. v. Com., 18 Ky. Law Rep., 2.</p> <p>3. Penalties for non-payment of taxes should not be adjudged when the original assessment was erroneous, and a new or corrected assessment was made, pending the suit.</p> <p>On jurisdiction: Ky. Stats., secs. 4182, 4171, 4091.</p>

Case 39 — ACTION FOR DAMAGES — APPEAL FROM BOYD CIRCUIT COURT. 1. A street railway is but an improved means of using a public highway, and no1 right of action exists in favor of an abutting property owner against it for damages unless some unnecessary injury is done to ingress and egress. It was, therefore, error to instruct the jury that if the appellant interfered with appellee’s means of ingress to and egress from his said land to find for the appellee.

Case 40 — HOMICIDE— APPEAL FROM CRIMINAL MANSION OF JEFFERSON CIRCUIT COURT. 1. The court should have sustained the motion for peremptory instruction for a failure of proof. 2. The facts set out in instruction No. 2 do not constitute voluntary manslaughter, but only involuntary manslaughter or unintentional homicide. 3. The court should have instructed the jury upon the subject of involuntary manslaughter. 4.

Case 41 — ACTION FOR INJURY CAUSING DEATH — APPEAL FROM BOYD CIRCUIT COURT. I. Appellant was entitled to peremptory instruction at the close of all the evidence. (1) Because deceased knew defective conditioh of engine in question and assumed the risk thereof. (a) Obviousness of defective condiction of machinery and. opportunity to observe equivalent to actual knowledge. Bogenschutz v. Smith, 84 Ky., 330; L. & N. R. R. Co. v. Robinson, 13 Ky.

Case 42 — ACTION ON INSURANCE: POLICY — APPEAL FROM MASON CIRCUIT COURT. 1. A violation of a condition in the policy that notice of additional insurance must be made to the secretary in writing did not render the policy void or voidable. 2. Appellee waived its right to avoid the policy, if it had any, by continuing to treat it as in force after it received notice of the additional insurance. , Citations: 11 Am: & Eng. Ency. of Law, 288; Fireman’s Ins. Co. v. Cecil, 12 Ky.

Case 43 — ACTION FOR MONEY HAD WITHOUT CONSIDERATION APPEALS FROM WEBSTER CIRCUIT COURT. 1. Taxes paid voluntarily can not be recovered back by suit, and voluntary and involuntary payments distinguished. City of Louisville v. Anderson, 79 Ky., 334; L. & N. R. R. Co. v. Hopkins County, 87 Ky., 605; L. & N. R. R. Co. v. Com., 89 Ky., 531; Bruner & Bloom v. Clay City, 18 Ky. Law Rep., 1008; Bruner v. Town of Stanton, 19 Ky. Law Rep., 1514. 2.

Case 44 — DESCENT AND DISTRIBUTION — APPEAL FROM CARLISLE CIRCUIT COURT. The personal representative of the deceased infant has the right to collect and take charge of the dead infant’s personal property. Roberts’ Admr. v. Eales, 10 Ky. Law Rep., 360.

<p>1. Courts — Jurisdiction—Actions Against Insurance Companies.— Under section 71 of the Civil Code providing that actions against insurance companies arising out of transactions with an agent may be brought in the county in which such transaction took place, an action may be maintained against an insurance company having its principal office in New York upon an adjustment of a loss made by its agent in this State in the county where such adjustment took place, although the policy was issued to a citizen of West Virginia in that State upon property located there.</p> <p>2. Same — Service oe Process on Insurance Commissioner. — In such an action this court will indulge the presumption that the company complied with the law, and will uphold the validity of a judgment upon service of summons upon the Insurance Commisioner.</p> <p>3. Insurance — Waiver of Condition of Absolute Ownership.— Where, at the time of the obtainment of a policy of insurance, the agent of the insurance company knew that the appellant held’ the title in trust for himself and others jointly, his representation of absolute ownership will not avoid the policy.</p> <p>4. Same — Action in Name of Insured. — In such a case the insured may maintain an action in his own name without joining as plaintiffs 'those jointly interested.</p>

Case 46 — ATTACKING CONVEYANCE AS FRAUDULENT— APPEAL FROM CARTER CIRCUIT COURT. 1. When the bill of sale was made and delivered, its officers did not know nor had they reason to believe or even suspect that ■Brown was insolvent. 2. The biil ■of sale was made and accepted to secure a “liability contracted simultaneously therewith.” 3.

Case 47 — ACTION ON SUPERSEDEAS BOND — APPEAL FROM MARION CIRCUIT COURT. Both the depreciation in the value of the mill stock and a reasonable attorney’s fee in the prosecution of the appeal are elements .of damage in an action upon a supersedeas bond. Mahlman v. Williams, 89 Ky., 285; Buckner, &c., v. Borgard, 8 Ky. Daw Rep., 701. The loss on account of the mill stock was caused by .the management and not hy the appellees.

Case 48 — ACTION FOB 'COMMISSION — APPEAL FROM LAW AND EQUITY DIVISION OF JEFFERSON CIRCUIT COURT. 1. Dr. Curran Pope was not the agent for Mr. Jones for the sale of the property in controversy, and Pope did not employ appellee as sub-agent to make the sale. 2. Dr. Pope’s authority to take bids had been exhausted prior to the date at which the sale was made and never did include the purchasers, Crutcher & Starks. 3.

Case 49 — ACTION ON COMPROMISE AGREEMENT — APPEAL PROM MADISON OIEOTJÍT COURT. 1. Before the defendant can maintain its action upon the set off the claim must have been presented to the administrator verified in the manner provided by law. Warfield v. Gardner’s Admr., 79 Ky., 683; Swift Iron & Steel Works v. Schulte, 8 Ky. Law Rep., 787; Usher’s Exrs. v. Flood, 12 Ky. Law Rep., 721. 2.

Case 50 — ACTION OF COVENANT — APPEAL FROM FAYETTE CIRCUIT COURT. 1. The liability of the appellants upon Tate’s bond was only for the acts of treasurer Tate during the period of one year from the date of his .election. Brandt on Suretyship, vol. 1, sec. 168; Bigelow v. Bridge, 8 Mass., 275; Com. v. Smith, 14 Ky. Law Rep., 573; Offutt v. Com., 10 Bush, 214; Cook v. Clark, 13 Ky. Law Rep., 101. 2.

Case 51 — MANDAMUS— appeal from mason circuit court. 1. Upon oath by a litigant that he believes that he can not have a fair trial in a justice’s court, his right to a change of venue is absolute. This is not analogous to an affidavit to disqualify a circuit judge. Ky. Stats., secs. 1107, 968; German Ins. Co. v. Landram, 88 Ky., 433. 2. Mandamus lies to enforce ministerial act.

<p>1. Amending Petition to Include a New Defendant.— The city of Newport having made a report' for franchise tax in the name of the Newport Waterworks, an action ¡against the Newport Waterworks was properly amended to make -the city of Newport a substitute defendant.</p> <p>2. Constitutional Daw — Vested Rights — No Complaint From Parties not Affected. — A municipality will not be heard to complain of the invalidity of ¡an -act taxing its waterworks franchise on -the ground that it dev-ests vested rights of the holders of city bonds.</p> <p>3. .Municipalities — Diability for Franchise Tax on Waterworks. —A municipality owning waterworks and selling water generally to the public may, under the statutes, be required to pay a franchise tax.</p> <p>4. Taxation of Tangible Property. — On the tangible property constituting the waterworks plant the municipality is liable foi- taxation as a private corporation would be.</p> <p>5. Exemption Act — Repeal of. — The -act of March 8, 1878, exempting the Newport Waterworks from -taxation as long as -it should be unproductive was repealed by the adoption, of the- Constitution.</p> <p>6. Res Adjudioata. — An adjudication' upon a liability for taxes for one year is no bar to an -action for taxes for -a subsequent year, it not appearing that the adjudication resulted from a contract exempting the defendant.</p>

Case 53 — ACTION FOR DAMAGES FOR BREACH. OF CONTRACT — APPEAL FROM BOÍD CIRCUIT COURT. 1. The contract sued on was not enforceable for lack of mutuality. L. & N. R. R. Co. v. Offutt, 18 Ky. Law Rep., 303; Bishop on Contracts, par. 78, 318. 2. Assuming that a valid and binding contract was entered into, ■ the relation of master and servant according to plaintiff’s allegation and proof was to continue as long as this mill should operate on the Ohio river.

