Volume 108 — Kentucky Reports

Case 1 — Action fob Recovery of Devise APPEAL FEOM WAEREN CIRCUIT COURT. Judgment fob the plaintiff and the defendant appeals. 1. The provision made by sec. 18, chap, 113 of the Gen. Stats., for the “issue” of a devisee or legatee who. dies before the testator does not embrace an illegitimate child of such devisee or legatee. The word “issue” includes only lawful descendants unless a contrary intention clearly appears.

Case 2 — Indictment fob Failure of Corporation to Fide Statbv ment in Office of Secretary of State Before Carrying on Business in Kentucky APPEAL FROM CRITTENDEN CIRCUIT COURT. Judgment of conviction in lower couet. 1. Demurrer should have keen sustained to (the indictment, (because the name of the offense is not given in the aacusatory part of the indictment; and 2. Because the -indictment fails to allege that the -defendant company is not a foreign insurance company.

<p>Presumption of Death from Absence — Burden of Proof — Instructions — Going Into Prohibited Territory — Waiver.</p> <p>Held: 1. Kentucky Statutes, section 1630, which provides that, “if any ■person who shall have resided in this State go from and do not return to this State for seven successive years he shall h'e presumed to be dead in any case wherein his death .shall come in question, unless proof he made that h'e was alive within that time,” applies where the person leaving the Sta'te is absent for seven consecutive years after h'e is last heard from; the burden then being thrown on the other party to prove that the person is alive.</p> <p>2. The fact that a .person who has been thus absent from the State without being heard from for seven consecutive years is a fugitive from -justice, does not prevent the application of the .statute as a matter of law; but that fact is admissible in evidence to rebut the presumption of death.</p> <p>3. Under our system of trying cases., if ther'e is any evidence in support of an issue, it must he submitted to a jury, and we 'think ■it a sounder and better rule to leave the question of death, in all these cases to be found by the jury on all tie facts in the case.</p> <p>4. In an action on a policy of life insurance it was error to instruct the jury to find.for plaintiff if they believed- from the testimony that insured had left the State more than seven years before the 'action was brought, and for seven years continuously h'ad not returned to the State, or been heard from; but the court should have told the jury that the presumption of death arising from these facts, if they existed, might be rebutted by the proof,-, and that they should consider all the circumstances attending the departure -of assured, and the reasons for his. absence, if any, and that it was a question for them, on all the evidence, whether he was alive or dead when the suit was filed..</p> <p>5. The court (properly instructed the jury that the policy was not avoided ¡by the insured going to China and Japan, even though in violation Of -the terms of the policy, the evidence being sufficient to .show -a waiver.</p> <p>6. The -policy was not forfeited by the temporary stay of insured in certain localities in which the policy prohibited him from residing.</p> <p>7. The fact that the policy stipulated that, -should, the assured survive -July 1, 1898, a fractional part of the 'policy should -be .payable to him, his executors and assigns, does not preclude the -beneficiary, who, in the absence of 'the assured, has paid the premiums up to that time, from recovering the full amount of the policy upon the presumption of the death of the 'assured because of his absence from the .State for seven years without 'being heard from, as the assured, should he turn out to be alive, would be estopped to .make any -claim under the policy.</p> <p>8. The beneficiary lost no right by continuing to .pay the premiums during the absence of the assured.</p>

Case 4 —Mandamus APPEAL PROM FRANKLIN CIRCUIT COURT. 1. tt has always been held by this court, that an appeal will lie from the judgment of the circuit court, awarding a mandamus regardless of the amount in controversy. 'See Barbour’s Digest, division 111, “Mlandamus,” County of Warren v. Daniel, 2 Bibb, 573; also Justice of (Spencer Counity v. Harcourt, 4 B. Mon., 499. 2.

Case 5 — ACTION FORDiSSOLUTION OF CORPORATION1 APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Judgment for Defendant. 1.

Case 6 — 'Action of Vinnedge & Co Against James O’Kane, &c., to 'Set Aside a Conveyance as Fraudulent APPEAL FROM BOONE CIRCUIT COURT. Judgment for Plaintiffs and Defendants Appeal. 1. The plaintiff’s demand was purely a legal one, and they can not invoke the aid of a court of equity to enforce it.

<p>Case 7 — Action fob Construction of Will of Benjamin L. Young, Deceased —</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCEEN DIVISION.</p> <p>Judgment Sustaining Demueber to Answer and Cross Petition of Clara S. Richardson and Construing Will of Benjamin L. Young. Clara S. Richardson Appeals.</p> <p>It is a familar rule of construction as to wills, that they must be so construed as to make the whole paper stand, and the Court will not be inclined to give any construction, the effect of which would be to destroy or take away any portion or clause of the will.</p> <p>1 The testator’s children took defeasible fees which became an ah* solute estate in the survivor. Gorman v. Betts, 86 Ky., 164.</p> <p>2."A clear gift is not to be cut down by any subsequent provision •unless the latter is equally clear.” American & Eng. Ene. of Law, 29, p. 369; Note to Powers v. Jeundevine, 7 Lawyer’s Reps. Ann., p. 517; Note to Bills v. Bills, 8 Lawyers’ Reps. Ann., p. 696.</p> <p>3 “Although the enjoyment of the legacy is postponed, the right vests immediately, and the legacy being vested is transmissible.” Wallingford v. DeBell, 150 B. Mon., 552; 1 Jarman on Wills, side p. 760; Willett’s Admr. v. Rutter’s Admr., 84 Ky., 319; Hocker v. Gentry, 3 Met., 463; Roberts v. Brinker, 4 Dana, 570; Grigsby, v. Breckinridge, 12 B. Mon., 640; Wedekind v. Hallenberg, 88 Ky., 117.</p> <p>AUTHORITIES, &c., CITED.</p> <p>1. In construing wills, intention of testator gathered from the whole will controls, regardless of technical rules. Thackston v. Watson, '84 Ky., 206; Kent’s Com., 12th ed., vol. 4, side page, 535; and 537 and bottom page 586.</p> <p>2. All fees liable to be defeated by an executory devise are determinable fees. Kent’s Com., 12th ed., vol. 4, side page 9, bottom page 8.</p> <p>3. Executory devises, their general qualities and construction. Kent’s Com., 12th ed., vol. 4, side page, 264; bottom page 269; see pages '268 and 270.'</p> <p>4. Court should construe will to give only defeasible fee in first de-visee to carry out testator’s intention. Such construction should be given to the devise as will carry out the object and intention of devisor and as will effectuate the purpose of the devise. Sale v. Crutchfield, 8 Bush, 649; Parish v. Vaughn, 12 Bush, 97; 5 Rule of Reversion; Kent, vol. 4, top page, 364; bottom page 363.</p>

Case 8 — Actios to Recover Damages eor the Killing of a Colt by 'Railroad Co. APPEAL FROM THE HANCOCK CIRCUIT COURT. 1. Admissions or statements made by appellant’s section boss the day after the injury was done are not competent evidence against the appellant, neither as to the killing of the colt, nor as to the construction of the cattle guard.

<p>Case 9 — 'Indictment Against J. H. Smith fob Murder on Which He Was Convicted and Appeals —</p> <p>APPEAL PROM LETCHER CIRCUIT COURT</p> <p>(No briefs in record.)</p>

<p>Case 10 — Indictment Against Grinstead & Tinsley for Criminal Conspiracy to Fix Price of Merchandise</p> <p>Demurrer to Indictment Sustained. Commonwealth Appeals. APPEAL FROM WHITLEY CIRCUIT COURT.</p> <p>1. The act of'May 20, 1890, now section 3915, Kentucky Statutes, does not. contravene .section 198 of the Kentucky Constitution. Johnson v. 'Higgins, 3 Metcalf, 576; TJ S. v. Cruikshanks, 92 TJ. S., 542; Cooley 'Con. Limitation, pp. 87, 88, 90 and 108; People v. Draper, 15 New York, .53'2, '543; Schedule Constitution, sec. 1.</p> <p>2. Said act is not repealed because it was not re-enacted by the act of April 10, 1893, entitled “Crimes and Punishments.” This has been conclusively settled by this court in the case of Conley v. the Commonwealth, 17 Ky. Law Rep., 678; Buchanan v. Commonwealth, 15 Ky. Law Rep., 738; Long, Treasurer v. Stone, Auditor, 19 Ky. Law Rep., 246.</p> <p>51. The statute is not void for uncertainty because it prescribes tWo penalties. Henry v. Trustees, &c., '48 Ohio 'St.at., 671; Rhodes v. •Meadly, 46 Ohio Stat.,234; Raymond v. Cleveland, 42 N. J. Law, 293; Pitt v. Shipley, 46 Cal., 161.</p> <p>4. The Statute is not indefinite and uncertain.</p> <p>6. The indictment is good; this is purely a statutory offense, created ■ hy the statute alone, and the words of the statute are descriptive of the offense and complete in itself, and an indictment, charged in the words of the statute, is good. Sellers v. -Commonwealth, 13 Bush, 332; Commonwealth v. Bartholomew, 17 Ky. Law Rep., 1133; Thompson v. Commonwealth, 20 Ky. Law Rep., 401; Moore v. Commonwealth, 92 Ky., 630; White v. Commonwealth, 21 Ky. Law Rep., see p. —; Mitchell v. Commonwealth, 88 Ky., 349; •Davis v. Commonwealth, 13 Bush, 218 (sec. 318); Wood v. Commonwealth, 14 -Bush, 232, 233; 4 Ency. Plead, and Prac., 423, sec. 723; Coal v. People, 84 Ill., 216; Elkin v. People, 28 N. Y., 117; 1 Bishop Crim. Procedure, 360; State v. Ormiston, 66 Iowa, 216 (sec. 145)'; State v. Murphy, 41 Am. Dec., 49; State v. Stewart, 59 Vt., 2-91; Conner v. Commonwealth, 13 Bush, 714; Commonwealth v. Turner, 5 Bush, 317; Commonwealth v. Turner, S Bush, 2; ■State v. Grant, 86 Iowa, 216.</p> <p>The demurrer to the indictment should he sustained and judgment of lower court affirmed, because,</p> <p>1. The -act of May 20, 1890, was repealed by the new Constitution adopted September 28, 1891.</p> <p>2. Said act was repealed because of its -omission from the general act, revising the criminal laws, reported by the commissioners in pursuance of section 245 of the Constitution, and adopted by the General Assembly in July, 1893.</p> <p>3. -Said act is void for uncertainty.</p> <p>4. The indictment is fatally defective in not alleging facts sufficient to constitute -an offense either -at common law or under the statute.</p> <p>Aetna Ins. Co. v. Commonwealth, 51 S. W. R., 625; Steamship Co. v. Macgregor, 21 Q. B. Div., 545; 1 Duvall, 145, Schulten v. Brewing Co.; 96 Ky., 224, Perkins v. Auditor, 79 Ky., 310; Het-terman v. Powers, 43 S. W., 180; Auditor v. Adams, 13 B. Mon., 150; Brown v. Crawford, 6 Bush, 1; Robinson v. Swope, 12 Bush, 21; Williams v. Commonwealth, man. Opinion, 1880; Varney v. Justice, 86 Ky., 600; McTigue v. Commonwealth, 17 Ky. Law Rep., 1421; Thompson v. Commonwealth, 20 Ky. Law Rep.; Kine v. Diefenbach, 64 Ill., 291; State v. Holcombe, 46 Neb., 88; People v'. Bledsoe, 68 N. C., 451-7-9; Endlich on Interpretation of Statutes, par. 20'2; Broaddus v. Broaddus, 10 Bush, 299; Long, Treasurer, v. Stone, Auditor, 19 Ky. Law Rep., 246; Patterson v. Commonwealth, 86 Ky., 318; Combs v. Crawford, 19 Ky. Law Rep., 1500; Eultz v. Crofton, 19 Ky. Law Rep., 1921; Smith v. Mattingly, 86 Ky., 228; Commonwealth v. L. & N. R. R. Co., 20 Ky., 4’91; State v. Partlow, 91 N. C., 550; Commonwealth v. Stout, 7 B. Mon., 247; Commonwealth v. McCrory, 3 Ky. Law Rep., 241; Mitchell v. Commonwealth, 88 Ky., 349; Commonwealth v. Ward, 92 Ky., 158; Rex v. Gill, 2 Barn. & Aid., 204; U. S. v. Walsh, 5 Dill., 58; Commonwealth v. Shedd, &c., 7 Cushing, 514; March v. The People, 7 Barh, 391; Lambert v. The People, 9 Cowan, 578; U." S. v. Cruik-shanli, &c., 92 U. S., 542; U. S. v. Patterson, 55 Fed. Rep., 638; In re Green, 52 Fed. Rep., 104; Bohn Mfg. Co. v. Hollis, 55 N. Y., 1119; Cohn v. Berlin Envelope Co., &c., 56 N. Y. Sup., 589; State v. Keach, 40 Vt., 113; Lambert v. Penn., 9 Cowan, 578; Commonwealth v. Hunt, 45 Mass., Ill (4 Met. Mass.).</p>

<p>Wills — Absolute Power of Disposition Creating Pee — Void Limitation Over.</p> <p>Held: Where a testator devised land to his son, with power to sell and convey, without any requirement as to the reinvestment of the proceeds, hut providing that if the proceeds should at the time of the son’s death-be invested in other land, and he should, die without descendants, then such land should revert hack and hecome a part of testator’s general estate, the .son took the fee; the limitation over after the absolute power of disposition was given being void. t</p>

Case 12 — Action by M. Haevey N-ave Against Saijlie E. ©rice to Recover ice a Deficiency in a Tract of Land. appeal from fayette circuit court. Judgment for Defendant and Plaintiff Appeals. 1. The transaction — the mistake — in respect of which relief is sought in this action, and from which the ten year period of limitation must be computed, is the overpayment of purchase money made by appellant in 1887, and not the making of the deed in 1880. 2.

