Volume 107 — Kentucky Reports

Case 1 — INDICTMENT FOR MISDEMEANOR APPEAL FROM BRACKEN CIRCUIT COURT.

Case 2 — ACTION POE. PARTITION APPEAL from grant circuit court. On delivery of deed. Ward v. Small’s Adm’r, 90 Ky., 198; Haydon v. Easter, 15 Ky. Daw Rep., 597; Owings v. Tucker, 90 Ky., 297; Banta v. 'Henry, 10 Ky. Daw Rep., 36; Ford v. Gregory, 10 B. M., 180. Upon the same point, counsel made the following citations: Wash-burn on Real Estate, 3 vol. p. 288 (ed. 1876); Hatch v. Hatch, 9 Mass., 307; Poster v. Mansfield, 3 Met.

Case 3 — ACTION FOR LIBEL APPEAL BKOM BABKEN OIEOUIT COURT. 1. As to Simpson, the cashier, the communication was not a privileged communication. Marks v.-;-, 28 Minne., 162. 2. If the communication he held privileged as to Simpson, appellant may nevertheless maintain his action against Story. Starkie on Slander & Libel, 341; Malone v. Carrico, 16 Ky. Law Rep., 155; -v.-, 121 Mass., 393; 23 Am. Rep., 279; Howard v. Baxter, 47 Mich., 198; Hoar v. Wood, 3 Met., 193. 1.

Case 4 — 'MANDAMUS APPEAL FROM FRANKLIN CIRCUIT COURT. It was the duty of the Treasurer under sec. 4701 of the Kentucky Statutes, to deduct from the warrant issued to Julian and assigned by him to the appellee, to deduct from the face of the warrant the $250 which Julian owed the State. Ky.

Case 5 — ACTION TO ENFORCE JUDGMENT — APPEAL ERO’M WARREN CIRCUIT COURT. 1. The indebtedness of White to Dearing was to be discharged in labor and therefore was not subject to garnishment. 2. The maturity of a debt can inot be accelerated even though the court had under its control the fund out of which the debt is to be satisfied. 3.

Case 6 — DIVORCE AND ALIMONY APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. The evidence shows that the wife was guilty of such misconduct'as to deprive her of any right to alimony. The proof shows conclusively that Mrs. Irwin was guilty of such conduct as precluded her in a .court of equity from recovering any alimony.

<p>Case 7 — WILL CONTEST</p> <p>APPEAL FROM BULLITT CIRCUIT COURT.</p> <p>1. The .court below should have granted a new trial on account of misconduct of the jury.</p> <p>2. There was not sufficient-evidence to authorize the jury to return a verdict against the paper which had been probated in the county -court as the last Will and tes-tament of Wesley Drake. Citations: Jackson v. Smith, 21 Wis., 26; Thompson & Merriam</p> <p>on Juries, secs. 438, 439, and authorities; Com. v. Shields, 2 Bush, 81; Woods v. State, 43 Miss., 364.</p> <p>The court did not err in adjourning the jury from Friday evening, December 24, to Monday morning, December 27.</p> <p>Counsel discussed seriatim the points urged for reversal, and in support of their contention cited: Civil Code, sec. 340, sub-sec. 2; Idem, sec. 343; Bryan v. Com., 17 Ky. Law Rep., 965.</p>

<p>Case 8 — DRAINAGE CASE</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>1. An appeal lies from a judgment under the drainage act of July 10, 1893, to any party aggrieved. Ky. Stats., sec. 2389; 19 Ky. Law Rep., 81; Ky. Stats., secs. 2394, 2395, 2397, 2396, 978; 18 Ky. Law Rep., 399; 11 Bush, 691; 78 Ky., 97.</p> <p>2. Where the drainage act provides a mode of procedure it must be followed, and where it fails to provide, the Dode of Practice governs so far as applicable. Ky. Stats., sec. 2397; Burns’ Annotated Revised Stat. of Ind., vol. 2, p. 16; 82 Ind., 118.</p> <p>3. The viewers, and not the reviewers, must be recalled to make a final report, 'if the reviewers approve their report. Ky. Stats., sec. 2395.</p> <p>4. The county judge has no power to recall the reviewers to make a final report where they have reported against the viewers’ report and the petition dismissed. Ky. Stats., secs. 2392, 2393, 2395.</p> <p>5. The reviewers are restricted to the 'complaints pointed out by the remonstrators. Ky. Stats., sec. 2391.</p> <p>O. If the reviewers make new parties to their report, such new parties have the right to remonstrance and a review. Ky. 'Stats., ecs. 2392. 2394. 2388: 124 Ind., 22.</p> <p>The points discussed are:</p> <p>1. The provisions of the drainage act of July 10, 1893.</p> <p>2. The effect under said act of the report of viewers reporting that the proposed work will not be of public benefit or utility.</p> <p>3. The effect of the report of reviewers reporting against the proposed work and that it will not be of public benefit or utility, the viewers having reported in favor of the work.</p> <p>4. The power and duty of the reviewers.</p> <p>5. The right of a petitioner to appeal to the circuit court from a final order or judgment of the county court and the extent of such right.</p> <p>6. The effect of a direction contained in the final order or judgment of the county court dismissing the petition of the petitioners where reviewers have reported against the proposed work, directing the reviewers to ascertain and report an apportionment of the costs of the proceedings, &c.</p> <p>Citations: The drainage act of July 10, 1893; Ky. Stats., secs. 2380 to 2412; Duke v. O’Bryan, 100 Ky., 710.</p>

Case 9 — INJUNCTION AGAINST TAXES APPEAL FROM CAMPBELL CIRCUIT COURT. On the question of repeal: Ky.

•Case 10 — LIQUIDATION OF INSOLVENT CORPORATION APPEAL EROM HENDERSON CIRCUIT COURT. 1. Where a cause of action is alleged against a defendant, joined with other defendants, who does not defend same, and no defense ' is made for him by any one else, judgment should .be rendered against him by default. 2.

<p>Husband and Wife — 'Assumption by Wife of Husband’s. Note.— A married woman is not bound by a note executed by ber to take up a note executed by her husband. The surrender of the husband’s note is not a sufficient 'consideration to make the renewal note executed by 'the wife an original undertaking of her own.</p>

<p>Case 12 — ACTION AGAINST CARRIER FOR DAMAGES</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>1. In the absence of special contract, common carrier is not liable beyond its own/ lines. Bryan v. Memphis & P. R. R. Co., 11 Bush, 597; Hutchinson on Carriers (-2d ed.), sec. 152.</p> <p>2. Variance between petition 'and evidence. Hall, exr., v. Penn. Co., 90 Ind., 459; s. c. 16 Am. & Eng. R. R. Cases, 165; Rogers v. E'stis, Lift. Sel. Cases, 2.</p> <p>3. Juries not to be left to assess damages by guess work. Shearman & Redfield on 'Negligence (4th ed.), sec. 740; Erie Iron Works v. Barbour, 102 Penn. St., 156; Louisville Southern R. R. Co. v. Minogue, 90 Ky., 375.</p> <p>4. Shippers bound by terms of bills of lading when fairly made and accepted without protest or objection. Adams Express Co. v. Nock, 2 Duv., 562; Same v. Loeb & Bloom, 7 Bush, 499; Same v. Guthrie, 9 Bush, 80; L. & N. R. R. Co. v. Brownlee, 14 Bush, 590; Insurance Co. v. Railroad Co., 104 II. S., 157; Myrick v. Michigan Cent. R. R. Co., 107 IT. S., 102; Hart v. Penn. R. R. Co., 112 II. S., 331; Lawson on Contracts, sec. 240; Hutchinson on Carriers (2d ed.), sees. 149b and 154.</p> <p>5. Instruction in this case contrary to law as declared by this court. L., St. L., &e., R. R. Co. v. Bourne, &c., 16 Ky. Law Rep., 825.</p> <p>6. Carriage of live stock does not impose upon carriers common law liabilities, &c. Michigan Southern R. R. Go. v. McDonough, 21 Mich., 165; L. C., &e., R. R. Co. v. Hedger, 9 Bush, 647; Baker v. L. & N. R. R. Co., 10 Lea., 304; s. c. 16 Am. & Eng. R. R. Cases, 149; Lake Shore R. Co. v. Perkins, 25 Mich., 329.</p> <p>7. In respect to misconduct of attorneys in their closing speeches to juries. Berry v. State, 10 Georgia Reps., 522; B. & O. R. R. Co. v. Boyd, 30 Am. & Eng. R. R. Cases, 378.</p> <p>1. A contract by a common carrier by which it restricts its liability to its own line is not a limitation of its common law liability. Ireland v. Mobile & O. Ry. Co., 20 Ky. Law Rep., 1586. And such a limitation is valid and has been so held by this court under a contract identical in form with the one in the case at bar. L. & N. R. R. Co. v. Tarter, 19 Ky. Law Rep., 22.9; L. & N. R. R. Co. v. Cooper, 19 Ky. Law Rep., 1152; L. & N. R. R. Co. v. Crozier, 13 Ky. Law Rep., 175.</p> <p>2. In cases of doubt a contract should never be construed as to render any part of it invalid.</p> <p>3. The evidence shows that the appellant did deliver the stock to the connecting carrier. Pratt v. Grand Trunk Line, 90 U. S., 43; Converse v. Norwich, &c., Tr. Co., 33 Conn., 166; Ray on Negligence of Imposed Duties of Freight Carriers, p. 384.</p> <p>Í4. The court erred in instructing the jury as to the measure of damages.</p> <p>[£,- The contract in this case was made under such importunate necessity for immediate transportation as to constitute duress and extortion by appellant sufficient to avoid the special contract. Adams Express Co. v. Nock, 2 Duv., 562.</p> <p>% It was the duty of the appellant to know whether its connecting line could forward the stock promptly and to report to the shipper if the connecting line had no means of receiving for further transportation. Toledo R. R. v. Lockhart, 71 111., 627; Great W. R. R. v. Burns, 60 111., 284; Galena R. R. v. Rae, 18 111., 488; Wibert v. Railroad, 12 N. Y., 245; E. Tenn. & Ga. R. R. v. Nelson, 1 Colo., 272; Carter v. Peck, 4 'Sneed, 203; South Ex. Co. v. Womack, 1 Heisk, 256; Place v. Union Ex. Co., 2 Hilton, 19; 111. Cent. R. R. v. Waters, 41 111., 73; Great W. R. R. v. Hawkins, 18 Mich., 427; Parehard v. R. R., 14 Rich. (Law), 181; Sager v. R. R„ 31 Me., 228; Empire T. Co. v. Warn Sutta Co., 63 Pa. St., 14; Condict v. R. R., 54 N. Y., 500; 111. Cent. R. R. v. Cobb, 64 111., 128; Mich. Cent. R. R. v. Burrows, 33 Mich., 6; Lou. & Nash. R. R. Co. v. Robinson, 18 Ky. Law Rep., 27'5; Same v. Hawley, 10 Ky. Law Rep., 117; Same v. Bell., 13 Ky. Law Rep., 393; Peet v. Railway Co., 20 Wis., 594; Lovett v. Hobbs, 2d. Shower, 127; Riley v. Horne, 5 Bingh., 217; Conkey v. Railway, 31 Wis., 619; Goold v. Chapin, 20 N. Y., 259; 'Miller v. Navigation Co., 10 N. Y., 431; Hutchinson on Carriers, sec. 103, referring to 16 Wall., 318; 19 Minn., 376; 99 Mass., 220; 24 111., 477; 76 111., 520; 17 Heisk., 253; 32 Vt., 665; 3 Kern., 569; 45 N. Y., 622; Id., 524; 30 Id., 564.</p> <p>3. The court below did not err in its instructions to the jury. L. ■& N. R. R. Co. v. Crozier, 13 Ky. Law Rep., 175. See further Hale on Bailments and Carriers, pp. 464, &c., and cases cited: Myrick v. Railroad .Co., 107 U. S., 102; Wehman v. Railway Co., 18 Minn., 22; Goold v. Chapin, 20 N. Y., 259; Condon v. Marquette Co., 55 Mich., 218; Conkey v. Railroad Co., 31 Wis., 619; Railroad Co. v. Mfg. Co., 16 Wall., 318; Barter v. Wkeeler, 49 N. H., 9; 33 N. Y„ 610; 59 N. Y., 611; 1 Gray, 502; 7 Heisk. (Tenn.), 253; 10 Mo. App., 134; 16 Wall., 318; 21 Fed. Rep., 885, 25.</p>

