Volume 109 — Kentucky Reports

<p>Case 1 — Action to Enforce Lien for Street Improvement</p> <p>APPEAL PROM JEFFERSON OIROUIT COURT, COMMON PLEAS DIVISION.</p> <p>Action by Louisviixe Artificial Stone Company v. Mary Dumes-NIL, ET ALS., TO ENFORCE LIENS FOR THE COST OF STREET IMPROVEMENTS.</p> <p>Judgment for Plaintiff and Defendants, Except City of Louis'ville, Appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. It is not within the power of the municipal authorities to destroy the good sidewalks for which appellants had already paid and charge them with the cost of making this new and expensive “improvement." Dillon on Municipal Corporations, vol. 2, sec. 764 and note; sec. 819, note; Wright v. Chicago, 20 Ill., 252; Annapolis v. Harwood, 32 Md., 471; Fairfield v. Ratcliff,. 20 la., 39fi; Thomas v. Gain, 35 Mich., 162; Tidewater Co. v. Costers, 18 N. J. Eq., 518; Graham v. Conger, 85 Ky., 587-589, 590; Constitution, secs. 2,3,13,14, and 171; City of Louisville v. Louisville Rolling Mill Co., 3 Bush, 423-425; Wistar v. Philadelphia, 80 Pa. State, 505-513; Philadelphia v. Wistar, 92 Pa. State, 404; Wistar v. Pa. (Ill Pa. State, 404); Philadelphia v. Henry, 161 Pa. State, 38-40; Reed v. Erie, 79 Pa. State, 353; Hammett v. Philadelphia, 65 Pa. .State, 146-157; Cheaney v. Hooser, 9 B. Mon., 341; Hawes v. Chicago, 158 Ill., 653-659; Dillon on Municipal Corporations, sec. 327, &c.; Cooley on Taxation, page 428; Corrigan v. Gage, 68 Mo., 541-545; Burns v. Baltimore, 48 .Maryland, 202-203 and 206; Howell v. Bristol, 8 Bush, 499; Preston v. Roberts, 12 Bush, 587-589; Cin., N. O. & Tex. Pac. R. R. v. The Com., 81 Ky., 501; Frantz, Jr. v. Jacob, 88 Ky., 531 and 532; Sutton v. Louisville, ñ Dana, 28; Courtney v. Louisville, 12 Bush, 419; Preston v. Rudd, 84 Ky., 150; Broadway Baptist Church v. MeAtee, 8 Bush, 517-518; Keasey v. Louisville, 4 Dana; Kemper v. Louisville, 14 Bush, 92-93; Lexington v. Mc-Quillan’s Heirs, 9 Dana, 516-517.</p> <p>2. No valid proceedings have ever been taken to fix any liability upon these appellants. Hydes & Goose v. Joyes, 4 Bush, 467-470; City of Henderson v. Lambert, 14 Bush, 24; 2 Dillon on Municipal -Corporations, sec. 799, p. 978, note 1 (4th ed.); St. Louis v. Clemmons, 49 Mo., 5'52-'555; Murray v. Tucker, 10 Bush, 240-245; Kentucky Statutes, secs. 2826 and 2837.</p> <p>ABSTRACT OF POINTS AND AUTHORITIES.</p> <p>The ' kind and limits of a street improvement must be fixed by the -city council by ordinance and when thus fixed, must be done as ordained, in order to charge abutting property. The board of public works, an executive board, can not vary either the character of the work or its limits. The entire work set forth in the ordinance must be fully completed or the property owners can not he taxed with any of the costs. 4 Bush, 467, Hydes & Goose v. Joyes; 14 Bush, 28, Henderson v. Lambert; 92 Ky., 95, Zable v. Louisville Baptist Or. Home; 46 Cala., 59, Richardson v. Heydenfeldt; 47 Cal., 456, People San Francisco v. Clark; 35 Cal., 524, Doughty v. Hitchcock; 50 Cal., 554, Stockton v. Whitmore; 36 'Pac. Rep., 1081, Treanor v. Houghton; 9 Ky. Law Rep., 286, Haffey v. Letcher.</p> <p>The question whether a local improvement is needed and its kind and extent belongs primarily to the local legislature, but it can not arbitrarily tax the property with the costs of such improvement where it is manifest that it is not needed at all. 84 Ky., 155, Preston v. Rudd; 3 Bush, 423, .City of Louisville v. Lou. Rolling Mills; 80 Pa. St., 505, Wistar v. Philadelphia; 92 Pa. St., 404, Philadelphia v. Wistar; 111 Pa. St., 600, Wistar v. Philadelphia; 161 Pa. St., 38, Philadelphia v. Henry; 65 Pa. St., 146, 'Hammett v. Philadelphia; 158 Ill., 653, Hawes v. Chicago; 48 Md., 202, Burns v. Baltimore; 68 Mo. App., 541, Corrigan v. Gage; Constitution Kentucky, sec. 2.</p> <p>POINTS AND AUTHORITIES FOR APPELLEE.</p> <p>1. The work can, and should be, let in separate contracts, each covering a single square, although the ordinance directed four squares to be improved.</p> <p>There is no law requiring the contract to embrace all the territory included in the ordinance, and it is to the interest of the property holders to have as many bidders for the work as possible. Eyerman v. Blakesley, 13 Mo. App., 408; Kemper v. King, 11 Mo. App., 116; Malchus v. District of Highlands, 4 Bush, 547; 24 Am. & Eng. Ency. of Law, 6:2; 10 Am. & Eng. Ency. of Law, 301.</p> <p>2. The fact that the new pavement in front of Rohlsen’s property was not taken up, and was excepted in the contract in case 12,-732, has not prejudiced the other defendants. They have only paid for the work actually done. It is not claimed to apply to the other appeal.</p> <p>3. The city authorities are the judges of the necessity of the improvement. Ky. Stats., sec. 2825; Preston v. Rudd, 84 Ky., 155; Allen v. Woods, 20 Ky. Law Rep., 60; Bullitt v. Selvage, 20 Ky. Law iRep., 599; 10 Am. & Eng. Ency. of Law, 30(1.</p> <p>4. The old pavement was made in 1872, twenty-two years before it was reconstructed. The charge in this case against the property was about $2.00 per front foot, of property worth at least $40.00 per front foot, not counting the improvements. Counting the improvements, the cost was less than two per cent, of the value of the property.</p> <p>The trial judge found as a matter of fact that it was not spoliation. He knew the witnesses, and great weight will be given to his finding of fact.</p> <p>5. 'The appellant 'Nichols and other property owners tried this case in July, 1894, by their injunction suit No. 4792, to stop this work.</p> <p>Mrs. Dumesnil did the same by her injunction suit No. 4863, filed July 20, 1894, for the same purpose.</p> <p>These facts are plead in these cases as res judicata. See Judge Field’s opinion in the injunction cases.</p> <p>6. The demurrers to the counter-claims against the plaintiff for damages were properly sustained.</p> <p>Where the contractor does the work according to the ordinance and contract, he is not liable for damages, although the city may be liable. N. & C. Bridge Co. v. Douglass, 12 Bush, 716; Pearson v. Zable, 78 -Ky., 170; Anderson v. Mayfield, 93 ■Ky., 234.</p> <p>I. Neither of the cross petitions of appellants, Ormsby and Nichols, stated a 'cause of action against the appellee, City of Louisville. Civil Code, sec. 86, sub-sec. 3.</p> <p>2. It was lawful to let the work in parcels or by blocks. Middles-boro Town & Land Co. v. Knott, 56 S. W. R,, 205; Anderson v. Bitzer, 49 S. W., 442; Haffey v. Letcher, 9 R., 286; Fox v. Mid-dlesboro Town Co., 96 Ky., 262.</p> <p>3. The necessity for the sidewalk directed to be made by the ordinance was lawfully determined by the board of public works and general council, and could not be called into question by the abutting lot owners, unless they alleged and proved spoliation of their property. .Skinker v. Heman, 49 'S'. W. Rep., 1026; Worthington v. City of Covington, 82 Ky., 265: Hood, Trustee, v. Town of Lebanon, 12 R., 813.</p> <p>4. No final judgment in the cross actions of appellants, Ormsby and Nichols.</p> <p>6. The court has no jurisdiction of appellant Nichols’ appeal.</p> <p>6. There was no spoliation of appellant’s property, but the work of reconstruction of the sidewalk on Oak street between Third and Seventh streets, which wan necessary and proper.</p>

Case 2 — Indictment fob Burglary. APPEAL PROM JEFFERSON CIRCUIT 'COURT, CRIMINAL DIVISION. Indictment Dismissed and Commonwealth Appeals. 1. The court has no right to sustain a motion for a peremptory instruction to acquit where there is some evidence tending to sustain the indictment. 2. The offense of housebreaking is included in an indictment for burglary.

Case 3 — Action for Mandamus APPEAL FROM FRANKLIN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. (No brief in record.) 1.

<p>Contracts — Consideration—Prejudice to Obligee.</p> <p>Held: An agreement by a grandfather to transfer to his grandson a stock of goods_ at the end of six months, and to hoard his family during that time, if he would abandon his home and employment in another State, and take charge of the store, giving faithful attention to business, and accounting for sucb sums as lie might receive, was supported .-by a sufficient consideration; and the grandson having complied with his agreement, the grandfather’s estate is liable for a breach of the agreement to make the transfer.</p>

<p>Repeal of Statute — Right of Aliens to Hold Property.</p> <p>Held: 1. Act Feb., 1874, providing that an alien shall have the same right to hold property in Kentucky that is given to the citizens of Kentucky by the laws of the government of which such alien is a subject, was repealed by its omission from the chapter relating to the rights of aliens in the revision of the statute'laws of the State after the adoption of the present Constitution.</p> <p>2. The repeal did not operate retrospectively, so as to unsettle existing titles, or to confiscate property held under the statute.</p> <p>3. The statute was not unconstitutional.</p> <p>4. A naturalized citizen of Canada, being a British subject; was entitled to the benefit of the statute by virtue of an act of the English Parliament giving aliens the same right to hold property that natural-born British subjects have.</p>

Case 6 — Action to Enforce Chattel Mortgage APPEAL FROM PAYETTE CIRCUIT COURT. Judgment por Dependants and Plaintipp Appeals. CNo orief in record.) POINTS AND AUTHORITIES. (1) A mortgage to secure an existing ascertained debt, which fails to state the amount thereof, is not a recordable instrument, and therefore, is inoperative and void as to the creditors of the mortgagor, or an assignee for the benefit of such creditors. ,Sec. 496 Ky. Stats.; sec. 74 and 84, Ky.

<p>Ca.se 7 — Action for False Arrest</p> <p>APPEAL PROM HENDERSON CIRCUIT COURT.</p> <p>Judgment foe Dependant and Plaintiff Appeals.</p> <p>(No briefs in the record.)</p>

Case 8 — Action ok Guardian’s Bond APPEAL PROM WHITLEY CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. 3.The court erred in not carrying the demurrer back to the petition and sustaining it as to the petition. 2. The court erred in its finding of fact, as shown by the record, taking the petition and answer together on the final trial. 3. The court erred in the law of the case upon the facts shown by the pleadings. 4.

Case 9 — Action to Recover Damages for Death of Plaintiffs INTESTATE APPEAL PROM KENTON CIRCUIT COURT. Judgment por Dependant and Plaintive Appeals. 1. Only in an action by the parent, at common law for loss of service, can the negligence of the parent be used as a defense and this rule does not apply to a statutory action by the personal representative of an infant. 2.

Case 10 — Indictment fob Failing to Pay an Employe in Lawful Money APPEAL FROM MUHLENBERG CIRCUIT COURT. Indictment Dismissed and Commonwealth Appeals. 1, The indictment is good and the court erred in sustaining the demurrer to it for the following reasons: (a) The indictment is specific. (b) It alleges that one John Dibble was in the employment of eaid company during the month of March 1899, and that wages was due him for that month which the company refused to pay.

Case 11 — Action fob Settlement of an Estate APPEAL FROM WAEREN CIRCUIT ' COURT. Judgment Awarding Proceeds of Certain Insurance Policies to Mary A. Mayfield, and Morhead’s Admr. Appeals. 1. J. S. Morehead was not competent on account of disease to make a valid transfer of the insurance policy in question. 2. There was no valid transfer of the fund, there being no delivery of the policy.