Case 13 — Action by Ft. Wayne Electric Co. v. L. & N. R. R. Co. for Failure to Deliver Bill of Goods to Consignee APPEAL FROM TODD CIRCUIT COURT. Judgment for the Plaintiff v, D. & N. R. R. Co. and Said Company Appeals. 1. The defendant’s motion to elect should have been sustained. Facts alleged in the alternative must be .alleged concerning a definite party and plaintiff can not call on the court to find out for him against which of two defendants he has a cause of action.

Case 14 — Action on Injunction Bond APPEAL FROM FRANKLIN CIRCUIT COURT. Judgment for Defendants and Plaintiff’s Appeal. 1. After an offer of record to confess a judgment for a certain sum, a court should not hold that there is no liability. 2. If an injunction, in aid of, or ancillary to other relief sought in an -action, be dissolved, the costs, including an attorney’s fee, of defending against the injunction are .recoverable upon the injunction bond.

<p>Transfer Companies — Lien . for Charges — Delivery of Possession to Assignee for Creditors.</p> <p>Held: 1. A person engaged in the business of carrying freight by wagons from depots to other places, and of delivering packages for all persons who choose to employ him, is a common carrier.-</p> <p>2. Such a common carrier has a lien upon the goods for charges for hauling, and also for freight charges advanced to a railroad company for the consignee.</p> <p>3. The rule that the carrier loses his lien by parting with possession of the goods does not apply where the person with whom.Cm contract was made makes an assignment for the benefit of his creditors, and possession is delivered to his assignee, as the as-signee takes fo.r the benefit -of all creditors according to their respective interests, and the lien of the carrier attaches to the money collected by the assignee on the assignor’s contract, in performance of which the assigne delivered the goods to another.</p>

Case 16 — Action Upon An Attachment Bond — APPEAL PROM MADISON CIRCUIT COURT. JUDGMENT POR PLAINTIFF. DEFENDANT APPEALS. 1. When a suit is instituted by the assignee, upon any claim which passed by the assignment, the defendant is placed in “statu quo,” as if no assignment had been made, and the controversy is directly between the defendant and the assignor. 2.

Case 17 — Action to Recoveb Damages fob the Death of Plaintiff’s Intestate — APPEAL FROM GRANT CIRCUIT COURT. Judgment fob the Plaintiff. Defendant Appeals. 1. It is the duty of the State court to act on the petition for removal as if all the allegations were admitted; and where it is alleged that the joining of a co-defendant was done in order to prevent a .removal to the federal court, they can not be controverted. Kansas City, &e„ R. R. Co. v. Daugherty,'138 TJ.

<p>Suspension of Members — Effect as to Death Benefits — Waiver of Forfeiture.</p> <p>Held :-l. The suspension of a member for non-payment of assessments, pursuant to a by-law of the society, not only deprived him of the social advantages of the organization, but extinguished the rights of the beneficiaries under his benefit certificate, though there was no express provision for a forfeiture of benefits.</p> <p>2. Where the society has been accustomed to accept from a member without question payment of past due assessments, and by its uniform course of dealing with him has induced him to believe that his failure to pay assessments when due will not work a forfeiture, it waives the right to claim a forfeiture on that ground.</p> <p>3. Though it was customary for the society, in addition to the announcement required by the by-laws to be made at the regular meeting thirty days before the maturity of each assessment, to give thirty days’ notice of the assessment through the mail, yet if the member actually received notice of the assessments, and, when he realized the effect of what he said, voluntarily notified the lodge, through its secretary, that he would not pay them, or consent that they should be paid or assumed for him by another, and that he had determined to sever his connection with the order, there was a waiver of the thirty-days’ notice through the mail, as the duty to give that notice rested only upon custom.</p>

<p>Case 19 — Indictment for Nuisance —</p> <p>APPEAL PROM CAMPBELL CIRCUIT COURT.</p> <p>The City of Newport Was Convicted on an Indictment tor Suffering a Nuisance and Appeals.</p> <p>1. The indictment is too broad and general in its description and location of the lot on which the alleged nuisance was charged to have been permitted.</p> <p>2. The location of the lot is too indefinite and uncertain to be identified with that certainty which good pleading demands.</p> <p>3. The court refused to permit the appellant to introduce as evidence on its behalf the ordinance of the city, designating certain places in the city for dumping its dirt and rubbish and which expressly prohibited the dumping of filth or garbage in the city limits.</p> <p>4. The jury was permitted to view the place where the offense was charged to have been committed, unaccompanied by the trial judge.</p> <p>CITATIONS.</p> <p>Wood on Nuisance, 2d ed., sec. 255.</p> <p>Kenneday v. Commonwealth, 14 Bush, 340.</p> <p>Coppage v. Commonwealth, 3 Bush, 532.</p> <p>Criminal Code, sec. 236.</p> <p>Rutherford v. Commonwealth, 78 Ky., 640 and 643.</p> <p>1. The indictment must be direct and certain as regards the offense charged, and also the particular circumstances of the offense charged, if they be necessary to constitute a complete offense. Criminal Code, secs. 124 and 122.</p> <p>2. A nuisance is public, when it affects the right enjoyed by citizens, as part of the public. The inquiry is, whether the act itself was such and the place was such, as the natural effect thereof, would be to annoy or offend all who came within its sphere. Wood’s Law of Nuisance, 76.</p> <p>3. The rule is, that the stenches and- odors, must be simply offensive, such as to cause actual physical discomfort. It is not required that the odors be' positively hurtful or unwholesome. A. & E. Ency. of Law, vol. 16, 952.</p> <p>4. The city ordinance was not competent evidence, as the intent or motive is not a material question. 1 Hale P. C., 430; 36 Am. Rep., 508; 10 Am. Rep., 184; 18 Minn., 324; A. & E. Ency. of 'Law, vol. 16, p. 931.</p> <p>5. The fact that the trial judge did not accompany the jury to view the place where the nuisance was alleged to have been committed, was not prejudicial to the rights of the defendant. 78 Ky., 639.</p> <p>OTHER CITATIONS.</p> <p>Pollock on Torts, 324.</p> <p>Crim. Code, 340.</p> <p>Cincinnati R. R. Co. v. Com., 80 Ky., 137.</p>

<p>Case 20 — Action of Catherine Strauss Against City or Louisville, &c., to Recover Damages for a Nuisance —</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>1. Property owners have no right, in constructing a building, to so obstruct tbe street or sidewalk, as to endanger tbe safety of those passing along the highway. Matbeny v. Wolffs, 2 Duval, 137; Markham v. Baumeister Bro., 19 Ky. Law Rep., 308; Story v. Railway Co., 90 New York, 122; Kittinger v. Railway Co., 59 N. Y., 208; Hume v. Mayor, 74 N. Y., 264; Cohen v. Mayor, 113 N. Y., 535; Hudson v. Mayor, &c., 9 N. Y., 163; Stoors v. City of Utica, 17 N. Y., 104; Davenport v. Reichman, &c., 37 N. Y., 568; Brusso v. City of Buffalo, 9 N. Y., 679; Russell v. Village Canas-tota, 98 N. Y., 496.</p> <p>2. The petition alleges a state of facts showing that defendant, Hen-ning, carelessly and negligently obstructed the street and sidewalk, and that the city of Louisville knew of it and permitted it, and the case should have been beard upon its merits.</p> <p>1. The petition shows that Jacob F. Meriwether was an independent contractor employed to build a house for defendant, Henning, upon her lot, and that the premises were under his control and neither he nor the premises were under the control of Mrs. Hen-ning at the time the injury complained of was done.</p> <p>2. The contractor was engaged in a legitimate occupation, making mortar for use in building a house; it is not averred that the mortar -bed was out of place.</p> <p>3. The averment that the party engaged in mixing the mortar, negligently caused a splash therefrom to strike her in the eye, can not make Mrs. Henning liable when she had no control over the party doing the work.</p> <p>4. It is not alleged that any injury, mediate or immediate, resulted to appellant from the alleged condition of the street or pavement, and it follows that the demurrer was rightfully sustained to the petition. Bailey on Personal Injuries, secs. 2559, 2560; St. Paul Water Co. v. Ware, 16 Wall., 566; Jaggard on Torts, 231; DePor-rest v. Wright, 2 Mich., 368; Riedel v. Moran Fitzsimmons, &c., (Mich.), 61 N. W., 509.</p>

Case 21 — Action by James Griffith Against E. T. Gross to Recover Personal Property — APPEAL FROM PAYETTE CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. 1. No judge or justice can issue an execution against the property of another, without summoning him to appea'r in court, and giving him an opportunity to show whether or not he owes ihe debt. 2.

<p>Case 22 — Action oar James E.' Brown Against Levy Bbos, &o., fob Personal Injuries —</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, EQUITY DIVISION.</p> <p>Judgment for Defendants and Plaintiff Appeals.</p> <p>1. It is the duty of the master to furnish his servant with proper appliance for the execution of his work, and to associate with him competent co-employes.</p> <p>2. Where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby within such a period of time after the promise, as it would he reasonable to allow for its performance; and the same principle applies to a case where the master promises to discharge an incompetent servant, hut fails to do so, and a fellow servant is injured hy the acts of the incompetent servant Shearman & Redfield on Neg. (.5 Ed.), sec. 215; Laning v. N. T. G. R. Go., 49 N. Y., 521; Hough v. Texas Pacific R. R., 100 XT. S., 25; Breckinridge Company v. Hicks, 15 Ky. Law Rep., 143.</p> <p>J.. There is a vast difference between the question of “defective machinery and that of a negligent or inefficient fellow servant.” Wood on Master and Servant, chap. 16; Story on Agency (9 Ed.), sec. 453; 2 Thompson on Negligence, chap. 20; 2 Thompson on Negligence, p. 974; O. & M. R. R. v. Colloran, 73 Ind., 261; 5th Am. & Eng. R. R. Cases, 554; Bogenshutz v. Smith, 84 Ky., 336; Kelly v. Barber Asphalt Co., 93 Ky., 364; 11 Bush, p. 81, Sullivan’s Admr. v. Lou. Bridge Co.; Hough v. Texas Pacific R. R. Co. 100 U. S., 25. •</p>

<p>Failure to Have Insurance Company to Extend Vacancy Permit— Liability Therefor — When Negligence Is a Question for the ■Court.</p> <p>Held: 1. It is the duty of an executor or trustee to preserve the estate in his hands and protect it from loss, and he is held to such care in the management of the estate, as a competent person would ordinarily exercise under like circumstances in reference to his own affairs.</p> <p>2. In this case all that was necessary on the part of the defendant to keep the policy alive, was to have the "vacancy permit” extended, and its failure to do this manifest duty was negligence, and it is liable for the injury resulting therefrom.</p> <p>3. Negligence is a question for the court where the facts are admitted or established by undisputed testimony.</p>