Case 13 — ACTION TO SETTLE ESTATE APPEAL FROM MADISON CIRCUIT COURT. 1. The policy under its terms was not assignable or transferable. 2. Appellee had no insurable and therefore no assignable Interest. 3. There was no valid assignment or transfer and in fact no transfer or assignment at all. Citations; Basye v. Adams, 81 Ky., 368; Hopkins v. Hopkins’ Admr., 92 Ky., 324; Beech on Insurance, sec. 175; May on Insurance, sec. 39'8; 13 Am. & Eng.

Case 14 — SHERIFF’S SETTLEMENT APPEAL FROM NELSON CIRCUIT COURT. 1. There was no legal order to pay the funds over to any one, and no one authorized to receive same. Hence there was no right to a penalty against -the sheriff. 2. The sheriff was entitled to have his commission estimated separately on the court-house fund. Citations: Ky. Stats., secs. 4146, 4147, 1874, 1876, ,988, 932, 4148, 1884, 1880, 1877; Geni.

<p>1. Attachments — Affidavits For, Aoainst Firm. — An affidavit for an attachment against a firm in this language: “Plaintiff says that the firm of O’Connor & McCulloch has no property in this State subject to execution, or not enough thereof to satisfy the plaintiff’s demands sued on herein, and the collection on these demands will be endangered by a delay in obtaining a judgment or a return of no property found,” is not sufficient under sub-section 2 of section 194 of the Civil Code; but in the absence of a motion to discharge, in which event the plaintiff might have amended, the objection comes too late after judgment.</p> <p>2. Partnership — Power of Partner as to Commercial Paper. — The rule that a partner of a non-commercial partnership has no power to bind his co-partner by the execution of commercial paper has no application in this case where it appears that the original agreement and the course of business pursued by the firm recognized the power.</p> <p>3. Same — Sub-Paetner.—An agreement between a partner and a stranger to share the former’s profits and losses does not make such stranger a partner in the original firm, though such agreement were made with the knowledge of the other partner of the original firm.</p>

Case 16 — ACTION ON INSURANCE POLICY appeal from barren circuit court. 1. Where there is a limitation upon liability contained in the body of a policy of insurance, the petition, in order to state a cause ■of action, must, by proper averment, show a loss within the liability, as thus limited. Ins. Oo. v. Bland, 9 Dana, 146; Am. Accident Oo. v. Carson, 18 Ky. Law Rep., 308. 2.

Case 17 — ACTION AGAINST TRUSTEE FOR SETTLEMENT— APPEAL FROM MARION CIRCUIT COURT. 1. The compensation allowed the trustee was excessive. It is three times as much as the trustee offered to charge his sister prior to the institution of the litigation. 2. The trustee mingled the trust funds with the funds coming to the beneficiary from her mother’s estate, and it seems to us, therefore, that the funds were not managed ini an ordinarily prudent manner. 3.

Case 18 — INJUNCTION AGAINST OBSTRUCTING PASSWAY— APPEAL FROM HARRISON CIRCUIT COURT.

<p>Case 19 — INTERVENTION—</p> <p>APPEAL erom eavette circuit court.</p> <p>discussed the points indicated -in the -.syllabus herein,, and upon his contention against the said points, cited as follows: Ky. Stats., secs. 1689, 1789; Waller v. Tate, : ’ 4 B. M.,'531; Jones on'Mortgages, sec. 1229;' Moriarity v. Vessey, -■•■6 Biish," 117;" Swigert v. Thomas,-7 Dana,- 220. .</p> <p>upon the same points, made the . following-citations:- .Civil, Code, see. '29; 21 Am.; & ■ Eng.. Ency. of, Law,. 203,.269; P-epperv, Donnelly, 87 Ky., 262; Kelsey v. Murray, 18 Abbott’s Pr.,- 294; Tallman v. Holíister,- — -Hów.' Pr., 5Ó8; ■Dayton-v.'.Wilkes, 5'Boswell, 655; Judd v. Young,‘-7 How. Pr., 79; Hawley v. Gordon, 9 Bosweli, 656; Gasquet v. Johnson, 1 La., 431; Horn v. Volcano Water Co., 13 Cal., 62; Smith v. Gale, 144 U. S., 509; Dennis v. Spencer, 51 Minn., 259; Lewis v. Howard, 28 Minn., 428;- Henry v. Travelers’ Ins. Co.,-16 Col., 179; Cur-tin v. Lathrop, 12 Col., 169; Kansas, &c., Ry. Co. -v. Fitzgerald, 33 Nev., 137; Shannahan v. Stevens, 139 111., 428; Stansell v. Fleming, 81 Tex., 294; Robinson v. Crescent City, &c., Co., 93 Cal., 316; Morey v. Let, 18 Col., 128; King v. Olds (Texas 1888), S. W. Rep., 65; Del Rio Bldg. & Loan Assn, v.'King, 71 Texas, 729; Limberg v. Higginbotham, 11 Col., 316; 5 Am. & Eng. Bney. of Law, 560; 'Bush v. Madera, 14 B. M., 2-13; Collins v. Blackburn, 14 B. M., 254; 3 Pomeroy’s Eq. Jur., sec. 1195 and note; Conway v. Alexander, 7 Cranch, bot. p., 13-6, 149; Chase’s Case, 1 Bland. Chancy. (Md.), 206; s. c. 17 Am. Dec., 456; Bennett v. Holt, 24 Am. Dec.,’455; Wallace v. Smith, 155 Pa. St., 78; s. c. 35 Am. St. Rep., 868; 4 Kent Com., top p. 148; Baker v. Thrasher, 4 Denio, 493; Tygret v. Potter & Co., 97 Ky., 54; Robinson v. Cropsey, 2 Edw. Chan., 138; Slaughter’s Admr. v. Gerson, 13 Wallace, 385; Andrus v. St. Louis Smelting Co., 130 U. S., 647; Farnsworth v. Duffner, 142 U. S., 47; Fagan v. New-son, 2 Dev., 22; Fish v. Clelland, 33 111., 243; Marshall v. Peck, 1 Dana, 611; Moore v. Turbeville, 2 Bibb., 603; 8 Am. & Eng. Ency. -of Law, 643; Jones Admr. v. Jenkins, 83 Ky., 394; 1 Hilliard Mortgages, 101, sec. 5; L. & N. R. R. Co. v. Brantley’s Admr., 96 Ky., 297; Smith v. Allen, 28 Texas, 497; Ward v. Healy, 114 Cal., 191; Clapp v. Phelps, 19 La. An., 461; Fischer v. Hanna, 8 Col. App., 471; Ragland v. Wisrock, 61' Tex,, 391; Harlan v. Eureka Mining Co., 10 Nev., 92; Shepard v. Murray County, 33 Minn., 519.</p> <p>Additional citations: Civil Code, secs. 29, 95-6.</p>

<p>Unfair Competition' — Imitating Brand. — The adoption of deceiving imitative devices, irrespective of trade-mark infringement, whereby the public is misled and the person who has built up a trade is defrauded of the fruits of his labor and skill, is an actionable -jvrong for which the person injured is entitled to an injunction.</p>

Case 21 — ACTION TO ENFORCE MORTGAGE APPEAL PROM HENDERSON CIRCUIT COURT. 1. Moses Rhodes was a necessary party -to the suit. Ky. Stats., secs. 2127, 2128. 2. The judgment does not conform to the pleadings. Upon an application to correct a misprision it was improper to allow the parties to amend the pleadings. Counsel discussed seriatim the points relied on for reversal, and in support of his contention cited Ky.

<p>Limitation. — An action which is instituted in time, and upon which summons issues and is served, is not barred by limitation merely because after the statutory period the plaintiff files an amended petition curing formal defects in the original petition.</p>

Case 23 — ACTION ON NOTE appeal prom jeppebson circuit court, common pleas division. 1. This suit was filed June 1, 1896, upon Buchanan’s promissory note of February 8, 1888, to the bank for $6,700 borrowed money, The only defense is five years’ limitation, upon the theory that the note has been placed upon the footing of a bill of exchange.