Case 54 — ACTION OF COVENANT — APPEAL FROM MONTGOMERY CIRCUIT COURT. Counsel argued chiefly upon the facts as they developed from the ■evidence in the record. Upon the questions of law, the citations were as follows: Rankins v. R. R. Co., 2 Mo., 167; Buford v. Pickett, 3 Mo. App., 105; •Seattle v. Gilchrist, 4 Wash. St. Rep., 509; Am. Digest for 1893, 1939; Inez v. Quinn, 22 N. Y. St., 261; 159 Pa.

<p>Contracts — Against Public Policy — Unlicensed Stal“lion. — The owner of an unlicensed stallion may not maintain .an action for the service of .such stallion.</p>

Case 56 — LANDLORD AND TENANT — APPEAL FROM CHANCERY DIVISION, JEFFERSON CIRCUIT COURT. 1. An assignment of an unexpired term in a lease without the landlord’s consent even against an express provision in the lease against assigning over without such consent is voidable only and can be taken advantage of by the landlord only by his reentry and the declaring of a forfeiture. Taylor Landlord & Tenant, vól. 2, sec. 492; Chautauqua Assembly v. Ailing, 46 Hun, 582; Ready v.- Amer.

Case 57 — ACTION ON SHERIFF’S BOND — APPEAL PROM PULASKI CIRCUIT COURT. 1. Whether the bond sued on is or is not a valid statutory bond, it is good as a common law obligation. Com. v. Adams, 3 Bush, 41. 2. The bond is substantially in the language of the official bond of sheriffs and the defendant, the sheriff, land sureties are liable for all moneys that came to his hands as sheriff, except the revenue due the State. Ky. Sta-ts., 4558. 3.

<p>Municipal Corporations — Cities of 'Second Class — Board of Education. — In the absence of express legislative authority, the Board of Education of a city of the second class has no authority to enact a by-law providing that it shall require a two-thirds majority to elect a clerk of that board. Such a by-law is violative both of the common .and statute law of the State.</p>

Case 59 — ACTION ON ACCOIJNT APPEAL PROM PERRY CIRCUIT COURT. 1. The appellees laid no foundation for the motion for a rule to dismiss. 2. The court erred in making the rule absolute and dismissing the petition on the record alone. Citations; Thomas v. Thomas, 15 B. M., 184; Nuttle v. Brannin, 5 Bush, 11. 1. The court properly dismissed the petition for lack of the affidavit and demand required by the statute. Ky.

<p>1. Taxation — Power op Campbell County Court to Appoint Supervisors at Newport Session. — Under the act of February 26, 1863, providing for holding sessions of the county court of Campbell county at Newport the county court so held could transact any business of which that court had jurisdiction except that no court cf claims could be held at Newport. Accordingly the order of the county court held at Newport November 21, 1898, appointing .supervisors was valid.</p> <p>2. Same — Number op Supervisors. — The county of Campbell, containing a city of the second class and two cities of the fourth class, the county court properly appointed twelve supervisors under the provisions of section 4115 of the Kentucky Statutes.</p> <p>3. Same- — Time op the Meeting op the. Board op Supervisors. — The provisions of section 4119, Ky. Stats., requiring the board of supervisors to convene at the county seat of their respective counties on the first Monday in January of each year is directory. If as a matter of fact they did on that day meet at another place, and proceed to discharge their duties as. .supervisors, such irregularity would not render any session held by them invalid.</p> <p>4. Same — .Powers op the Board. — Although secs. 4120, 4121, Ky. Stats., provide that the board of supervisors .shall not continue in .session for more than fifteen days, and might during this period increase or decrease any list if the evidence be clear and unmistakable that the valuation is not a fair cash value, yet the law does not forbid .them upon reconvening to hear complaints from taking up any matter which may have escaped their attention during the first meeting. By -sec. 4123 it is provided that the board in re-assembling shall hear all complaints and pass upon the assessment of all taxpayers, and for that purpose remain in session for not more than ten days. The action of the board in raising the assessment of appellee during its adjourned session was not therefore invalid.</p> <p>5. Same — Irregularity.—By sec, 4128, Ky. Stats., no irregularity in the -execution of the duties of the -supervisors renders the, assessment invalid. Any aggrieved taxpayer may appeal to the judge of the county court within ten days after the final adjournment of the board and this remedy is exclusive.</p>

Case 61 — ACTION FOR INJURY CAUSING DEATH APPEAL PROM IVAREEN CIRCUIT COURT 1. There was no right of action at common law for intentional killing. Winnegar, admr., v. Cen. Pass. R. Co., 85 Ky., 551; Morgan v. Thompson, 82 Ky., 383. 2. Kentucky Statutes authorizing widow and children to recover damages for death of husband and father. Act. Mar. 10, 18-56 (2 Rev. Stat., 50-9); sec. 2, ch. 1, Gen. Stat.; sec. 4, ch. 1, Ky. Stat.; ch. 31, 2 Rev. Stat., 429. 3.

Case 62 — ACTION FOR RESCISSION APPEAL PROM PULASKI CIRCUIT COURT. 1. The deed from John L. Lane to D. E. Lane conveys only to D. E. Lane a lif e estate with the remainderto his children, and hence the deed of D. F. Lane to appellees conveys nothing to them except the life estate of D. F. Lane, and .therefore upon the death of D. F. Lane his children became the absolute owners of the tract of land. 2.

Case 63 — INJUNCTION AGAINST MUNICIPAL TAXATION. APPEAL FROM PULASKI CIRCUIT COURT. The case of Board of Councilmen of the City of Frankfort v. ■Scott, 19 Ky. Law Rep., 1068, is conclusive of this case. The taxation of appellee’s property is illegal because they derive no benefit from the city government. Constitution, sec. 242; old Constitution, sec. 14, art. 13; 15 B. M., 498; 87 Ky., 267; 391; 92 Ky., 342; 10 Ky. Law Rep., 146, 185; 16 Ky. Law Rep., 172; 13 Ky.

Case 64 — ACTION FOR INJURY CAUSING DEATH APPEAL FROM GALLATIN CIRCUIT COURT. The trial court erred to the prejudice o-f the substantial rights of the appellant in the following particulars': ' 1. In overruling the demurrer to the petition. . 2. In not carrying the demurrer to the reply back to the petition and sustaining it to the petition. 3. In overruling the appellant’s motion for a judgment notwithstanding the verdict. 4.

•Case 65 — ACTION ON PROMISSORY NOTE APPEAL FROM LOGAN CIRCUIT COURT. The cause of action accrued by the very terms of the contract when the maker of the note was in default in the payment of two instalments. Bank v. Peck, 8 Kansas, 660; Schooley v. Romain, 31 Md., 574; M-obray v. Lackie, 42 Md., 474; Dean v. Nelson, 10 Wall., 158 (L. ed. Book 19, p. 926); Parks’ Exr. v. Cooke, 3 Bush, 168; Bishop v. Lawrence, 8 Ky. Law Rep., 645.