<p>Liability for Frightening Teams by Noises — Recovery for Negligence Not Alleged — Failure to Give Signals — Contributory Negligence.</p> <p>Held: 1. It was error to submit to tbe jury the question of negligence in failing to give proper signals of the approach of defendant’s train, in a case where the specific negligence charged in the petition, was loud and unnecessary noises from the whistle and escaping steam, which frightened intestate’s team and caused it to run off and kill him.</p> <p>2. Defendant’s servants in charge of its train, owe no duty, to one who is in charge of a team on premises, near its track, to avoid customary and proper noises in the operation of the train, until they saw his danger.</p> <p>3. It was the duty of appellant in running its trains through the city, to give the signals required by law of its approach to the street crossing, and although the decedent was not using the crossing, he had the right to rely on these signals being given. Whilst this is not the rule in the country, a just regard ior human life, requires that it should be observed in cities.</p> <p>4. If the decedent had been cautioned that his team would likely be frightened on the approach of the train, and knew it was about train time when the accident occurred, and wrapped the lines around the front of his wagon and got in the back part of it and was shoveling the coal rapidly in the coal house when the train came up, he was guilty of contributory negligence and can not recover.</p> <p>5. If decedent knew of the approach of the train there can be no recovery on the ground that the signals of its approach were not given.</p>

<p>Final Order — Sureties on Receiver’s Bond — Limitation of Action— Contribution — Superiority of Execution Liens.</p> <p>1. A judgment decreeing a sale of land in satisfaction' of an ascertained lien is a final order from which an appeal lies.</p> <p>2. A surety on a receiver’s bond may discharge the obligation and proceed against the principal for indemnity, without waiting for suit against him.</p> <p>3. Where a receiver executed a bond stipulating that he would pay the money held by him, whenever ordered by the court, a surety who has discharged the bond may enforce a mortgage of indemnity given him by the principal, as against the purchaser of the mortgaged property, although more than seven years had elapsed since the execution of the original bond, especially in the absence of anything in the bond or pleadings, to show who was entitled to' collect the money or to procure an order of court for its payment.</p> <p>4. The obligors having undertaken that the receiver would pay the interest semi-annually, to a named person, the statute of limitation began to run as to each installment of interest, when it was due, and the right of action against the surety was barred in seven years from that time. 1</p> <p>5.. A surety can not enforce a mortgage executed by 'the principal to indemnify him, as against a purchaser of such mortgaged property, when he might have defeated a recovery against himself, as surety, by pleading'limitation, because such purchaser has the right to make any defense that the surety might have made.</p> <p>6. The lien of the plaintiffs in an execution was lost by their order to the sheriff to return it.</p>

<p>Case 26 — Action by the Decatur Mineral and Land Co. v. J. L. Friedman on Land Notes —</p> <p>APPEAL PROM M’CRACKEN CIRCUIT COURT.</p> <p>Judgment for Defendant. Plaintiff Appeals.</p> <p>1. No alleged contemporaneous parol agreement can be set up or proved to change or alter the writing, by adding to it or taking from it, or in any way to alter its effect or meaning, except upon an allegation of fraud or mistake in the writing. G-reenleaf on Evidence, secs. 275, 277, 281, 282; Dale v. Pope, 4 Littell, 168; Nat. Mut. Bank Assn. v. Hickman, 86 Ky., 254; 14 Busk, 495; 6 Busk, 109; 16 B. Mon,, 6; 2 B, Mon., 428; Logan and Turnpike Co. v. Pettit, 96 U. S. R., 544; 134 U. S. R., 315; 77 Alabama, 357; Lockwood v. Fitz, 90 Ala., 150; Garrett v. Lynck, 45 Ala., 204; Conner v. Henderson, 8 Am. Decisions, 103; Burton v. Stewart, 20 Am. Dec., 692; Veeres v.'Earle, 38 Am. Dec., 588 and note; Upton v. Trebillcock, 91 U. S., 45; Dent v. Long, 90 Ala., 172; Thompson v. Lee, 28 Ala., 292; Foster v. Christy, 29 Ala.</p> <p>1. The appellee by his conduct and laches waived and lost any right even if he ever had it, to cancel the contract for misrepresentation. He made no effort to cancel the contract for the alleged fraud until his answer was filed eight years after his purchase, and five years after he had ratified it with full knowledge of all he now claims.</p> <p>2. In the absence of an averment of fraud or mistake in a writing, it is not competent to prove parol promises to do certain things that might be beneficial to the property.</p> <p>CITATIONS.</p> <p>Roche & Coleman v. Bush, 19 Ky Law Rep., 985.</p> <p>Munford v. Green’s Admr., 19 Ky. Law Rep., 1791.</p> <p>Nat. Mut. Ben. Assn. v. Hickman, 86 Ky., 254.</p> <p>Castleman v. S. M. Life Ins. Co., 14 Bush, 197.</p> <p>X. Exceptions to depositions, because the questions are leading, come too late, when made for the first time on the trial of the suit. Civil Code, sec. 587.</p> <p>2» A suit on a promissory note, by the vendor of real estate, ratifies and confirms the contract of sale, and is subject to the rules applicable to a bill for specific performance of the contract. Grover v. Scott, 80 Pa., 88.</p> <p>3. In a suit by a vendor for the specific performance of a contract for the sale and purchase of real estate, the plaintiff must tender a good and sufficient deed before suit, and make the tender good by bringing his deed into court. 28 Am. & Eng. Ency. of Law, 947, Ballard on Real Estate; Statutes of Ky., secs. 75 and 76; Brown v. Starke, 3 Dana, 316; Cabin & Elliott v. Williams & Ray, 8 Bush, 343; May v. Cole, 8 BIkf. (Ind.), 480; Johnson v. Burdette Town Co., 53 Pac. Rep., 80; Soper v. Cabe, 41 Pac. Rep., 969; Sowle v. Holdridge, &c., 63 Ind., 218; Overly, &c., v. Tipton, Admr., 68 Ind., 414; Goodwine v. Morey, 111 Ind., 68.</p> <p>4. A delay of seven years after maturity 'of last note, and after great depreciation of property, will prevent a recovery on the notes. Johnson v. Burdette Town Co., 53 Pac. Rep., 88.</p> <p>5. Misrepresentations of vendor’s intent to build and operate street railways and make other valuable improvements in front of and adjacent to the property sold, are sufficient to rescind the contract where they are relied on, and not made. Louisville Railway Co. v. Taylor, 96 Ky., 241; Upshaw v. Debow, 7 Bush, 442; Perkins v. Rice & Sterrett, Littell’s Selected Cases, 218; Graves v. Leathers, 17 B. Mon., 665; Breckinridge v. Moore, 3 B. Mon., 629; Holts v. Stewart, 42 Am. State Rep., 442; Mitchell v. Zimmerman, 4 Texas, 69; Shoemaker v. Mathers, 30 N. E. Rep., 755; Harvey v. Hadley, 87 Cal., 560; Tanner v. Clarke, 13 Ky. Law Rep., 922; Clarke v. Tanner, 19 Ky. Law Rep., 590.</p> <p>6. .Parol testimony is admissible to prove such agreements and representations, though it varies or contradicts the title bond, because it is a part of the consideration of the purchase, and an inducement to make the purchase and because it is a collateral agreement relating to the same subject matter. Western & A. R. R. Co. V. Morrison, 40 L. R. A., 84; Ferguson v. Rafferty, 6 L. R. A., 45; Todd, &c., v. Lancaster, decided by this court, October 6, 1898; French v. Ryan, 104 Mich., 630; Meecham on Agency, sec. 84; Louisville Railway Co. v. Neafus, 93 Ky., 53; Rice on Evidence, secs. 159, 188; Ferguson v. Rafferty, 6 L. R. A., 33; Thomas v. Loose, 114 .Pa., 203; Fosters v. Kennedy, 35 Ala., 363; Walker v. France, 112 Pa., 203; Cullmans v. Lindsay, 114 Pa., 166; Warren v. Landes, 137 Pa., 65; Grover v. Scott, 88 Pa., 88; Lathrop v. Foster, 67 Me., 368; Rice on Evidence, secs. 163, 174 and 188; Eighmie v. Taylor, 98 N. Y., 297; Nissus v. Gold Mining Co., 104 N. C., 310; Green v. Batson, 71 Wis., 54; Haha v. Doolittle, 18 Wis., 198; Hubbard v. Marshall, 50 Wis., 322; Robinson v. Reynolds, 110 N. Y., 654; Rice on Evidence, secs. 176, 186; Buzzell v. Williard, 44 Vt., 44; Ins. Co. v. Deford, &c., 33 Md., 382; Ayer v. Bell Mfg. Co., 147 Mass., 46; Sugar Refining Co. v. Forsythe, 108 Ind., 334; Weeks v. Needier, 20, Kas., 57; Chapin v. Dodson, 78 N. Y., 81; Mann v. Nunn, 43-L. J., (C. P.) (N. Y.), 241; Lippincott v. Whiteman, 83 Pac., 244; Durkin v. Cobleigh, 17 L. R. A., 270 and notes.</p>

■Case 27 — Action to Recover Money Paid by Mistake — APPEAL FROM GRAVES. CIRCUIT COURT. Judgment for Defendant. Plaintiff Appeals. 1. The taxes were assessed and collected before the erroneous ruling of this court was made, and all that was afterward done, was •simply a repayment by the county to the bank.

<p>Case 28 — Petition to Vacate and Modify Judgment Dismissing Appeal —</p> <p>APPEAL FROM JOHNSON CIRCUIT COURT.</p> <p>Petition Filed by Appellant to Vacate the Judgment of this Court Rendered on April 27, 1899, Dismissing the Appeal and Awarding Damages Thereon.</p>

<p>Case 29 — Action to Enforce Mechanic’s Lien —</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>Action by F. M. Hightower, Lumber Merchant, v. Bailey & Koer-ner, Contractors, to Enforce a Material-man’s Lien. '</p> <p>Judgment for the Defendants and Plaintiff Appeals.</p> <p>1. The Mechanics’ Lien Law, Kentucky Statutes, sec. 2463, as amended by the act of March 21, 1896, is constitutional.</p> <p>2. Difference in rules as to constitutionality of State and Federal legislation. Griswold y. Hepburn, 2 Duval, 24.</p> <p>3. The fifth amendment to Constitution of the United States has no application to the States. Thorington v. Montgomery, 147 U. S., 490.</p> <p>4. The fourteenth amendment confers no right, privilege, or immunity, but simply restricts the exercise of State sovereignty. U. S. v. Cruikshank, 2 Otto, 542; C. B. & Q. R. R. v. Chicago, 166 U. S., 226.</p> <p>5. The validity of an act is presumed until its nullity is shown beyond reasonable doubt. Collins v. Henderson, 11 Bush, 74; Cooley’s Const. Lim.,- 216, 433, 434; Wellington, Petr., 16 Pick., 87; Alexander v. People, 7 Col., 755; Crowley v. State, 11 Oregon, 512; Kelly v. Meeks, 87 Missouri, 396; Robinson v. Sehenck, 102 Ind., 307; Talbot v. Hudson, 16 Gray, 417; Louisville v. Hyatt, 2 B. Mon., 178; Lexington v. McQuillan, 9 Dana, 513; Waller v. Martin, 17 B. Mon., 191; C. & O. R. R. v. Barren Co. Ct., 10 Bush, 613. -</p> <p>6. What constitutes “due process of law.” Tribunal, jurisdiction, notice. Bank of Columbia v. Okely, 4 Wheaton, 235, 244; Janes v. Reynolds, 2 Texas, 240; Pearson v. Yewdall, 5 Otto, 294; Taylor v. Porter, 4 Hill, 140; Walker v. Sauvinet, 2 Otto, 678; U. S. v. Ferreira, 13 How., 40; People v. Essex-Co., 70 N. Y., 229; Osborne v. Nicholson, 13 Wall., 654; Den v. Hoboken, etc., Co., 18 How., 272; Wilkerson v. Leland, 2 Peters, 658; Deeper v. Texas, 139 U. S., 462; Davidson v. New Orleans, 6 Otto, 97; Pennoyer v. Neff, 5 Otto, 714; Kennard v. Louisiana, 2 Otto, 480; 1 Hen. & Mun., 531.</p> <p>7. Discussion of authorities relied on contra. Farmers Loan & Trust Co. v. Canada, &c., R. R., 11 L. R. A., 740; McHugh v. Gault, 86 Mich., 133; Kirkwood v. Hoxie, 95 Mich., 62.</p> <p>8. The owner by his contract authorizes the contractor to procure all such material, and to have done such work as is necessary; and settlement with the contractor is no defense to a claim of lien by the sub-contractor and material-man. Smith v. Neu-bauer, 144 Ind., 95; Philips Mech. Liens, 2d Ed., sec. 33; Colter v. Frese, 45 Ind., 96; Barker v. Buell, 35 Ind., 302; White v. Miller, 18 Pa., 52; Neely v. Seabright, 113 Ind., 316; Hamilton v. Naylor, 72 Ind., 175; Adams v. Buhler, 116 Ind., 100; Ferguson v. Despo, 8 Ind. Ap., 523; Kellogg v. Howes, 81 Cal., 170; Parker v. Bell, 7 Gray, 429; Weeks v. Walcott, 15 Gray, 54; Clark v. Kingsley, 8 Allen, 543; Cole Mfg. Co. v. Falls, 90 Tenn., 466; Reeves v. Henderson, 90 Tenn., 521; Bardwell v. Mann., 46 .Minn., 285; Mallory v. LaCrosse Abattoir Co., 80 Wisconsin, 170; Albright v. Smith,-So. Dakota,-; French v. Bauer, 20 L. R. A., 560; Jones v. Hotel Co., 86 Fed. Rep., 370.</p> <p>9. Every contract is made in contemplation of the law which enters into and is a part of such contract and governs it.</p> <p>1. Mechanics’ liens are purely statutory. They had no existence at common law.</p> <p>2. The only question involved in this case is the constitutionality of the Mechanics’ Lien Law, sec. 2463, Kentucky Statutes.</p> <p>3. The statute as amended eliminates the requirement of notice to the owner by the contractor, or to the sub-contractor by the materialman. The owner may have paid his contractor in full for the work, yet the sub-contractor in the first, second or third degree of the material man whom he never heard of may, at any time, within six months after he has ceased to labor or to furnish material assert a lien against the property (sec. 2468, Ky. ■Stat.) If such is the purpose of the act, we submit that the Legislature has exceeded its powers. It can not thus appropriate and apply one’s property without consent, and such act is unconstitutional.</p> <p>AUTHORITIES CITED.</p> <p>Mechanics’ Lien Law prior to act of March, 1896, Ky. Stats., ed. 1894, see. 2463.</p> <p>Mechanics’ Lien Law of March 21, 1896, Ky. Stats., ed. 1899, sec. 2463-2467, acts 1896, p. 47. • '</p> <p>Statutes similar to the act of March, 1896, held unconstitutional. John Spry, &e., v. Sault, &c., 77 Mich., 199, and 6 Lawyers Reps., Annd. 204 and 18 Am. St. Reps., 397.</p> <p>Schroeder v. Galland, 7 L. R. A., 711 and 19 Am. St. Rep., 691.</p> <p>Benedict v. Hood, 19 Am. St. Rep., 698.</p> <p>Nice v. Walker, 34 Am. St. Rep., 688.</p> <p>Waters v. Wolf, 42 Am. St. Rep., 815.</p> <p>Meyer v. Berlandi, 12 Am. St. Rep., 663.</p> <p>Jones v. Great Southern, &c., 79 Fed., 474.</p> <p>Randolph, &c., v. Builders, &c., 17 Southern Rep., 721.</p> <p>Selma Sash, &c., v. Stoddard, 22 Southern Rep., 555.</p> <p>APPELLANTS’ AUTHORITIES REVIEWED.</p> <p>Kellogg v. Howes, 6 L. R. A., 588.</p> <p>French v. Bauer, 20 L. R. A., 560.</p>