<p>Case 12 — Indictment fob Maintaining a Nuisance</p> <p>APPEAL FROM BOYLE CIRCUIT COURT.</p> <p>Indictment Dismissed and Commonwealth Appeals.</p> <p>1. The indictment contains every averment necessary to show that. a public nuisance was committed.</p> <p>2. A public nuisance is the doing of a thing that is an annoyance to-the public, or the neglecting to do a thing which the common good requires. Cin. Ry. Co. v. Com. 80 Ky., 137; Woods’ Law of Nuisance p. 76; The Atty. General v. Evart Booming Co., 34 Mich.,. 462.</p> <p>1. The demurrer to the indictment was properly sustained.</p> <p>2. The indictment does not show that the railroad track was built across a highway, existing when the track was laid.</p> <p>3. The indictment is indefinite and insufficient in its charges of acta constituting a public nuisance. P. & B. R. R. Co. v. Com. 4 L. R., 625; ¡Same v. Same, 80 Ky., 147.</p>

Case 13 — Action to Recover Damages tor Flooding Premises— APPEAL FROM CHRISTIAN CIRCUIT COURT. Judgment for Defendant, and Plaintiff Appeals. POINTS AND AUTHORITIES. 1. The verdict and judgment below were flagrantly against the evidence. 2. An action will lie either jointly or severally against joint wrong-doers, and in either case each joint wrong-doer is liable for all the damages sustained by reason of the joint wrong.

Case 14 — Action for Personal Injuries APPEAL PROM JEFFERSON CIRCUIT COURT — LAW AND EQUITY DIVISION. JUDOMENT FOR DEFENDANT, AND PLAINTIFF APPEALS. 1. The verdict is contrary to the evidence and is not sustained by -the evidence. 2. The verdict is contrary to the law. 3. The -court erred in .refusing to give instructions, numbered 1, 2 & 3 offered by the plaintiff. 4.

<p>Case 15 — Action foe Trespass</p> <p>APPEAL FROM MAGOFFIN CIRCUIT COURT.</p> <p>Judgment for Plaintiff, and Defendant Appeals.</p> <p>1. If the land in contest is embraced in the Reynolds’ (Va.) patent which was filed in evidence, then the Kentucky patents of 1896, gotten out by Craft and appellee, are void, and appellee has never been in possession.</p> <p>2. Even if' not within the Reynolds’ patent, yet if appellants had only a possessory title at the bringing of this action on Jan. 20, DL89i6, then the appellee must fail.</p> <p>3. General reputation is competent to show an old line- boundary or corner, especially when it is an old line affecting many people and of a quasi public nature. 2 Littell, p. 1-59, Smith v. Howells; 20 Ky. Law Rep., 27-2 Woolley’s Admr. v. McCormick.</p> <p>There are four distinct reasons why this case should be reversed:</p> <p>1. The land is covered by the James Roynolds patent, and the appellants have such connection with it as enables them to plead it. The appellee’s patent is therefore void.</p> <p>2. The appellants have shown, unquestionably, an actual open, continuous, adverse and exclusive possession of this land for more than fifteen years, claiming it to a well defined boundary.</p> <p>3. The appellant’s possession has been so notorious -that even the appellee himself knew it for more than fifteen years.</p> <p>4. The appellee’s deed both from Sanford Craft to himself and from Sanford Craft to Wm. Craft, and from Wm. Craft to ap-pellee, and the patent from the Commonwealth to 'Sanford Craft are each and all champertous and void. Ky. Stats., sec. 210, 212; Also 2505 and 4704; Terrell v. Herron, 4 J. J. Mar., 527; Marshall v. McDaniel, 12 Bush., 381; McDowell v. Kenney, 3 J. J. Marshall, 519; Beeler v. Coy, 9, B. M., 313; Voorhees v. White, 2 Mar., 27; Taylor v. Buckner, 2 Mar., 18; Herndon v. Wood, 2 Mar., 44; Hord v. Walton, 2 Mar., 621; Moore v. Webb, 2 B. M„ 284.</p> <p>1. Appellants did not take any exceptions to the rulings of the court on any question except the general exception set out in the judgment, and did not file grounds and make a motion for a new trial, and did not file or offer to file a bill of exceptions.</p> <p>2. Appellant’s deed from William Lykins confers no title nor color of title.</p> <p>3. The boundary of appellant’s claim is not sufficiently set out in the deed to show the extent of possession.</p> <p>4. The appellant failed to show that the James Reynolds’ patent covered any part of the land claimed by appellee.</p> <p>5. Appellants do not plead or rely on adverse possession.</p> <p>6. The plea of adverse' possession is an affirmative plea, -and the burden is cast upon him who interposes and relies on it. It must be specifically pleaded or it is waived.</p> <p>AUTHORITIES CITED.</p> <p>Civil Code, sec. 128, sub. sec. 3; Vaughn v. Mills, 18 B. M., p. 633; Helm v. Coffey, 80 Ky., 176; Henderson v. Dupree, 82 Ky., 678; Aratram, &e., v. Thomas, 4 R., 430; Murray & Barnes v. Dejarnett, 15 R., 879; Browning v. Kelly, 15 R., 704; So. Div. Cin. & O. R. R. v. Marion ■Co., 11 R., 329; Jenne v. Matlock, 19 R., 503; Simmes & Harris v. Lockhart &c., 19 R., 1439; The Albín Co., v. Bllinger, 19 R. 1891; Freeman on Executions, sec. 281 & 340, Chenault v. Ques-enberry, 19 R., 1634; Bushnell on Limitations of Actions, sec. 335; Cissel v. ,Napier, 3 R., 690; TJ. S. Supreme Court Reports 102, p. 113; Ky. Stats., sec. 1627; Woolley v. McCormack, 20 R., Amer. & Eng. Enc. of Pleading and Practice, 13 vol. 286; Luen v. Willson, 85 Ky., 503; Hafendorfer v. Gault, 84 Ky., 125; Dembitz on Real Estate Titles, yol. 2, 1392; Board v. Jolly, 5 Bush., 86; Whitney v. Whitney, 5 Dana., 451; Whitlock v. Redford, 82 Ky., 393; Rankin v. Turney, 2 Bush., 556; Henderson v. Dupree, 82 Ky. Rep., 678; Kesler v. Slaughter, 20 Law Rep., 1937; 18 B. Mon., 633; Ky. Stat. sec. 1627; Tiedeman on Real Property, sec. 696; Chilesy. Calk, 4 Bibb., 554; Hartley y. Hartley, 3 Met., 50; Taylor v. Combs, 20 L. R., 18128; Greenleaf on Evidence, sec. 145; Chiles v. Drake, 2 Met., 146; Stillwell v. Leavy, 84 Ky., 379; Judge v. Braswell, 13 Bush., 67; Frakey v. Peters, 12 Bush, 451; Whitlock y. Redford, 82 Ky., 393; Kohn v. The Rodgers & Pot-tinger Jew. Co., 19 Ky., 1806; Coleman v. Mead 13 Bush, 358; Beeler v. Sanders, (as to motion for new trial) 20 R., 1581; 4 J. J. Marshall, 137; 4 Bush, 611; 8 Dana, 165; 9 B. Monroe, 82;</p>

Case 16 — Action to Determine the Right to a Benefit Fund APPEAL FROM MABION CIRCUIT COURT. i.A Court of Equity should look to the object sought to be obtained by those making a charter granting special privileges. Leaf v. Leaf, 92 Ky., 171; Manning v. Ancient Order United Workmen, 86 Ky., 136; Schellinger v. Boes, &e., 85 Ky., 357; Am. & Eng. Ency. Yol. 16, page 48; Riley v. Riley, 44 Wis. N. W. Rep., 112. 1.

Case 17 — Action for Mandamus APPEAR FROM FRANKLIN CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. It is submitted that sec. 6 of the Pharmacy Act of 1898 was intended to be applicable solely to the registration of pharmacists In towns of less than one thousand inhabitants.

Case 18 — Action- for Sale or Rodal Estate and for Allowance in Lieu op Homestead — And Action pob Forcible Entry and Detainee Heard Together APPEAL PROM PAYETTE CIRCUIT COURT. Judgment por Plaintipp in Both Cases and Both 1. The suit was evidently brought under sec. 490 of the Code, hut that does not authorize a widow claiming homestead, or dower, to institute such a proceeding. The suit must be brought by one of the joint owners of the vested estate in possession.

<p>Wills — Bequest of Proceeds of Land — Sale by Testator — Ademption of Legacy.</p> <p>Held: A will devising land to the executor in trust to sell same and divide the proceeds among certain persons operated merely as a bequest of the proceeds of the land, and therefore a sale by the testator in his lifetime was not an ademption of the legacy, though the legatees were not the heirs of testator.</p>

Case 20 — Action foe Injunction APPEAL FROM FRANKLIN CIRCUIT COURT. Held: and no legal certificate could be made of the committee’s action, therefore appellee has not a legal certificate, and is not entitled to -have his name placed on the ballot. 2. These facts are disclosed by the petition.

Case 21 — Action on a Whitten Contract Against a Married Woman • as Surety tor i-ier Husband APPEAR PROM HENDERSON CIRCUIT COURT. Judgment for Defendant and Plaintiffs Appeal. 1. The question involved in this appeal is, whether the married woman’s act of 1894, repealed or nullified the decree of court previously granted, confirming upon the appellee, Addie Anderson, the rights of a feme sole. 2.

Case 22 — Action to Recover Salary as Police Judge APPEAL PROM PENDLETON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. 1 The salary, having been fixed after the adoption of the Constitution and before the election of the appellant, it could not be changed during his term of office. 2. The city council had the power under the old charter as well as under the new, to compensate the police judge for his services.

<p>Railroads — ¡Division Fences — Compensation for Fencing.</p> <p>Held: 1. Under Ky. Stats, secs. 1784, 1789, railroad companies are on the same footing as other land-holders as to division fences; and a land owner who has erected a division fence -between his land and a railroad is not limited to the institution of the penal proceedings provided for by Kentucky Statutes, sec. 1791, but may sue the railroad company and recover one-half the cost of such division fence.</p> <p>2. Where a deed to a railroad company makes no mention of fencing, it can not be assumed that the vendor received compensation for fencing.</p> <p>3. The testimony of a witness that commissioners appointed to secure rights of way.for .a railroad company generally took into consideration every element of damage to the land, and that the price paid to plaintiff was largely in excess of the value of the land conveyed, is not sufficient to show that plaintiff received compensation for fencing.</p>

Cash 24 — Action nor Settlement of the Estate of Plaintiff’s Assignor APPEAL FROM KENTON CIRCUIT COURT. ¿Judgment Refusing to Allow Claim of L. W. Winter, as a Preferred Claim and he Appeals. 1. The evidence establishes the fact, that the claimant’s contract ef eniployment, was made with the assignor .in 1892, prior to the passage of the act of 1896. 2.

Case 25 — Action to Recover Damages fob Injury to Property by Surface Water APPEAL PROM HARBIN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. There was only one question raised by the demurrer to the petition in this action, and that is whether the common law rule or the civil law rule prevails in Kentucky, as to the flow of surface water. The court helow held that the common law rule prevails, and in this we think it was in error.

Case 26 — Action to Recotoe Damages to Property from Surface Water APPEAL FROM MARION CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS AND CITATIONS. 1. The petition alleged that the plaintiff was injured hy changing the course of the water by the construction of a ditch across the railroad track, and there was no proof whatever that the construction of this ditch changed the course of the water. 2.

<p>Municipal Corporations — Limitation of Power to Create Indebtedness — Submission oar Question to Voters.</p> <p>Held: Under Const., sec. 157, providing that no municipality shall be authorized to become indebted to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to he held for that purpose;” and sec. 158, providing that municipalities shall not be authorized to incur indebtedness in excess of a certain limit, “unless, in case of emergency, the public health or safety should so require,” — a city, whether or not the limit prescribed by sec. 158 has been exceeded, and though an emergency exists, may not incur indebtedness in excess of the income and revenue provided for the year without the assent of two-thirds of the voters thereof.</p>

Case 28 — Action in Ejectment APPEAL FROM WHITLEY CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. 1. The patent is void. It calls for 9,600 acres of land, but excludes all the lands patented prior to Aug. 30, 1864, and a number of entries aggregating 1,300 .acres, while the whole exterior boundary embraces 64,000 acres. 2. The evidence does not show the land in controversy to be outside the exclusions of the patent. 3.

Case 29 — Action- to Recoves Damages for the Wrongful Levy of an Attachment APPEAL FROM HENRY CIRCUIT COURT. Judgment for Defendant and Plaintiffs Appeal. Held: it refers to personal property and not to real estate, but we insist that this ruling is unsupported by authority, and it appears to be wholly without reason.

Case 30 — Action for Mandamus APPEAL PROM CAMPBELL CIRCUIT COURT. Judgment eor Dependants and Plaintiff Appeals. QUESTIONS DISCUSSED AND AUTHORITIES CITED. 1. The proper construction of section 3219 Ky. Statutes, cities of the second class. Board of Ed. v. Gen. Council, 20 Rep., 289. 2.