Case 66 — ASSIGNMENT OP INSURANCE POLICY APPEAL FROM LARUE CIRCUIT COURT. 1. The interest of Larue in the policies of life insurance did not pass to the assignee under the deed of assignment. 2. The assignee is estopped by his conduct to claim the benefit of the policies.

Case 67 — INJUNCTION AGAINST OBSTRUCTING STREAM— APPEAL PROM JOHNSON CIRCUIT COURT. 1.

Case 68 — ACTION ON CONTRACT appeal prom bell circuit court. The lower court erred to the prejudice of the appellants, 1. In not letting the jury decide as a fact whether appellants were damaged by reason of having timber hauled from December 20, 1895, to January 15, 1896. 2.

Case 69 — DISTRESS FOR RENT APPEAL FROM CHANCERY DIVISION OF JEFFERSON CIRCUIT COURT. The sub-tenant, Seanlan, being liable for Smith and wife for rent at the time of the purchase of the leasehold by him under .execution his purchase enured to the benefit of Smith and wife and he became liable to them for rent.. Taylor, Landlord & Tenant, sees. 124, 180, 705-6. 1. The evidence not being in the. record is presumed to sustain the judgment of the court below.

Case 70—ACTION TO SUBJECT HOMESTEAD APPEAL PROM CLAY CIRCUIT COURT. 1. The warranty to Benge executed in 1881 created a liability which was prior to the acquisition of the homestead. 2. There was no estoppel by the allegations of the pleadings in the action on the covenant of warranty. Citations: Ky. Stats., see. 1702; 7 Am. & Eng. Ency. of Law, 2, and foot notes; Hanley v. Foley, 18 B. M., 519; Booker v. Bell, 3 Bibb., 173. 1.

Case 71 — FOLLOWING TRUST FUNDS APPEAL EBOM MONTGOMERY CIRCUIT COURT. 1. The deposit of the trust funds in the bank by the trustee created ■the relation of debtor and creditor only, between them. Taylor’s Admr. v. Taylor’s Assignee, 78 Ky., 471; Williams v. Rogers, 14 Bush, 788. 2. Admitting that the bank was the real trustee and receiver, yet appellee has not- traced the trust funds into the hands of the assignee, and therefore is entitled to no preference.

<p>Case 72 — ACTION ON LIFE INSURANCE POLICY</p> <p>APPEAL FROM LAW AND EQUITY DIVISION OF JEFFERSON CIRCUIT COURT.</p> <p>1. What was the full amount of the policy sued on at the date of the lapse thereof?</p> <p>2. The full amount of the policy sued on at the date of the' lapse must be determined by the language of the non-forfeiture provision of the policy as follows: “When after two full annual ■premiums shall have been paid on this policy it shall cease or become void solely by the non-payment of -any premium when due, the entire net reserve value of the policy and dividend additions, by the American experience mortality and interest at four per cent, yearly, less any indebtedness to the company on this policy, shall be applied by the company as a single premium at the company’s rates published and in force at this date, . . t . First, to the purchase of non-participating term insurance for the full amount insured by this policy. . . . Note. The first ten years’ dividends that may be declared upon 'this .policy will be allowed only cn the additional plan.”</p> <p>3. That the language of the non-forfeiture provisions of the policy should -be construed and understood according to the common and approved usage of language. See Bailey v. Com., 11 Bush, 688; Williams v. Com., 78 Ky., 93; Com. v. Hollidy, 98 Ky., 618.</p> <p>4. That what it would have cost the insurance company to have complied with its contract, had the insured died on the day the .policy lapsed is, of necessity, the full amount insured by the policy on that date.</p> <p>5. That the trial court’s interpretation and construction of the policy sued on leads to an absurdity, and should for such reason be rejected.</p> <p>6. That the language of the non-fonfeiture provisions of the policy ought to be interpreted in such manner as that it may have effect and not be found vain and illusive.</p> <p>7. That where the policy provides that “the first ten years’ dividends that may be declared upon this policy will be allowed only on the additional plan,” and dividends are declared on the policy before it lapses, it can not be said that there is no agreement or promise to pay dividend additions as a part of the amount insured .by the policy.</p> <p>8. The word “addition” means; and can only mean, increase, and there can not be an aditi-on to without an increase of the sum insured.</p> <p>9. When declared dividends are allowed on the “addition plan” they purchase, or are additional full-paid insurance, and necessarily increase the amount of the policy, and are not, and under the policy could not, be paid-up insurance. (See Notes on Life Insurance by Gustavus W. Smith (2d ed.), p. 112.)</p> <p>10. Paid-up insurance is, and can not be anything other than a nonforfeitable, non-premium bearing certain sum payable in all events on a certain date, namely, the death of the insured.</p> <p>11. Dividend additions on the policy sued on were, and are purchased additional participating current insurance; and by their allowance became an integral part of the current policy, and like the .policy -forfeitable for non-payment of premiums.</p> <p>12. The appellee can not -claim under and against .the policy, and as ■appellant issued in accordance with a fair and reasonable interpretation of the provisions of its policy, a certificate extending the lapsed .policy for her -benefit for two years and two hundred and sixty-three days she is estopped from claiming otherwise than under the certificate so issued. Hopkins v. Hopkins, 9,2 Ky., 327; Miles v. 'Conn. Mut. Life Ins. Co., 147 U. S., 177.</p> <p>■13. It is a sound principle of law that members of a purely mutual company are bound by the reasonable rules and regulations determined upon by the managing officers of such a company, and as the policy sued on was extended confessedly in conformity to an established and unvarying rule of the company, made by the policy holders through their representatives, it is binding on the members of the company and all who claim under or through them. Lake v. Minn. M. & R. Assn., 52 Am. St. Rep., 538.</p> <p>34. There can be no vested right in a lapsed policy and the cases of Weisert v. Muehl, 81 Ky., 339; Manning v. Ancient O. U. W., 86 Ky., 139} and Hopkins v. Hopkins, 92 Ky., 327, in this respect are not applicable to the case at bar.</p> <p>15. The well-established principle of law that “if the language' of the policy is capable of two interpretations, that one must be adopted Which is most favorable to the assured because the language used is ‘that of the insurer,” does not apply to this case, because the language of the non-fonfeiture provisions of the policy sued on is not capable of two interpretations without disregarding the common and approved usage of language and making the same vain and illusive. Ky. Stats., sec. 460.</p> <p>1. An insurance policy may by failure to pay premiums die as current insurance, but still live as an agreement for paid-up in- • surance, whether for a term or for life. 14 Bush, 51; Montgomery v. Phoenix Mut. Life Co.; Mut. Life of N. Y. v. Jarboe, 19 Ky. Law Rep., 1501.</p> <p>2. It is the universal rule of the courts that a policy of insurance must be construed most strongly against the insurer, and in favor of the assured.</p> <p>3. Immediately upon the issual of a policy of insurance, the rights of the beneficiary become vested, and can not, during the existence of the contract,, be changed, or affected at all by either the assured or 'the insuree, or both combined. Ky. Stats., sec. 654; 2 Joyes on Insurance, sec. 853; Weisert v. Muehl, 81 Ky., 339; Manning v. Ancient Order U. Workmen, 86 Ky., 136; Hopkins v. Hopkins, 92 Ky., 327.</p>

Case 73 — INDICTMENT— APPEAL ERO'M LAUREL CIRCUIT COURT. 1. Proof ¡of sale of Jamaica ginger under an indictment for selling spirituous, .vinous and malt liquors and the mixtures thereof is a variance. 2. The Jamaica ginger sold in this case is a patent medicine and if it is a legal possibility to convict for a sale of a vial of said ginger, then under -the law it certainly could not have been under the charge of the indictment in this case. 3.