<p>Municipal Corporations — Excessive Levy for School Purposes.</p> <p>Held: 1. The fact that the fiscal agents of the city of Paducah may have levied and collected more money than was shown to be due for school purposes by the report made to them by the appellant, does not affect the rights of appellant or authorize the payment of such excess to appellant by appellee.</p> <p>2. When the board of education has received from the city, the money estimated by it to he necessary for school purposes for any ■given year, the obligation of the city to it, for that year, has been discharged.</p>

Case 31 — Action to Recoves Debt by Garnishment APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Action by Bartels v. P. C. C. & St. L. Ry. Co., as Garnishee. Judgment for the Plaintiff and Defendant Appeals. 1. A suit by attachment in the ordinary, or garnishment form, can not be maintained in the courts of Kentucky without personal service on the principal defendant, unless there be in this State property or wages upon which the attachment can be levied. 2.

<p>Case 32 — Action for Damages for Death oo? Plaintiff’s Intestate—</p> <p>APPEAL FROM MASON CIRCUIT COURT.</p> <p>Judgment for Defendant Gas Company and Plaintiff Appeals.</p> <p>(No brief in record.)</p>

Case 33 — Action for Deceit — APPEAL FROM MONTGOMERY CIRCUIT COURT. J. G. Trimble sued the Exchange Bank of Kentucky for Deceit in THE SALE OF BANK STOCK. Judgment for Plaintiff and Defendant Appeals. 1. The petition does not present a cause of action, and the demurrer thereto should have been sustained. 2. The action is clearly barred by the statute of limitations. 3. The plaintiff, if entitled to any relief, has- noi pursued the proper remedy. 4.

<p>Evidence — Punitive Damages — Evidence as to Financial Ability of Defendant.</p> <p>Held: 1. Unless the physician who examined the plaintiffs head was able to state that the skull had been fractured, no testimony should have been allowed as to the probable damage which would result from such an injury.</p> <p>2. It was not competent to prove the financial condition of the father of the injured boy, nor that he was dismissed from school. It was error to prove that defendant had procured an indictment against Miss Brashear, or of any conveyance made by defendant to his wife.</p> <p>3. It was error to admit evidence as to the pecuniary condition of the defendant, though the case is one in which punitive damages may be recovered.</p> <p>To the extent that former decisions of this court conflict with this opinion, they are overruled. See superior court opinion in Crosby v. Bradley, 11 Law Rep., 954; Gore v. Chadwick, 6 Dana, 478; Railroad Co. v. Mahony’s Adm’r., 7 Bush, 23'8.</p>

Case 35 — Action to Enforce Judgments — APPEAL FROM MASON CIRCUIT COURT. Judgment for Plaintiff and Defendants Appealed. CLASSIFICATION OF QUESTIONS DISCUSSED. I. — APPEAL. 1. — As to appellees, Boyd and husband and Nelson et al. (1.) — The personal judgments in their favor against the M. & B. S. R. R. Co. are void because summons served on agent of the C. & 0. Ry.

<p>Case ■ 36 — ’Petition toe Reheaeing —</p>

Case 37 — Action on ■ Promissory Note — APPEAL PROM KENTON CIRCUIT COURT. JUDGMENT POR PLAINTIPF AND DEPENDANT APPEALS. 1. Under the contract between appellant and appellee, no tender of ’ stock was necessary. Had it -been, the answers of appellant show a full tender thereof. Greer v. Bentley, 19 Ky. Law Rep., 12S1; Walden v. Citizens’ Savings Bank, 19 Ky. Law Rep., 1394. 2.

Case 38 — Election Contest for Governor and Lieutenant Governor of Kentucky — APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Held: it had no power to do anything more than decide that there was in fact no election held, and re-submit the matter to -the people. 5.

Case 39 — Action foe Damages- in Building Wall to another Wall. APPEAL FEOM WARREN CIRCUIT COURT. Judgment for Plaintiff for Damages and Defendant Appeals. 1. We contend that where a person obtains a benefit from the property of his neighbor, without injury to .him or the property, or in any way lessening its value or its use to him, it is an “injury without damages for which no action, legal or equitable, can be maintained. 2.

<p>Liability of Shareholders for Expenses and Losses — Set-off—Es-toppel to Plead.</p> <p>Held: 1. When a building and loan association is sued to recover usury paid, and fails to plead as a set-off the amount for which the plaintiff is liable to the association for her proportionate part of expenses and losses, it, or its assignee for creditors, is not estopped from asserting such claim, when the judgment for usury is-sought to be enforced.</p> <p>2.In order to entitle the association to recover against a member, his proportionate share of the expenses and losses, there must be a full exhibit of the expense and loss account in detail. No effort was made here to do this.</p>

Case 41 — Action to Recoves Taxes APPEAL FROM CAMPBELL CIRCUIT COURT. SECOND APPEAL. Judgment for Dependant and Plaintiff Appeals. 1, The only issue presented on this appeal is whether or not the ap-pellee is an institution of purely public charity within the meaning of section 170 of the Kentucky Constitution. 2.

<p>Case 42 — Action for 'Personal Injuries From Bite of Dog —</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>1. The petition does not state a cause of action for negligence, because it does not allege either- negligence or facts from which it can be inferred. Railroad v. Wolf, 80 Ky.; 82.</p> <p>Nor a cause of action for keeping a vicious dog, because it fails to allege the scienter. Young v. Murray, 12 Bush, 337.</p> <p>•Nor an action on the statute for keeping a vicious dog, because-it does not negative the exceptions so as to bring the plaintiff within the purview of the statute. Chitty on Pleading, yol. 1, star pages, 223, 309; Bacon’s Abridgment Old Com. Law-Statute, L. 1 East, 646; Vanvasour v. Ormrod, 6 B. C., 430; Am. Accident Co. v. Carson, 99 Ky., 441; Railroad v. Belcher, 89 Ky., 193; Nichols v. Sennitt, 78 Ky., 630;.Newman on Pleading, 398; Central Asylum v. Penick, 19 Ky. Law Rep., 1584; Commonwealth y. Bull, 13 Bush, 656; Wharton on Crim. Pleading (9th ed.), secs. 240-1; Definition of Term "clause:” Am. Ency. Dictionary, yol. 2, page 913; Webster’s Unabridged Dictionary; Bouvier’s Law Die., vol. 1, page 278; Am & Eng. Ency. of Law (2d ed.), vol. 6, page 108; Federal Rules in Equity, 21.</p> <p>2. A dog is property in Kentucky. Commonwealth v. Hazelwood, 84 Ky., 681; Cunningham v. Koestal, 97 Ky., 421.</p> <p>3. It is the issue joined and not the evidence or instruction that cures defects in pleading. Chitty on Pleading, vol. 1. star page, 673; Stephens on Pleading, 164; Bogenschuetz v. Smith, 84 Ky., 330; Evans v. Stone, 80 Ky., 78; Drake v. Semonin, 82 Ky., 294.</p> <p>4. Where a cause of action exists at common law, and the statute enlarges the remedy, it is necessary to plead the statute, or conclude that the damage is contrary to the statute. Bell v. Norris, 79 Ky., 48; Courtney v. Jennings, 19 Ky. Law Rep., 1912;</p> <p>5. It is error to submit the construction of a statute to a jury. Thompson on Trials, vol. 1, secs. 1050-1052; Bogenschuetz v. Smith, 84, 363; Boreing v. Hurst, 20 Ky. Law Rep., 134.</p> <p>6. It is only the person who has control of a dog that is made responsible for its conduct, and the court should have so told the jury. Whallen v. Wetzel, 6 Ky. Law Rep., 49; Whittmore v. Thomas, 153 Mass., 347; Cullenkill v. Haverhill, 128 Mass., 218; Auchmuty v. Hamm, 1 Den, (N. Y.), 495; Meyer v. Poggemoeller, 47 Mo. App., 560; Cummings v. Riley, 52 N. H., 368; Burnham v. Strother, 66 Mich., 519; Shearman & Red. on Negligence (5th ed.), vol. 2, sec. 633; Baker v. Kinzie, 38 Cal., 631; Simpson v. Griggs, 58 Hun., 393.</p> <p>7. The statute does not eliminate the defence of contributory negligence. Orne v. Roberts, 51 N. H., 110; Quimby v. Woodbury, 63 N. H., 370; Cunningham v. Koestel, 97 Ky., 421.</p> <p>8. Mere temporary disfigurement is not a criterion in the assessment of damages. Standard Oil Co. v. Tierney, 92 Ky., 380; Railroad v. McEwan, 17 Ky. Rep., 406.</p> <p>9. Section 601, Civil Code, is not a mandatory rule on the court to exclude the evidence of a witness who is put under the rule, but leaves a discretion in the court to be exercised in the furtherance of justice to prevent perjury. Railroad v. McCleaver, 18 Rep., 1036; Johnson v. Cien, 82 Ky., 87; Bush v. Wathen, 47 S. W. R., 599.</p> <p>1. The allegations in the petition are sufficient to support the ver-diet. It is not necessary to negative the exception, but it is a matter of defense. Bush v. Wathen, 47 S. W., 599; Chitty on Pleadings, vol. 1, pages 223, 309; Vavasane v. Ormrod, 6 B. C., 430; Am., Acc. Co. v. Carson, 99 Ky., 441-44; L. & N. R. R. Co. v. Belcher, 89 Ky., 197; Bishop on Crim. Procedure, vol. 1, secs. 632, 631, 635; Commonwealth v. Bull, 13 Bush, 656; Am. & Eng. Ency., vol. 18, 571; Chitty on Pleading, vol. 1, marginal page 256; 3 B. & C., 189; Com. v. McClannahan, 2 Met. 8; Goulds’ Pleading, sec. 22, chap. 4.</p> <p>2. The court is bound to decide on instructions as they are drafted and presented to the court, but is not bound to mold them into the proper form. Clark v. Baker, 7 J. J. Marshall, 197.</p> <p>3. The language of the statute needs no interpretation. “Owning, having or keeping” are words' as familiar to the juror as to the court and required no interpretation.</p> <p>4. The motion for a judgment for the defendant non-obstante, and the one for a new trial, were both properly overruled. Owensboro Water Co. v. City of Owensboro, 6 Ky., 665; Mast, &e., v. Lehman, 18 Ky. Law Rep., 949; Vaughn v. Gardner, 7 B. Mon., 27.</p>