<p>Variance. — In an action by a widow, who has renounced the will of her husband, for a settlement of his estate, she can not attack as a fraud upon her marital rights a gift of certain notes made by a codicil In the absence of a pleading tendering that issue.</p>

Case 25 — ¡RULE TO' ENFORCE PURCHASE OF LAND APPEAL FROM BULLITT CIRCUIT COURT. 1. The proper and necessary parties were not before the court nor made parties to the proceeding to sell the land, and are not in any way parties to this suit nor the proceedings in this; that the parties owning an interest in said land were not made parties to the proceeding by which said land was sold nor those holding liens on said land. 2.

■Case 26 — INDICTMENT— APPEAL PROM KENTON CIRCUIT CJURT. The court erred in holding that the appellant’s plea in bar was not good. Civil Code secs. 164, 168; Kemper v. Com., 85 ■Ky., 219; Higgins v. Prater, 91 Ky., 6; Con. Conventional Debates, vol. 2, pages 2923, 2924, 2925, 2932, 2934; Houston v. Moore, 5 Wheaton, 29. Counsel urged for reversal other reasons which are rendered ■immaterial by the conclusions reached by the court. 1.

<p>Case 27 — ACTION TO TEST RIGHT TO OFFICE</p> <p>APPEAL FROM OWSLEY CIRCUIT COURT.</p> <p>1. By the terms of section 148 of the constitution, no officer of any city, town, or county or any subdivision thereof except members of municipal boards shall be elected in the same year in which members of the House of Representatives of the United States are elected.</p> <p>2. Under section 162 of the constitution, which, by a construction put upon it by this court in the Sheiley-McCullough case, controls ■all elections to fill vacancies in office, no election can be held to fill a vacancy except at an election at which either city, town, district or county or State officers are to be elected. The election of 1898 did not fall within any of these provisions.</p> <p>Citations: Berry v. McCullough, 94 Ky., 250; Shelley v. McCullough, 97 Ky., 164; Todd v. Johnson, 99 Ky., 548; Ky. Con. secs. 97, 99, 148, 152.</p> <p>The appointment of appellant was to fill the vacancy and his appointment necessarily held until the vacancy could he legally filled. Under sec. 152 of the constitution, this vacancy could not he filled at an election held m November, 1898, because at that election only members of Congress were elected. Shelley v. McCullough, 97 Ky., 179; Constitution, secs. 152, 148; Debates of the Constitutional Convention, vol. 2, pages 2079, 2081.</p> <p>1. The appointment of Neeley was limited by its terms to the first of January, 1899, and he accepted the appointment for that time.</p> <p>2. The vacancy could be filled at the November election, 1893, because this court knows judicially that Judge Hobson, a member of this court was elected judge from the third appellate district at that election.</p> <p>Citations: Berry v. McCullough, 15 Ky. Law Rep., 117; Shelley v. McCullough, 17 Ky. Law Rep., 53; Todd v. Johnson, 18 Ky. Law Rep., 354; Constitution secs. 115-, 116; Ky. Stats., sec. 947.</p>

<p>Insurance — Invalid Forfeiture Clause. — A clause in an assessment insurance policy prescribing a forfeiture for failing to pay an assessment thirty days after the agent’s notices have been issued to the members is void because it is a violation of section 712 of the Kentucky Statutes prescribing under what terms and conditions a member’s rights under .the policy shall cease.</p>

<p>Case 29 — ACTION FOR DAMAGES BY OPERATING TRAINS</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>1. Liability of Lessors. — Stickley v. C. & O. Ry. Co., 14 Ky. Law • Rep., 417.</p> <p>2. Limitation. — L. & N. R. R. Co. v. Orr, 12 Ky. Law Rep., 576; Civil Code 1851, sec. 49; 'Myers’ Ky. Code, sec. 49; Civil Code, 1876, sec. 34; Ky. Stats., sec. 2525; Burks v. Carey, 7 Ky. Law Rep., 445; Bankston v. Crabtree Coal Min. Co., 16 Ky. Law Rep., 15; O’Dell v. Little, 82 Ky., 146; McDowell v. Landrum, 10 Ky. Law Rep., 641.</p> <p>The cause of action was barred by limitation. Mrs. Onions having a right under the Code to institute the action with or without the concurrence of her husband, limitation began to run from the time of the injury and not from the time she became discovert. L. & N. R. R. Co. v. Orr, 91 Ky., 109; Civil Code, sec. 34, sub-sec. 1, 2; .Myers’ Code, sec. 49; Ky. Stats., sec. 2525; Low v. Pox, 15 Q. B. Div., 667; Garland v. Gaines, 47 Ark., 558; ■Cameron v. Smith, 50 Cal., 303; Hayward v. Gunn, 82 111., 385; Castner v. Walrod, 83 111., 171; Enos v. Buckley, 94 111., 458; Geison v. Heiderich, 104 111., 537; Brown v. Cousens, 51 Me., 305; Pope v. Hooper, 6 Neb., 178; Burkes v. Carey, 7 Ky. Law Rep,. 445; Bankston v. Crabtree Coal Min. Co., 16 Ky. Law Rep., 15; O’Dell v. Little, 82 Ky. 146; McDa^ell v. Landrum, 87 Ky., 404; Hargis v. Sewell’s Adimr., 87 Ky., 63.</p> <p>1. The demurrer of the Louisville & Nashville R. R. Co., should have been sustained. The petition did not allege any negligence upon the part of that defendant in the operation of any of its engines or cars and the petition showed affirmatively that the ■bridge and the approaches thereof and -the line of railroad tracks located near the plaintiff’s property were neither built nor owned by the Louisville & Nashville R. R. Co.</p> <p>■2. The action was barred by limitation.</p> <p>¡Citations: Myers Code, sec. 49; .Present Code, sec. 34, sub-sec. 1; Hargis v. Sewell’s Admr., 87 Ky., 63; L. & N. R. R. Co., v. Orr, . 91 Ky., 109; Gen. Stats., sec, 2, art. 4, ch. 71; Revised Stats., sec. 2, art. 4, ch. 63; Petty v. Malier, 14 B. M., 246.</p>

Case 30 — INDICTMENT— APPEAL FROM THE OWEN CIRCUIT COURT. 1, The Criminal Code — so far as it directs the names of the witnesses to be written on the indictment — is directory. 2. If such provision be mandatory, it is not to be construed to include immaterial witnesses. Citations: Criminal Code, sec. 120; State v. Hollinsmitb, 100 N. C., 535; Wyoming v. Amison, 1 Wy., 20; 1 Texas, 142; Am. & Eng. Ency. of Law, vol. 10, p. 501; 17 Ky. Law Rep., 186.

' Case 31 — RESCISSION— APPEAL FROM PENDLETON CIRCUIT COURT. Counsel discussed the points embraced in the syllabus and-urged further that the evidence showed that at the time of the execution of the deed of Mrs. Amanda Holmes, -tendered pendente lite, she was incompetent to execute same. Upon the matters of law, counsel cited: Bohannon v. Travis, 14 Ky. Law Rep., 912; Ky. Stats., sec. 506; Rogers v. Brooks, 30 Ark., ■612; 39 Am. Dec., 453; 45 Am.

<p>Criminal Law — Local Option. — It is no defense to an indictment for violating the local option law that since the commission of the offense the district has voted in favor of the sale of liquor. (Wooten v. Com., 98 Ky., 468, overruled.)</p>

<p>Criminal Law — Local Option — Indictment.—An indictment for violating the local option law must state that the judge of the ■county court madean order on his order hook directing the election to he held at a certain time; that the election was duly held at ■that time; that a majority of the legal votes cast at-the election were given against the sale; that the canvassing board found this to be a fact and certified that fact to the county court; that the judge thereof had the same spread on the order book of his court; and -that the offense charged was committed after the ■entry io'f the certificate on the -order book. And the allegation in the indictment that the canvassing board found it to be a fact that a majority of the legal votes oast- at the election were given against the sale, can. not supply the omitted substantive -averment that a majority of the legal votes cast at the election were -given against the -sale.</p>

<p>1. Negligence — 'Duty of Railroads to Travelers qn Parallel Highway. — A railroad 'Company does mot owe to travelers upon an adjacent parallel highway the duty of discovering that they have become imperiled by having their horses frightened by sounding the whistle and ringing the bell as required by statute on approaching a crossing, but only the duty of reasonable diligence to prevent damage after discovering such peril.</p> <p>2. Same — In such an action it was proper to instruct the jury that the plaintiff was entitled to recover for the whistling by which his horses were frightened if the defendant’s employees saw that if they continued to blow the whistle it would cause the horses to he frightened.</p> <p>3. Same — Duty to Keep Lookout.- — The rule' that requires -a lookout duty in cities and towns and at public and private crossings does not extend to persons on a highway parallel to the railroad.</p> <p>4 Evidence — Reading Statute to Jury. — It was not error to refuse to permit defendant’s counsel to read -a public statute to the jury.</p>

Case 35 — ACTION FOR FRANCHISE TAXES APPEAL FROM JEFFERSON CIRCUIT COIfRT, CHANCERY DIVISION.

Case 36 — ACTION ON CONTRACT^- APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. Contracts will be construed so as to carry out the intention of the parties notwithstanding such construction might be a de- • parture from the strict letter. Shultz & Co. v. Johnson’s Admr., 5 B. M., 499; Thompson v. Thompson, 2 B. M., 166; White v. Booker, 4 Met., 268. 2. Losses from injuries to employes engaged in the work of maintenance are a part of the cost of maintenance.

'Case 37 — ACTION TO ANNUL CORPORATE ACTION. APPEAL FROM LAW AND EQUITY DIVISION OF JEFFERSON CIRCUIT COURT. (Brief withdrawn.) 1. Directors are not entitled to compensation unless it is contracted for prior to .the rendition of the services. 2. The services rendered in this case were directorial in their character, and were rendered without any contract for payment. 3.

<p>Sheriff — Official Bone — Mandamus.'—The sheriff and his sureties are liable on the former’s official bond executed pursuant to sec. 4133, to a county creditor where a levy has been made to pay the debt; and the creditor must exhaust his remedies under the bond before he will be entitled to a m'andamus requiring an additional levy.</p>

Case 39 — ACTION ON ACCOUNT APPEAL FROM CRITTENDEN CIRCUIT COURT.