Cask 74 — ENFORCEMENT OF STREET ASSESSMENT APPEAL PROM OAMPBEIX CIRCUIT COURT. 1. The district of Clifton has a lien -on -the property fronting and abutting on streets improved by the district, under its charter, and has a right to enforce its lien for unpaid street assessments, and to sell the property, for the assessments, due and unpaid, and -for the balance of the principal of the street assessment not due, but which are secured by the lien upon the property.

Case 75 — MANDAMUS— APPEAL PROM BOYLE CIRCUIT COURT. Questions discussed: 1. The duty of the fiscal court of Boyle county to keep in repair all turnpike roads bought by it under Act of 1898, although a part -of said roads lies within the corporate limits of Danville, and the right -of said court to abandon the portions of said turnpikes lying in said city. 2.

<p>Fiscal Court of Jefferson County: — How Composed. — The fiscal court of Jefferson county is composed of the county judge and the eight justices of the peace oif the county, the act of April 6, 1888, providing for commissioners having been repealed — if not by section 144 of the Constitution, certainly by the act of October 17, 1892, enacted to carry that section into effect.</p>

Case 77 — MANDAMUS- TO PAY COUNTY WARRANT APPEAL FROM PULASKI CIRCUIT COURT. 1. The special act of April 22, 1890, requiring county treasurer of Pulaski county to pay warrants in their numerical order was not repealed either -by the adoption -of the new Constitution or by the adoption of the -act regulating the administration of county finances. 2.

Case 78 — INDICTMENT FOR VIOLATING LONG AND SHORT HAUL STATUTE APPEAL FROM MARION CIRCUIT COURT. 1. Cost of transportation can not be ascertained or serve as the basis for making rates; they are necessarily controlled and determined by commercial conditions. In re L. & N. R. R. Co., 1 I. C. C. Rep., 63; Foot v. Railroad Co., N. Y. Ry. Com. Rep., 1884, vol. 1, p. 104; s. c. 21 Am. & Eng. R. R. Cases, 63; Int. Com. Com. v. B. & O. R. Co., 43 Fed.

Case 79 — WILL CASE — APPEAL EEOM BULLITT CIRCUIT COURT. The will of G. N. Sanders was not revoked because the intention to. revoke was lacking. Ky. Stats., ch. Wills; Neville Beauchamp’s Will, 4 Mon., 363; Williams on Executors, p. 66, and authorities cited; Kent’s Com., vol. 4, 629 (Comstock’s ed.). And the intention to revoke is a question of fact. 5 Bush, 337; Tudor v. Tudor, 17 B. M., 389. 1. The will of Sanders was revoked and was never revived. Ky.

<p>Case 80 — ACTION ON GUARANTY</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>1. The guaranty sued on is a continuing guaranty.</p> <p>2. The guaranty was not terminated hy the death of the guarantor, S. C. Lang.</p> <p>Citations: Brandt on Suretyship & Guaranty, pars., 92, 156 to 160; Lowe v. Beckwith, 14 B. M., 150; Glover v. Thompson, 78 Ky., 193; Steadman v. Guthrie, 4 Met., 156; Union Bank v. Costar’s Exrs., 3 Com. Rep. (3 N. Y.), 204; White v. Baxter, 71 N. Y. R., .254; Bishop v. Eaton, 161 Mass., 437; Johnson v. Bailey, 79 Tex., 516; Wright v. Griffiths, 121 Ind., 478; Stern v. James, 4 N. Y. Sup., 816; Lehigh C. & I. Co. v. Scallan 63 N. W. R. (Minn.), 245; Davis v. Wells, 104 U. S., 159; Bradbury v. Morgan, 1 H. & C., 249; Hariss v. Pawcett, L. R., Ch. Ap., 866; Coulthart v. Clementson, 5 Q. B. Div., 46-7; Beckett v. Addyman, 9 Q. B. Div., 792; Westhead v. Sproson, 6 H. & N., 728; Offord v. Daviss, 12 C. B., 748; In re Sylvester, L. R. 1 Ch. for 1895, p. 573; Hyland v. Habich, 150 Mass., 112; Jordan v. Dobbins, 122 Mass., 168; Menard v. Scntter, 7 La. Ann., 385; s. c. 56 Am. Dec., 610; Knotts v. Butler, 10 Rich. Eq. (S. C.), 143; Gay v. Ward, 67 Conn., 167; Green v. Young, 8 Maine, 14; Jones v. Brown, 69 Cal., 37; Hightower v. Moore, 46 Ala., 387; Insuranee Co. v. Davis 46 la., 469; Carter v. Hampton, 77 Va., 631; Kernochan v. Murray, 11 N. Y., 306; National Eagle Bank v. Hunt, 16 R. I., 153; Rapp v. Phoenix Ins. Co., 113 111., 396; Mechem on Agency, 245; Brandt on Suretyship, par. 1; KilBridge v. Moss., 113 Cal., 432; Bell v. Bruen, 1 How., II. S. Ct., 182; Short v. Trabue, 4 Met, 302; Williams on Executors (5th ed.), par. 1559; Chitty on Contracts, par. 8, p. 101.</p> <p>The guaranty sued on was of a severable character, subjeot to withdrawal on ithe part of the grantor at any time and terminated by the guarantor’s death. It was, therefore, revoked by the death of the grantor without notice to the guarantee.</p> <p>Citations: Jordan v. Dobbins, 12-2 Mass., 168; Hyland v. Habich. 150 Mass., 112; s. c. 22 N. B. R., 765; Harriss v. Fawcett, L. R„ 15 Eq., 311; Bank v. Leavensworth, 26 Vt., 209; Bank v. Waterman, 30 111., 54S; .Siegel v. Forney, 15 Atl., 427; Parsons on. Contracts (8th ed.), vol.'2, note to pp. 31-2; Pollock’s Principles of Contracts, 21; Brandt on Suretyship & Guaranty (2d ed.), sec. 134.</p>

Case 81 — ACTION FOR DAMAGES FOR' BREACH OF CONTRACT APPEAL PROM JEEEERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. There was no completed contract, because there was no agreement as to the numbers of the different sizes of jars, or as to the amount of the purchase price, dependent on these different sizes. Tiedeman on Sales, sec. 33; Smith v. Gowdy, 8 Allen (Mass), 566; Newmark on Sales, sec. 30; Fairview v. Facey, Law Reports, Appeal Oases, for 1893, p. 552; Am. & Eng.

'Case 82 — INJUNCTION AGAINST UNLAWFUL USE OF STREETS APPEAL FROM LOGAN CIRCUIT COURT. 1. The special demurrer to ¿the petition should have been sustained. There is no such corporation as “City of Russellville.” The corporate name is “Mayor and Councilmen of Russellville.” Act of the Gen. Assm., approved- May 1, 1880; Act of Sept. 30, 1892; Ky. Stats., secs. 2741, 1180, 3615. '2.