<p>Case 43 — Indictment for Failure to Give Signals at Public Crossing.</p> <p>APPEAL FROM GRAYSON CIRCUIT COURT.</p> <p>The Illinois 'Central R. R. Co. was Convicted for Failing to Give iSlGNALS OF THE APPROACH OF A TRAIN TO A PUBLIC CROSSING-DEFENDANT Appeals</p> <p>1. The statute provides that “bell shall be rung or whistle sounded outside- of incorporated cities or towns, etc.” The converse of this must be true, that such signals need not be given inside ■such limits.</p> <p>2. A penal statute can not be extended by implication or construction; it can not be made to embrace cases not within the letter, although within the reason and policy of the law.</p> <p>3. It is the Legislature, and not the court, which is to define a crime. ■Sutherland on Stat. Construction, secs. 349, 350; Bosley v. Mat-tingly, 14 B. Mon., 73; I. C.R. R. Co. v. 'Com., 20 L. R., 748; I. 'C. R. 'R. Co. w. Com., 20 ¡L. R~, 990; L. fe N. R. R. Co. v. Com., 13 Bush, 388; Kentucky ^Statutes, sec. 786.</p> <p>1. It is totally inadmissible to extend the operation of .a penal statute upon an inference or hypothesis that the Legislature has overlooked some case when it would have provided for it, if its attention had been called to it.</p> <p>1. The public crossing is the thing that this statute was intended to protect, and the only reasonable construction of it is, that the signals must .be given at the required distance, whether the engine at the time is outside or inside the town.</p> <p>2. All statutes shall be construed with a view to carry out the intent of the Legislature. Kentucky Statutes, sec. 459.</p>

Case 44 — Action for Injunction to Restrain the Collection or Taxes APPEAL PROM WHITLEY circuit court. JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS 1. Under an ordinance of the city which provides that all manufacturing establishments, and their machinery shall be exempt from municipal taxation for a period of five years from the time of their establishment in the city, the plaintiff is exempt from city taxes for said period. 2.

Case 45 — Action toe Damages for Diverting Water from a Stream. APPEAL FROM CHRISTIAN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals 1. Insane asylums are subject to be sued like other persons or corporations with respect to matters within their corporate authority or duty. Ky. -Stats., secs. 217 and 237; Herr v. Central Lunatic Asylum, 97 Ky. Rep., 460; Williamson v. Louisville Industrial School of Reform, 95 Ky. Rep., 251. 2.

<p>Case 4-6 — Action fob .Personal Injuries</p> <p>APPEAL PROM FRANKLIN CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>(No briefs in record.)</p>

<p>Case 47 — Action to Enforce -Mortgage Lien &c.</p> <p>APPEAL PROM BATH CIRCUIT COURT.</p> <p>Action by Deposit Bank op Pierce, Pant & Co., against it. L. Thompson and others to enforce a Mortgage Lien. Judgment por J. W. Allen and others upon cross petition piled by THEM, ENFORCING A LIEN UPON THE DEBTOR’S EQUITY OF REDEMPTION IN THE LAND SOLD TO SATISFY PLAINTIFF’S LlEN, AND W. R. Smith and others appeal..</p> <p>1. The judgment confirming the report of sale of the land, put an end to the action, and therefore neither the clerk in vacation, nor the court in term-time, had any authority thereafter, to permit the filing of an additional pleading. Brown v. Van Cleve, 86 Ky., 38-1; Meadows v. Goff, 90 Ky., 540; Kendall v. Carter, 8 Rep., 879; City of Covington v. Page, 11 Rep., 404.</p> <p>2. In no event was there any authority for the filing of the answers and cross .petitions in vacation. Civil TJode, sec. 108.</p> <p>3. A levy upon the equity of redemption was necessary to give a lien thereon, the lien created by the levy on the land having been exhausted 'by its sale. Kentucky Statutes, sec. 2365; Glaze-.brook & Bro. v. Brandon, 3 Ky. Law Rep., 466; Makibbin v. Arndt, 88 Ky., 180.</p> <p>1. Neither of the appellees levied their executions on the equity of redemption, hence there are no priorities to adjust between them. A levy on the land was not sufficient.</p> <p>2. The object of the plaintiff’s suit was accomplished when the land was sold. It then became final.</p> <p>3. The answer and cross petition is not a part of the record, until noted of record. The .summons thereon was issued before this was done and is a nullity. Civil Code, 107 and 108; Kentucky .Statutes, 2365; Meadows v. Goff, 90 Ky., 540; Brown v. Van Cleve, 86 Ky., 381; Watts v. Hughes, 15 Ky. Law Rep., 846.</p>

Case ' 48 — Action to Recoves Salary APPEAL FROM MADISON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. 1.

Case 49 — Action to Enforce Tax Lien APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Plaintiff and Defendant Appeals. 1. The purchaser at a decretal sale, and not the vendor, is liable for the taxes thereon, which accrued after the sale, but before its confirmation. Vance v. Foster, 9 Busk, 389; MoLean v. Hartford Fire Ins. Co., 1 Selden, (N. Y.), 151; Hughes v. Swope, 88 ■Ky., 257. 2.

<p>Trusts — Power of Trustee to Borrow Money — Acceptance of Trust Fund in Payment of Individual 'Obligation of Trustee — Subro-gation — Defect in Petition Cubed by Answer.</p> <p>Held: 1. Where no duty was imposed on a trustee which rendered it necessary for him to borrow money, a note executed by him, as trustee, for borrowed money, was nothing' more than an individual obligation.</p> <p>2. Where a bank was charged with notice that money which it received from a trustee in payment of his individual debt was a part of the trust estate, it must account to the cestui que trust for the money received.</p> <p>3. A surety of a trustee, who has been compelled to account for the defalcation of his principal, is entitled to be subrogated to the rights of the cestui que trust, against one who has wrongfully appropriated part of the trust estate.</p> <p>4. In an action to recover money wrongfully appropriated by defendant, the defect in the petition, in failing to allege a demand, was cured by the answer, which denied the wrongful appropriation.</p>

<p>Revivor of Action — Death of Partner Pending Action — Suggestion of Death.</p> <p>Held: 1. In an action by partners in behalf of the partnership, if one of them dies the right to prosecute the action survives to the other partners, and it is unnecessary to revive the action in the name of the personal representative of the deceased co-partner.</p> <p>2. Where one of the plaintiffs suing as partner died pending the action, and defendant made a motion to dismiss for want of revivor, the admission by the surviving partners of record of the death of the deceased partner was a sufficient compliance with subdivision 1, section 500, Civil Code, providing that upon the death of a party to an action, if the right of action survive to or against the remaining parties, the action may proceed, without revivor, after statement on the record of such death.</p>

Case 52 — Action' to Recover Damages for Death oe Plaintiff's Intestate — APPEAL FROM LINCOLN CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. 1. One who takes passage on a train which he knows is always run backwards between the station where he got on, and the place of his destination, assumes the risks ordinarily incident to that manner of moving the train. The duty the carrier owes him is to exercise proper care in backing the train.

•Case 53 — Action foe Mandamus APPEAL PROM PRANKLIN CIRCUIT COURT. Judgment por Dependant and Plaintiff Appeals. 1. Taxation must be equal and uniform “upon all property within the territorial limits of the authority levying the tax.” Constitu- ’ tion, secs. 171-172-174; Bill of Rights, sec. 3; Board of C. of F. v. Scott, 19 Ky. Law Rep., 1058; Pence v. City of Frankfort, 19 Ky. Law Rep., 721. 2'.

<p>Provision that Policy Shall be Incontestable.</p> <p>Held: Tlie provision of a policy that It shall be incontestable “if the insured shall die three or more years after the date hereof, and after all due premiums shall have been received by the company,” applies where the company seeks to avoid liability by virtue of a clause providing that the policy shall be void “if the insured dies in consequence of his own criminal action.”</p>

<p>Case 56 — Action to Set Aside Deed</p> <p>APPEAL PROM MONTGOMERY CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>1. The marriage of negroes in a state of servitude is void. Du-maresly v. Fishly, 3 A. K. Marshall, 368; Free Frank, &c., v. Denham’s Adm’r, 5 Litt., 330; Ewing v. Bibb, 7 Bush, 6S4.</p> <p>2. Cohabitation and recognition of the married relation after the enaetm.ent of the revised statute did not and could not constitute a valid marriage in Kentucky. Rev. Stat., chap. 47, art. 1, sec. 2, sub-division 4 and seo. 10 oí same chap, and act; Rstill v. Rogers, 1 Bush, 62; Harris, &c., v. Harris, &c., 8 Ky. Law Rep., 727.</p> <p>3, The statutory remedy of February 14th, 1866, avails nothing unless its proviso-, is complied with; and its remedy is the only method of legalizing the marriages of slavery. Estill v Rogers, 1 Rush, 62; Stewart v. Munchandl-er, &c., 2 Bush, 278; Brown, &e., v. MoGee, &c., 12 Bush, 428; Dowd, &e., v. Hurley, &e., 78 Ky., 260; Acts 1865-6, chap. 556, sec. 2, page 37.</p> <p>1. Marriage of slaves during slavery is utterly void and no marital rights accrue therefrom.</p> <p>2. The appellees, Sarah Botts and Phil. Botts, never complied with the act of 1866, so as to legalize their slave marriage. Kuln v. Knauer, 7 B. Monroe, 130; Robbins v'. Com., 6 Bush, 311; White-sides v. Allen, 11 Bush, 23; Allen v. Allen, 8 Bush, 491.</p> <p>I. Phoebe could not have legally married Philip Botts, she then being the wife of Ed. Smith.</p> <p>2. ,Sarah Botts was the legal wedded wife of Philip Botts, she having - been married in accordance with the customary matrimonial rights among slaves, and she lived with him, as his wife, up to his death. Brown v. McGee, 12 Bush, 428; Davis v. Meaux, &e., 15 Ky. Law R-ep., 308; Whitesides, &c., v. Allen, 11 Bush, 23.</p>

Case 56 — 'Action to Recover Damages eoe In juey to Property— APPEAL FROM JEFFERSON CIRCUIT COUET, COMMON PLEAS DIVISION. Judgment foe Plaintiff and Defendant Appeals. I. The property alleged to have been damaged was not owned solely by the appellee. It was conveyed to her by her deceased husband, Victor P. Wilson jointly, and her said husband’s representatives were not parties to this suit, and she can noi recover for them. Am. & Eng.

Case 67 — Action fob Mandamus APPEAL FROM FRANKLIN CIRCUIT COURT. Judgment por Dependant and Plaintiff Appeals. 1.

