Volume 110 — Kentucky Reports

Case 1 — Action for Mandamus appeal from nelson circuit court. Judgment for Plaintiff and Defendant Appeals. (No brief.) This case involves one question of law to-wit: Is the power to appoint a justice of the peace to fill a vacancy, vested in the Governor or in the county judge? The act of 30, 1892, vested that power in the county judge. But the act of February 10, 1894, again vested this power in the Governor, who had had the power from June 1, 1792, to June SO, 1892.

Case 2 — Action to Enforce Mortgage Lien APPEAL FROM MONTGOMERY CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. This appeal involves the question of the application of payments made upon a loan by a borrowing member of a building and loan company, after the company is insolvent and is in process of liquidation. 1. Can a building and loan company in Kentucky make a voluntary assignment?

Case 3 — Action to Recover Real Estate APPEAL PROM LOGAN CIRCUIT COURT. Judgment por Defendant and Plaintiffs Appeal.

<p>New Trial — Mistake op Attorney — Sale op Standing Timber— Subrogation op Buyer to Warranty Made to Seller.</p> <p>Held: 1. It seems that the fact that defendant’s attorney notified him by mistake that his case had been continued is not a ground for new trial, in the absence of an allegation that the mistake of the attorney was not due to want of ordinary care on his part.</p> <p>2. A sale of standing timber in contemplation of immediate severance is a sale of personalty.</p> <p>3. A sale of timber by parol is at most only a sale of personalty and a warranty as to the size of the timber, made to the seller by the person from whom he bought, does not pass to the buyer.</p>

Case 5 — Action on Policy of Life Insurance — appeal from bell circuit court. Judgment for Plaintiff and Defendant Appeals. POINTS AND CITATIONS. 1. The legatee of the insured was not a proper party. The defendant had no contract with her. The policy was not assigned to her. The company could not pay her without subjecting itself to a liability to the .creditors of the insured. The defendant was liable under this policy, if at all, to the estate of the insured. 2.

<p>Railway Bonds and Mortgages — Lease and Mortgage Construed Together — Suit by Trustee Without Consent of Bondholders ■ — Right of Trustee in Mop-tgage to Require Accounting by Lessee-Abatement Pending Suit — Parties to Action.</p> <p>Held: 1. A railroad company executed to another company a lease of its road, then only partially constructed, agreeing to execute .its bonds, payable to the lessee, to raise money to finish the road, and to execute to the lessee a mortgage on the road to secure their payment; the lessee agreeing, before offering the bonds for sale, to guaranty their payment, and to return any of the bonds which might remain after reimbursing itself for expenditures in completing the road. It was further provided that the net earnings from the operation of .the leased road should be applied to the interest on the bonds, and that at the end of three years after the completion of the road a per centum of the earnings sufficient for that purpose should be set aside by the lessee as a sinking fund for the payment of the bonds at maturity, “which sinking fiind, is to be provided for in said mortgage.” It was further provided that one-third of the remainder of the net earnings not necessary to pay the interest and the sinking fund should be retained by the lessee; and the other two-thirds paid to the lessor, but that, if the proceeds of the sale of bonds should not be sufficient to reimburse the lessee, then such surplus net earnings might be retained by the lessee and applied to such deficit. Soon after the execution of 'the lease the proposed mortgage was executed to trustees; the mortgage stipulating that if the mortgagor should fail to pay the bonds, or any of them at maturity, the trustees, or the survivor of them, should forthwith institute foreclosure proceedings. Held, that the lease and mortgage are to be construed together, as one instrument, and, as the survivor of the trustees did not represent bondholders alone, he was entitled upon the maturity of the bon'ds to institute foreclosure proceedings without the request or consent of bondholders, making the lessee a party for the purpose of requiring it to render an account of net earnings; ,and the lessee can not plead in abatement of the action that it is now the sole bondholder, and that the services of the trustee are not necessary.</p> <p>2. It is no ground for abatement that the lessor has, since the institution of the action by the trustee, instituted an action against the lessee in another county for an accounting.</p> <p>S. A provision of the mortgage authorizing the trustees to refuse to institute foreclosure proceedings until properly indemnified did not restrict or limit their rights in the matter of instituting suit, but was merely for their protection.</p> <p>4. The action brought by the lessor and mortgagor after the institution of the action by the trustee should be dismissed, the relief sought by the two .actions being the same.</p> <p>5 A stockholder in lessor company is not entitled to he made a party to the action by the trustee on the ground that the lessor is seeking to -assist the lessee to acquire all the property belonging to the lessor, and refuses to assert a claim against the lessee for net earnings, and that the trustee has no right to prosecute the suit; the fact being that the trustee is authorized to sue, and there being no allegation that he is not prosecuting the suit in good faith.</p> <p>JUDGES DuRELLE, BURNAM, and O’REAR, Dissenting.</p>