<p>Case 83 — ACTION ON CONTRACT</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.'</p> <p>1. Effect of reformed petitions upon former pleadings filed in the cause: Smith v. Pelot, 65 Hun, 631; Holmes v. Jones, 121 N. Y., 461; Mulligan v. 111. Cent. Ry. Co., 36 la., 181; Brown v. Pickard, 4 Utah, 492.</p> <p>2. On practical construction of a contract. Louisville Turnpike Co. v. Shadburne, 1 Ky. Law Rep., 325; Thompson v. Thompson, 2 B. M., 166; 11 Am. & Eng. Ency. of Law, 518.</p> <p>3. When money can be recovered as paid by mistake. Tyler v. Smith, 18 B. M., 797.</p> <p>4. What contracts are mutual and dependent. 7 Am. & Eng. Ency. of Law, 120, 121; McLure v. Rush, 9 Dana, 65; Allen v. Saunders, 7 B. M., 592; Irwin v. Lee, 34 Ind., 321.</p> <p>5. Duty of a party to minimize his damages. 1 Sutherland on Damages, 148: Miller <v. Mariner’s Church, 7 Greenleaf,' bL</p> <p>1. When a bridge company makes a contract with several railroad companies for the use of the bridge, and agrees that upon signing the agreement it will so fix and maintain its rates as not to produce, in the aggregate, a sum exceeding certain sums named in the contract, and that the tolls shall never be more to one railroad company than to another, it has no right to maintain its tolls at such rates as to produce an aggregate sum greater than •that 'named in the contract, and if it does so, it comes under •obligation to see to it that the surplus thus improperly created is redistributed to the railroad companies in the proportion of their several contributions -to the tolls.</p> <p>2. If the bridge company, after having improperly created the surplus, disposes of it by crediting back or redistributing the whole surplus to some of the companies, exclusive of another, it ¡is as much a breach of contract as if there had been a difference made in the first instance in the tolls charged to those companies.</p> <p>3. The bridge company, having consented that the Louisville & Nashville Railroad Company might pay its share of the established published toll rates to its connecting carriers, which were in turn to account to the bridge company for them, those companies became the agents of the bridge company for the purpose of those collections, and it can not escape liability in a suit upon the contract to recover the Louisville & Nashville' Railroad Company’s share of the surplus, by showing that the Louisville & Nashville Railroad Company had not paid directly to the bridge company, the performance of that covenant having been expressly waived.</p> <p>4. Knowing that the connecting carriers of the Louisville & Nashville Railroad Company had collected from it its proportion of the full published .toll rates for the use of the bridge company, and that a large surplus would be created by the exaction of the full published toll rates from all the companies, it was the duty of the bridge company to see to it that the surplus thus created should be redistributed in proportion to contributions, and then the bridge company, recognizing this obligation, actually credited on its books .the Louisville & Nashville Railroad Company and debited the connecting carriers respectively, with the tolls on the traffic interchanged between them respectively and the Louisville & Nashville Railroad Company, this duty of the bridge company to collect the amounts from the connecting carriers thus debited to them and credited to the Louisville & Nashville Railroad Company, fixes an undoubted obligation on the bridge company to account to the Louisville & Nashville Railroad Company for the amount with which it is credited on the books of the bridge company, and, if, in order to realize that money, it must first collect it from the connecting carriers, its primary duty to the Louisville & Nashville Railroad Company is not lessened thereby, the whole situation having been created in the first place by the bridge company’s breach of contract in exacting excessive tolls.</p> <p>5. Where the bridge company collects from some of the connecting carriers the amounts thus dehted to them on account of the • Louisville & Nashville Railroad Company’s share of the surplus, and uses the money in its own business, it is liable to the Louisville & Nashville Railroad Company for not only the amount collected, but for interest as well on -those amounts from the time they .should have been paid over, and if it has disabled itself by a contract to which the Louisville & Nashville Railroad Company was not a party, from .making collection from one of these companies it is nevertheless bound for the amount with interest from the time it should have collected and paid over to the Louisville & Nashville Railroad Company. Schmidt, Trustee, v. Louisville, Cincinnati & Lexington Railway Co., 95 Ky., 290.</p>

<p>Case 84 — ENTRY OF JUDGMENT NUNC PRO TUNC</p> <p>APPEAL PROM DAVIESS CIRCUIT COURT.</p> <p>1. At the December term the court had no jurisdiction to enter an order in a civil case, it being a criminal -term only.</p> <p>2. The court had no right to make a nunc pro tunc order and hear 'evidence of such order without notice to the party to be affected by it.</p> <p>3. The court had no right to enter an order as of the date October 1st when no court was in session.</p> <p>4. The evidence was insufficient to authorize the entry of a judgment nunc pro tunc. Paducah Land Co. v. Cochran, 37 S. W. R.s 67: 18 Ky. Law Rep., 465; Conn. v. Doyle, 2 Bibb,, 248; Boyd County v. Ross, 95 Ky., 171; Ency. of Pld. & Pr., vol. 5, 951.</p> <p>1. There are other clerical misprisions than those defined by section 517 of the Civil Code.</p> <p>2. A clerical misprision is where a court has rendered judgment or made an order in a case, and the clerk in attempting to enter has not completed it or has omitted some part or has substituted a wholly different order or judgment from that made or rendered.</p> <p>5. The correction of a clerical .misprision is to set aside or modify something that has not been done correctly or add to an incomplete order or judgment.</p> <p>4. Failure to enter ■ a judgment is not a •clerical misprision.</p> <p>5. Notice is necessary before correcting a clerical misprision, but not before entering judgment rendered by the court, which the clerk had omitted to enter.</p> <p>6. If there was a clerical misprision in this case, it consisted in rendering judgment prematurely which could not be corrected in this proceeding.</p> <p>7. If the judgment was voidable as a clerical misprision, yet after 'having replevied it, appellant extinguished it and nothing remained to be vacated.</p> <p>8. Appellant was not prejudiced by any alleged errors of which ho complains, especially as the circuit court would have re-entered the judgment nunc pro tunc if it had been held void.</p> <p>Citations: 'Civil Code, secs. 517-19; Gray v. Merrill, 11 Bush, 634; Graham v. Lynn, 4 B. M., 18.</p>

<p>Case 85 — ACTION FOR MALICIOUS PROSECUTION</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>1. On probable cause. 17 Ky. Law Rep., 1131; Shaul v. Brown, 4 Am. Rep., 158; Hilliard on Torts, vol. 1, p. 438; Myer v. L., St. L., E. R. R., 17 Ky. Law Rep., 947.</p> <p>2. Advice of counsel. Crawford v. Kayser, 5 Ky. Law Rep., 593; Arnold v. Hicks, 5 Ky. Law Rep.%934; Burke v. Rhodes, 13 Ky. Law Rep., 431; 36 Am. St. Rep., 147; Johnson v. Miller, 58 Am. Rep., 231; Dunlap v. New Zealand, 109 Cal., 365; Smith v. Liverpool, 107 Cal., 432; Monaghan v. Cox, 31 Am. St. Rep., 555; Johns R. R. v. Hynt, 59 Vt., 294.</p> <p>3. Malice not shown. Shaul v. Brown, 4 Am. Rep., 155; Emmerson v. Cochran, 111 Pa. St., 62(2; Madison Pa. R. R., 30 Am. St. Rep., 756.</p> <p>4. Good faith. Sandell v. Sherman, 40 P., 493.</p> <p>1. Express malice was not necessary to be proved. Want of probable cause was shown from which the jury was authorized to infer malice.</p> <p>2. It was not competent upon the issue of probable cause to show that Mr. Marsehuetz communicated to the officers of the defendant company that he had heard that the plaintiff was attempting to steal the defendant’s enameling process. This did not bring the case within the ruling in the case of Myer v. Railroad, 17 Ky. Law Rep., 945. See Central Railway Co. v. Brewer, 28 Atl. Rep., 16. The statement of Marsehuetz did not tend furthermore in the slightest to show that any crime had been committed.</p>