Case 40 — ACTION FOR PERSONAL INJURY — June 3- APPEAL PROM BELL CIRCUIT COURT- 1. The petition fails to allege facts sufficient to constitute a cause of action and the defect was not cured by any subsequent pleading. Shearman & Rediield on Neg., .sec. 8 (4th ed.); Chiles v. Drake, 2 Met., 149, and L. & N. R. R. Co. v. Wolfe, 80 Ky., 82, distinguished.

Case 41 — INJUNCTION— APPEAL FROM OHIO CIRCUIT COURT. 1. The notice under which it is sought to try and convict appellants is not sufficient and it does not state facts for which the appellee might proceed to try or remove appellants. His attempt to .proceed -against appellants thereunder is a:i attempt upon appellee’s part to assume legislative authority to create an offense. 2.

<p>1. Bill op Exceptions — Piling nunc pro tunc. — A bill of exceptions ■noted by tbe clerk as filed without -an entry of an order of record filing it may be filed by an order nunc pro tunc, and when so filed will be treated by this court as correct in the absence of any showing that the bill actually filed was different from that copied into the transcript.</p> <p>2. Insurance — Life—Powers of General Agent. — The powers of a general agent of an insurance company are prima facie co-extensive with the business entrusted to his care and while acting within the scope of his duties and apparent authority, parties dealing with him have the right to presume that he can waive any of the conditions of the contract that might be waived by the , principal officers of the corporation. If he disregarded limitations placed upon his authority the company for whom he acts, and not the person dealing with him, should bear the loss unless such person had notice of these limitations.</p> <p>3. Same — Notice.—Where the party insured executed to the general ■agent of a life insurance company his notes for the premium, and thereupon the policy was delivered to him, reciting that the consideration is to be paid in advance, with a receipt for the ■cash premium, upon which was printed in red ink a provision that no person except the president, vice-president or secretary ■of the company was .authorized to make, alter or discharge contracts or to waive forfeitures, it is held that such facts did not constitute notice to the insured of limitations upon the power of the general agent to waive the provision with reference to payment of premium in cash.</p>

Case 43 — ACTION TO RECOVER MUNICIPAL TAXES APPEAL FROM MARION CIRCUIT COURT. 1. The petition was not good. It failed to allege the preliminary steps necessary to constitute a valid assessment and levy, and under section 180 of the Constitution it did not specify the purpose for which the tax was levied. No yea and nay vote, no publication of the ordinance, no notice by the tax collector that the taxes for the current year were in his hands for collection was alleged.

Case 44 — ACTION ON NOTE APPEAL FROM LATJEEL CIBCTJIT COURT. 1. The principal in the debt and the creditor agreed to and did intentionally conceal from the surety at the time he signed the note the fact that all of the property of the principal was about to be and would be forthwith properly attached for other debts of the principal. This was such fraud as invalidated the contract of suretyship. Story’s Eq. Jur., secs. 222, 324; Pomeroy’s Eq.

©ase 45 — ACTION ON NOTE APPEAL FROM SHELBY CIRCUIT COURT., The “peddlers’ note” statute is not unconstitutional as a violation of section 51 of that instrument and it is not limited in its application to litigation between the original parties. Ky. Stats., secs. 4223, 4216; Tiedéman on Com. Paper, sec. 178; 9 Am. & Eng. Ency. of Law. 311; People v. Bussell, 49 Mich., 617; Rash v. Farley, 12 Ky. Law Rep., 918; Farmers & Drovers Bank v. U-nser, 13 Ky.

<p>Case 46 — MISDEMEANOR—</p> <p>appeal from andfrson circuit court.</p> <p>Section 4111, Kentucky Statutes, contemplates the making of a report by the owner of a bonded warehouse whether any spirits were stored therein for the period covered or not.</p> <p>The -indictment was fatally defective in failing to allege that the defendant had whisky in his 'bonded warehouse upon which the Government tax had become due during the period for which the report was-required.</p> <p>Citations: — 'Kentucky Statutes, sections 4110, 4111, 4112, 4114, 4143; Ency. of Pi. & Pr„ vol. 10, pp. 473-4.</p>

Case 47 — ACTION ON INSURANCE POLICY. APPEAL FROM BRECKINRIDGE CIRCUIT COURT. The retention of the note and the effort to collect it operated as a waiver -of the forfeiture. Moreland v. Union Cent. L. Ins. .Co., 104 Ky., 129. 1.

<p>Case 48 — ACTION FOR MALPRACTICE</p> <p>APPEAL FROM GRANT CIRCUIT COURT.</p> <p>An action for malpractice is not an action for personal in- . jury within section 2516 of the Kentucky Statutes.</p>

Case 49 — ACTION TO ENFORCE MECHANIC’S LIEN APPEAL FROM BOTJRBON CIRCUIT COURT. 1. As to the difference between a femme sole and a married woman under the act of 1894, who is not a femme sole: Ky. Stats., secs. 2127, 2128, 2147; Geni. Stats., eh. 52, art. 2, sec. 6; Hart v. Grigsby, 14 Bush, 553; Sypert v. Harrison, 88 Ky., 461; Garner v. Willis, 92 Ky., 386. 2. Where an agent fails to- disclose the principal, the principal is still liable.

<p>Tobacco Warehousemen — Penalty for Charging Commission — Construction op Section 4803 op Kentucky Statutes. — Crediting the shipper with commission and suing him for the balance is a violation of section 4803 of the Kentucky Statutes, providing that it shall be unlawful for any warehouseman or commission merchant, directly or indirectly, to charge the seller or owner anything by way of commission or otherwise for paying to him the money for which his tobacco is sold; and the warehouseman so charging is liable for the penalty denounced hy section 4807.</p>

Case 51 — ACTION FOR COST OF DIVISION FENCE. APPEAL FROM LOGAN CIRCUIT COURT. (Brief withdrawn.) A deed to a railroad company of a right of way is to he given the same construction as to the things conveyed as if the right of way had been acquired by condemnation proceedings. Under condemnation proceedings the acquisition of the right of way would have carried with it damages rendered necessary by additional fencing.

Case 52 — WILL CASE APPEAL FROM CARROLL CIRCUIT COURT. 1. The paper in question is testamentary in character, showing clearly the intention of the testator that Webster and wife should have the property named in it. The form is immaterial. Fee v. Taylor, 83 Ky., 259. 2. The circumstances of this case overcome the presumption that the ,, testator had revoked his former wills. Steele v. Price, 5 B. M., 66. 3.

Case 53 — CONFLICT OF LIENS APPEAL PROM SCOTT CIRCUIR COURT. STATEMENT. Two corporations formed a scheme of consolidation involving an enlargement of their respective plants and the extinguishment of the outstanding stock by issuing bonds to the extent of $60,-000, out of which the stockholders of the old companies were to receive 25 per cent, of their holdings and the residue were to be used so far as they could be sold to pay for the improvements.