<p>Case 58 — Action to Enforce Liens fob Street Improvement Against Property Holders</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>From Judgments Enforcing Liens Against Defendant Property Owners for Only Part of the Amounts Claimed, and Against . the City of Louisville for the Remainder, the Plaintiffs and the City of Louisville Appeal.</p> <p>I. The guaranty clause did not include in the work to be done under the contract any ordinary or general repairs chargeable to the city. Fehler v. Gosnell, 99 Ky., 380, 389, 390, 391, 392, 393; Gosnell v. City of Louisville, 20 R., 519, 520; City of Louisville v. Henderson, 5 Bush, 515, 519, 520; City of Covington v. Dress-man, 6 Bush, 210; Brown v. Jenks, 98 Cal., 10; People v. Maher, 63 N. Y., 83; Barber Asphalt Paving Co. v. Ullman, 38 S. W., 458, 460, 464, (137 'Mo., 543); City of Schenectady v. Trustees of Union College, (1892), 66 Hun., 179, 21 N. Y. Supp., 147; Cole v. People (1896), 161 Ill., 16; (43 N. E., 607); Boyd v. City of Milwaukee, 92 Wis., 45'6; Osborne v. City of Lyons, (Iowa), 73 N. W. Rep., 650; Robertson v. City of Omaha, 76 N. W., 442; Wilson v. Inhabitants of City of Trenton, 38 Atl. Rep., 635; 40 Atl.. Rep., 575; Allen v. City of Davenport (.Iowa;, 77 N. W., 532; City of Kansas City v. Hanson, &c., (Kansas), Municipal Corporation Cases, vol. 2, part 6, page 700.</p> <p>2. The contractor in his contracts agreed to look alone for the price of all his work to the lot owners. Trustees of Bellevue v. Hohn, 82 Ky., 1; Murphy v. City of Louisville,. 9 Bush, 189.</p> <p>S. Appellant’s answer presented good defenses, and the court below erred in sustaining appellee’s demurrer thereto. Fehler v. Gos-nell, 99 Ky., 394; Gosnell v. City of Louisville, 20 Ky. Law Rep.,. 519, 5-24; Section 2820, Kentucky Statutes; lb., 2981, 2982, 2816; State Constitution, section 157; Nicholasville Water Company v. Board of Councilmen of the Town of Nicholasville, 18 Ky. Law Rep., 592; Latham v. Village of Wilmette (1897),, 48 N. E. Rep.,. Ill., 311; Seaboard Nat. Bank v. Woesten (1898), 147 Mo., 467; Allen v. .City of Portland, 58 Pac. Rep. (Oregon), 510; Barber-Asphalt Paving Co. v. Ullman, 137 Mo., 543 and 479; Cole v.. People, 116 Ill., 16.</p> <p>1. A street contractor is entitled to judgment against the property owners for ninety per cent, of contract price of work, and for ten per cent, of same and costs against the city, under the contract in this case. Fehler v. Gosnell, 18- Ky. Law Rep., 238; Gosnell v. City of Louisville, 20 Ky. Law Rep., 522.</p> <p>2. Cities as well as natural persons are hound to do justice, and can not escape liability for benefits receive^ by plea of ultra vires. Nicholasville W. Co. v. Nicholasville, 18 Ky. Law Rep., 592; Argenti v. San Francisco, 16 Cal., 253; also 274 and 282; Silver Lake v. North, 4 Johnson, C. D., 370; State v.' Woram, 6 Hill, 37; Steam Nav. Co. v. Weed, 17 Barb., 378; Hitchcock v. Galveston, 96 U. S., 3-51; Chapman v. Dong & Co., 107 U. S., 353; Marsh v. Fulton Co., 10 Wal., 696; .Louisiana v. Wood, 102 U. S.,. 294; Morville v. Am. Tract Society, .133 Mass., 129; Clark v. Saline Co., 95 Neb., 516; Pimental v. San Francisco, 21 Cal., 362; 16 Am. & Eng. Ency. Law, page, 1083-4; Sedgwick, Stat. & Const. Law, p. 90; Town of Bellevue v. Peacock, 89 Ky.,. 497.</p> <p>1. In the ease of Fehler v. Gosnell, 99 Ky., 3-80, this court held thait where the city made contracts for the improvement of streets, by’ which it was provided that the work was to he done in accordance with the general ordinance, and that the general ordinance required the contractor to deposit bonds to the amount of ten per cent, of the contract price as a guaranty for five years, there was included in the contract price and in the warrants of the defendant property owners, a charge amounting to ten per cent, for repairs, and that they were not liable therefor, and that the warrants against them be scaled by ten per cent.</p>

<p>Case 59 — Action on Bond of Cashier of Bank</p> <p>APPEAL PROM GRANT CIRCUIT COURT.</p> <p>Judgment for Plaintiff for Only Part of Its Claim and it Appeals, and Defendant Prosecutes Cross Appeal.</p>

<p>Corporations — Power to Execute Mortgage — Pledges of Stock— Stockholders Bound by Judgments Against Corporation — Doctrine of Ultra Yires.</p> <p>Held: 1. Where a steamboat company was organized for the purpose of acquiring and operating certain boats, the assumption by the corporation of a debt which the seller of the boats had contracted in the construction of the boats, and the execution of a mortgage to secure the debt, were within the powers of the corporation — especially when done with the approval of all of the stockholders.</p> <p>2. Pledgees of the stock of a corporation to secure a debt of the stockholder are stockholders, and not creditors, of the corporation, and are bound by a judgment for debt against the corporation until it is reversed or set aside in a direct action instituted for that purpose.</p> <p>3. It is a well recognized rule in courts of equity that the doctrine of ultra vires should not be allowed to prevail where it would defeat the ends of justice or work a legal wrong, and certainly it should not be invoked in a- case like this to defeat the effect of an agreement which is clearly within the scope of the powers of a corporation of this character.</p>

<p>Case 61 — Action to Enforce Lien for Street Improvement</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>Action by Covington Stone & Sand Co. Against Mary Neff, et als. to Enforce Liens for Street Improvements.</p> <p>Judgment for Plaintiff and Defendants Appeal.</p> <p>1. Premature Judgments. Kentucky Statutes, sec. 996.</p> <p>2. Fatal omission from record. Kentucky Statutes, secs. 3707 and 3684.</p> <p>3. Presumption in favor of proceedings of town trustees. Nevin v. Roach, 86 Ky., 492; City of Lexington v. Headley, 5 Bush, 50-9; Lock v. Com., by &c.^ 15 L. R., 840; Taylor v. Henry, 2 Pick., 403; City of Covington v. Ludlow, 1 Met., 295; Dillon’s Munic. Corporations, vol. 1, (4th ed.), see. 297; City of Louisville v. McKegney, 7 Bush, 651; Raymond v. Smith, 1 Met., 65.</p> <p>4. Parol evidence to supply omission of record. Minor v. McLean, 4 McLean, 138 and 140; L., St. L. & T. R. R. Co. v. Newsom, 13 L. R., 174; Am. & Eng. Ency. of Law, vol. 20, 510, 511.</p> <p>5. Right to amend record. Am. & Eng. Ency. of Law, vols. 15, 1077, sec. 7; Boston Turnpike Co. v. Town of Pomfret, 20 Conn., 589; Covington v. Ludlow, 1 Met., 259.</p> <p>6. Work must be let to lowest bidder. Am. & Eng. Ency. of Law, vol. 15, 1090, sec. 4.</p> <p>7. Charter provisions imperative. Kaye v. Hall, 13 B. M., 455; Worth-ington v. City of Covington, 82 Ky., 265; MoG-rath v. Shelbyville, 13 L. R., 588; 2 Dillon, 940; Merritt v. Port Chester, 71 N. Y., 309; Scammon v. Chicago, 40 Ill., 146.</p> <p>8. Presumptions can not supply omissions of record. Cooley on Law of Taxation, page 332; Pearson v. Zable, 78 Ky., 170.</p> <p>9. Judgment in the Holmes case did not sufficiently describe the property. Meyer v. City of Covington, 20 L. R., 239; Civil Code, 696.</p> <p>1. Record does not show that the work was let to the lowest bidder, as required by city charter. Ky. Stats., secs. 2770 and 3684.</p> <p>2. Appellee attempted to supply the record by parol testimony. This was error. Covington v. Ludlow, 1 Met., 295.</p> <p>3. The town itself must pay the contractor for this work.</p> <p>4. The fact that appellant, Wallace .petitioned for the improvement of the street, does not estop him from objecting to the 'work being done illegally.</p> <p>5. Wallace’s case was prematurely submitted.</p> <p>1. It must appear from the record of the proceedings of the trustees of Central Covington that the Covington Sand & Stone Company was the lowest responsible bidder for the work, or it can not recover. It is not competent to show this by parol testimony.</p> <p>2. These cases were prematurely submitted for judgment before the expiration of thirty days after completing issues. Sec. 996, Ky. Qtat.</p> <p>3. Cities of the sixth class are not authorized by their charter to order construction of a part of a street, and assess the cost thereof against abutting property owners.</p> <p>4. Section 3706, Kentucky Statutes, is unconstitutional, in that it permits the trustees of a town to impose upon the property owners the burden of an assessment for the construction of a street, abutting upon his property, and also compels him, at the will of the trustees to bear the burden of paying for the construction and repair of streets in front of property belonging to other persons by the imposition of a general tax for that purpose. Ky. iStats., sec. 3706, 3707, 3HS4, 3698 and 1629; Coving-ton v. Woods, 3 Ky. Law Rep., 85; Murphy v. Louisville, 9 Bush, 189-194; Worthington v. Covington, 82 Ky., 265; Henderson v. Lambert, 14 Bush, 24; Broadway Bap.-Church v. McAtee, 8 Bush, 508; McGrath v. Supervisors, 13 Ky. Law Rep., 588; Craycraft v. Selvage, 10 Bush, 696-708; Caldwell v. Rupert, 10 Bush, 179; Covington v. Ludlow, 1 Met., 275; Dillon on Mun. Corporations (4th ed.), sec. 300, note; City of Lowell v. Wheelock, 11 Gushing, 391; Harris v. Whitcomb, 4 Gray, 433; Morrison v. Lawrence, 98 Mass., 219; Louisville v. McKegney, 7 Bush, 651; L., St. L. & T. R. R. Co. v. Newsom, 13 Ky. Law Rep., 174; Cooley on Taxation, pages 2, 110, 111, 450 and 180; Cooper v. Nevifi, 90 Ky., 85; Howell v. Bristol, 8 Bush, 493; Lex. v. -McQuillan’s ¡Heirs, 9 Dana, 515; Covington v. Matson, 17 Ky. Law Rep., 13'28; Dillon on Mun. Corporations (3d ed.), sec. 736-7; Cases Commented on: Bank v. Dandridge, 12 Wheaton, 64; Dillon (4th ed.), sec. 300; Lexington v. Headley, 5 Bush, 508.</p> <p>1. The lowest responsible bidder.</p> <p>2. The presumption is always in favor of the regularity of council proceedings.</p> <p>3. After asking for, or .standiing by, and permitting this improvement to he made, the appellants can not object to the manner in which the contract was awarded. Ky. Stat., sec. 3706; City of Cmúngton v. Ludlow, 1 Met., 295; Dillon’s Mun. Corporations (4th ed.), sec. 300; Lock v. Com., 15 Ky. Law Rep., 840; Lexington v. Headley, 5 Bush, 508; Nevin v. Roach, 86 Ky., 492; . Weigham ■& Bro. v. Central Cov.</p> <p>4. The improvement of a part of the streets of a city, at the expense of the abutting property owners, and of other streets at the cost of the public, does not necessarily constitute an inequality.</p> <p>5. A local assessment is not a tax in the ordinary acceptation of the term.</p> <p>6. All the appellants, except the Neffs, are estopped from pleading any unconstitutionali'ty of this ease. People v. Mayor of Brooklyn, 4 N. Y., 419; Cooley’s Con. Limitations, 625; Cooley on Taxation, 628; City of Covington v. Matson, 17 Ky. Law Rep., 1323; Ferguson v. Landrum, 1 Bush, 548; 5 Bush, 230; Scoville v. Cleveland, 1 O. S., 133.</p> <p>1. Tlie appellants, who petitioned the trustees to make this improvement and stood by and saw the contract, awarded the work done and accepted and the tax levied, and waited until they had obtained all the benefits of the improvement without protest, are now estopped from making any question whatever.</p> <p>2. Kentucky Statutes, 3706, is not unconstitutional.</p> <p>3. The proceedings of the trustees are not unlawful because the streets were not improved their entire length.</p> <p>4. The work was let to the lowest responsible bidder and was done in strict. accordance with the ordinance and contract, and was accepted, and the tax apportioned and levied.</p> <p>5. The judgment was not premature; and if it was, it is a clerical misprision and not grounds for a reversal without motion made in lower court to set it aside. Ky. Stats., 3684, 3706, 3707, 3698; Civil Code, 517, 516, 519, 763, and authorities cited by counsel for Covington Sand & Stone Co.; also .City of Louisville v. Hyatt, 2 B. Mon., 177; Town of Bowling Green v. Hobson, 3 B.- Mon., 478; Pox v. Middlesboro Town Council 16 Law Rep., 456.</p>

<p>Vendor and Purchaser — Assignment of Title Bond — Lien of,Ven* dor — Failure of Title Bond to 'Show Unpaid Purchase Money— Acceptance of Additional Security.</p> <p>Held: Where the vendor surrendered the purchaser’s note for the price, and accepted in lien thereof the joint note of the purchaser and W., embracing therein also the price of land sold to W., he waived his lien, as against a subsequent purchaser who took an assignment of the title bond, which failed to show that any part of the purchase money remained unpaid.</p>

Case 63 — Violation of City -Ordinance APPEAL FROM BELL CIRCUIT COURT. Berry Gastenau ivas Convicted for the Violation of a City Ordinance, and he Appeals. 1. The ordinance in controversy is repugnant to the Constitution, and is a restraint on the free locomotion of individuals, which as a police power of the city has no authority to control. 40 Am.