<p>Case 86 — EJECTMENT—</p> <p>APPEAL FROM BREATHITT CIRCUIT COURT.</p> <p>Validity of patent. First, its regularity.'</p> <p>Second, not void for uncertainty of the description of boundaries. Board v. Head, 3 Dana, 490; Taylor v. Com., 1-5 B. M., 18; Camp v. Prather, 7 B. M., 599; Boardman v. Lessees of Reid and Ford, &c., U. S. Rep., No. 345, 2 vol., 502; Am. & Eng. Ency. of Law, vol. 6, p. 423; Ball-ards Real Estate, sec. 95.</p> <p>Third, as to exclusions not specifically described. Drake v. Ramsey, Hardin’s Rep., 34; Craig v. Cogar, Hardin’s Rep., 384; Overton and Reid v. Robert, 4 Bibb, 156; 1 Bibb, 60; Hamilton v. Fugett, 81 Ky., 367; Hall v. Martin, 89 Ky., 9; Ballowe v. Hillman, 18 Ky. Law Rep., 677; Register v. Reid, 9 B., 103.</p> <p>The demurrer to the -petition should have been overruled. There is nothing in the petition to indicate any uncertainty or want of description in the boundary of land sued for. The case of Hamilton v. Fugett, 81 Ky., 367, is of questionable authority, and if it is to be deemed in point, was overruled by the case of Hall v. Martin, 89 Ky., 9.</p> <p>1. The exterior boundary described in the petition is indefinite, uncertain and the lines too sweeping, and because the exclusions to be made are indefinite and uncertain. Hamilton v. Fugett, 81 Ky., 367; Hillman v. Hurley, 82 Ky., 630; Craig v. Williams, 82 Ky., 161; Roberts v. Davidson, 83 Ky., 280.</p> <p>2. The statute in force at the date of the survey and issual of this patent did not authorize the issual of the c-ounty court order or the taking of a survey or granting a patent plat for less than 25 nor more than 200 acres. Register v. Reid, 9 Bush, 106; Revised Stats., eh. 102, sec. 3.</p>

Case 87 — ACTION ON PROMISSORY NOTE APPEAL PROM GRAVES CIRCUIT COURT. 1. A valid note pays a debt or note for which it is given. Letcher v. Bank, 1 Dana, 82; Castleman v. Holmes, 4 J. J. Mar., 3. 2. Suit can only be brought on last valid renewal note. Bank v. Gaines, 87 Ky., 597. A party who sues on a renewal note to which the defendants plead non est factum, may by an amended petition set out the execution of the original note and recover upon it.

<p>1. Bills and Notes — Pleading—Petition.—In an action by an indorsee on a bill of exchange it is not necessary to allege specifically that the indorsement was to the plaintiff. A promise by the acceptor to pay an indorsement by the payee and that the plaintiff is the owner and holder thereof is sufficient because such averments import a promise by 'the indorser ¡to pay.</p> <p>2. Same — Notice of Dishonor — Effect of Kentucky Statutes, Section 3725. — Failure of the holder of a bill of exchange to cause notice of dishonor to he given to a prior indorser does not release a subsequent one to whom such notice was given. Section 3725, Kentucky Statutes, did not operate to repeal the common law in this regard, but merely to change the method of giving notice required by the law-merchant.</p>

Case 89 — ACTION ON NOTE. COUNTER-CLAIM FOR RESCISSION APPEAL PROM NICHOLAS CIRCUIT COURT. 1. The action should not have been transferred to equity. Kerr on Fraud and Mistake (Bump’s ed.), p. 328. 2. No fraud 'was proved. 1. The defendant was entitled under the facts and circumstances of this case to have it transferred to the equity side of the docket. Brooks v. Carneal’s Admr., Litt. Selec. Cases, 164; Cummins v. Latham, T. B. M., vol. 4, p. 103; 9 Am. & Eng.

Case 90 — ACTION AGAINST COMMONWEALTH APPEAL FROM FRANKLIN CIRCUIT COURT. The Legislature by joint resolution may not authorize an individual to sue the Commonwealth upon a specific claim. Such a resolution is prohibited by the Constitution. Secs. 46, 51, 55, 230, 231 of Ky. Con.; Cooley on Con. Lim., ,pp. 65, 94; Sutherland on Stat.

Case 91 — ACTION TO FORECLOSE MORTGAGE APPEAL FROM BARREN CIRCUIT COURT. 1. An assignment of the judgment by Gatewood to Lawless carried with it an assignment of the lien to secure the judgment. 6 B. Bfe, 72; 8 B. M., 466. 2. In order to constitute a bar to a prosecution of a suit there must be an accord as to the whole cause of 'action for valuable consideration actually received from the defendant.

<p>clse 92 — INJUNCTION AGAINST TAX</p> <p>APPEAL FROM HOPKINS CIRCUIT COURT.</p> <p>The section under which the election was held in this case provides that the county judge should order the election when petitioned to do so by ten legal voters in any justice’s district, town, or city of the fifth or sixth class in his county, and the power of the county judge is not limited by the fact that a portion of the district lies within the city of Madisonville. School Laws, 1898, secs. 100, 127.</p> <p>Common school elections are expressly excepted from the constitutional requirements as to registration and are left for the General Assembly to regulate. The statutory provisions as to registration do not apply to common school elections. The voting under the common school law is viva voce. Con., see. 165; Ky. Stats., secs. 4467, 4489, 4458.</p> <p>1 Section 4464 of the Kentucky Statutes does not authorize a city of the fourth class to establish a graded school in the method adopted herein. The establishment of a graded school in cities of the fourth class is regulated by section 4489. It would seem that under the charter of cities of the fourth class graded schools may be established -by ordinance. Ky. Stats., sec. 3606, unless t'he act regulating common schools which was passed subsequently to the charter of cities of the fourth class operated to repeal that provision.</p> <p>i. The elections were not valid because there was no special registration as required by the Kentucky Statutes, sec. 1495.</p> <p>3. A further objection to the election is that the order under which it was held was not made at the next regular term after the petition was received. Doores v. Varnon, 94 Ky., 507; Webb v. Smith, 17 Ky. Law Rep., 1808; Wilson v. Hines, 99 Ky., 221.</p> <p>1. The county judge has no right under section 4464 of the Kentucky Statutes to call an election for school purposes in a fourth class city. The proposed district if formed as contemplated embracing taxable property outside of the city after valuable buildings had been erected at its cost, would have to give way to the right of the city to assume control alone, at its pleasure, and thus subject those taxpayers of the district in the country to injustice.</p> <p>2. The county court has no power to change or revoke its orders after ' the term in which they were made.</p> <p>3. The petition is not sufficiently certain in designating .the site of the proposed school.</p> <p>Citations: Ky. Stats., secs. 4464, 4489; Taylor v. Tibbatts, 13 B. M., 182; Railroad Co. v. McMurtry, 6 B. M., 215.</p>

Case 93 — APPORTIONMENT WARRANTS APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. The ordinance was not void. The identical question involved in this case was decided by this court in the case of Fehler v. Gosnell, 99 Ky., 380. I. A cross-appeal will not lie in favor of an appellee against a co-appellee. McKay v. Mayes, 17 Ky. Law Rep., 827; Marion National Bank v. Phillips, 18 Ky. Law Rep., 159; Mudd v. Mullican, 11 Ky.

<p>1. Evidence — Husband and Wife — Transactions With Decedent.— In an action for the benefit of a married woman to declare a trust in certain personalty against an estate in the hands of executors, as the action might have been brought by the wife alone, her husband is a competent witness in her behalf, but as to transactions with a person who was dead at the -time of the proposed testimony, he was incompetent to testify as to any facts as to which -the wife herself was incompetent.</p> <p>2. Same — Trustee for Wife.- — In such an action the trustee for the wife is competent to testify as to transactions with the testator— he not being in any sense an agent for the wife.</p>

Case 95 — ACTION FOR NEW TRIAL — APPEAL prom losan circuit court. 1. Appellee has been guilty of negligence; has not shown due diligence in taking care of the equity case, an¡I a new trial should not have been granted him. Civil Code, sec. 340, sub-sec. 3; Phillips v. Skinner, 6 Bush, 66,2; Charles v. Bain, 9 Ky. Law Rep., 104; Heintz v. Christman, 9 Ky. Law Rep., 107; Brannin v. Trent, 9 Ky. Law Rep., 577; Ross v. L. & N. R. R. Co., 13 Ky.