<p>Case 54 — ACTION TO ENFORCE JUDGMENT RENDERED IN INDIANA</p> <p>APPEAL TROM WARREN CIRCUIT COURT.</p> <p>On jurisdiction; Wood v. Wood, 78 Ky., 624; Gebhard v. Gamier, 12 Bush, 324; 26 Am. Rep., 726; Thompson v. Whitman, 18 Wallace, 457; Grover & Baker S. M. -Co. v. Radcliff, 137 U. S., 287, 670; 2 Black on Judgments, p. 837; Shepherd v. Wright, 59 How., 512; 31 Am. Rep., 322; 31 N. W. R„ 477; 4 J. J. Mar., 158; 3 Dana, 279; 6 B. Mon., 500; 2 Met., 394; 81 Ky„ 196.</p> <p>On the question of jurisdiction: First, second and third Constitutions of Kentucky; Debates Const. Conv., vol. IV., pp. 4846-4866; Green v. Biddle, 8 Wheat., 1-85; Fowler v. Halbert, 4 Bibb., 54; Dembitz Ky. Jur., p. 17, sec. 6.</p> <p>Additional citations-: McFall v. Com., 2 Met., 394; Constitution of Indiana, art. 14, seo. 222; Sherlock v. Ailing, admr., 44 Ind., 184; Pennsylvania v. Wheeling Bridge Co., 13 How., 566; Compact of 1789.</p> <p>Citations: Compact with Virginia, Revised Laws of Va., vol. 1, p. 59; Revised. Laws of Kentucky, p. 53; Rev. Stat. of Ind., sec. 222; Carlisle v. State, 32 Ind., 35; Dugan v. State, 125 Ind., 130; s. c. 25 N. E., 171, 9 L. R. A., 321; Welsch v. State, 125 Ind., 71; s. c. 9 L. R. A., 664; 25 N. E., 883; Sherlock v. Ailing, 44 Ind., 184; McFall v. Com., 2 Met,, 394; Garner’s Case, 3 Gratt., 605; Handley’s Lessee v. Anthony, 5 Wheat., 374.</p> <p>(After the decision had been rendered in this case, the court granted specially to the State of Indiana the privilege of being heard in a petition for a rehearing and an oral argument upon same. And thereupon WILLIAM L. TAYLOR, Attorney-General of Indiana, with MERRILL MORRIS and CASSIUS- C. HADLEY of counsel, filed a brief in which he insisted):</p> <p>1. That a reversal of the judgment of the Warren Circuit Court w-as a violation of the Constitution -of the United States in two respects: (a) It tended to impair the Virginia oom-pact which was a -contract of the Commonwealth of Kentucky, -and thus violated art. 1, sec. 10 of the Constitution of the United States as fully as might any act of legislation impair the obligation of that contract; and (b) it denied to the Indiana Court and its proceedings the full faith -and credit guaranteed by art. 4, sec. 1.</p> <p>Upon said point counsel made the following citations: Va. Compact of 1789, Ky. Stat., 1894, p. 43; Act admitting Kentucky, Ky. Stat., 1894, p. 46; first three Kentucky Constitutions, Ky. St., 1894, pp. 52, 62, 78; Fowler v. Halbert, 4 Bibb., 54; Church v. Chambers, 3 Dana, 278; Arnold v. Shields, 5 Dana, 22; McFall v. -Com., 2 Met., 398; Louisville Bridge Co. v. Louisville, 81 Ky., 194; Garner’s Case, 3 Gratt., 674, 709; State v. Plants, 25 W. Va., 119; Handley v. Anthony, 5 Wheat., 385; Green v. Biddle, 8 Wheat., 8-5; Penn. v. Wheeling Bridge Co., 13 How., 566; Carver v. Astor, 4 Pet., 101; Hawkins v. Barney, 5 Pet., 457; Charles River Bridge v. Warren Bridge, 11 Pet., 582; McKinney v. Carroll, 12 Pet., 66; Pollard v. Kibbe, 14 Pet., 413; Bronson v. Kinzie, 1 How., 316; Penn. v. Wheeling Bridge Co., 18 How., 432; Lavin v. Savings Bank, 1 Fed. Rep., 655; United States v. New Orleans, 17 Fed. Rep., 488; Griswold v. Bragg, 48 Fed. Rep., 522; Leighton v. Young, 52 Fed. Rep., 444; Wharton v. Wise, 153 TJ. S„ 155; New Jersey v. Wilson, 7 Cranch, 164; Providence Bank v. Billings, 4 Pet., 504; Woodruff v. Trapnall, 10 How., 190; Wolff v. New Orleans, 103 TJ. S„ 358; New Orleans Gas Co. v. Louisiana Light Co., 115 -U. S., 672; Vattel. Law of Nations, hook 1, secs. 203, 204, 295; 'Constitution of United States, art. 1, sec. 8; Ky. Stats., 1894. secs. 2831, 2852, 3058, 3039, 3290, 3490; Board of Trustees of Falmouth v. Watson, 5 Bush, 660; Lutz v. Crawfordsville, 109 Ind., 466; Emerich v. Indianapolis, 118 Ind., 279; Kaufle v. Delaney, 25 W. Va., 410; Flack v. Fry, 32 W. Va., 364; Neal v. Com., 17 S'. & R., 67; Coldwater v. Tucker, 36 Mich., 474; Gould v. Rochester, 105 N. Y., 46; Indiana Acts, 1830, pp. 180, 182; McFadin v. State, 1 Ind., 557; Indiana R. St., 1843, ■p. 66; Indiana Constitution, 1851, art. 14, sec. 2; 1 Ind. Rev. Stat., 1852, p. 197; 1 Indiana Rev. Stat., 1876, p. 222; Ind. Rev. Stat., 1881, sec. 4207; 2 Ind. Rev. Stat., 1894, sec. 5544; Car-lisle v. State, 32 Ind., 55; Sherlock v. Ailing, 44 Ind., 184; s. c. 93 U. S., 99; Dugan v. State, 125 Ind., 130; s. c. 9 L. R. A., 321; Welsh v. State, 126 Ind., 71; s. e. 9 L. R. A., 664; Memphis & Cin. Packet Co. v. Pikey, 142 Ind., 304; Gilbert v. Moline Water Power Co., 19 Iowa, 319; State v. Mullen, 35 Iowa, 199; Mc-Ginnis v. Pontiac, 5 McLean, 359; Seven Coal Barges, 2 Biss., 300; The -Lewell-en, 4 Biss., 156; Ky. Stats., 1894, secs. 1144, 1143, 1146, 1147, 3039; 12 Am. & Eng. Ency. of Law, 296; Rapalje & Lawrence’s Law Diet., Bouvier’s Law Diet.; Wiggins Ferry Co. v. Reddig, 24 111. App., 26‘5; Opsahl v. Judd, 30 Minn., 129; State v. George, 60 Minn., 505; State v. Cameron, 2 Pinney (Wis.), 495; Keator Lumber Go. v. St. Croix Boom Corp., 72 Wis., 95; Sanders v. N. O. & St. L. Anchor Line, 97 Mo., 26; Swearingen v. Steamboat Lynx, 13 Mo., 519; State v. Metcalf, 65 Mo. App., 681; State v. Plants, 25 W. Va., 119; State v. Mullen, 35 Iowa, 199; Buck v. Ellenbolt, 84 Iowa, 3-94; s. c. 15 L. R. A., 187; Com. v. Frazee, 2 Phila., 365; Cooley v. Golden, 52 Mo. App., 229; Missi. & Mo. Br. Co. v. Ward, 2 Black, 483; In re Mattson, 69 Fed. Rep., 535; Indiana v. Kentucky, 136 U. S., 509;. Edwards County v. White County, 85 111., 392; Constitution -of United States, art. 1, sec. 10; art. IV, sec. 1.</p> <p>Additional citations: The Norma, 32 Fed. Rep., 411; 12 Am. & Eng. Ency. of Law, 244; 23 Am. & Eng. Ency. of Law, 298; Rorer on Interstate Law, p. 437; Gould on Waters, sec. 71, p. 142; 16 Am. & Eng. Ency. of Law, 258; Atcheson, v. Ehdless Chain Dredge, 40 Fed. Rep., 253; Gilbert v. Moline, 19 Iowa, 321; Com. v. Frazee, 5 Am. Law Reg. (O. S.), 167; s. c. 2 Phila., 191.</p> <p>In response to tbe petition for a reliearing JOHN W. RAY, for the appellees, filed a brief in which, he made the following citations: 6 Ohio, 505; 6 Blackford, 280; Sturgis v. «Fay, 16 Inti., 429; Vaittel Law of Nations, sec. 203; Story Conflict of Laws, sec. 538; 33 Me., 414; 99 Mass., 267; 1 Cushing, 23; 30 Vt., 292; 10 Iowa, 575; 47 Iowa, 307; 7 Lans. (N. Y.), 388; 4 Paige, 425, 7 Watts & S. (Pa.), 451; 8 Mich., 320; 38 Mich., 765; 18 Wallace, 367; 141 U. S., 679; 173 U. S.. 612; 1 Vroom, 29; 5 Wheat., 33; 3 Gratt., 673; 25 W. Va., 119.</p> <p>(Upon the petitions :for rehearing, the court granted an oral argument which was heard by the full court, and thereupon the petition was overruled; Judge Hobson dissenting.)</p>

Case 515 — ACTION ON INSURANCE POLICY APPEAL PROM M’CRACKEN CIRCUIT COURT. The company was estopped by its practice of crediting the -appellee beyond the strict letter of his contract -and by retaining the payment from the 11-th to the 19th of November. May -on Insurance, secs. 360, 361, 362 and 4; Herman on Estoppel, 2d., secs. 1204, 1206, 1207; Phoenix Life Ins. Co. v. Raddin, 120 U. S., 19'6; Ins. Co. v. W-olff, 95 U. S., 331; Ins.

<p>Receivers — Indictment Against: — A receiver who is operating a railroad is liable to indictment under section 772 of the Kentucky Statutes for failing to provide water closets at the stations of the road operated by him.</p>

ICase 57 — ACTION ON PROMISSORY NOTE APPEAL PROM DAVIESS CIRCUIT COURT. 1. It is a self-evident proposition applicable to all writings that an interlineation, erasure, or other alteration in a written instrument can not, as a general rule, affect its validity, unless the alteration was made after execution and delivery. 2 Am. '& Eng. Ency. of Law (2d. ed.), 194; Hall v. Weaver, 34 Fed. Rep., 104. 2.

<p>Case 58 — WRIT OF PROHIBITION</p> <p>APPEAL PROM CAMPBELL CIRCUIT COURT.</p> <p>The relief sought was a writ of prohibition to prevent a justice of the peace frying a writ of forcible detainer out of term time.</p> <p>1st. Is the petition defective? Ky. Stats., sec. 1085.-</p> <p>2d. Is the writ of prohibition the appropriate remedy? Civil Code, sec. 479.</p> <p>3. Writs of forcible entry and detainer may be tried out of term time. Civil Code, secs. 452, 469; Ky. Stats., sec. 1085.</p> <p>1. Tile allegation tiiait “said 5th. day of July was a d-ay out of term time” is not a conclusion of law.</p> <p>2. Prohibition the appropriate remedy.to prevent the execution of a judgment- when the court had acted outside its jurisdiction in rendering said judgment.</p> <p>3. A forcible detainer action is a “civil cause” in the meaning of that term -as used in -section 1085 of the Kentucky Statutes and can only be tried at a regular term of a justice’s court. Ky. Stats., sec. 1085; 9 Am. & Eng. Ency. of Law, 21, 22; 2 Eng. Stat. at L„ 240, 339; 3 Eng. Stat. at L„ 121; .-9 Ency. -of PI. & Pr., p. 23, 31; 4 Eng. Stat. at L., 243; Chiles et al., v. -Samuel, 3 A. K. -Mar., 350; Y-enh-off & Co. v. Morgan, &e., 11 Ky. Law Rep., 276.</p> <p>4. An -order granting a writ of prohibition can not be superseded.</p>

Case 59 — 'PROCEEDING TO APPOINT COMMITTEE FOR INCOMPETENT appeal from warren circuit court. 1. No notice was required to give tke court jurisdiction to kold the inquest. Lackey v. Lackey, 8 B. Mon., 107; Ckavannes v. Priestly, 80 Iowa, 316; Ky. Stats., secs. 2157, 2160. 2. If notice would otherwise have been required tke fact that defendant was represented by counsel was sufficient to dispense with notice. Martin v. Motsinger, 130 Ind., 555. 3.

■Case 60 — ACTION O.N NOTE APPEAL PROM TODD CIRCUIT COURT. 1. Section 4223, Kentucky Statutes, being section 34 of article X of the act of November 11, 1892. entitled “Revenue and Taxation,”is unconstitutional and void in so far as -it applies to persons selling patent rights or territory. . 2. One of the notes' in suit was placed' on the footing of a bill of exchange and not being absolutely void, there is no defense plead-able thereto. 3.

Case Cl — INDICTMENT FOR MISDEMEANOR APPEAL FROM HENDERSON CIRCUIT COURT. 1. The remarks of the Commonwealth’s Attorney were improper, and the appellee is entitled to a new trial on account of them. People y. Ahlen, 92 Cal., 282; Elliott’s Geni. Prac., sec. 692; State v. Bobbst, 32 S. W., 1151; Sinclair v. State, 32 S. W., 531; Hatch v. State, 8 Tex. App., 416; People v. Dane, 59 Mich., 550. 2.

<p>Insurance — Parol Conteaot to Renbw. — A parol contract ¡to renew insurance made before the expiration of a policy is good, though nothing is said -about the premium, where the parties h-ave dealt together for several years ¡and know the rate of premium and the agent has been in .the habit .of giving credit for the premium.</p>

Case 83 — ACTION TO ENFORCE JUDGMENT FOR ALIMONY APPEAL FROM JEFFERSON CIRCUIT OOURT, LAW AND EQUITY DIVISION. 1. The judgment of 1879 for -alimony is a continuing judgment and the statute of limitation of this State can not apply. 2 Am. &'Eng.