<p>Case 31 — Action to Recover Commission- for Seeling Real Estate.</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment for Plaintiffs and Defendant Appeals.</p> <p>1 The appellees did not find Dunlap, the purchaser. Therefore unless they actually sold the property to him at some price named by appellant, or agreed upon, they were not entitled to the commissions. An agent who first finds the purchaser and introduces the property to him stands on quite a different plane from one who merely renews or continues a trade or negotiations which another has begun.</p> <p>2. Appellees abandoned the attempt to sell to Dunlap, and he had broken off all negotiations with them several days before he and Nugent began negotiations which ended in a sale of the property.</p> <p>3. The property was with the appellee’s knowledge in the hands of several agents, the rule of non-interference applies only as to the owner, and the agent who first actually sells the property is entitled to the commissions. Wylie v. Marine Nat. Bank, 61 N. Y., 415, & 417; Tombs v. Alexander, 101 Mass., 255; McClure v. Payne, 49 N. Y., 561; Hobbs v. Miller, 14 Rep., 719; Tamplet v. Saffel, 15 Rep., 94; Coleman’s Exr. v. Meade, 13 Bush., 360; Am. & Eng. Ehcy. of law Vol. 2 p. 585; Vreeland v. Vetterleith, 33 N. Y., sec. 249; Doonan v. Ives, 73 Ga., 295, 302.</p> <p>POINTS AND AUTHORITIES:</p> <p>"If the principal accepts the person presented either upon the terms previously proposed or upon modified terms then agreed upon and a valid contract is entered into between the principal and the person presented by the broker, the commission is earned.” Coleman’s Exr. v. Mead, &c., 13 Bush, 358.</p> <p>“One employed to find a purchaser at a certain price is entitled to his commission, although the principal sells to his customer so found at a lower price, for the rule is that a real estate agent has earned his commission when he procures a party with whom his principal is satisfied, and who contracts for the property at a price accepted by the owner.” Curry v. Fetter, 15 Ky. Law Rep., 494.</p> <p>This is a just proposition, otherwise the seller would too often name his figure, and when the real estate agent has found a customer who is not willing to give quite so much, then the seller would fall a little, accept the purchaser and defeat the agent of his commission.</p> <p>Hobbs v. Miller, 14 Ky. Law Rep., 719, decided prior to Curry v. Fetter, is not opposed to the later case. But the agent’s commission was denied because he had by special contract accepted employment under written terms by which he was not to get a commission unless the property brought over a certain amount, and because in that case also the owner really made the sale, the purchaser not being found by the agents. Lunney v. Healey, 44 Lawyers’ Rep. Annotated, 593; Breckinridge v. Claridge & Payne, 43 Law Rep., Ann., p. 593.</p>

■Case 32 — Action to Requere Defendant to Pence Its Right of Wat Thbough Plaintiff’s Farm APPEAL FROM SHELBY CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. .Appellant bases his right to relief upon two grounds: 1.

Case 33 — Action upon a Negotiable Note APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Defendant and Plaintiff Appeals. POINTS AND AUTHORITIES. 1.

Case 34 — AcxioN to Recover the Oeeice of Circuit Judge. APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Defendant and Plaintiff Appeals. AUTHORITIES CITED. 1. Notice of the time fixed by law for an election not necessary. Throop on Public Offices, sec. 150; McCrary on Elections, 2 ed., see. 114,118,138; Berry v. McCullough, 94 Ky., 247; Cooley Const. Lim., 758-9; Shelly v. McCollough, 17 Ky.

<p>Case 35 — Proceeding on a Warrant for Violation of the Game Statute</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION.</p> <p>A Warrant Against the Defendants for Offering Quail for Sale in the Closed Season, was Dismissed, and the Commonwealth Appeals.</p> <p>1. It has been universally held thát all game belongs to the sovereign, in other words to the State, and the State only allows a qualified right to the possession of game. Greer v. Com., 161, U. S. Sup. Ct., 519; 61 Conn., p. 144; Am. & Eng, Ency. of Law, vol. 8, p. 124; Ky. Stat., sec. 1951; Am. & Eng. Ency., (old series) vol. 8, 1024, 1027; Phelps v. Racey, 60 N. Y., 15 Sickles, p. 1^; Mayner v. People, 97 Ill., 329; Merrett v. People, 169 Ill., 218; State v. Farrell, 23 Mo. App., 176; People v. Greer, 36 N. Y. Sup., 720.</p> <p>2. The fact that the quail offered for sale, was killed in the open season and placed in cold storage and exposed for sale in the protected season, is no defense to the charge, under the statute.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Where a statute forbidding the killing, having in possession, transporting, etc., of game during a certain season makes the pos.session during the closed season prima facie evidence of the killing during the closed season; the possession, transportation, etc., is not punishable if it he shown that the game was killed during the open season. Commonwealth v. Hall, 128 Mass., 410; People v. O'Neil, 71 Mich., 325; Allen v. Young, 76 Me., 80; State v. Bucknam, 88 Me., 386; Commonwealth v. Wilkinson, 139 Pa. Stat., 298. Distinguished from decisions where the statute says nothing of prima facie evidence: State v. Randolph, 1 Mo. App., 15; State v. Judy, 7 Mo. App., 524; State v. Farrell, 23 Mo. App., 176; Ex parte Maier, 103 Cal., 476; or where the statute provides that during a certain number of the first days of the closed season (only) the possession of killed game is not punishable or explainable: State v. Rodman, 58 Minn., 393; Roth v. State, 51 Ohio, 209; Phelps v. Racy, 60 N. Y., 10; People v. Gerber, 36 N. Y. S., 720; Manger v. People, 97 Ill., 320; Merratt v. People, 169 III., 218; or where the exporting of game at any time is made unlawful. Selkirk v. Stevens, 75 N. W. Rep., 386.</p> <p>2. Where the statute in one section makes the killing, possession, etc., of game during a certain season unlawful, and provides that the having such game in possession during the closed season shall be prima facie evidence of the unlawful killing, and in a subsequent section makes the sale or transportation of game during the closed season unlawful, the provision concerning possession, etc., being prima facie evidence, applies to all the various offenses under the statute. Allen v. Young, 76 Me., 80; State v. Bucknam, 88 Me., 386.</p>

Case 36 — Action to Recoves Usury Paid APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Plaintiffs and Defendant Appeals. 1. The question of practice is, whether C. H. Ryan has been properly made a co-plaintiff. If he has not then the judgment is erroneous. 2. The contract to pay the attorney’s fee of $300 is in no sense usurious. 3.

Case 37 — Action fob Breach of Contbact APPEAL FROM CALDWELL CIRCUIT COURT. Judgment fob Defendants and Plaintiffs Appeal. CLASSIFICATION OF POINTS AND AUTHORITIES. 1. The sale of the wheat by description, as No. 2 red wheat, paid for without an opportunity to inspect, relying upon the vendor’s knowledge and opportunity to know the quality of wheat sold, constitutes a warranty. Am. & Eng.

Case 38 — Action tor Libel APPEAL PROM PAYETTE CIRCUIT COURT. Judgment por Plaintifp and Dependant Appeals. 1. Under the present Code, inconsistent pleas are not permitted, and therefore, but for sec. 124 the plea admitting the speaking of the words and justifying the publication because of the truth of the words spoken, would be inconsistent with the plea of mitigating circumstances.

Case 39 — Action on an Accident Policy APPEAL FROM HOPKINS CIRCUIT COURT. JUDOMENT FOR PLAINTIFF AND DEFENDANT APPEALS. SYNOPSIS. 1. This is an .accident insurance policy, and does not cover death caused solely by disease. 2. As matter of law, sunstroke by itself, unaccompanied with accidental circumstances, is a disease. 3. The only insurance in this case is against injury or death caused or contributed to by sunstroke. 4.

Case 40 — Action for False Imprisonment APPEAL FROM LAUREL CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. 1. Appellee claims authority under section 32, Criminal Code, for causing appellant to be summoned before him to be examined on oath, and for committing appellant to the jail of Laurel county for refusing to answer questions. Appellee was chairman of the board of trustees of the town of London, and by virtue of such office has no such authority. 2.

<p>Case 41 — Action to Recover Price oe Personal Property and to Enforce a Lien Therefor</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>Judgment for Defendants and Plaintiff Appeals</p> <p>(No- briefs in the record.)</p>

Case 42 — Action for an Injunction APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Judgment for Plaintiff and Defendants Appeal 1. Prom matters contained in the record, this court will at once see, that, assuming the party law to be in operation this matter has become a dead issue. Tbe appellant and appellee have both, ceased to exist and there is sufficient in the record to justify the court in taking notice of that fact.

<p>Case 43 — ActioN to Recover Compensation for Medical Services Rendered to Defendant’s Servant</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>Judgment for Defendants and Plaintiff Appeals.</p> <p>1. A foreman of a corporation having charge of a gang of laborers employed in the construction of a building, when one of the laborers in the performance of his duties has been dangerously and seriously injured, requiring immediate medical attention to save life or limb, and he being the superior agent of the corporation on the ground at the time, and no officer of the corporation being on the spot, has implied authority to procure a physician’s services for his co-employe and render the company liable for reasonable charges for such services. When an employe is disabled in the discharge of hazardous duties it is a sufficient consideration to support a promise to pay for medical attention made by a foreman of a corporation so as to bind his employer. L., N. & C. R. R. Co. v. Smith, 22 N. E., p. 775; R. R. Co. v. Brown, 107 Ind., p. 306; The Terre Haute &c. R. R. Co. v. Mc-Murray,98 Ind., pp. 358, 359; dissenting opinion byJudge Co.oley, Marquette & R. R. Co. v. Taft, 28 Mich., p. 362; Toledo I. & L. K. C. R. R. Co. v. Mylott, 33 N. E., p. 135; Union Pac. R. R. Co. v. Winterbotham, 34 Pac. Rep., p. 1052.</p> <p>2. This case should have been submitted to the jury under proper instructions for the jury to determine whether the foreman’s contract of employment with appellant was ratified by the appellees. Pac. R. R. Co. v. Thomas, 19 Kan., 256; Toledo R. R. Co., v. Rodrigues, 47 Ill., 188; Toledo R. R. Co. v. Prince, 50 Ill., 26; A. & P. B- B. Co. v. Reisner, 18 Kan., 458.</p> <p>(No briefs in record.)</p>

Case 44 — Action to Discharge an Execution Levy APPEAL PROM BALLARD CIRCUIT COURT. Judgment por Dependant and Plaintiff Appeals. I. Newman was surety for Stapp on a note, and Stapp gave him a mortgage on' the property in contest, as indemnity. In 1896 Stapp sold and delivered to Newman said mortgaged property, in consideration of which Newman canceled and surrendered said mortgage.

Case 45 — Action by G-us G. Coulter Against John S. Sweeney to Recover Possession of the Books and Papers oe the Office of State Auditor, and to Have the Defendant Declared an Usurper appeal from franklin circuit court. Judgment for Plaintiffs and Defendants Appeal. On appellant’s motion to dismiss without prejudice: 1.

<p>Assignment of Note by Administrator — Satisfaction—Attachment-—Fraudulent Collusion — Preference of Creditor.</p> <p>Held: 1. Where an administrator assigned to the widow as her distributable share of the estate certain notes against other distrib-utees, and thereafter, in a settlement with the county court, charged to each of the obligors one-half the notes, the widow, not being a party to the settlement, was not thereby precluded from suing on the notes.</p> <p>2. The fact that an attachment was procured by fraudulent collusion between the debtor and creditor for the purpose of giving the creditor a preference does not entitle a junior attaching creditor to priority, his only remedy being a proceeding to have the prior attachment declared to operate as an assignment under the act of 1856.</p> <p>3. The mere filing of a petition by a creditor to have certain acts of preference committed by the debtor declared to operate as an assignment under the statute is not effectual for any purpose unless summons is served upon the debtor.</p> <p>4. The insolvency of defendant is prima facie evidence of the fact that the collection of plaintiff’s debt will be endangered by delay for the purpose of sustaining an attachment sued out upon that ground.</p>

<p>Wills — Failure to Mention Codicil in Verdict — Harmless Error— Testimony in Rebuttal — Testamentary Capacity — Construction of Will — Failure of Testator to Dispose of Entire Estate.</p> <p>Held: 1. Where a will and two codicils were written on the same paper, it was not necessary to mention the codicils separately in a verdict sustaining the will.</p> <p>?. Rejection of testimony, which was merely cumulative, and not of such character as would probably have changed the result of the trial, was harmless error.</p> <p>3. Under Civil Code Practice, section 606, sub-section 8, as amended by Act February, 1898, providing that “ a party may be examined as if under cross-examination at the instance of the adverse party, either orally or by deposition, as any other witness; hut the party calling for such examination shall not be concluded thereby, but may rebut it by counter testimony,” — it was not an abuse of discretion to refuse to permit the contestant of a will to testify in rebuttal as to admissions of the propounder, who was not introduced as a witness for himself, as she might have called him, and subjected him to cross-examination on the subject, and then have contradicted him.</p> <p>4. In a will contest, the court properly instructed .the jury that "soundness of mind in mailing a will is for the testator to have such mental capacity as to enable bim to know the objects of Ms bounty, the character and value of his estate, and to make a rational survey of his estate, and dispose of it according to a fixed purpose of his own;” it never being proper to submit to the jury the question of rational distribution of the testator’s estate.</p> <p>5. Under a devise of real estate to testator’s widow for life;, and at her death to testator’s daughter, but, in the event the daughter should die without issue living, then to her heirs at law, the daughter, if living at the death of the widow, will take the land rn fee.</p> <p>6. The fact that testator left a considerable part of Ms estate un-devised did not furnish ground for rejecting Ms will, as he probably intended that his debts should be paid out of that part of his .estate.</p>

Case 48 — Action fop. Injury to Property APPEAL PROM HENDERSON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. CLASSIFICATION OF QUESTIONS DISCUSSED AND AUTHORS TIES CITED. MOTION TO STRIKE. 1. A municipal corporation having cut down and graded a street is responsible in damages to any one injured thereby, but it is not responsible in damages for its failure to rock or gravel ths street so cut down. and graded. EVIDENCE. 2.