Case 7 — Action to Enforce a Judgment — APPEAL FROM FAYETTE CIRCUIT COURT. Judgment for Dependants and Plaintiff Appeals. Appellee company defends the suit on two grounds: First, Failure of Herd to provide satisfactory proofs of loss. Second. That more than one year elapsed between the date of the fire and the bringing of this suit, claiming that by the express terms of the policy .the claim is barred.

Case 8 — Action to Enforce Mortgage Lien — APPEAL FROM OWEN CIRCUIT COURT. Judgment for Plaintiff and Defendant — A. P. Taylor Appeals.— There seems to he two questions in this case: First.

Case 9 — Action to Enfobce Execution Lien — APPEAL FBOM NICHOLAS CIRCUIT COUET. Judgment fob Defendant and Plaintiff Appeals. The appellant, as Master Commissioner, of the Nicholas Circuit Court, in obedience to an order of sale in said court, sold to J. M. Flora, a tract of land for $1,018.86, in two payments and accepted appellee Harbett as surety on the sale bonds, which were made payable to appellant as commissioner.

Case 10 — Action on Contract fob Services Rendered — APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Defendants and Plaintiff Appeals. 3. We contend that the trial judge has no power to compel a jury by peremptory instruction to sign a verdict against their conscience and protest. 2. A peremptory instruction should never be given where there is a scintilla of evidence to support the opposing side. 3.

Case 11 — Petition for Rehearing — Petition for Rehearing Denied. The court seems to base its opinion in the reversal of the case at bar, upon the case of Leslie v. Com., 19 Rep., 1202, and Lewis v. Com., 19 Rep., 1139. Neither of said cases is marked to be reported as official cases, but are marked not to be reported. It seems to us that the rule laid down in the case at bar, and the two cases above cited, is in direct conflict with the case of Burdette v. Commonwealth.

Case 12 — Action Against Sureties on Official Bond of Master Commissioner — APPEAL FROM LETCHER CIRCUIT COURT. Judgment for Plaintiff and Defendants Appeal. 1. The collection of the money, for which appellants were sued as sureties on the bond of Fitzpatrick, as Commissioner, was collected by Fitzpatrick, without authority from the court, and he was liable individually, and not as an official. 2.

Case 13 — Action for Damages fob Trespass — APPEAL FROM LAWRENCE CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals.

Case 14 — Indictment eor Grand Larceny — APPEAL PROM MARION CIRCUIT COURT. Grant Cooper and Others Were Convicted of Grand Larceny and They Appeal. The facts in this case show that the four defendants had six silver dollars, which had been paid to them for iheir work. The money was given to Sandy Waggoner, one of the four, and •they all went to the Bank of Uniontown to get the money changed, so they could divide it.