Case 64 — Action to Enforce Mortgage Lien APPEAL FROM PAYETTE CIRCUIT COURT. Judgment por Plaintiff and Defendant Appeals. 1. Held: by any one of tlie cestui que trust. 9. “He who seeks equity must do equity.” Pomeroy’s Rights & Remedies, sec. 168; Commonwealth v. Mutual Life Ins. Co., 112 Mass., 116; Carr v. Brown, 31 W. N. C., 501; Hellier v. Allegheny Co. Mut. Ins. Co., 3 Pa., 470; Conigland v. N. C. Mut. L. Ins. Co., Phil. Eq., 341; Vanata v. N. J. Mut.

Case 65 — Action to Enforce a Mortgage Lien APPEAR FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Plaintiffs, Lee Orarle and others, Defendant Appeals. 1. The maker of a note which has not been placed on the footing of a hill of exchange, may plead against the assignee or holder, any ' defense, set-off, or counter claim, which he may have against the payee, provided it arose before the maker received knowledge of the assignment.

Case 66 — Action for Mandamus APPEAL FROM FRANKLIN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. 1. Where performance becomes impossible by reason of the act of God or of the law, a party will he excused for non performance. Farmers’ Bank v. Johnson, 4 Bush, 411; Belding v. State, 99 Am. Dec., 214; Blake v. Wm. Niles, 38 Am. Dec., 506; People v. Bartlett, 3 Hill, N. Y., 570; Taylor v. Tainter, 83 U. S., 366; Coke Litt., 206, (a). 2.

<p>Case 67 — Action fob Injunction</p> <p>APPEAL FROM. MADISON CIRCUIT COURT.</p> <p>Action by James B. McCreary against Elizabeth S. Irvine.</p> <p>Judgment foe Plaintiff and Defendant Appeals.</p> <p>1. An easement can be granted only by grant, express or implied, or •by prescription, from which a grant is presumed. It is an interest in lands, and by the Statute of Frauds, can not be created by parol. Hall v. McLeod, 2 Met., 98; Talbott v. Thorn, 91 Ky„ 417.</p> <p>2. Air, light and ventilation; where one merely receives through his windows, air, light and ventilation which come over his neighbor’s property, to reach him, he simply exercises his own rights, upon his own lands; he does no harm to his neighbor and for so exercising his Tights no action will lie against him. Mahan v. Brown, 13 Wend., 261; Shell v. Kemmerer, 13 Phila., 502.</p> <p>3. An easement in the unobstructed passage of light, air and ventilation can not be acquired by prescription. Ward v. Neal, 37. Ala., 500; Western Granite Co. v. Knickerbocker, 103 Cal., 3; Parker v. Foote, 19 Wend., 309; Bay v. Sweeney, 14 Bush, 1; Keats v. Hugo, 115 Mass., 204.</p> <p>4. Neither is there an implied grant of the right to light, air or ventilation over the grantors, other land adjoining the land convey'ed. Robinson v. Clark, 65 Conn., 365; White v. Bradley, 66 Me., 254; Randall v. Sanderson, 111 Mass., 114; Colyer v. Pierce, 7 'Gray, 18; Swansboro v. Coventry, 9 Bing., 395; Hobson v. Cartwright, 93 Ky., 368.</p> <p>5. As to right of way to the so-called alley, which we claim is not an alley, but private property. 3 Kent’s Com., page 452; Wheeler v. West, 71 Cal., 126; Wiseman v. Lueksinger, 84 N. Y., 31; Eckerson v. Crippen, 110 N. Y., 585; Foote v. Manhattan Railway, N. Y. Supp., -516; Pentland v. Keep, 41 Wis.; Gibson v. Porter, 12 Ky. Law Rep.; Barker v. Pierce, 42 Cal., 667; Tag-gart v. Warner, 83 Wis., 1; 53 N. W. Reporter, 33; Smith v. Miller, 11 Gray, 145; Henry v. Koch, 80 Ky., 391; Luecken v. Wuest, 31 Ill. App., 506; Bushey v. Sankiff, 67 N. Y. Gt., 187; Wildy v. Norfolk Railway Co., 96 N. C., 408; Barker v. Clark, 17 Am. Dec., 428; Plimpton v. Converse, 42 Ver., 712; Hall v. McLeod, 2 Met., 98; Conyers v. Scott, 94 Ky., 123; Howe v. Bell, 38 N. E. Rep., 200; Ryan v. Portman, 8 B. Mon., 232; Eekhart v. Irons, 128 Ill., 568; Boston Water Power Co. v. Boston, 127 Mass., 374; Kings Co. F. Ins. Co. v. Stevens, 101 N. Y., 411; Carey v. Rae, 58 Cal., 159; Pierce v. Shellack, 18 Com., 321'; Oliver v. Pittman, 98 Mass., 46; Cooper v. Maupin, 35 Am, Dec., 456; Ward v. Robertson, 41 N. W., Rep., 603.</p> <p>1. Apparent or implied easement.</p> <p>2. What does the easement include?</p> <p>(a) The easement includes right of way over the alley.</p> <p>3. Right b.y prescription. Am. & Eng. Ency., (New Edition), vol. 10 page 420, &e.; Lampman v. Milks, 21 N. Y., 505; Henry v. Koch, 80 Ky., 381 Robins v. Barnes, Hor., 131; Robinson v. Clapp, 65 Conn., 365; Wells Paine v. Chandler, 19 L. R. A., 99; Ebner v. Stechter, 19 Pa., 19; Thompson v. McElarney, 82 Pa., 174; Pierce v. Clelland, 7 L. R. A., 752; Strothneir v. Leahy, 10 Ky. Law Rep., 333; Lehigh Valley R. Co. v. McFarlan, 43 N. J. R., 605; Am. & Eng. Ency. of Law, vol. 19, page 22; 103 Ind., 582; 53 Am. Rip., 550.</p>

Case 68 — Action on Bond or Circuit Clerk appeal prom franklin circuit court. Action bt Commonwealth of Kentucky, against J. A. Lyddane and-OTHERS ON THE BOND OF SAID LYDDANE AS .CLERK, TO RECOVER Money Illegally paid to him. Judgment for Defendants and-the Commonwealth Appeals. (No briefs in record.) 1. The case of Bright v. Stone, Auditor, is. error. Compensation as used in section 161 of the Constitution, does not apply to fees or to officers paid by fees. 2.

Case 69 — Action to Recover Claim Allowed by Fiscal Court— APPEAL from butler circuit court. ■Judgment for Defendants and Plaintiffs Appeal. 1. The fiscal court of Butler county hád jurisdiction over the claim . presented and allowed, and the fact whether the claim was a legal one, can not now be inquired into. Kentucky Statutes, secs. 4374, 4449; Taylor v. Davey County Treasurer, 75 N. W., 553; 65 N. W., page 50, County of Boone v. Dills. 1.

Case 70 — Action Contesting Will APPEAL PROM M’CRACKEN' CIRCUIT COURT. Will of Barbara Muller, Deceased, Contested by John P. Muller and Others — Judgment for Contestants — Propounders Appeal. 1. A subsequent will does not revoke a former one unless it contains a revocatory clause or makes an inconsistent disposition of property devised in the former one.

Case 71 — Action fob Mandamus APPEAL FROM FRANKLIN CIRCUIT COURT. Judgment fob Defendant and Plaintiff Appeals.

Case 72 — Action 'to Recover on a Bond- APPEAL PROM THE PULTON CIRCUIT COURT. Judgment por the Dependant and Plaintipf Appeals. 1. The facts alleged in the pleadings do not constitute any defense. 2 Am. & Eng. Ency. of Law (2d Ed.), 337 and 339; Wright v. Shelby.

•Case 73 — Action to Enjoin Collection or Tax APPEAL FROM WEBSTER CIRCUIT COURT. Judgment foe Defendants and Plaintiff, Appeals. 1. A franchise is a privilege to do what the ordinary citizen can not do. Com. v. City of Frankfort, 13 Bush, 185, and authorities there cited. 2. Private banks are restricted and can not do with tbeir money as the citizen may do, but a restriction is not a franchise. Com. v. Henderson Bridge Co., 17 L. R., 392. 3.

Case 74 — Action to Recover Band APPEAL FROM GREEN CIRCUIT COURT. Judgment for Dependant and Plaintiffs Appeal. 1. It is not within the jurisdiction of the county court to create 2. Limitation does not begin to run against one in remainder or in reversion, until the right of entry exists in him, which is not until the termination of the particular life estate.

<p>Ease 75. — Action for Settlement of Accounts and Involving Title of Infant Children to Homestead.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>■Judgment Denying Right of Infant Children of Jacob Schnabel to a Homestead, and they Appeal.</p> <p>(No briefs in record.)</p>

Case 76. — Action fob Breach of Contract. APPEAL FROM PULASKI CIRCUIT COURT. Judgment fob Defendant and Plaintiffs Appeal. 1. The only question for the court to decide is whether one joint tenant, or tenant in common can sell Umber, growing on the land owned in common by all the tenants, without the consent of his co-tenants. Our contention is, that such a sale is valid. Petit v. Marble, 13 Law Rep., 780. 1.

Cash 77. — Proceeding to Change County Road. APPEAL from: warren circuit court. Judgment for Changing the Road and Dependant Appeals. 1. Under the law set forth in the General Statutes, any person might' by motion in the county court, obtain an order for the appointment of reviewers.

<p>Case 78. — Action on a Promissory Note Involving Levy on Attachment on Real Estate.</p> <p>APPEAL FROM CAMPBELL CIRCUIT COURT.</p> <p>Judgment Distributing Proceeds oe Attached Property and Plaintiff Appeals.</p> <p>(No briefs in record.)</p>

Case 79. — Action to Recover Damages fob Personal Injubies,— APPEAL FROM BOYLE CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. 1. The lower court erred in giving on its own motion, instruction No. 1. 2. The court erred in refusing to give instructions A. B. C. & D., asked by appellant. 3.

Case 80 — Action Involvins Judgment Lien against Subeties on Bonds of Tax Collectors APPEAL FROM KNOX CIRCUIT COURT. Judgment Dismissing Cross Action of D. A. Johnson and He Appeals. 1.

Case 81 — Action fob Beeach of Contbact APPEAL FBOM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Judgment fob Defendant and Plaintiff Appeals. 1. The right of a common carrier to limit by contract its common law liability. .Constitution of Kentucky, sec. 196; Penn. R. R. Co. v. Miller, 132 U. S., 75. 2. The constitutional provision must prevail wherever a common carrier’s liability is called into question.

Case 82 — Indictment pop. Perjury APPEAL PROM MASON CIKCOIT COURT. Judgment Dismissing Indictment and Commonwealth Appeals. 1. If the court adheres to the opinion rendered in the case of Kaelin v. Commonwealth, 84 Ky. Rep., 345, the indictment in this case is fatally defective. 2. The indictment does not charge that the offense was committed “feloniously.” 3.

Case 83 — Action for Settlement of Estate APPEAL FROM HENDERSON CIRCUIT COURT. 1. In July, 1890, E. B. Newcomb died in France but was domiciled in Henderson, Ky. 2. He left tbe appellee, W. S. Newcomb, the only child of bis first wife, and the appellant, his widow and two children of the last marriage, B. B'. and Mary Newcomb. 3. Part of his estate consisted of 1,227 hogsheads of tobacco then in Liverpool and London. It is the subject matter of this litigation. 4.

Case 84 — Action to Set Aside a Deed for Fraud to Avoid Payment of Alimony APPEAL FROM KNOX CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. 1. A judgment for divorce and alimony does not of itself operate' as a lien on the land of the defendant, such a judgment has no more force than any ordinary judgment 'in personam. 2. The only way the plaintiff in such judgment could acquire a lien on the land of her husband was by an execution or attachment. 3.

Case 85 — Action fob Damages fob Alienation of Husband’s Affection APPEAL FBOM .TEFFEBSON CIBCUIT COUBT, COMMON PLEAS DIVISION. Judgment fob Defendant and Plaintiff Appeals. 1. A married woman has no property or contract right in the consortium of the husband, because if so it would be placed beyond the control of the State. Con. of Ky., sec. 19, 242; Rose v. Rose, 20 Rep., 417; Mitchell v. Violetit, 20 Rep., 378. 2.