Case 49 — Action- to Recover Compensation fob Services Rendered— APPEAL FROM BARREN CIRCUIT COURT. JUDSMENT FOR PLAINTIFFS AND DEFENDANT APPEALS. 1. The question presented by this appeal is the construction of section 3902, Kentucky Statutes, defining the power and duties of curators. 2.

<p>Case 50 — Action to Haws an Order Creating a School District Set Aside and to Have a Tax Levy Discharged.</p> <p>APPEAL FROM HARLAN CIRCUIT COURT.</p> <p>Judgment for Defendants and Plaintiffs Appeal</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A county superintendent of schools is not a judicial officer. Const., secs. 27 and 28.</p> <p>2. The taxing power when delegated must be substantially in accordance with the grant. Am. & Eng. Ency. of Law, vol. 25, page 202.</p> <p>3. The courts may he appealed to to enjoin the collection of an illegal tax. Gates v. Barrett, 79 Ky., 295; Allison v. L. & N. R. R. Co., 9 Bush, 241; L. & N. R. R. Co. v. Warren County, 5 Bush, 243.</p> <p>4. A county superintendent can only lay off, change, or abolish districts between the first of January and the first of April in each year, and the word “year,” in section 4403, means calendar year. Ky. Stats., secs. 4403 and 452. An order creating a new district in tbe month, of December was without authority and void.</p> <p>6. No change in the boundary of any district shall be made unless ten days’ notice be first given to the trustees of other districts to be effected thereby. Ky. Stats., 4427.*</p> <p>6. The right of appeal to the State Superintendent, as provided in section 4418 of the statutes, does not apply to a question of the making, altering or abolishing districts. Ky. Stats., 4418.</p> <p>1. The new district was created on a petition filed by the parties interested, which petition was .signed by the plaintiffs.</p> <p>2. When the county superintendent acts on a question of this character he acts in a judicial capacity, and if he errs the remedy is by appeal to the Superintendent of Public Instruction. He can not be sued and be subjected to the payment of costs.</p> <p>3. The manner of laying off districts is largely directory, not mandatory.</p> <p>4. The order recites that the trustees of districts Nos. 28 and 29 gave their consent to the change; then what use was there for a notice? And said districts are not complaining. Ky Stats., 4403-4418.</p>

<p>Case 51 — Action on an Alleged Conteact of Insurance</p> <p>APPEAL FROM OWEN CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>(No briefs.)</p>

Case 52 — Action on a Note APPEAL FROM CALDWELL CIKCUTT COTJBT. Judgment for Dependants and Plaintiffs .Appeal. CLASSIFICATION AND AUTHORITIES. 1. Answer intending to plead illegality of contract, and duress, or either, should set up the facts relied on. Paragraph of answer, here, fails to do this. Civil' Code, sec. sustaining general demurrer to it. Civil Code, sec. 114; also 95 sub. sec. 2; 1 Ency. PI. & Pr., 835. 2.

Case 53 — Action ox an* Accident Policy appeal from: m’cracken circuit court. Judgment por Plaintiff and Defendant Appeals Nelson Clark, the insured, was employed to load railroad ties on barges on the Cumberland river. A towboat, known as the Gilchrist, was employed to tow these-barges from point to point. There was a shanty-boat, provided by the employer, in which the tie men were to sleep. It was provided with bunks for that purpose.

Case 54 — Action to Prevent Execution of a ‘Writ of Possession— APPEAL FROM WEBSTER CIRCUIT COURT. Judgment por Defendant and Plaintiffs Appeal. The appellants contend: 1. That under sections 6 and 7, Art. 2, Ch. 52, Gen. Stats., (sec. 2128, Ky. Stats.) the husband is not a necessary party to this action. 78 Ky., 553. 2.

<p>Municipal Corporations — Enlarging or Reducing Boundary — Constitutionality of Statute — Mandamus.</p> <p>Held: 1. Kentucky Statutes, section 3483, providing for enlarging or reducing the boundary of a city of the fourth class, permits any equitable defense to be filed by the city on behalf of the public; and as it does not, therefore, require the court, in considering the question of extension or reduction of the boundary, to ignore the rights of the public or the city, it is not unconstitutional.</p> <p>2. As it was the duty of the city council to pass an ordinance fix- • ing the boundary of the territory proposed to be stricken off, and to advertise the same, to the end that an action might be instituted in the circuit court, mandamus lies to compel the council to pass such an ordinance, upon its failure or refusal to do so.</p> <p>3. Tbe courts will not inquire as to the influences which operated to procure the enactment of a statute.</p>

<p>Case 56 — Action foe Slandee</p> <p>APPEAR FROM GRAVES CIRCUIT COURT.</p> <p>Judgment foe Defendant and Plaintiff Appeals.</p> <p>(No brief in the record.)</p>

Case 57 — Action on a Policy of Life Insurance APPEAL FROM M’CEACKEN CIRCUIT COURT. Judgment fob Plaintiff and Defendant Appeals. 1. On the 28th of January, 1897, the decedent, Wm. E. Myers, applied for and received from appellant two policies on his life, one' for $1,200, and the other .for $1,000. He paid one-fourth of premium in advance, and executed his six certain promissory notes, each note being for one-fourth of the premiums, for one of the two respective policies.

Case 58 — Action on Insurance Policy APPEAL PROM M’CHACKEN CIRCUIT .COURT. Judgment pob Plaintiff and Defendant Appeals. SYNOPSIS AND AUTHORITIES. 1. Section 679, Kentucky Statutes, applies only to assessment or cooperative life insurance companies, tod does not apply to the old-line or regular insurance companies. Suh-division 3, Art. 4, Ch. 82, Ky, Statutes. 2.

<p>Case 59 — Action toe Legal Seevices</p> <p>APPEAL FROM JEFFERSON CIRCUIT COUBT, CHANCERY DIVISION.</p> <p>Judgment foe Plaintiffs and Defendant Appeals.</p> <p>AUTHORITIES RELIED UPON.</p> <p>When an amount is tendered in full of all claims which exist at the time of the tender, the party to whom the tender is made must either accept or refuse the tender as made. If he accepts the amount, but at the same time refuses or attempts to refuse the tender his refusal amounts to nothing. The party to whom the tender is made has no alternative but to refuse or accept it upon such condition, and if he takes it, no protest or declaration made by him at the time can affect the case. Bull v. Bull, 43 Conn., 455; Burdell v. Bissell, 6 Col., 162; Dentman v. Kirkpatrick, 46 Mo. App., 624; Fuller v. Kemp, 138 N. Y., 231; Preston v. Grant, 34 Vt., 201; Massoig v. Tomlinson, 148 N. Y., 326; same case, 51 Am. St. Rep., 695. Additional authorities: Fuller v. Kemp, 138 N. Y., 231; 20 L. R. A., 785 and 795; Os-trander v. Scott, 161 Ill., 339; Hayes v. M. L. I. Co,, 125 Ill., 626.</p> <p>The judgment should be affirmed for the following reasons:</p> <p>First. Because the issue is one of fact depending on the evidence of two witnesses who flatly contradict each oth$r, and the finding of the trial court should be given the weight accorded to the verdict of a jury.</p> <p>Second. Helm’s version of the agreement is confirmed by the inherent probabilities of the case and by the entire correspondence.</p> <p>Third. It is contended by counsel for appellant that “when an amount is tendered in full of all claims which exist at the time of the tender, the party to whom the tender is made must either accept or refuse the tender as made.”</p> <p>The authorities cited do not bear out the contention unless we add the important word, “unliquidated ” The rule is, if one owes me two liquidated demands of $50 each, and sends me $50 in full for both, I am not hound to return the money, but may apply it to one, and sue him on the other. Massoig v. ■ Tomlinson, 31 Am. State Rep., p. 3; Bull v. Bull, 43 Conn., 455; Burdell v. Bissell, 6 Col., 165; Deutman v. Kilpatrick, 46 Mo. App., 629.</p>

Case 60 — Action to Enforce an Alleged Trust APPEAL FROM BELL CIRCUIT COURT. Judgment for Plaintiffs and Defendants Appeal. 1. Demurrer to Petition — Limitation. Under our Civil Code, section 92, sub-section 4, a demurrer is a pleading, and we think pleaded the statute of limitation as effectually in this case, as if the statute had been pleaded in the answer.

Case 61 — Action to Enforce a Mortgage Lien and Cross-Action Asserting Prior Lien. APPEAL FROM MARION CIRCUIT COURT. Judgment for Plaintiffs and Cross-Plaintiffs Appeal. The sole question in this case is whether or not the borrowing the money by Moser and appellant from the bank and paying it to Ballard was a novation.

Case 62 — Action for Breach of Contract. APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Plaintiff and Defendant Appeals. The Fidelity Trust Co., as assignee of the McDonald Brick Co., sued the Newport News and Mississippi Valley Co. for alleged breach of contract, claiming $60,000 damages. Summons was returned served on Holmes Cummins, its general attorney for the State of Kentucky.

<p>Corporations — Business Authorized by Charter — Franchise for Term Exceeding Life of Corporation — Municipal Corporations —Awarding Franchise to Highest and Best Bidder — Injunction.</p> <p>Held: 1. Though the charter of a gas company states that the business and operations of the company shall consist in furnishing a certain city with gaslight in pursuance of and according to the terms of a certain ordinance of the city, the company may acquire a new franchise for supplying the city with gas, there being no intention to designate the carrying out of the existing contract as the sole business for which the corporation was organized.</p> <p>2. A corporation may receive a grant of a franchise for a term of years extending beyond the life of the corporation.</p> <p>3. A city council may be enjoined from awarding a franchise to one who is not “the highest and best bidder,” in violation of the Constitution, section 164, the act being a ministerial one. But the injunction will not he granted unless there is about to be a plain and palpable violation of the Constitution, and in determining whether ,the injunction should be granted, force will be given to both the controlling words “highest” and “best.”</p>

<p>Gas — Use—Injunction—Violation—Contempt.</p> <p>Held: 1. Where a heating company was enjoined from sending natural gas through its pipes for any purpose other than heating, full and complete obedience to the injunction requires that defendant should make an effort to restrict to heating purposes only the use of gas sold by it to its customers, and therefore a response to a rule for contempt averring that defendant does not know any customers using its gas for purposes of illumination, and that it has no means of ascertaining who, if any, are so using that gas, except by detailed investigation into the private residences of customers, is not sufficient.</p> <p>2. Customers who use defendant’s gas are not entitled to be heard in such a proceeding.</p> <p>3. In a proceeding for the violation of an injunction pending an appeal, the merits of the case can not he considered.</p>

Case 65 — Action Claiming an Attached Fund APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Defendants and Plaintiffs Appeal.