<p>Case 96 — ACTION ON CONTRACT</p> <p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p> <p>1. Building Contract — Damages to Owner for Breach of — What is Proper Measure. — The owner of a lot contracts with builder to erect house of certain kind thereon. The contractor builds a materially different kind than that contracted for. We insist that the measure of damages to owner is not the difference between the character of the house actually built and the one contracted for; but is- the sum necessary to construct a building as contracted for; or to remodel or reconstruct the one built until fit is according to the contract. Keih.1 v. Kline, 15 Ky. Law Rep., 158.</p> <p>2. Evidence — Opinion.—It is error to -allow a witness in a controversy concerning whether a house was built according to contract, to state his opinion that it was built -according to contract, or to say that the work was done in a -workmanlike * manner.</p> <p>3. Evidence — Practice Upon the Introduction of. — The party holding the burden announced through and after the other party had concluded his evidence, the party first named proposed to offei another witness whose testimony was material and would have been in chief, under an avowal from his counsel that he had misunderstood the point upon which the witness^was to have been used, and was thereby misled into the error. We insist that it was error to exclude the testimony of the witness. Com. v. Patterson, 10 Ky, Law Rep., 167; Cumberland T. .& T. Co. v. Weaver, 13 Ky. Law Rep., 207; Wandstradt v. Percival, 4 Ky. Law Rep., 834.</p> <p>4. Instructions. — The court should have submitted to the jury in appropriate instructions the respective contentions of plaintiff and defendant as to what was the contract in litigation; and then in a direction to find for the one or the other according as they might find the contention of that one was sustained by the evidence. It was error to give the jury an instruction to find for the plaintiff unless the defendant proved the contract was different from what plaintiff claimed it was. Taylor v. Armstrong, 5 Ky. Law Rep., 252; National Bank v. Mattingly, 92 Ky., 653.</p> <p>1. In a suit upon a contract for the construction of a building, it is competent for a witness to give his opinion that the work was done in a skillful manner or according to contract.- 1 Greenl. Ev., p. 440; Jones on Ev., secs. 369, 362, 365; 111. Ry. Co. v. Van-Horn, 18 111., 257.</p> <p>2. It was not an “abuse of discretion” for the court to exclude the testimony of appellant’s ,son offered in chief after plaintiff had closed his testimony. Jones on Ev., sec. 811; Mutual Life Ins. Co. v. Thompson, 94 Ky., 253.</p> <p>3. Instructions giving undue prominence to certain, portions of the testimony should not be given, hence the court properly rejected instructions A and C asked by appellant. Flood y. Pragoff, &c., 79 Ky., 607; Ky. Tobacco, Assg. v. Ashley, 5 Ky. Law Rap.„ 184; Com. v. Hourigan, 89 Ky., 305; McLaughlin v. Lou. Electric Light Co., 18 Ky. Law Rep., 693; Com. v. Gray, 17 Ky. Law-Rep., 354; McClurg v. Inglehart, 17 Ky. Law Rep., 913; L. & N. R. R. Co. v. Banks, 17 Ky. Law Rep., 1065. '</p> <p>4. The measure of damages for failing to construct a house according to contract is the difference in value between. the house as constructed and as it should have been under the contract. Short v. Moore, &c., 19 Ky. Law Rep., 1225.</p>

Case 97 — ACTION ON CONTRACT AEPEAL EROM BREATHITT CIRCUIT COURT. 1. The petition together with .the contract filed with it shows on its face that the plaintiffs are at most entitled to recover $3,000 only, with interest, whereas a judgment was obtained for $13,338 with interest. The defendants were not required to pay for the logs every thirty days unless the terms upon which they were delivered would carry them to a railroad. 2.

Case 98 — ACTION TO RELIEVE AGAINST FORFEITURE APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. One named as executor in the will of a Virginia testator, giving power of sale of land in Kentucky, has no power to make a valid contract of sale thereof, until the will has been probated and he qualified in Kentucky. 2.

Case 99 — ACTION ON CHECK APPEAL FROM POWELL CIRCUIT COURT. 1. The amended reply was a departure from the original cause of action and should not have been permitted to be filed. 2. The agreement of the bank is to pay its depositors at its banking house and not elsewhere.' Branch v. Dotson, 33 Minne., 399. 3. In the absence of special directions as 'to how money should be transmitted the bank had the right to use any proper means to effect the object. 1 Am. & Eng.

<p>1. Judgments — Estoppel.—An unsuperseded. judgment requiring the filling up of a draiinage ditch is binding on the parties and privies to same as long as it remains unreversed, and an action for damages will not lie 'for flooding plaintiff’s premises against one who fills up the ditch in obedience to the judgment prior to the reversal of same.</p> <p>2. Same — Privies.—A person who employs an agent to act for him in the performance of an act for which the agent is enjoined is a privy to the judgment rendered in -the action against the agent, and is bound by the judgment as long as the same is unreversed.</p> <p>3. Same. — Parties not bound by former appeal as to matters not in issue. .The fact that appellee was privy to the former judgment not being before the court on a former appeal it was proper to permit that fact to be set up by amendment.</p>

Case 101 — ACTION TO FORECLOSE LIEN APPEAL FROM MASON CIRCUIT COURT. The appellant’s vendor’s lien which was prior in time to the mortgage to appellee, the trust company, and which w*as unreleased upon the record at the 'time the trust company’s mortgage was taken, is superior to the mortgage lien.

Case 102 — ACTION ON INSURANCE POLICY APPEAL EBO'M DAVIESS CIRCUIT COURT. 1. The policy was void because the subject of insurance was a building on ground not owned by the insured in fee simple. Home Ins. Co. v. Allen, 93 Ky., 271; Hartford Ins. Co. v. Haas, 87 Ky., 531. 2. George Hawes was not the agent of 'the appellant and Ms knowledge was not the knowledge of the company. Phoenix Ins. Co. v. Spiers & Thomas, 87 Ky., 285; Mechem on Agency, sec. 197. 3.

Case 103 — VALIDITY OF PAROLE LAW APPEAL FROM FRANKLIN CIRCUIT COURT. 1. The parole law as found in the Kentucky Statutes, secs. 3828-3836 is not unconstitutional either in invading the executive prerogative, or -in invading the jurisdiction of the courts as to the suspension, reversal or annulment of judgments of conviction or as a violation of section 253 of the Constitution.