Case 04 — ACTION FOR NEGLIGENCE CAUSING DEATH APPEAL JTROM TODD CIRCUIT COURT. 1. The new Constitution and ithe statute enacted pursuant to same make the -master -liable in ail -cases for the negligence of a servant causing the de-ath of his fellow-servant. 2.

Case 65 — ACTION ON SHERIFF’S BOND APPEAL FROM LETCHER CIRCUIT COURT. 1. The court can, not render judgment in a common law action upon the face of the papers where an issue is made. 2. In an -action upon a writing, the execution, of which is denied, burden of proof is upon .the plaintiff. 'Andrews v. Hayden, 88 Ky., 495. 3.

<p>1. Practice — Alternative Relief — Motion to Elect. — An action, to annul a devise for charitable purposes on tbe ground that such devise is void for uncertainty does not contain inconsistent causes of action because tho petition prays in the alternative for an enforcement of the trust if it should be declared a valid one.</p> <p>2. Limitation — Question not Raised by Demurrer. — The statute of limitations can not be taken advantage of on general demurrer to the .petition unless the defenses go to the entire cause of action stated as to all the plaintiffs.</p> <p>3. Lapse of Time — Laches.—“When lapse- of time does not operate as a statutory bar, it can be applied only by raising a presumption of assent to the existing status under such circumstances as to prevent substantial justice being done between the parties, in which event ithe courts will declare the relief sought inequitable; or in cases where, on account of the gross neglect and laches in bringing the suit, the disturbance resulting from the establishment of the claim would make it a matter of public policy that ■the offending party shall abide the consequences of his own failure.”</p> <p>4. Devises to Charitable Objects — Gy Pres — Certainty Required. —A devise in this language: “I bequeath to my brother, the most Rev. M. J. Sipalding, Archbishop of Baltimore, all my real, personal and mixed estate, and all I may die seized of, for ■charitable objects, to be expended for said objects under this diocese of Louisville, according to his discretion,” is void for uncertainty.</p> <p>5. Equity — Imposing Equitable Terms. — Ini reversing the case with directions to adjudge the will invalid the court imposed as an equitable condition that all expenses -in caring for the property in an effort to execute the trust should be paid and thait reasonable compensation should be made for the management of the property.</p>

<p>1. Bill of Exceptions — Filed in Vacation by Agreement. — An agreement entered into by parties to a litigation at the time the motion for a new trial is overruled, that the unsuccessful party shall have thirty days within which to file a bill of exceptions, will preclude the successful -party from making the objection that the bill was filed in vacation.</p> <p>2. Agency — Question of Fact. — The question whether the contract sued oh was within the scope of the agency of the person through whose instrumentality it was effected having been properly submitted to the jury upon conflicting evidence, the verdict will not be disturbed.</p>

Case 68 — TAXATION— APPEAL FROM HENDERSON CIRCUIT COURT. 1. The petition does not state a cause of action. There is no allegation of fraud and the only ground for the relief sought is over-valuation. Cooley on Taxation, secs. 748, 750, 775, 784, 529; High on Injunction, 494; 3 Ky. Law Rep., 156; 10 Ky. Law Rep., 25; 8 Ky. Law Rep., 706; 121 U. S., vol. 30 L. ed., 1000; 46 S. W. R., 57°6; 11 S. W. R., 1111.

Case 69 — PETITION FOR WRIT OF PROHIBITION — COTJET OF APPEALS, ORIGINAL JURISDICTION. 1.

Case 70 — CONTESTED LOCAL OPTION LAW APPEAL PROM OHIO CIRCUIT COURT. 1. The election in controversy was not held, by secret ballot, and for that reason it is void. -Ky. Con., sec. 147; Ky. Held: by secret ballot, and for that reason it is void. -Ky. Con., sec. 147; Ky. Stats., sec. 1462. 2. County courts are courts of limited jurisdiction; they have no power or jurisdiction except such as is expressly conferred by statute.

Case 71 — ACTION FOB DAMAGES FOB DEDAY IN DEDIVEBING TEDEGBAM APPEAL FROM MARION CIRCUIT COURT. (No brief in the record.) 1. The. motion for a peremptory instruction should have been sustained. The message was a night message, sent as such because it was cheaper and the message was delivered strictly in accordance with the terms and conditions assented to by the sender. 2. Any instruction authorizing vindictive damages was improper. 3.

' Case 72 — ACTION FOR DAMAGES FOR DELAY IN DELIVERING TELEGRAM APPEAL PROM MARION CIRCUIT COURT. (No brief on file.) On errors in instructions: W. U. T. Co. v. Harding, 3 N. E. R., 174; Given v. W. U. T. Co., 24 Fed. Rep., 119. 1. The telegraph company having established reasonable office hours for the delivery of messages at McKinney, was not answerable for not delivering messages out of these office hours.

Case 73 — ACTION AGAINST BUILDING ASSOCIATION FOB OVER-PAYMENT APPEAL FROM MONTGOMERY CIRCUIT COURT. The borrowers from a building and loan association are stockholders and -the rights and liabilities appertaining to them in the capacity of stockholders will not be confounded with those pertaining to them as borrowers. Simpson v. Bldg. Assn., 19 Ky. Law Rap., 1176; Rogers v. Rains, 18 Ky. Law Rep., 768; Henderson Bldg. & L. Assn. v. Johnson, 88 Ky., 197.

<p>Board op Health — County—Powers op — Section 2055, Kentucky Statutes.- — Under section 2055, Kentucky Statutes, the County Board of Health, duly appointed hy the State Board, is vested with power to take charge of persons suffering from smallpox or suspected of infection, and to take control of the pest house where -patients suffering with the disease are confined. And to this end the County Board is entitled to a mandatory injunction against the county authorities putting the pest house under its control.</p>

Case 75 — ACTION FOR BREACH OF WARRANTY — appeal pbom lee circuit court. 1. There is no ouster and so there is no breach of covenant of warranty of title. 2. There was no lien upon the land at the time the deed to appellee was made on the 17th of April, 1884, and there never was after that time a valid legal lien upon it, and consequently no breach of covenant that the land is free from lien. 3.

<p>1. Evidence — Similar Damage to Other Property. — In the trial of an action for damages against an electric light company for injury to plaintiffs realty hy the operation of defendant’s plant upon adjoining premises, evidence of similar damage to other adjacent property is incompetent.</p> <p>2. Same — Limiting Plaintive to Damage to the Institution oe the Action. — In such an action it is not .error to limit the testimony as to the alleged complaint to the date of the institution of the action, as plaintiff would not be estopped from bringing a new suit for such damages as she might suffer subsequently to the institution of the action.</p> <p>3. Trial — Reading Decisions to the Jury. — It is error for the court to permit an attorney of one of the .parties to a case on trial to read to the jury -an opinion of the Court o'f Appeals and to comment thereon over the objection of the adverse party.</p> <p>4. Misconduct on Onfioeb in Charge on the Juby. — It is misconduct of the sheriff who .had .been sent in charge of the jury to view the premises, to instruct an employe of defendant to put on steam with certain force so as to give to the jury a practical exhibition of the operation of the works.</p> <p>5. Instbuctions. — The court finds that there is no error in the instructions given to the jury.</p> <p>6. Same. — It was not, error om the part of the court to fail to instruct the jury on the question of noise in the operation of the •plant, as the testimony conclusively shows that the noise complained' of was only the usual and ordinary one incident to a careful operation of such plants.</p>

Case 77 — CONFLICT OF LIENS APPEAL PROM CAMPBELL CIRCUIT COURT. The sole question in this appeal is whether Robt. H. Stockton acquired a lien upon the real estate of Logan H. Taylor set out and described in the petition, which was prior to the lien of ■appellant under its mortgage. • No case can be found having any analogy to the case at bar sustaining an equitable lien upon real estate.

<p>1. Courts opContinuousSession — Control over Judgments — Divorce. The Kenton Circuit Court, a court of continuous session, had no power to enter an order in November, 1898, setting aside a . final decree dismissing an action for divorce rendered December 20, 1897, although a motion to set aside the decree had been made within sixty days and continued from time to time. Such a motion was not a motion for a new trial and if it could be so considered it was not made within fifteen days.</p> <p>2. Appeals — Motion to Set Aside Void Order. — A motion to set aside a void order as a condition precedent to an appeal is not necessary where the party against whom it was made was in count objecting to its entry.</p>

Case 79 — ACTION FOR DIVIDENDS APPEAL PROM MONTGOMERY CIRCUIT COURT. 1. Limitation — 'Invoked ry Corporation against Stockholder.— B. claiming to have been a stockholder in appellant corporation, failed for forty years to claim or exercise any title to the shares now claimed.

Case 80 — ACTION ON INSURANCE1 POLICY — INTERPLEADER— APPEAL EROM CARLISLE CIRCUIT COURT. 1. When a debt is barred hy limitation, the lien (in this case a pledge of life insurance policy as collateral security) is also barred. Colebrook on Collateral Secureties, section 157; Mc-Cracken County v. Mercantile Trust Co., 84 Ky., 344; First National Bank v. Thomas, 8 Ky. Law Rep., 690; s. c. 3 S. W. R., 12; Tate v. Hawkins, 81 Ky., 577. 2.

Case 81 — ACTION FOR DAMAGES FOR DELAY IN - DELIVERING 'TELEGRAM. APPEAL FKOM SIMPSON CIBCUIT COURT. Damages are not recoverable wbore tbe only ground is mental suffering, occasioned by tbe breach of a contract to promptly transmit and deliver a telegram. Crawson v. W. U. Tel. Co., 47 Fed. .Rep., 544; Chase v. W. U. Tel. Co., 44 Fed. Rep., 554; Cobb v. W. U. Tel. Co., U. S. Dist Ct., Kansas, 1883; Gagan v. W. U. Tel. Co., 59 Fed. Rep., 433; Rulmer v. W. U. Tel. Co., 37 Pac.