<p>Case 66 — Action to Recovee Dowee</p> <p>APPEAL FROM CAMPBELL CIRCUIT COURT.</p> <p>Judgment foe Defendants and Plaintiff Appeals.</p> <p>(No briefs on record.)</p>

<p>Case 67 — Action on Insurance Policies</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>Judgment tor Plaintiffs and Defendants Appeal.</p> <p>We think the lower court should he reversed, because:</p> <p>First. It erred to the prejudice of the appellant in excluding the testimony offered by the appellant on the trial of the action before the jury, tending to show that the loss suffered by the fire was partial and not total, and further the actual damage and loss to the property.</p> <p>2. The court erred in giving the third instruction to the jury which was to the effect that a total loss was when a building - has lost its identity and specific character as a building, and becomes so far disintegrated as a building, although some part of it may be standing.</p> <p>3. As to the first ground, the evidence offered was certainly competent to show what the costs would he to replace the building in its condition before the fire. Royal Ins. Co. v. Mclntire, 37 S. W., 1068; Corbett v. Spring Garden Ins. Co., 50 N. E., 282; Aranzamindi v. Ins. Co., 2 La., 432; Saltus v. Ins. Co., 12 Johns., 107; Insurance Co. v. Eogarty, 19 Wall., 640; Brady v. Ins. Co., 11 Mich., 426; Williams v. Insurance Co., 54 Cal., 422; O’Keife v. Liverpool, London & Globe Ins. Co., 140 Mo., 558.</p> <p>(No brief for appellee in record.)</p>

<p>Husband and Wife — Validity of Judgment Against Married Women.</p> <p>Held: Under the married woman’s act of March 15, 1894, a married woman can not resist the enforcement of a judgment against her on the ground that she was liable only as surety in the note upon which the judgment was rendered, as that defense could have been made in the original action.</p>

Case 69 — Action to Recover Land appeal prom; Fleming circuit court. Judgment eor Defendant- and Plaintiff Appeals. 1. There never has been a time in the history of Kentucky, in which turnpike companies were authorized to own as much as 26 acres of land for toll gate purposes. They may condemn as-muck as one acre, and never at any time exceeding ten acres for suck purpose. See brief in case of A. H. Iskmeal v. The Ewing & Metcalf Mills Turnpike Co. 3.

<p>Insurance — Service of Process on Insurance Commissioner — Compromise-Fraud — Failure to Return Money Received Under Compromise Agreement.</p> <p>Held: 1. Under Kentucky Statute, section 6S1, providing that before authority is granted to any foreign insurance company .to do business in this State it must consent that service of process upon the insurance commissioner shall be a valid service upon the company, the agency of the insurance commissioner as to service of process continues after the company’s withdrawal from business in the State, at least as to suits upon contracts made in the State.</p> <p>2. In an action at law upon a policy of insurance, in which defendant, by its answer, relies upon a compromise agreement, plaintiff may plead by his reply that the alleged agreement is void, because it was obtained by fraud; but to make his reply good he must allege a return or tender of the money received under the compromise agreement.</p>

<p>Homestead — Waiver of Exemption.</p> <p>Held: Under the Kentucky Statutes, section 1706, providing that no mortgage, release, or waiver of the homestead exemption shall be valid “unless the same be in writing subscribed by the defendant and his wife, and acknowledged and recorded in the same manner as conveyances of real, estate,” where a purchaser, after paying the greater part of the purchase price of a tract of land which he occupied as a homestead, purchased another tract from the same vendor, and accepted a single deed to both tracts, on which a lien was retained for the unpaid balance of the price of both tracts, for which a single note was executed, the purchaser was entitled to a homestead in the first tract, except as against the amount due upon that tract.</p>

Case 72 — Action to Recover Land APPEAL FROM MONTGOMERY CIRCUIT COURT. Judgment eor Plaintiff and Defendant Appeals. It is conceded that the land sold was occupied by appellant and his family as a homestead,, and was worth less than $1,000, and was bought after the creation of appellee’s debt, and was paid for with a check for pension money, which check had not been cashed.

Case 73 — Action- to Surcharge a Settlement APPEAL PROM NICHOLAS CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. 1. Under the act of March 16, 1894, county courts have exclusive jurisdiction for the settlement of assigned estates except as modified by sec. 96 Ky. Stats., p. 198.

<p>Case 74 — Action for Appointment of a Receives in Kentucky, and Otiieb Relief</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>Judgment of Distribution and Weedon and Others Appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Appellants insist that the charter of the corporation, The Granite State Provident Association, shows such a multitude of different employments and business ventures, which it was authorized .and did engage in, that i.t would be -manifestly unjust and without warrant of law to turn the funds collected in Kentucky from debtors to the corporation in Kentucky, over to the foreign -receiver, to be distributed among ,the creditors there. There can be no mutuality among the creditors.</p> <p>2. The by-laws, subscription blanks and other exhibits with the intervening petition of .appellee, other than the act of incorporation, are incompetent for the purposes they are attempted to be used for in this case.</p> <p>3. That it is the charter of the Granite State Provident Association -and that alone, to which the courts in this State will look, to determine the powers, authority and business of the corporation. Equitable LdfeTns. Society v. Pettus, 140 U. S., Sup. Court, 226; Beard’s Exr. v. Bayse, 7 B. Mon., 144; Hitchcock v. U. S. Bank, 7 Ala., 435; Morawetz on Private Corp., sec. 964; U. S. B. & L. Assn. v. Scott, 17 Rep., 1244.</p> <p>4. The appellee is a receiver only, -and is not an assignee. As such receiver lie has not the right or the power to intervene in this case under the circumstances and facts shown by the record, to take possession of the funds in this court in the manner attempted to be done in this case, or at all, against the objection and rights of creditors and citizens of this State. Johnson v. Parker, 4 Bush., 152; Cofin v. Kelling, 83 Ky., 653; Thompson’s Commentaries on Corp., sec. 7338; Willetts v. Waite, 25 N. Y., 577; Cattling v. Wilcox, S. P. Co., 123 Ind., 482, 483; 18 Am. State Rep., 344; 6 Am. State Rep'., 185; Hopkins v. Humphreys, 81 Cal., 554; Bagby v. Atlantic, &c. R. R. Co., 86 Pa. St., 291; Bank. v. McLeod, 38 Ohio Stat.; In re, Waite, 99 N. Y. Rep., 433; Boulware v. Davis, 90 Ala., 207; Ky. Stats., sec. 3868.</p> <p>Cases relied on by appellee and criticised and explained. Buswell v. Order of Iron Hall, 16 Mass., 229; Faucett v. The Iron Hall, 28 Atlantic Rep., 622; Weir v. Order of Iron Hall, 28 Atlantic Rep., 1041.</p> <p>5. The court should not permit the fund in .this case to be transmitted by the intervening receiver to a foreign jurisdiction against the objection and in violation of the rights of the citizens and creditors in this State. See the authorities cited above, and also Ins. Co. v. Wright & Son, 55 Vt., 550; Commer1 cial Exchange Bank v. Foote, 58 Ills., Appellate Court Rep., 56.</p> <p>6. The court erred in overruling the motion to strike out parts of the intervening petition of appellee.</p> <p>7. The court erred in overruling the demurrer to the intervening petition of appellee.</p> <p>8. The court erred in overruling the exceptions to the commissioner’s ■ report.</p> <p>9 The court erred in ordering the fund paid over to appellee.</p> <p>All of these propositions are sustained by the authorities cited above.</p> <p>1. The appellants are not creditors as they claim to be, in their brief, but stockholders in the Granite State Provident Association, and they seek by this appeal to gain for themselves as Kentucky stockholders a preference over stockholders residing in other States.</p> <p>2. There is no attachment or other lien claimed and no statute relied on, and the single question presented, is: Ought the trial court; in distributing the assets of an insolvent corporation, to *have given a preference to Kentucky stockholders?</p> <p>AUTHORITIES CITED.</p> <p>Blake v. McClung, 172 U. S., 239; Belfast Bank v. Stowe, 92, Fed. Rep., 100; Maynard v. Granite State, 92 Fed. Rep., 435;. Davis v. Life Assn., 11 Fed. Rep., 782; Taylor v. same, 13 Fed. Rep., 493; Rogers v. Raines, 100 Ky., 295; Irwin v. Granite State, 38 Atl. Rep., 680; Buswell v. Iron Hall, 36 N. E., 1065, (161 Mass.); Ware v. Iron Hall, 28 Atlantic, 1041; Parsons v. Charter Oak, 31 Fed. Rep., 305; Fry v. same, 31 Fed. Rep., 197.</p>

<p>Case 75 — Action fob Personal Injuries</p> <p>APPEAL FROM LOGAN CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>I. The peremptory instruction asked by the appellant at the conclusion of .the evidence, should have been given by the court, because:</p> <p>(a) At the time the special train passed the place where the injury occurred, the railroad had the exclusive right of way over its track, and had the further right to run its train at any rate of speed it saw proper.</p> <p>(b) The appellant was not required to keep a lookout for persons passing over this private passway, and,</p> <p>(c) The appellee himself was guilty of contributory negligence, to such an extent, that but for his own carelessness he would not have been hurt, or at least his co-operating negligence caused his injury.</p> <p>2. There is no statute in this State regulating the duty of railroads when approaching a private crossing.</p> <p>CASES CITED.</p> <p>5 R., 138, Eisfelder v. Klein; 6 R., 662, L. & N. R. R. Co. v. Murphy; 12 R., 717, K. C. .R. R. Co. v. Martin; 11 R., Carter v. Howard; 14 1J., 477, K. & I. B. Co. v. Cecil; 10 R., 871, L.; & N. R. R. Co., v. Hunter; 91 Ky., 651, Johnson’s Admr. v. L. & N. R. R. Co.; Shearman & Redfield on Negligence, p. 25; 12 Bush., 41 Pad. & Mem. R. R. Co. v. Hoehl; 97 Ky., 228, Brown’s Admr. v. L. & N. R. R. Co.; Am. & Eng. R., cases (N. S.) 666; L. & N. R. R. Co. v. Vittetoes’ Admr.; 19 R., 194, Rosenberry’s Admr. v. N. N. & M. Y. R. R. Co.; 3 Elliott on Railroads, secs. 1150, 1151; 96 Ky., 197, L. & N. R. R. Co. v. Surmnt; 92 Ky., 345, Cahill v. L. & N. R. R. Co.; 3 R., 822, Longshaw v. Linning & Jackson; 7 R., 514 Makibben v. White; 4 R., 449, Fisher v. Perkins; 20 S. W. Rep., 654, Maxey v. M. P. R. R. Co.</p> <p>1. The real issue in this case has been obscured by the evidence and the instructions. It is no.t disputed that the plaintiff could be seen as soon as he placed himself in peril, and the two questions of fact to be determined are: As to where the engine then was, and as to whether it could have been stopped before it struck plaintiff’s wagon.</p> <p>2. Under the evidence the jury should have been told that they must find for the plaintiff if they believed the train could by the exercise of ordinary care have been stopped in time to avoid the injury after the engineer saw that the horses were about to step upon the track.</p> <p>1. It is the duty of those in charge of a railroad train, in approaching a private crossing to give signals of the train’s approach or to slacken the speed of the train. Hucker v. K. C. R. R. Co., 7 Ky. Law Rep., 761; L. & N. R. R. Co. v. Survant, 96 Ky., 197.</p> <p>2. A person going on the track at a private crossing is not a trespasser, and the company owes him some duty, though not as much as on a public crossing. Cahill v. C. N. O. & T. P. Ry. Co., 13 Ky. Law Rep., 715. It is bound to look out for the presence of persons at an established and recognized private crossing, and to use reasonable caution and vigilance to avoid injuring them.</p>

<p>Case 76 — Action for Construction of Will</p> <p>APPEAL PROM MERCER CIRCUIT COURT.</p> <p>Judgment for Plaintiffs and Defendant Appeals.</p> <p>(No briefs in the record.)</p>

Case 77 — Action for Breach of Contract APPEAL FROM FAYETTE CIRCUIT COURT. JUDGMENT FOR PLAINTIFF AND DEFENDANTS APPEAL. This case is: H. H. Stanhope, knowing all the parties and all the facts, knew that the land in the petition described, belonged jointly to Lydia S. Clark and Metta Blackford, an infant, of whom Ollie.

Case 78 — Action to Enjoin Collection of Tax APPEAL FROM QLARIC CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. 1. The act of Congress permitting the taxation of shares of national banks in the hands .of shareholders, does not require that State banks shall be taxed in the same manner as national banks, but merely that the national bank shares shall not be taxed at a greater rate than State banks. 2.

<p>Principal and Surety — Conditional Signing of Bond by Surety.</p> <p>Held: Where a surety signed a replevin bond, and delivered it to a deputy sheriff, on condition that the deputy was not to return it to the clerk’s office until it had been signed by a certain other person, and the additional signature was never obtained, the surety was not bound, and is entitled to have the bond canceled in an action brought by him for that purpose, unless defendants can show that by his delay of over eight months in bringing his suit he has been guilty of such laches as will estop him from claiming the relief sought.</p>

<p>Case 80 — Action to Enjoin Collection of Tax</p> <p>APPEAL FROM GRAVES CIRCUIT COURT-</p> <p>Judgment for Defendants and Plaintiffs Appeal.</p> <p>(No briefs in the record.)</p>

Case 81 — Indictment foe Breaking Into a School House and Stealing Therefbom APPEAL FROM FAYETTE CIRCUIT COUBT. 1.