<p>Carriers — Freight Rates — Discrimination—Long and Short Haul —Damages—Shipper’s Right op Action.</p> <p>Held: 1. Under Constitution, section 218, providing that it shall be unlawful for any person or corporation owning or operating a railroad, or any common carrier, to charge or receive a greater compensation for transportation under substantially similar circumstances and. conditions for a shorter than a longer distance over the same line in the same direction, the shorter being included within the longer distance, except under permission of the railroad commission duly granted on application, the fact that competition exists at the point to which the short haul is made, does not authorize the carrier to charge more for the short haul than for the long haul without permission of the commission.</p> <p>2. Where a carrier has charged more for a short haul than for a long haul, in violation of the Constitution, section 218, the fact that the Kentucky .Statutes, section 820, provides only for indictment of the carrier for violation of the constitutional provision does not prevent a shipper aggrieved by such violation from maintaining a suit against the carrier for damages sustained thereby.</p>

Case 87 — Warrant for Disorderly Conduct Under City Ordinance— Validity Thereof APPEAL FROM MONTGOMERY CIRCUIT COURT. 1. The city ordinance is valid. 2. The police court had jurisdiction. S. Where the punishment for violation of a city ordinance can not exceed a fine of $20, the accused can not legally demand a trial by jury. 4.

<p>Carriers — Unjust Discrimination in Rates — Method of Instituting Prosecution.</p> <p>Held: 1. The Constitution, section 217, providing that the attorney general shall institute proceedings to enforce the provisions of Id. section 215, prohibiting common carriers from making a discrimination in rates where the conditions are the same, does not exempt a carrier from indictment for a violation of those provisions.</p> <p>2. Even if an indictment for a violation of section 215 of the Constitution can be made only upon recommendation of the hoard of railroad commissioners, as provided by the Kentucky Statutes, section 819 (a question not decided), the objection that there was no such recommendation was waived where no motion was made to dismiss the indictment upon that ground.</p> <p>3. An indictment for unjust discrimination in rates should set out the points from and to which the goods were shipped.</p> <p>4. Under the Constitution, section 215, providing that all railroad companies shall haul “freight of the same class for all persons, ■associations or corporations from and to the same points and upon the same conditions, in the same manner and for the same charges, and for the same method of payment,” a railroad company may charge less for hauling coal used for manufacturing purposes than it charges for hauling coal used for domestic purposes, as the fact that the company receives the manufactured product for return shipment in the one case and not in the other constitutes a difference in conditions which authorizes a difference in charges.</p> <p>JUDGES PAYNTER, WHITE and GUPPY dissenting.</p>

<p>Railroad'S — Construction in Street — Injunction—Limitation of Action — Acquiescence.</p> <p>Held: 1. Where a railroad was constructed in a street under legislative and municipal authority, though the entire width of the street was used so as to interfere with its use for the passage of persons or vehicles, the right of an abutting property owner to enjoin the railroad company from using so much of the street as may be necessary for the passage of vehicles accrued when the road was put in operation, if injunction was the proper remedy, the right was barred after the lapse of five years from that time, under Kentucky Statutes, section 2515, providing that “any action for trespass on real or personal property, . . . or any injury to the rights of plaintiff, not arising on contract, shall be commenced within the five years next after the cause of action accrued.”</p> <p>"2. The statute of limitations applies to all actions, whether at -law or in equity.</p> <p>3. Where an abutting property owner has for a considerable number of years acquiesced in the existing situation and operation of railroad tracks in a street, injunction does not lie in his favor to compel the railroad company to remove or to cease to ■use any of its tracks.</p>

<p>Criminal Law — Corroboration of Accomplice — Venue of Prosecution.</p> <p>Held: 1. F. testified tliat lie and accused, who was indicted as accessory before the fact in the commission of the offense of uttering a forged check for $5,000, while together at the L. race track, devised a scheme by which P. was to forge and utter the check, and to notify accused by telegram addressed to him under the name of “J. A. Gray,” in case he was successful in obtaining the money; that accused was to arrange to prove an alibi for F. if he should be arrested; that F. did effect the purpose of the scheme, and sent the telegram as agreed; that with the money in a satchel he proceeded to M., where he met accused, and that they went together to C., where accused rented a room in a hoarding house, and that accused there took the money out of the satchel, and, leaving the satchel in the room, they went to a hotel, where accused gave F. a small part of the money, and retained the rest. It was shown by other evidence that accused and F. were together at the L. race track on the day named, and that on the day the money was obtained a telegram was sent by F. directed to “J. A. Gray;” that (they went together to the boarding house named; that the satchel was found in the room; that when arrested accused said he had no money, except a few dollars on his person; specifically denied having any at the hotel, though a package was found in charge of the hotel clerk, placed there by accused, containing about $2,200; that the accused afterwards stated he had won this upon horse races, but could not state how or when; that, when asked by his father what he had done with the rest of the money, he at first denied having taken any, but finally said he had thrown it in the river; that when F. was arrested accused told him he could prove an alibi for him. Held, that there was sufficient corroboration of the accomplice to authorize the submission of the case to the jury.</p> <p>2. Under Code Cr. Prac., section 21, providing that “if an offense be committed partly in one and partly in another county, or if acts and their effects constituting an offense occur in different counties, the jurisdiction is in either county,” accused was properly indicted in J. county as accessory before the fact to the offense of uttering a forged check where the check was forged and uttered in that county, though the accessorial acts of accused in devising the scheme, furnishing the money for the trip, and arranging for the division of the money to be obtained were committed in another county.</p>

Case 91 — Action to Enforce a Tax Lien APPEAL PROM BELL CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. 1. The city council of Middlesboro did not levy a itax for the year 1893 on the franchise of the Coal & Iron Bank. Revenue Act of November 11, 1S92, art. 3, sec. 16. 2. No lien attaches upon the tangible property of a corporation to secure payment of a tax levied on the franchise of that corporation.

Case 92 — Action to 'Recover Damages for Injury to Goods by Water From Negligence of Firemen APPEAL FROM MARION CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. 1. It is conceded that a municipal corporation can not be held responsible for the acts of a public officer, notwithstanding his authority emanates from the eiity.

Case 93 — Action to Enforce Lien for Taxes APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Judgment for Defendants and Plaintiff Appeals. I. The right to revive the action.

<p>Trial- — Sending Juby to View Pbemises — Steamboat CabbieR — Cabe Required as to Shipper Who Feeds His Stock — Contributory Negligence.</p> <p>Held: 1. In an action to recover damages for injuries received from falling into an open hatchway on a boat, it was discretionary with the court to send the jury to view the boat.</p> <p>2. A shipper of stock who is carried on a steamboat on condition that he is to care for his stock, is entitled to the same care as other passengers; and therefore it was negligence as to such a passenger to leave a hatchway open, unlighted and unguarded, without any warning to him from the officer in charge of that part of the boat, who knew that he was passing that way in earing for his stock, and also knew the danger.</p> <p>3. As plaintiff had passed over that way several times in company with, or with knowledge of, the mate, and found it all right, he was not guilty of contributory negligence, as matter of law, in assuming that it was safe, but that question was for the jury.</p>

<p>Attachment — Wrongful Levy on Property Not Belonging to Debtor — Liability on Bond.</p> <p>Held: The sureties in an, attachment bond are not liable for the wrongful levy of the attachment on the property of another than the debtor, there being no breach of the bond, unless the attachment was wrongfully obtained.</p>

<p>Case 96 — Action to Enforce Lien on Land</p> <p>APPEAL FROM FLEMING CIRCUIT COURT.</p> <p>Judgment fob Plaintiff and Griffith and Wife Appeal.</p> <p>(No briefs in the record.)</p>

Case 97 — Action by the Commonwealth v. Louisville & Jefferson-ville Feerby Company to Recover Taxes APPEAL from franklin circuit court. Judgment fob Commonwealth and Defendant Appeals. First, The Boar.d of Valuation and Assessment had no right to take into consideration the value of the Indiana franchise for the purpose of a Kentucky assessment. Second, The assessment being based upon earnings of interstate commerce is void.

<p>Pledges — Sale by Pledgor to. Pledgee — Extinguishment of Right to Redeem.</p> <p>Held: Where the pledgee of shares of stock surrendered to the pledgor a paper evidencing the pledge, and also surrendered the notes to secure which the pledge was made, marking them “paid,” and the pledgor executed and delivered to the pledgee an absolute hill of sale of the shares, the chancellor will not, in the absence of strong evidence of fraud, set aside the contract and permit the pledgor to'redeem.</p>

Case 99 — Action foe Damage to Property by Street Railway— APPEAL FROM JEFFEBSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Plaintiff and Defendant Appeals. The motion for a peremptory instruction for defendant should have been sustained because the damage (if any) she suffered is in law no basis of an action and is damnum absque injuria.

<p>Boards of Health — Police Power — Validity of Ordinance Providing for Removal of Smallpox Patients to Pest-House.</p> <p>Held: 1. In the exercise of the police power, the Legislature may create boards of health, and invest them with the powers necessary and proper to prevent the spread of disease, and may confer upon cities authority to make regulations for the health of their communities.</p> <p>2, Under the Kentucky -Statutes, section 2059, providing for the appointment of boards of health in cities of 10,000 or more inhabitants, and providing that such boards shall have the same power within their cities as local boards for counties have within their jurisdiction; and Id., section 2055, empowering county boards to inaugurate and execute such sanitary regulations as they may consider expedient to prevent the outbreak and spread of -epidemic diseases, and to that end to bring the infected population under prompt and proper treatment, an ordinance of a city of the second class providing for the removal of smallpox patients to a pest house iu good sanitary condition, provided with proper nurses and physicians, is valid.</p> <p>3. Under Kentucky Statutes, section 3-058, part of the charter of cities of the second class, empowering the council to establish and enforce quarantine laws and regulations to prevent the introduction and spread of contagious diseases, the council may by ordinance make reasonable regulations, in addition to those provided by the general law establishing the local boards of health, to prevent the spread of epidemic diseases; and therefore an ordinance providing for the removal of smallpox patients to the pest house upon the order of less than a quorum of the city ■board of health, or upon the order of the health officer, is valid, though general law confers such power upon “the board.”</p>

<p>Case 101 — Action- of Supersedeas Bond</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>Judgment for Plaintiff and Dependant Appeals.</p> <p>(No briefs in record.)</p>

<p>Appeal — Agreement that Case shall Await the Decision op Other Cases — Recital op Agreement Nullified by Exception.</p> <p>Held: Upon appeal from a judgment reciting that the parties agreed to let the case await the decision of certain other cases pending on appeal, an exception to the judgment must be regarded as nullifying that recital, and, in the absence of a plea setting up the agreement recited, the appellant is not bound by the decision in the cases referred to, which was afterward overruled.</p>

Case 103 — Action foe an Injunction Involving the Question or &. License to Practice Osteopathy APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Judgment for Defendant and Plaintiff Appeals. 1. The plea of the defendant that notice had been given to plaintiff to attend a certain meeting of defendant, for examination is no defense here. 2. There is no law authorizing such examination of plaintiff for any purpose. 3.

Case 104 — Action fob an Injunction APPEAL FROM CAMPBELL CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. CL. The appellant is not questioning the right of appellee to fund a lawful debt by issuing bonds; he is attempting to prevent the appellee from becoming indebted in the year 1900 to an amount exceeding the income and revenue provided for that year, without the assent of two-thirds of the voters. City Council v. Powell, 16 Ky.

Case 105 — -Action to Recover Salary as Policeman of the City of Louisville APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.. 1. The lower court held that although the appellant was wrongfully dismissed from his office, he could not recover his salary until his right and title to the office had been judicially determined by a suit in court. This was a manifest error as there was no one in his office — no usurper to sue— and his only remedy is against the city. Ky.

<p>Champerty — Construction of Deed — Vested Remainder — Power of Appointment.</p> <p>Held: .1. A deed conveying land in the adverse possession of another is not void, hut voidable merely, at the instance of the parties in adverse possession; and, therefore, if the grantee buys in the adverse titles, a purchaser from him can not complain of his title.</p> <p>2. A deed to B. which recites that “it is expressly agreed and understood that said second party is to deed or will said lands to the bodily heirs of J. C. Dupoyster; in other words, the title and possession of said lands is only invested in said second party during his natural lifetime, then to said heirs of J. C. Dupoyster; and second party has the discretion of allotting said lands between said heirs as he may see proper,” vests in B. only a life estate, remainder to the children of J. C. D., which vests in the born child, and opens up to let in the afterhorn children.</p> <p>8. The discretion to B., of allotting the lands “as he may see proper,” contemplates an equal division, and gives B. merely the discretion to designate the location of each child’s share.</p>