<p>Case 104 — CONTESTED ELECTION</p> <p>APPEAL FROM EDMONSON CIRCUIT COURT.</p> <p>1. Tfie notice of contest is insufficient, in that it fails to allege tfiat the contestant is eligible, nor does it state that contestant is a legal voter of the county. Another ground complained of is that the notice fails to specify the names of voters claimed to be illegal.</p> <p>2. The election returns on .their face show that appellant received a majority of the legal votes east at this election, and there is no proof to overturn this prima facie case. The return from «the Parker precinct is void, so far as this contest is concerned.</p> <p>3. The election officers in the Brownsville precinct failed to count for appellant one ballot he was clearly entitled to under the law, but said officers illegally destroyed said ballot without counting it for any one, and the judgment of the circuit court, did not correct this error.</p> <p>4. The election officers of the Bee Springs precinct counted for appellee five votes which he was not entitled to. Three of said votes having been oast alone for S. J. Shackelford, for clerk of the court of appeals, and two of said ballots having been cast alone for W. E. -Settle, for circuit judge, but all counted for appellee, and said ballots were destroyed by the election .officers; and their action in this was confirmed by the judgment appealed from.</p> <p>5. The circuit court improperly and illegally deducted two votes from .the number of appellant’s votes, one cast at Bee Springs precinct, ■and tone >at -Capital Hill -preainot, upon the ground that said votes were cast by illegal voters, to-wiit, Jesse Crowley and Dick Dunn.</p> <p>6. That the circuit court heard and received -incompetent testimony, in this, that it allowed and received in evidence the alleged declarations of Jesse Crowley and Dick Dunn, of how they intended to and how they had v-o-ted. Also permitted Warren Strong, an officer of the elction to testify concerning the marks on the ballot of Dick Dunn.</p> <p>7. That the court erred in its manner of deducting alleged illegal votes from the votes cast in the election.</p> <p>Counsel discussed mainly the questions o-f fact involved in the case and upon the questions of law raised by appellant, made the following citations: 6 Am. & Eng. Ency. of Daw, pp. 302, 325, 337 and note 5; 338, 351, 357, 353 and note 1; McCrary on Elections (4th ed.), secs. 483, 484, 459, 479, 486, 491, 492, 493, 494; Haywood v. Beers, N. Y. Contested Election Cases, 180; Stinson v. Sweeney, 17 Nev., 309; State v. Sillón, 24 Kas., 13; Patton v. Coates, 41 Ark., Ill; New Jersey Case, 1 B-art, 19; Vall-indingham v. Campbell, Id., 223; Newland v. Graham, 1 Bart, 5, note; People v. Pease, 27 N. Y., 45; State v. Olin, 23 Wis., 319; State v. Craft, 18 Ore., 550; Boyer v. Teague, 106 N. C., 576; People v. Hollihan, 29 Mich., .116; Miller v. Thompson, 29 Mich., 118; Duffey Re., 4 Brewst., 531 Pa.; Thompson v. Ewing, 1 Brewst., 68-9; Houston, County Judge, v. Steele, 98'Ky., 596; Major v. Barker, 99 Ky., 305.</p> <p>Discussed generally the facts and upon the same propositions of law, made the following citations: 90 Ky., 55; 95 Ky., 421; 98 Ky., 576; 99 Ky., 305; 27 N. Y. Rep., 45; McCrary on Elections (4th ed.), secs. 492, 493, 494, etc.</p> <p>Cited to the same points the following: McCrary on Elections, pp. 321, 322, 277, 51; Imboden v. Cully, 94 Ky., 45.</p> <p>Before a vote can be rejected something more is required than to throw doubt upon it. The lack of qualification of the voter, and for whom his vote was counted, must be made clear by competent and legal evidence following the usual and ordinary methods of ascertaining .the .truth. Com. v. Barry, 98 Ky., 394; Major v. Barker, -.99 Ky., 305; Ky. Stats., sec. 1571; Newcum v. Kirtley, 13 B. M., 515; Cooley Con. Dim., p. 620.</p>

Case 105 — ACTION ON NOTE APPEAL EBOM MASON CIRCUIT COURT. 1. Section 571, Kentucky Statutes, makes it illegal for a corporation to transact any business without complying with its requirements, and no recovery can be had on a contract which it was unlawful for it to make. Vanmeter v. Spurrier, 94 Ky., 22; Vannoy v. Patton, 5 B. Mon., 248; Franklin Ins.

Case 106 — ACTION FOR DAMAGES FOR PERSONAL INJURY— APPEAL FROM CHRISTIAN CIRCUIT COURT. The judgment below should be reversed for the following reasons : 1. Because the petition did not state a cause of action against the appellant, and for that reason the court should have carried ■the demurrer to the second and third paragraphs of the answer-back to the petition, and sustained it to the petition. 2.

Case 107 — MANDAMUS. APPEAL FROM FRANKLIN CIRCUIT COURT. The Legislature did not intend by 'the ,aot of April 6, 1893, to abolish the compensation of one thousand dollars allowed the Secretary of State by the aot providing for the creation and •regulation of private corporations. . Acts of 1891-2-3, pp. 612; 731-2-3-4-5; 1257-1264; 'Constitution, secs. 96, 246; 21 Am. & Eng. Ency. of Law, 443.

<p>1. Negligence — Duty of Engineer to Anticipate Danger of Brakeman. — When an engineer is backing his train for the purpose of having a coupling made, it is his duty to look out for danger in his rear and watch the movement of the brakemen and use reasonable care and diligence in ascertaining any danger to which the latter may be subjected, and if he fails to do so and the brakeman loses his life by reason of such failure, the company is liable.</p> <p>2. Contributory Negligence — Instruction.—The court in such an action properly instructed the jury that although they might believe from the evidence that the engineer wias grossly negligent in backing his train at an unusual rate of speed, yet they should find .for the defendant if they believed from the evidence that the deceased was .ordinarily negligent either (1) in undertaking to make .a .coupling, .or (2) in standing with'one foot between the rails and that .such position was a want of ordinary prudence on his part, or (3) in attempting to make the coupling at a time when the cars were in motion, knowing the same to be more than ordinarily dangerous, or (4) that for the position of making the coupling the deceased entered between the cars from the left side of isaid ¡brain when such entry wias a want of ordinary prudence.</p>

Cash 109 — INDICTMENT FOR CONSPIRACY APPEAL FROM FRANKLIN CIRCUIT COURT. 1. The service of summons upon the Insurance Commissioner, W. H. Stone, was not sufficient to bring the defendants before the court. Ky. Stats., .sec. 631; Criminal Code, secs. 138, 146, .147. 2. The indictment is insufficient in law and the circuit court erred in overruling the demurrer thereto.

Case 110 — INDICTMENT FOR LARCENY APPEAL PROM PRANKLIN CIRCUIT COURT. 1. Appellant was entitled to have a trial on the question of her guilt or innocence on the charge contained in the indictment alone, and without submitting to the jury at the same time proof as to former convictions. 2. The court erred in admitting before the jury copies of judgments of former convictions for grand larceny because they did not come from the proper custodian. 3.

Case 111 — MANDAMUS—June APPEAL FROM FRANKLIN CIRCUIT COURT. Under the Act of May 22, 1893, ch. 74., Ky. S-tats., the panel of petit jurors consists of twenty-four and not thirty. Ky. Stats., ch. 74, secs. 2243, 2246, 2248; Geni. Stats., ch. 62, art. 2, sec. 1; also art. 4, secs. 1, 2, 3, 4, 5, 6, 7, 8, 9; Ky. Con., sec. 248. 1.

<p>Case 112 — INDICTMENT FOR ■ PER JURY</p> <p>APPEAL PROM ROWAN, CIRCUIT COURT.</p> <p>The evidence in this case is insufficient to convict the appellant of perjury. The facts proven are consistent with his innocence, and certainly it can not be said that the falsity of his testimony was established either by two witnesses or by one witness with strong corroborating circumstances. Com. v. Davis, 92 Ky., 461; State v. Massy’ 86 N. C., 659.</p>

Case 113 — INDICTMENT FOR HORSE STEALING APPEAL FROM OWEN CIRCUIT COURT. 1. The court erred in overruling the appellant’s motion to set aside the indictment herein because section 120 of the Criminal Code was not complied with, in that the name of John Loneclser, a witness who was examined by the grand jury which found and returned the indictment herein, was not written at the foot of or on the indictment herein. Criminal Code, sec. 120; Sutton v. Com., 17 Ky.