Case 82 — Action to Recover Taxes APPEAL PROM PULASKI CIRCUIT COURT. Judgment tor Dependant and Plaintiff Appeals, Defendant Prosecuting a Cross Appeal. We find we have five material questions to deal with in this ease, ' as follows: First. The sufficiency of the petition. Second. The sufficiency of the tax levy for 1897, 1898, and 1899. Third. The validity of the tax levy for 1898 hy a de facto board of couneilmen. Fourth.

<p>Case 83 — Indictment for Murder</p> <p>APPEAL FROM KENTON CIRCUIT COUET.</p> <p>(No briefs in the record.)</p>

<p>Case 84 — Action by Administrator to Settle Estate of His Intestate</p> <p>APPEAL FROM WABBEN CIRCUIT COURT.</p> <p>The agreed compensation was for the personal services of Proctor. ' The other counsel was employed with the knowledge of and without objection from either administrator and by the express contract of one. Their services were valuable and were accepted, and the beneficiary wants the benefit of such service without paying for it. Oiir position is that the fees of the gentlemen should be borne equally by Proctor and the plaintiff in the action — that is, that it should be paid out of the fund recovered, and then Proctor’s fee fixed as per contract out of the balance of the fund.</p> <p>1. The contract between Proctor and the administrator was a written one, and recites that Proctor is employed to prosecute suit against the L. & N. R. R. Co. for the killing of his son in Tennessee, Proctor to have absolute control of the case and to have one-third of the sum collected on judgment of the Warren Circuit Court, and if suit was filed and prosecuted in Tennessee, or was taken to the Kentucky Court of Appeals, one-half of the sum recovered, Proctor’s necessary expenses to be first paid out of said fund.</p> <p>1!. There is nothing in this contract which authorized Proctor to employ attorneys to aid him at the expense of the estate, and such power can not be presumed or found by implication.</p> <p>3. Proctor’s evidence as to transactions or conversations had between him and Whitlow’s administrator, who was then dead, was incompetent, and was properly excluded by the lower court. McDonald v. Same, 96 Ky., 209; Apperson’s Exr. v. Exchange Bank of Kentucky, 10 Ky. Law Rep., 943; Hopkins’ Admr. v. Father, &c., 86 Ky., 223.</p>

Case SS — Action foe Appointment of Receiver APPEAL FROM LEE CIRCUIT COURT. Judgment for Plaintiff and Defendants Appeal. I. The appointment of a receiver is regulated by the Civil Code, section 298. 2. The Chancellor has no jurisdiction to appoint a receiver in a case like this, independent of the Civil Code. 8.

<p>Foreign Corporations — Failure to File Statement with Secretary of State — Special Demurrer — Pleading Conclusions of Law— Sales — Failure of Consideration — Recovery of Payments Made —Rescission—Power of Attorney to Confess Judgment — Consent to Sale Under Void Judgment.</p> <p>Held: 1. The fact that a foreign corporation suing for the price of goods sold had not complied with Kentucky Statutes, section 571, requiring it to file statement with the Secretary ,of State, designating its place of business and the name of an agent on whom process might he executed, is not ground of special demurrer, though the fact appears by affidavit.</p> <p>2¡ A paragraph of an answer denying that defendants are indebted to plaintiff on the note sued on pleads a mere conclusion of law, and is not good.</p> <p>3. The fact that a saw mill for the price of which plaintiff sued had been wrongfully .taken from defendants after they had used it-for three years, does not support a plea of failure of consideration, there being no complaint of -the original transaction.</p> <p>4. Defendants can not recover money voluntarily paid on the price, there being no claim that it was paid by mistake of law or fact, or that any fraud was practiced to induce the payment, and there being no prayer for a rescission.</p> <p>5. Defendants, after using the saw mill three years, can not have a rescission, as they can not place plaintiff in statu quo.</p> <p>6. Under Kentucky Statutes, section 416, declaring that a power of attorney to confess judgment shall be void, an answer signed and sworn to before suit was filed, consenting to judgment enforcing a mortgage lien, gave the court no jurisdiction of defendant’s person, and a judgment rendered pursuant thereto was void.</p> <p>7. In an action to recover the price of a saw mill sold to defendants, they may plead by way of set-off and counterclaim the damages suffered by the seizure and sale of the mill under a void judgment in plaintiff’s favor, provided they did not consent to the sale.</p>

<p>Case 87 — Action on a Delivery Bond</p> <p>APPEAL PROM BREATHITT CIRCUIT COURT.</p> <p>Judgment por Dependants and Plaintiff Appeals.</p> <p>1. It is claimed by counsel for appellees that plaintiff’s petition is bad, because, as they allege, it fails to state that the writ of delivery was directed to the constable, who executed it at the instance of the plaintiff. The petition states “that plaintiff obtained a writ of delivery which was directed to any constable of Breathitt county, and which he placed in the hands of Seburn Combs, who was at that time constable of said county.”</p> <p>2. Appellees also contend that the petition is defective because it fails to allege the execution of the bond required by section 184 of the code. The officer is presumed to have taken this bond before he attempted to execute the writ. The petition alleges, first: That the writ was directed to any constable. Second: That he took possession of the logs. Third: That in order to retain possession .thereof, the defendants within two days thereafter, “Executed, signed and delivered the said bond to said Combs, as constable, who accepted and approved the same.”</p> <p>3. Complaint is also made that the bond was not filed with the petition. The petition states that the bond is on file in a certain case in the Breathitt Circuit Court, and “is referred’to as part of the petition as if fully set out herein.”</p> <p>4. There are other alleged defects complained of which are technical and without merit, as we think, but if the bond is not technically good under the Code, we insist that it is good as a common law bond.</p> <p>5. The fact that the sureties on the bond signed their names by mark does not invalidate it. Civil Code, sees. 184, 29, 120; 14 B. Mon., 203; 12 Bush., 577; Harlan v. Prater, 6 Bush., 187; Sanders v. Bush, 2 J. J. M., 478; Cook v. Boyd, 10 B. Mon., 559; 7 Bush., 132.</p> <p>1 There is no averment in the petition that the writ of delivery was delivered to the constable at the request of the appellant in whose behalf it was issued, and unless it was so directed, the constable had no authority to execute it. Civil Code, sec. 067, 672; Johnson v. Elkins, 90 Ky., 163.</p> <p>2. In the absence of an allegation in the petition to the effect that appellant had executed the bond required by section 184 of the Civil Code, or that the bond sued on was duly taken by the officer, the petition states no cause of action. Civil Code, section 122, for the officer had no authority to comply with the writ until such bond was executed.</p> <p>3. In an action founded on a bond, or other writing, as evidence of indebtedness, it must be filed as part of the pleading, and if not filed the reason for the failure to do so, must be stated in the pleading. Civil Code, sec. 120; Collins v.' Blackburn, 14 B. M., 203; Hill, &c. v. Barrett, 14 B. M., 67.</p> <p>4. Exhibits filed which contradict the averments of the petition must control. Ky. Mut. Ins. Co. v. Logan, 90 Ky., 364; Boyd v. Bethel, 10 R., 470.</p> <p>5. A bond executed in the course of a judicial procedure is not valid either as a statutory or common law obligation, when the tribunal or officer who took the bond had no authority to take it. Councilmen v. Lisle, &c., 15 Ky. Law Rep., 543.</p>

<p>Case 88 — Action to Enforce Vendor's Lien and Cboss Action to Quiet Title</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment Quieting Title and Defendant in the Cross Action Appeals.</p> <p>ANALYSIS OF ARGUMENT AND AUTHORITIES CITED.</p> <p>1. In an equity action to quiet title, no relief can be granted a plaintiff who does not come into court with clean hands. If the title he seeks to quiet is based upon sixty-two patents, which he has obtained by having the county court orders issued in the names of sixty-two fictitious persons; by having the entries and surveys made in the same names; by having these fictitious names forged to‘assignments to himself of the certificates of surveys; and by procuring the patents to be issued to himself as as-signee of such fictitious persons, he can have no standing in a court of equity. 18 Fed. Rep., 273, United States v. Southern Col. C. & T. Co.; Pomeroy’s Equity Jurisprudence, sec. 397 to 404; 5 Litt., 302, Anderson v. Philips; 2 B. Mon., 201, Gray v. Gray.</p> <p>2. In an action quia timet, a plaintiff can not have relief where his title is denied, if it is proven to be based upon assignments from fictitious persons and upon grants to him as assignee of such, fictitious persons, since title can not be acquired except through real persons. Revised Statutes of Kentucky, Ch. 102; 18 Fed. Rep., 276, United States v. Southern Col. C. & T. Co.; 1 A. K. Mar., 294, Finley v. Humble.</p> <p>3. The plaintiff could not appropriate sixty-two tracts of vacant land of two hundreds acres each by merely surveying a base line for ' the whole, and then platting the separate tracts thereon; and twelve thousand four hundred acres thus platted could not thereafter be surveyed and located so as to oust dona fide purchasers in possession under grants from the Commonwealth, since the statutes require each tract to be actually surveyed “in the presence of two disinterested housekeepers as chainmen, whose names must be placed at the bottom of the plat and certificate; ” and patents can not be located in any other way. Revised Statutes of Kentucky, Ch. 102.</p> <p>4. Where land has been either entered, surveyed or patented by one person, a subsequent entry, survey or patent for the same land in the name of another is void. 96 Ky., 95, Terry v. Johnson; 7 B. Mon., 297, Jarboe v. McAtee; 4 Bush., 613, McMillan v. Hutcheson; 19 Ky. Law Rep., 1568, Gibson v. Board; 20 Ky. Lew Rep., 184, Boreing v. Hurst; .20 Ky. Law Rep., 190, Morgan v. Morgan; 20 Ky. Law Rep., 383, Ohio & B. S. W. R. R. Co. v. Wooten.</p> <p>5. The plaintiff in an action quia timet must both allege and prove that he is in possession before he can have the relief sought. He can not have a title “quieted” to land that is in the actual possession of the defendant. Civil Code, .sec. 125, sub-sec. 2; Pomeroy’s Equity Jurisprudence, sec. 1396; 88 Ky. 101, Kincaid v. McGowan; 12 B. Mon., 494, Armitage v. Wickliffe; 9 Ky. Law Rep., 553, Smith v. Galliff; 12 Ky. Law Rep., 622, Gately v. Wilder; 93 Ky., 121, Whipple v. Earick; 93 Ky., 42, Campbell v. Disney.</p> <p>6. Where in an action quia timet the plaintiff’s title and possession are properly alleged in the petition and denied in the answer, if on the trial plaintiff fails to prove his possession the petition • should be dismissed; and it is error for the court, upon such failure of proof on the part of the plaintiff, to enter a decree ordering defendant to surrender such possession to plaintiff.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. A patent can not be collaterally attacked for fraud in its procurement or issual. 2 Barbour’s Digest, p. 1114, secs. 1, 2, 12, 24; 12 Bush., 381, Marshall v. McDaniel; 81 Ky., 138, Frazier v. Frazier.</p> <p>A patent may be issued to one person for any number of separate surveys. 9 Bush., 103, Register v. Read.</p> <p>The equitable rule as to “clean hands” does not refer to transactions between the plaintiff and third persons. Pomeroy’s Equity, sec. 397, &c.</p> <p>2. Evidence tending to show that the surveyor did not run his lines on the ground or mark his corners is incompetent. 4 Bibb, 329, Bledsoe v. Well; 4 Dana, 500, Cain v. Flynn.</p> <p>3 If a survey is not deposited with the register within six months from its date, the patent based on it gives a title which takes rank only from the date of the patent. Geni. Stats., chap. 109, sec. 3; 90 Ky., 530, Bryant v. Wood.</p> <p>4. The rule that a plaintiff in a suit to quiet title must show possession is subject to many exceptions, one of which is that the suit is maintainable where neither party is in possession. 5 Bush, 25, Simmons v. McKay; 86 Ky., 245, Kellar v. Stanley; 15 Ky. Law Rep., 211, Bank v. Licking Co.; 15 Ky. Law Rep., 511, Kant v. Hall; 90 Ky., 377, Herr v. Martin.</p> <p>5 If an action of ejectment is brought in equity and defendant goes to trial without objecting to the jurisdiction or moving to transfer, he can not on appeal object to the forum. 12 Bush, 468, Fraley v. Peters; 90 Ky., 647, Walker v. Leslie.</p> <p>6. Where both parties by petition and by counterclaim are seeking to quiet title, the defendant can not, by dismissing his counterclaim, deprive the court of jurisdiction. 2 Dana, 11, Harris v. Smith.</p>

Case 89 — Action- to Set Aside Execution Sale APPEAL PROM BREATHITT CIRCUIT COURT. Judgment por Plaintiff and Defendant Appeals. POINTS AND AUTHORITIES. 1. A sale of land under several executions from different courts, although made.by fraud, covin, or collusion, can not be set aside by notice, but must be, done by petition in equity. Ky. Stats., secs. 1710-1712; Laurence v. Edelen, 6 Bush, 56; Reid v. Hensley, 9 Da,na, 327. 2.