<p>Parties — 'Action for Failure to Deliver Telegram. — A wife can inot recover against a telegraph company for mental suffering caused- by failure to deliver a tel-egr.am to her husband announcing the death of the wife’s grandmother, whereby the wife was prevented from attending the funeral, no notice -appearing that the purpose of the telegram was to bring her to the funeral.</p>

Case 83 — ACTION FOR LOSS OF PROPERTY AGAINST SLEEPING CAR COMPANY APPEAL prom jeeferson circuit court, common pleas division. The peremptory instruction to find for the defendant should have been given. There was no evidence of negligence upon which to predicate - a recovery. Pullm-an Palace- Car Co. v. Gaylord, 6 Ky. Law Rep., 279; Pardee v. Tyler, 1 Ry. & Oorp. Journal, p. 490; Dairgen v. Pullman Pal. -Car Co., 26 Am. & Eng. Ency. -of Law, 149; Keith v. Pullman Pal.

<p>Common Carriers — 'Owners oop Licensed Vehicles. — One who owns a line of licensed vehicles by which he undertakes to transport merchandise from one part of the city to another for the public generally is a common carrier; and when he contracts to transport goods to a neighboring city his liability is that of a carrier who has undertaken without restriction to carry beyond his line.</p>

<p>Case 85 — ACTION FOR. DAMAGES FOR NEGLIGENCE IN THE DELIVERY OF A TELEGRAM —</p> <p>appeal prom oaldwell circuit court.</p> <p>1. On the validity of the contract: Smith v. W. U. Tel. Co., 83 Ky., 104; W. U. Tel. Co. v. Fountain, 58 Ga., 433; Wolf v. Weston, 62 Pa. St., 83; Sweetland v. Illinois, 27 Iowa, 432; Breese v. U. S., 48 'N. Y„ 132; U. iS. T. Co. v. G-ildersleeve, 29 Md., 232; West Uniion* v. Buchanan, 35 Ind., 429; Hubbard v. W. U. Tel. Co., 33 Wis., 5-58; Teleg. Oo. v. Griswold, 37 Ohio, 301; Tyler v. W. U. Tel. Co., 60 111., 421; Ellis v. Amer. T. Co., 13 Allen, 234; 25 Am. & Bn-g. Bncy. of Law, 748, 779, 78b; Sou. Exp. Co. v. Caldwell, 21 W-all., 269; 2 Am. & Eng. Ency. of Layr, 822, 823; Dorr v. New Jersey N<av. Co., 11 N. Y., 485; Adams Exp. Co. v. Nock, -2 Duv., 5-62; Ad-ams Exp. Co. v. Guthrie, 9 Bush, 78; Louisville, &e.^ R. R. Co. v. Hedger, 9 Bush, 645; Rhodes v. Loui-siville, &c., R. Co., 9 Bush, 688.</p> <p>2. Contract no binding effect upon receiver of a message. W. U. T. Co. v. MoKibbon, 114 Ind., 511; 21 Am. & Eng. Corp. Cas., 137.</p> <p>(Brief not in the record.)</p>

Case 86 — ACTION TO SETTLE, ESTATE APPEAL FROM WARREN CIRCUIT COURT. 1. The wi-dow is entitled to one-third of the rents and profits of the d-pwable real estate, until -the dower is assigned and this claim is superior to the lién-holders’ rights. Wilson v. Ewing, 79 Ky., 551; Ky. Stats., sec. 2138. 2. The mortgagee has no -lien upon or right -to the -rents, unless- pledged by the mortgage.

Case 87 — ACTION FOR DAMAGES CAUSING DEATH APPEAL FROM COMMON PLEAS DIVISION, JEFFERSON CIRCUIT COURT. I. The court should have instructed the jury peremptorily to find for the defendant. The pleadings did not show that the accident occurred within the city of Louisville, and this defect in the petition was not cured by .the answer. 2. Upon the merits the evidence did not show a dedication to the city at the place where the accident occurred, and- its acceptance by the city.

<p>1. Constitutional Law — Election Commissioners. — The act of March 11, 1898, entitled “An act to further regulate elections,” authorizing the Board of Election Commissioners to fill vacancies in its own body is not a violation of those provisions of the Constitution, prescribing bow vacancies may be filled and conferring on the Governor the power to fill vacancies.</p> <p>2. Injunction — In Protection of Public Officials. — Where an officer in the rightful possession of his office, is molested or interfered with in the discharge of his official duties and to the detriment of the public business, he is entitled to an injunction .against interference with him in the performance of such duties.</p> <p>3. Same — Granting and Dissolving in Same Order. — An order granting an injunction and dissolving same in the same order on the judge’s own motion will be treated as if an injunction had been in force and then dissolved; and an application may then be made to a judge af this court for reinstatement.</p> <p>JUDGES GUFFY, DuRELLE and BURNAM dissenting.</p>

■Case 89 — WILD CONTEST APPEAL FROM GRAVES CIRCUIT COURT. 1 The court erred in permitting witnesses to testify to their opinions as to the testator’s rationality. Wise v. Foote, 81 Ky., 12; Newcomb v. Newcomb, 96 Ky., 122. 2. The court erred in permitting Mrs. Folks to.testify after the introduction o,f other evidence in chief. Civil Code, sec. 606, snb-sec. 4; Amer. Wire Nail Co. v. Bayless, &c., 91 Ky., 103. 3.

<p>Case SO — INDICTMENT FOR PROMOTING A LOTTERY</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION.</p> <p>The plea in bar is deficient technically. Rapalje’s Crim. P.rooed., 140; Hackheimer on Crimes, 183.</p>

<p>Case 91 — INDICTMENT FOR PROMOTING A LOTTERY</p> <p>APPEAL PROM JFEFERSON CIRCUIT COURT, CRIMINAL DIVISION.</p> <p>The third count in the indictment stated a complete offense. Rapalje’s Crim. Proc., SO; Com. v. Davis, 13 Bush, 318; Ky. Stats., secs. 2580, 2573; Desty Crim. Law, sec. 55; 1 Wharton Crim. Law, 291; 1 McClain Crim. Law, 552; 1 Bishop Crim. Law, 142; 10 Am. & Eng. Ency. of Law, 531; 28 Am. & Eng. Bncy. of Law,-202; 'Green v. State, 2 Cr. Mag., 463; Massie v. Com., 14 S. W. R., 419; Perrill v. Com., 1 Duv., 153; Hatfield v. Com., 11 Ky. Law Rep., 468; Com. v. Whipp, 80 Ky., 269; U. S. v. Lancaster, 2 McLean, 431.</p>

Case 92 — INDICTMENT FOR MISDEMEANOR — Appeal prom m’cracken circuit court. Section 633 of the Kentucky Statutes defines agent, and that definition must cpntrol.

-Case 93 — .INDICTMENT FOR HOUSE-BREAKING — APPEAL PROM JEPFERSON CIRCUIT COURT, CRIMINAL DIVISION. 1. 'No crime against the statute shown. Ky. Stats., sec. 1162. 2. The court -erred in defining “taking.” On the points made by counsel for appellant. Ky. Stats-., sec. 1162; Breckinridge v. Com., ,97 Ky., 272; Com. v. Prewitt, 82 Ky., 240.

<p>1. Contracts — Partial Restraint of Trade — Validity.—A contract entered into by merchants of Russellville, binding themselves to close their places of business at 6:30 o’clock, beginning May 15, 1895, and lasting until the 1st of September, is a valid and binding agreement, the consideration for same being the mutual obligation to close.</p> <p>2. Same — Question of Pact. — The defense introduced to the suit of an agreement that certain conditions had been omitted from the contract is a question of fact upon -which this court declines to interfere with the judgment below.</p> <p>3. Same — Injunction.—In such a case, an injunction is a proper remedy. The recurring breach each day requiring numerous actions at law. A court of equity has jurisdiction to prevent a multiplicity of actions.</p>

■Case 05 — ACTION FOR SALE AND PARTITION — APPEAL FROM JEFFERSON. CIRCUIT COURT, CHANCERY DIVISION. • 1. The allegations of the amended answer and cross-petition of Katie Williams, &c., are sufficient to sustain the warning order issued thereon. Ky. Stats., sec. 1639; Foulks v. Rhea, 7 Bush, 568; Bank of Louisville v. Bd. of Trustees, 83 Ky., 230. 2. Allegations as to unknown heirs. Civil Code, sec. 57, sub-sec. 4. 3.

Case 96 — ACTION TO ENFORCE ASSESSMENT FOR STREET IMPROVEMENTS APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. That proper tax district for assessment of costs of this improvement extends back from .Churchill street only to Zane street, if extended. Cooper v. Nevin, 90 Ky., 85; Dumesnil v. Shanks, opin. April 18, 1895. 2. Payment of original apportionment warrant does not relieve lot owners from duty of payment of increased assessment under corrected apportionment.

Case 97 — ACTION FOR. DAMAGES FOR DELAY IN DELIVERING TELEGRAM APPEAL FROM I-IARDIN CIRCUIT COURT. 1. The verdict is not sustained by the evidence. 2. The verdict of the jury is excessive. 3. The jury disregarded the second instruction in which they were told that the defendant had a rule no.t to deliver messages from its office at Elizabethtown between 7 p. m and 7 a. m., and that it had the right to make such rule if reasonable. 4.

<p>Criminal Law — Liquor Selling — Penalty.-—The local option act of 1894 operated as an amendment to the special act applicable to Webster county as to the penalties for selling liquor in - violation of -the provisions .of the special act. ,</p>

<p>Case 99 — INDICTMENT FOR MISDEMEANOR</p> <p>APPEAL EROM GALLATIN CIRCUIT COURT.</p> <p>(No briefs in the record.)</p>

Case 100 — ACTION F.OR DAMAGES FOR MALICIOUSLY SUING OUT ATTACHMENT appeal from bracken circuit court. 1. As to the cause of action for damages sustained by reason of the attachment in the former action: (■a) The cause of action as to this was for suing out an at tachmenit against appellee 'and his property maliciously and without probable or good cause and not for levying an attachment sued out against W. A. Gibbons on the property of appellee.

Case 101 — ACTION TO FORECLOSE CHATTEL MORTGAGE}— APPEAL PROM HART CIBCtTIT COURT. A mortgage 'Should be recorded in the county where the property is at the time it is put to record. Singleton v. Young’s exrs., 3 Dana, 559; 1 Stat. Law., 449; Vaughn v. Bell, 9 B. Mon., 447; Ky. Stats., Sec. 49'5; Finley’s exrs. v. Linch, 2 Bibb, 666; Taylor v. McDaniel’s hrs., 2 Bibb, 420; Garrison v. Haydon, 1 J. J. Mar., 222; Low v. Blinco, 10 Bush, 331. The answer of Coppage was not good.