Case 90 — Action on a Promissory Note APPEAL PROM WARREN CIRCUIT COURT. Judgments for Dependants and Plaintiffs Appeal. 1.We contend that the plea of “No consideration,” and one of non est factum, “are inconsistent, and that the court erred in not sustaining the motion of appellants to require the defendants to elect — and that this is a reversible error. Braun v. Braun, 19 Ky. Law Rep., p. 1814; Rooney v. Tierney, 82 Ky., 253; Civil Code, sec. 113, sub-sec. 4.

<p>Life Insurance — Delay in Applying for Paid-up Policy.</p> <p>Held: Where a policy of insurance provided that, if the policy should lapse for the nonpayment of any premium, the company would, upon the surrender of the policy within six months after such lapse, issue a paid-up policy, the insured, after paying five annual premiums, was entitled to a paid-up policy, though he did not apply therefor for nearly five years after making default in the payment of the sixth premium; time not being of the essence of the contract. -</p>

Case 92 — Action for a Settlement of the Estate of Defendant’s Intestate appeal from butler circuit court. JUDSMENT FOR PLAINTIFFS AND DEFENDANTS APPEAL. E. C. Barclay and husband brought this suit in the Butler Circuit Court, asking a division of the land and settlement of the estate of John Bailey, deceased, who was the father of Mrs. Barclay. The main object of the .suit was to settle the question of advancements, and to divide the real estate.

<p>Case 93 — Motion to Dismiss Appeal</p> <p>APPEAL FROM M’CRACKEN CIRCUIT COURT.</p> <p>MOTION TO DISMISS APPEAL,</p> <p>(No briefs in record.)</p>

<p>Counter Claim — Different Transaction.</p> <p>Held: In an action ito .recover damages for trespass and destruction^ of crops by defendant’s cattle, defendant can not plead as a counter-claim the damages which he has suffered from trespasses by plaintiff’s cattle, though they resulted from plaintiff’s breach of his agreement to keep up a portion of the division fence, as the claim of defendant did not arise out of the transaction stated in the petition.</p>

<p>Case 95 — Power op Special Judge</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>Judgment por Dependant and Plaintiff Appeals.</p> <p>CLASSIFICATION OF QUESTIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>A special judge can not he elected to try a case until after the failure of the parties to agree iipon an attorney for that purpose. An effort to agree must appear as a condition precedent to the election of a special judge. Ky. Stats., sec. 968; Ky. Central R. R. Co. v. Kenney, 4 Ky. Law Rep., 968, 971; Kennedy v. Com., 78 Ky., 447.</p> <p>II.</p> <p>A special judge must he elected by votes given viva voce and not by ballot. The special judge in this case, having been elected by votes given by ballot, and not viva voce, over the objection of appellants, had no authority to preside as such. Constitution of Ky., sec. 147; Bouvier’s Law Diet., defining word “Representative;” Board of Park Com’rs. v. Common Council, 28 Mich., 244; Am. & Eng. Eney. Law, vol. 21, p. 16, note 2.</p> <p>III.</p> <p>The term for which the special judge was elected having expired, he had no authority to act as such. In a court of continuous session sixty days is a term. Ky. Stats., sec. 968; Childers v. Little, 96 Ky., 376; Small v. Reeves, 20 Ky. Law Rep., 604; Ky. Stats., secs. 997, 998 and 1017.</p> <p>IV.</p> <p>There was error in that the election of special judge, in this case, took place at an unusual hour, before the time fixed for the convening of the court and before the court did convene on that day, and before the members of the bar had assembled, when only a small number of attorneys were present. Ky. Stats., sec. 968.</p> <p>V.</p> <p>There was error committed, to prejudice of appellants, in requiring' them to try this case when it had not been noticed for trial as required by rules of lower court. See rules 21 and 22 of Kenton Circuit Court, forming part of bill of exceptions in this case.</p> <p>VI.</p> <p>There was error in overruling motion of appellants for a continuance of the case upon the ground of the absence of a material witness, especially as this case had not been noticed for trial as required by the rules of the lower court.</p> <p>VII.</p> <p>There was error in this case in overruling the motion of appellants for a transfer of the cause to the equity side of the docket.</p> <p>VIII.</p> <p>There was error in admitting the testimony referred to in the brief under this head.</p> <p>IX.</p> <p>Instruction No. 3, given to the jury by the court at the request of the defendants was erroneous, misleading, confusing and inconsistent with instructions Nos. 1 and 2 previously given. Burke v. Shannon, 19 Ky. Law Rep., 1171; Hagins v. Combs, 19 Ky. Law Rep., 1165, 1166.</p> <p>X.</p> <p>The verdict in this case was palpably against the great weight of ■ evidence.</p> <p>XI.</p> <p>The trial oi this case and the verdict and judgment therein were premature, said trial being had and said verdict and judgment rendered before the former verdict and judgment in said case had been set aside.</p> <p>The reasons urged for a reversal are not only technical, but some of them are even trivial.</p> <p>1. It is urged that a special judge can not be elected until after the failure of the parties to agree upon some one to sit, and that the record must show this.</p> <p>The court probably knows that no two Kenton county attorneys ever agree upon anything, and. as the record shows that all the attorneys for all the parties were present at the two attempts to elect a special judge, they would certainly have announced an agreement if any had been made.</p> <p>2. The second objection is that the election of the special judge was by ballot and not viva voce. We think this is error.</p> <p>S. It is claimed that the term for which the special judge was elected had expired, and therefore he had no right to try the case. This is a court of continuous session, but for some purpose sixty days is made a term; but it is not reasonable to believe that the law contemplates that when the regular judge is disqualified from trying a case and a special judge is elected to do so there must be an election every sixty days.</p> <p>4. Another objection is that the special judge was not elected to try this ease, but another one. There were two cases of the same style and of different numbers. The clerk simply confused the numbers. Everybody understood that this case was the one to be tried, but the eagle eye of appellant’s attorney, always on the alert for an objection, discovered the confusion in the numbers.</p>

<p>Homicide — Self Defense — Instructions to Jury.</p> <p>Held: 1. It was error to give instructions as to self-defense when there was no evidence upon which to base them.</p> <p>2. Though deceased had threatened to kill accused, it was error to instruct the jury that .they might acquit on the ground of self-defense if they believed that deceased had formed an intention to kill accused, and was then about to arm himself for the purpose of carrying into execution that intention, as the danger or apparent danger must he immediate, to justify the taking of life.</p>

<p>Opinion Evidence' — Accident Insurance- — Accidental Means — In* tentional Killing of Insured — Voluntary Exposure to Danger —Injuries in Consequence of Influence of Intoxicants.</p> <p>Held: 1. Where a saloon keeper, testifying as a witness, bad expressed the opinion that a man was sober on a certain occasion, it was proper to ask bim wbetber tbe man walked and talked like a sober man, or whether he staggered, or stammered, or gave .other indications of drunkenness; but the exclusion of the answer of the witness was harmless error as his answer showed that he had no sufficient opportunity for observation to enable him to give such details, and, besides, he was subsequently permitted to go -over practically the same ground in answer to another question.</p> <p>2. Where a witness has shown that he had ample opportunity for observation of facts upon which to base an opinion as to whether a man was under the influence of liquor on a certain occasion, it was not improper to ask him to give his "judgment” if he did not know,</p> <p>8. Though an injury resulting in death was intentionally inflicted upon assured by another, it w,as sustained by “accidental means,” within the meaning of an accident policy, if assured had no agency in bringing it upon himself, and to him it was unforeseen.</p> <p>4. Where assured was killed by D., whom he assaulted, a provision of the policy excepting injuries resulting from “voluntary exposure to unnecessary danger” did not preclude the beneficiary from recovering unless assured realized the danger to which he exposed himself in making the assault; and it was error to instruct the jury to find for defendant if D. acted in his necessary or apparently necessary self-defense in killing assured.</p> <p>5. Under an accident policy excepting “injuries, fatal or otherwise, received while or in consequence of having been under the influence of, or affected by, or resulting, directly or indirectly, from intoxicants,” a recovery will not be denied ion the ground that assured was injured “while” under the influence of or affected by intoxicants, unless he was drunk at the time he was injured, hut a recovery will he denied on the ground that he was injured “in consequence of” being under the influence of ,or affected hy intoxicants if he was so far under the influence of intoxicants that his injury was received in consequence of such influence, though it did not amount to drunkenness.</p>

<p>Turnpike Roads — Purchase by County — Title to Toll House.</p> <p>Held: "Where a county purchased from a turnpike company its road and toll houses, under a statute authorizing it to make the purchase, the county has the right to the use and possession of one of the toll houses, as against one who obtained possession from a gate keeper of the turnpike company without its knowledge or consent, as the use of the toll house by the county is not inconsistent with the use for which it was acquired by the turnpike company.</p>

<p>Case 99 — Action to Enforce Vendor's Lien and fob an Injunction</p> <p>APPEAR FROM PIKE CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>1. The judgment should not have been rendered oh the notes until after the trial of the motion to dissolve the temporary injunction on the whole case.</p> <p>2 Ex parte affidavits are not competent evidence on the trial of a motion of this kind under sec. 291 of the Civil Code; the only competent evidence is either oral or written, or depositions.</p> <p>3. The judgment overruling the motion to dissolve is flagrantly against the evidence. Civil Code, secs. 277 .and 291.</p> <p>1. The petition alleged, and this was fully sustained by the evidence, that the defendants were insolvent, and if the timber was taken from the land, the naked land would not bring the value of the plaintiff’s lien notes thereon, and the plaintiff would thereby be without remedy.</p> <p>2. We hold that under the Civil Code affidavits are competent evidence in an injunction case like this, but even if they are not, there was sufficient evidence in the depositions read on the trial to support the judgment of the court.</p>

Case 100 — Indictment foe Incest ARPEAD FROM LETCHER CIRCUIT COUBT. Defendants Convicted of Incest and Appeal. In this case Lane Smith and Fanny Smith, brother and sister, have been indicted and convicted of incest. Two witnesses testify as to .their guilt, but each witness tells of a separate act. The first witness is impeached, and the second one contradicted. The evidence of each is so unreasonable as to make it incredible. 1.

Case 101 — Action on an Alleged Bill of Exchange APPEAL FKOM EDMONSON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals.. POINTS AND CITATIONS. 1. A bill drawn by a corporation on itself has the effect of a promissory note. 1 Parson on Notes and Bills (1st ed.), 288; 4 Thompson on Corporations, sec. 5124; Stafford v. Bratcher, 4 Ky. Law Rep., 996. 2. Defendant can not be held as drawer upon a draft signed by its agent in his own name.

Case 102 — Action to Set Aside Deed and Recover Land APPEAL FROM MADISON CIRCUIT COURT. Judgment for Defendants and Plaintiffs Appeal. Madison Todd, Jr., died unmarried and childless, leaving a will in which he devised to Minnie Gentry a tract of land known as his Tudor land and his eighth interest in his mother’s estate. He was the equitable owner of fifty-five acres of land in Madison county which he had bought of Smith & Evans.

<p>Husband and Wife — Transfer in Fraud of Creditors — Judges—Disqualification — Relationship.</p> <p>Held: 1. Where the wife’s father paid one-third of the consideration for land purchased by the husband under an agreement, to which the wife was a party, that she should own one-third of the land and its proceeds, but the husband took the title to himself, a deed executed by him after he became insolvent, and after the wife’s death, conveying one-third of the land to her infant son by direction of her father, will not he set aside at the instance of the husband’s creditors.</p> <p>3. Neither the fact that a brother-in-law and a brother of the judge had each married an aunt of the infant plaintiff, nor that the judge was decidedly partial to plaintiff and his father, and was on the most intimate terms of friendship with the father, was sufficient to disqualify him to act in the case.</p> <p>3. The mere statement of a party in his affidavit that the judge is personally hostile to him, without any statement of facts, is not sufficient to make a prima facie showing of prejudice.</p>

Case 104 — Action fob Settlement of an Estate APPEAL FROM GBAVES CIRCUIT COUBT. Judgment fob Plaintiff and Defendant Appeals. We think the judgment in this case is erroneous, because: 1. It was rendered without all the parties to the action being before the court. 2. The court erred in sustaining a demurrer to the defendant’s plea in abatement. 3. In refusing to require the plaintiff to elect which cause of action he would prosecute. 4.

Case 105 — Action foe Personal Injuries APPEAL FROM HENDERSON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. The appellant went aboard the train of appellee at Henderson with his wife, two small children and aged mother-in-law, having previously engaged sleeping berths for them. 1. At the time he put them on the cars the conductor was standing close to the steps on the platform. Mrs. Berry asked Mr. Berry not .to get aboard.