<p>1. Criminal Daw — 'Homicide—Insanity—Evidence.—Persons who ■are not experts, 'but who toy association and observation have ■had an -opportunity to form an opinion as to the insanity of a •person may testify to that opinion, giving also the -facts upon which the op'ini-on is based so that the jury -may judge for themselves what weight the opinion is entitled to.</p> <p>2. Same — Exper-t Testimony — It is improper to -admit the -opinion of a witness as an expert upon a hypothetical question unless the facts show that he -has given the diseases of the mind such study -as to qualify him to speak upon that subject the extent of his learning and experience going alone to his credibility. Nor was it necessary that the witness should himself claim, to be an expert.</p> <p>3. Insanity — Evidence.-—Where ithe principal issue on the trial of -an indictment for -homicide was the sanity or insanity of the defendant at the time of the 'commission of the crime, it was proper to permjt the defendant to' prove any information which he had received which may have -affected his condition of mind or explained his conduct.</p> <p>4. Evidence- — Res Inter Alios. — Conversations between other persons not in the presence of .the defendant and not 'communicated to him are not competent.</p> <p>6. Same — Insanity-—Instructions.—Where there is evidence, .as in this -case, from which the jury were warranted in drawing the inference that the defendant was not of sound mind at the time he committed the crime, it was error to refuse, to instruct the jury upon the subject of insanity.</p> <p>6. /Same.- — -The principal issue being the sanity or Insanity of the defendant, and there being evidence tending to support the defense the court .should have given to the jury the following instructions: “A. Although the jury may believe from the evidence beyond -a -reasonable do-u-bt that the defendant shot and killed the deceased, Thomas Craig, yet if they further believe from the evidnce that at the time of the killing the defendant was, of unsound mind, then they should acquit him. B. The law presumes every man sane until the contrary is shown by the evidence; and before the defendant can be excused on the ground of insanity 'the jury imust believe from the evidence that the defendant was at the time of the killing without sufficient reason to know what he was doing, or had not sufficient reason to know right from wrong, or that, as the result of mental unsoundness, he had: not then sufficient will power to govern his actions by reason of some insane impulse which he could not resist or control.”</p>

<p>Telegraph Companies — Negligence—Night Oefices. — Telegraph companies h,ave the right to prescribe a rule that offices shall not be open for business at night where the amount of business does not justify keeping a messenger on duty at night. And where it appears that a telegram was received for transmission at night, it was error not to instruct the jury that the company was not liable for negligence in failing to deliver the message at night.'</p>

Case 104 — ACTION FOR DAMAGES FOR DISLAY IN DELIVERING TELEGRAM APPEAL FROM WASHINGTON CIRCUIT COURT. (No brief for the appellant in the record.) 1. It is now well settled that one can recover for the delay in the delivery of a telegram on aoount oif injured feeling even where the telegram is sent by another. 90 Ky., 266; Shearman & Redf. on Neg., sec. 605; 55 Tex., 308; 66 Tex., 580; 71 Tex., 723; 86 Tenn., 695; 123 Ind„ 294; 32 N. E. R., 871. 2.

Case 105 — ACTION TO RECOVER USURY PAID — APPEAL PROM HARRISON CIRCUIT COURT. 1. A-s appellees were fully apprised of all their rights in the settlement between them, and the appellant at the date of the adjustment November 26, 1897, and being so apprised, agreed to and did compromise the entire matter as set' out in the answer, .they .are estopped to claim anything further arising out of affairs of that transaction, relating back to the date of the granting of the loan. 2.

Case 106 — WILL CASE APPEAL FROM ADAIR CIRCUIT COURT. The paper tan contest is not a testamentary paper but a mere obligation. It lacks this essential of a will; it is not revocable ■in the testator’s lifetime. The paper in contest is a valid will. Jackson v. Jackson, 6 Dana, 257; 2 Black, 500; 1 Jarman on Wills, 11; note to Am. & Eng. Ency. of Law, 146, on “Wills.”

Case 107 — ACTION FOR DAMAGES APPEAL FROM KNOTT CIRCUIT COURT. 1. The judgment appealed from is void because there was no service of process. A recital in the judgment that process had been duly served is merely formal and is insufficient evidence to support a judgment. Long v. Montgomery, 6 Bush, 394; Ruby v. Grace, 2 Duv., 540. 2. If the judgment be not void, it is nevertheless erroneous.

Case 108 — ACTION AGAINST STAKEHOLDER TO RECOVER MONEY BET ON AN ELECTION APPEAL FROM MONTGOMERY CIRCUIT COURT. 1.

Case 109 — ACTION ON PROMISSORY NOTE APPEAL FROM MONTGOMERY CIRCl IT COURT.

<p>1. Constitutional Law — Peddler’s Statute. — Sections 4216, 4217 and 4218 of the Kentucky Statutes, defining peddlers and providing for the payment of license by them, are not a violation either (1st) of the fourteenth amendment to the Constitution of it'he United States, or (2d) those provisions of the Kentucky Constitution requiring uniformity of taxation.</p> <p>2. Criminal Law — Indictment for Peddling. — An indictment for peddling oil without a license need not state the facts showing that the defendant was engaged in the business of a peddler, nor that he made a particular sale of oil by peddling, nor that he delivered the oil alleged to .have been sold.</p> <p>3. ¡Same — Evidence.—Upon the trial of such an indictment it was competent for the defendant to show that he was an agent of the Standard Oil Company; that that company had an oil depository in the city of Lexington, at which place it was wholesaling illuminating oils, and in the surrounding towns; that it had a regular line of customers who were engaged in the retail business in Nicholasville, and that defendant arranged for said customers to send an oil tank wagon to 'Nicholas-vi-lle at, stated 'intervals and deliver to its customers oil in wholesale quantities, and that the sale for 'which the defendant was indicted was made by him in good faith upon the supposition that the person to whom he was making the sale was one of the customers which the Standard Oil Company had agreed to ■ serve in that way.</p>

<p>Case 11-1 — ACTION FOR. DAMAGES</p> <p>APPEAL FROM SHELBY CIRCUIT COURT.</p> <p>(Briefs and transcript not in the Clerk’s office.)</p>

Case 112 — ACTION FOR DAMAGES FOR BREACH OF COVENANT OF GENERAL WARRANTY APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. Although a judgment on its face may not enable a party to ascertain the property from which the eviction was had, if data m-ay be draw-n from the pleadings and other parts of the record sufficient to overcome this uncertainty, the judgment is in no sense void, hut is valid and enforceable.

Cask 113 — ACTION TO VACATE JUDGMENT. APPEAL FROM LAUREL CIRCUIT COURT. 1. The judgment appealed from was rendered in an action for a new trial and vacates a judgment which was rendered at the May term, 1894 of the Laurel circuit court. The petition for new trial was not filed until the 28th day of December, 1895, after four terms of the court had elapsed since the judgment was rendered. 2. The grounds alleged in the petition for -new trial are fatally insufficient.

<p>Case 114 — TAXATION OF MUNICIPAL PROPERTY —</p> <p>'APPEAL FROM CAMPBELL CIRCUIT COURT.</p> <p>1. The Legislature had power by the act of May 1, 1888, to exempt from taxation the waterworks property of Covington, Gordon v. Winchester B. Assn., 12 Bush, 114; Lancaster v. Clayton, 86 Ky., 375; Zable v. Louisville Baptist Orphans Home, 13 Ky Law Rep., 3-86; Dembitz on Ky. Jur., p. 89; Home of Friendless v. Rouse, 8 Wall., 435; New Jersey v. Watson, 7 Cranch 164; Salt <Oo. v. E. Saginaw, 13 Wall., 376; New Jersey v. Yard, 9-5 U. S., 104; Com. v. L., St. L. & T. Ry., 17 Ky. Law Rep., 40-5; City -of Henderson v. Strangers’ Rest Lodge No. 13, 1. O. O. F., 17 Ky. Law Rep., 1041; Pearce v. Mason County, 18 Ky. Law Rep., 266.</p> <p>2. The Legislature in -passing said act and the city of Covington in accepting the provisions -and constructing its waterworks, when relying upon the faith of isaid act formed a binding contract between the State and city; the rights given appellant became vested and the State can iniot now violate the obligation f said contract without violating sec. 10, article 1, of the constitution of the United States and sec. 20, article 12, of the constitution of Kentucky in force -at the .time said contract was entered into, and in violating sec. 19 of the present Constitution. New Jersey v. Watson, 7 Cranch 164; Home -of Friendless v. Rouse, 8 Wall., 436; Louisville Gas Co. v. -Citizens' Gas Co., 115 U. S., 691; Comrs. of Sinking Fund v. Green and Barren River N. Co., 79 Ky., 73.</p> <p>3. The property described in the petition -as exempt from taxation by virtue of isec. 170 of the Constitution of Kentucky, which recites that “there shall be exempt from taxation public .property used for public purposes,” -etc., and by virtue of sec. 4026 of the Kentucky Statutes, as follows. “Property exempt from taxation. The following property is exempt from taxation. Public property used for public purposes,” etc. If the said property is “public -property,” used for “public purposes,” the property is not liable for any tax. City of Toledo v. Hosier, 43 N. E. R., 583; State v. City of Toledo, 48 Ohio St., 112; s. c., 26 N. E. R., 1061; State v. Gaffney, 34 N. J., 131; 44 Conn., 3-67; People v. Assessors -of Brooklyn, 19 N. E. R., -90; Galveston- Wharf Co. v. Galveston, 63 Tex., 14; New Orleans Gas Co. v. Louisiana Gas Light Co., 115 U. -S., 050; 115 U. S., 691; City of Louisville v. Com., 1 Duv., 295; Com. v. Makibben, County Judge, 90 Ky., 384.</p> <p>On the taxability of waterworks: City of Louisville v. Corn,. 1 Duv., 2i96; Lancaster v. Clayton, 86 Ky., 373; Corn. v. Makibben, 90 Ky., 385; Clark v. Louisville Water Co., 90 Ky., 517.</p>

<p>The following separate concurring and dissenting opinions were not delivered at the time of the original opinion.</p>