Case 106 — Action to Enforce a Mortgage Lien appeal prom m’cracken circuit court. Judgment por Dependants and Plaintiff Appeals. Held: in effect, to be usurious and void. By their plea of usury they have refused to be bound by it, and are not entitled to any benefits under it. AUTHORITIES CITED. 100 Ky. Rep., Rogers’ Receiver v. Rains, pp. 303 and 304; Kjr. Law Rep., vol. 20, No. 21; Reddick v. U. S. Bldg. & Loan Assn., p. 1725; 17 B. Mon., Lex. L. F. & M. Ins.

<p>Case 107 — Action for Personae Injuries</p> <p>APPEAL FROM FLEMING CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>The appellant was injured by falling over a step in the sidewalk of one of the streets in the city of Flemingsburg, by which he lost a thumb. The step had been there for many years and the appellant knew it was there, and was at the time of the accident trying to avoid it. The accident happened in the night just before day as the appellant was on his way to the train.</p> <p>Upon the conclusion of the plaintiff's testimony, the court on motion of the city gave the jury peremptory instruction to find for the city on the ground of contributory negligence on the part of the plaintiff.</p> <p>AVe contend that .this was error. The question of negligence ought not to he taken from the jury unless the conduct of the plaintiff relied upon as contributory negligence is established by clear and uneontradieted testimony, and presents some decisive act in regard to the character and effect of which no room is left for ordinary minds to differ.</p> <p>The testimony in this case shows a difference in .the opinion of the witnesses as to whether or not this step was an obstruction and as to its being dangerous.</p> <p>AUTHORITIES CITED.</p> <p>Elliott on Roads and Streets, p. 17; Clark v. Commonwealth, 14 Bush, 169; Am. & Eng. Ency. of Haw, 90, 91 and 96; Whit-taker’s Smith on Negligence, 308-309; Haire v. Kansas City, 76 Missouri, 438; Todd v. City of Troy, 61 N. Y., 506; City of Chicago v. Bixby, 84 Ill., 82; City of Newport v. Miller, 93 Ky., 24-25; Blyhl v. Village of Waterville, .47 Am. St. Rep., 596; Beach on Contributory Negligence, 56-57; Millcreek Township y. Perry, i 2 Atl. Rep., 149; City of Altoona v. Lotz, 60 Am. Rep., 347; Maus v. City of Springfield, 20 Am. St. Rep., 436; Spear-bracker, 64 Wis., 873; B. & O. R. R. Co. v. Kane, 0 Am. St. Rep., 387; Matthews v. Cedar Rapids, 20 Am. St. Reps., 436; 8 Am. St. Rep., 847, 848, 849 and 850; City of Sandwich v. Dolas, 23 Am. St. Rep., pp. 598, 599; McQuillan v. Seattle, 45 Am. St. Rep., 801-802; Wright v. Mulvaney, 23 Am. St. Rep., 393; Bern-harder v. Rensealer & S. R. R. Co., 25 Am. St. Rep., 165; Russell v. Township of Monroe, 47 Am. St. Rep., 23; Harris v. Township of Clinton, 8 Am. St. Rep., 849; Kelly v. Inhabitants of Blackstone, 9 Am. St. Rep., 730; Hayes v. Gainesville St. R. R., 8 Am. St. Rep., 634; City of Lancaster v. Kissenger, 10 Rep. (Pa.), 636; Russell v. Township of Monroe, 47 Am. St. Rep., 824.</p> <p>POINTS AND CITATIONS.</p> <p>1. At common law no action could be brought against a city for negligence of officers. Hill v. Boston, 122 Mass., 344.</p> <p>2. A county is not responsible for negligence of road overseers, unless expressly authorized by statute, and cities should be the same way. Downing v. Mason County, 87 Ky., 208; Hite v. Whitley Co. Court, 91 Ky., 168; Shepherd v. Pulaski County, 13 Ky. Law Rep., 672; Winbigler v. Los Angeles, 45 Cal., 36; Hoffman v. San Joaquin County, 21 Cal., 427; Cromwall v. Sonoma County, 25 Cal., 313.</p> <p>3. Section 3643 of Kentucky Statutes does not expressly make city liable, nor can the same be implied.</p> <p>4. The petition states conclusions and not facts. If allegations had been made as to the true condition of step, the city wouid not be liable. Bierman v. St. Louis, 120 Mass., 457; Miller v. St. Paul, 38 Minn., 134; Tabor v. St. Paul, ’36 Minn., 188; Witham v. Portland, 72 Me., 539.</p> <p>5. If the step was a defect, appellant had knowledge of same and voluntarily went over it and thus was guilty of contributory negligence, and can not recover. 2 Dillon on Municipal Corporations, 1007; Schfefier v. Sandusky, 33 Ohio St., 246; Durken v. Troy, 61 Barb., 437; Evans v. Utica, 69 N. Y., 166; Wilson v. Charleston, 8 Allen, 137; Belton v. Baxter, 54 N. Y., 245; Penn. Co. v. Rathget, 32 Ohio St., 66; Merrill v. Portland, 4 Cliff, C. C., 138.</p> <p>6. When a danger is known, whoever voluntarily encounters it can not be regarded as exercising ordinary prudence, and therefore does so at his own risk. Same authorities as in No. 5; City of Henderson v. Burke, 19 Ky. Law Rep., 1781.</p> <p>7. A city does not have to light its streets. 24 Am. & Eng. Ency. -of Law, 93; Gaskin v. Atlanta, 73 Ga., 746; City of Freeport v. Isbell, 83 111., 442.</p> <p>8. The city is not liable for injury resulting from defect in the construction of sidewalk on erroneous plan. Note to Aetna Life Insurance Co. v. Nexsen, 43 Am. Rep., 91; Lansing v. Toolan, 37 Mich., 152; 2 Dillon, Munic. Corp., 1007.</p>

Case 108 — Action for Construction of a Deed and Settlement of the Estate of Plaintiff’s Intestate. APPEAL FROM HENDERSON CIRCUIT COURT. Judgment Dismissing Cross Petition of Harrington and Others, AND THEY APPEAL.

Case 109 — Action upon a Promissory Note. APPEAL FROM PIKE CIRCUIT COURT. Judgment for Plaintiff against Ann Dils and she Appeals. O. C. Bowles applied to John W. Ford and this appellant to endorse a note for him for $1,550 with vhich to renew a note maturing in the Bank of Pikeville. This they agreed to do upon ■the condition that said Bowles would have his son, John C. Bowles, to endorse the note with the other endorsers.

Case 110 — Action for a Divorce APPEAL FROM CAMPBELL CIRCUIT COURT. Judgment Setting Aside Judgment op Divorce and Dismissing Plaintipe’s Petition and he Appeals. 1. The lower court had no power to set aside the decree of divorce, especially in the absence of fraud by the successful party, either upon the court or on the unsuccessful party. 2.

<p>Case 111 — Action foe Settlement of a Tbtjst Estate Involving its Liability to Pay City Taxes</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>Judgment Denying Claim of City of Lexington Taxes and the City Appeals.</p> <p>The exact question in issue in this case is whether the property and funds of a trust estate which are in the hands and under the control and direction of the trustee are to be assessed and taxed -at the residence of the trustee or at the residence of the cestui que trust — the two residing in different taxing jurisdictions.</p> <p>The trustee resided in the city or Lexington, while the cestui que trust resided in Louisville. Cooley on Taxation (2d ed.), p. 375; Burroughs on Taxation, p. 223; Mayor v. Sterling, 29 Md., 49; Latrobe v. Mayor, 19 Md., 13; City of Lexington v. Harting’s heirs, 19 Ky. Law Rep., 1829; Ky. Stats., sees. 4058 and 3179; Bristol v. Washington County, 177 IT. S., 131-3; (see Book 44, L. C. P. Co., 701).</p> <p>We do not believe that any principle of law is better settled than that the real owner of property, either real or personal, must, pay the taxes thereon.</p> <p>SUMMARY AND AUTHORITIES CITED»</p> <p>1. All personal property is taxable, and should be listed for taxation at the residence of the owner thereof.</p> <p>2. Taxation is a tailing of private property for public use, and in the absence of any benefit conferred, is spoliation.</p> <p>1. Ky. Stats., secs. 4023 and 4024; City of Louisville v. Sher-ley, 80 Ky., 72; Harting’s Executor v. City of Lexington, 19 Ky. Law Rep., 1829; Boske, Sheriff, v. The Security Trust and Safety Vault Co., 22 Ky. Law Rep., .182; Williams v. Rogers, 14 Bush, 788;’ Taylor’s Admr. v. Taylor’s Assignee, 78 Ky., 470; Keene v. Collier, &c., 1 Met., 417; Deposit Bk. of Owensboro v. Daviess County, 19 Ky. Law Rep., 265.</p> <p>2. Cooley on Taxation, p. 1; City of Louisville v. Sherley, 80 Ky., 73; Johnson v. Lexington, 14 B. Mon., 661; Cheaney v. Hooser, 9 B. Mon., 341-346.</p> <p>Our contention is that the city of Lexington is entitled to the taxes on said fund.</p> <p>AUTHORITIES CITED.</p> <p>Notes and choses in action are to be taxed at the residence of the creditor without regard to, and independent, of the residence of the debtor. Commonwealth v. Hays, 8 B. Mon., p. 1; Thomas, Guardian, v. Mason County Court, 4 Bush.</p> <p>Trust property is to be taxed át the residence of the trustee, and not that of the cestui que trust. Cooley on Taxation, p. 375; State v. Mathers, 10 Ohio St., 431; Baltimore v. Sterling, 29 Md., 48; Buck v. Miller, 62 Am. St. Rep., 440.</p> <p>The determination of the situs of personalty for purposes of taxation is a difficult question if we look alone to the decisions of the courts which ar.e conflicting, because it is generally controlled by statute.</p> <p>In the absence of statutory regulation there is little difficulty if we follow the text writers.</p> <p>In this State, by the provisions of sections 4058 and 3179, Kentucky Statutes, personal estate ' should be listed at the residence of the trustee; otherwise said sections would be futile.</p>

Case 112 — Action to Test Validity of an Ordinance APPEAL FROM KENTON CIRCUIT COURT. JUDGMENT POR DEPENDANTS AND PLAINTIFF APPEALS.

Case 113 — Action to Recover Value or Horse Alleged to Have Been Killed by Train APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Plaintiff and Defendant Appeals. 1. The collision between appellant's engine and appellee’s horse occurred in the night and while it was very dark. 2.

Case 114 — Action to Recover Land APPEAL FROM NELSON CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. On March 24, 1862, Lewis & Murphy made an assignment as partners and individually for benefit of their ■ creditors, and by their deed conveyed all the title they had in the. land in controversy to A. G. Nall and his successors, first, to pay expenses; second, to pay preferred debts, and, third, ‘ to pay general indebtedness of Lewis & Murphy pro rata.

<p>Counties — Condemnation of Turnpike Road — Removal of Toll Cates Pending Proceeding — Contract to Purchase at Price Fixed in Condemnation Proceeding — Right of County to Dismiss Proceeding — Abandonment of Road.</p> <p>Held: 1. A county, pursuant to a vote of the people in favor of free turnpikes, instituted a proceeding to condemn a turnpike road, and the fiscal court of the county pending that proceeding made a written proposition to the turnpike road company to pay interest on the amount finally adjudged to the company in that proceeding from the date of the acceptance of the proposition, if the company would at once make its road free and collect no more toll. This proposition the company accepted, and agreed “to accept the amount finally adjudged to it, with six per cent, per annum thereon from this date,” further requesting the county to take charge of the r,oad at once, and supervise, manage, and control it. A copy of the order of the hoard of directors of the company to this effect being submitted to the county judge, he indorsed on .it that it was accepted so far as it conformed to the order of the fiscal court, but that the request made by -the company was refused. Held, that the acceptance by the turnpike company was substantially in the terms of the offer made by the fiscal court, the request made of the county being advisory merely, and a correct conclusion as to the duty imposed on the county by the proposition it made. Therefore there was a contract by the county to take the road at the value fixed in the pending proceeding, and, as the county was authorized by statute to acquire any turnpike r.oad “by gift, lease, purchase, or contract,” that contract was binding.</p> <p>2. The authority given to the county by statute to abandon such a condemnation proceeding at any time did not confer'upon it the right to abandon the proceeding after it had contracted to take the ro.ad at the value which might be fixed upon it in that proceeding, and, the county having dismissed the proceeding, the company may recover of the county the value of the road in an action instituted hy it to recover interest under the contract.</p> <p>3. The failure of the turnpike company to collect tolls and to keep the road in repair after its acceptance of the fiscal court’s proposition was not an abandonment of the road by the company, under Kentucky Statutes, section 4732, providing that if a turnpike company fails, for a period of four months, to keep its road in repair, and to charge toll thereon, it shall be deemed to have abandoned its road.</p>