<p>of Several Joint Owners' — Co-Tenants—Running of Statute Against Married Women and Infants — Ignorance of Rights.</p> <p>Held: 1. Where a title bond purporting by its terms .to be the obligation of several joint owners of the tract of land referred to therein w,as not .signed by all the owners named in the bond, the possession of the obligees, who claimed the entire tract of land, was adverse to the owners who' did not sign the bond, and also to one of the signers who was a married woman, and therefore not bound.</p> <p>2. As ignorance of one’s rights does not prevent the running of the statute, the fact that the owners upon whom the bond was not binding erroneously supposed, as did the obligees, that their father, who signed the bond, had a life estate, did not prevent the statute from running against them.</p> <p>3. The purchasers, having acquired an equitable title to the shares of the owners upon whom the bond was binding, became tenants in common with the other owners.</p> <p>4. Though two of six tenants in common held the .land adversely to the others, some of whom were under no disability, the statute did not run against such of the others as were under the disability of coverture, as the rule that, where a right of action accrues to parceners .or joint tenants some of whom are under no disability, the statute runs against all, notwithstanding the disability of the others, has no application even if it exists under our present statutes, as the right of each of the joint owners was distinct, and each might have sued separately.</p> <p>5. One of several vendors being an infant at the time she undertook to convey, the possession of the purchaser did not become adverse to her until she became of age, her obligation to .convey .not, being broken until then, and as she was then, and has ever since continued to be, a married woman, the statute has never commenced to run against her.</p>

Case 16 — Action to Enjoin Turnpike Co., prom Erecting Toll House and Gate, and prom Collecting Tolls prom Plaintiff— APPEAL from: spencer circuit court. Judgment for Plaintiff and Defendants Appeal. (No brief for appellant.) 1 Appellant’s charter prohibits the erection -of a toll-gate within one mile of Taylorsville.

<p>Trusts- — Sale of Stocks by Trustee for Reinvestment in Real Estate — Parties to 'Action — Refusal of Corporation to Make Transfer.</p> <p>Held: 1. Under Kentucky Statutes, secs. 4706, 4707, empowering persons holding stocks in a fiduciary capacity to sell them, and reinvest the proceeds in real estate, and providing that a corporation in which such stock is held shall not he liable for transferring the stock on its books upon the order of such fiduciary, bank stock held by a trustee having been sol'd by him pursuant to a judgment authorizing him to make the sale ,and reinvest the proceeds in real estate, the bank in which the stock was held can not refuse to transfer .the stock on its books on the ground that it. may become liable to contingent remainder-men, who were not parties to the action in which the judgment was rendered, as they were neither necessary nor proper parties to the action.</p> <p>2. The bank may he required by rule to make the transfer, though it was not a párty to the action in which the judgment was rendered, and in which the rule was issued, and though its place of business is in -a county other than that in which the -action is pending.</p>

Case 18 — Action to Recover Land — APPEAL FROM FLOYD CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. Appellee, Morgan Clark, owned a farm in. Floyd county, which he desired to sell and found a purchaser in the person of John W. Porter, if he, Porter, could sell his coal and timber land.

<p>Case 19 — Action by Certain Tax Payers to Recover Against Sheriff, Money Alleged to Have Been Illegally Collected by Him as Taxes —</p> <p>Judgment in Favor of Tax Payers Against the Sheriff and His Sureties for a Part of the Tax, and the Sheriff and His Sureties Appeal. The Sheriff also Prosecuting an Appeal from a Judgment in Favor of Nicholas County for the Balance Found in His Hands of that Part of the Tax Held to be Valid; and Aius Wiggins Prosecuting an Appeal on Behalf of the Tax Payers, Because the Whole of the Tax, in Question, was not Adjudged Void.</p> <p>This is an appeal by H. Whaley, W.' B. Ratliff, and Waller Sharp, sureties on the official bond of S. A. Ratliff, late Sheriff of Nicholas county, from a judgment against them, as sureties, in favor of Aris Wiggins, for himself and all the tax payers of said county, in the name of the Commonwealth of Kentucky, for taxes collected or received by said Sheriff under an illegal levy. By agreement this is to" be tried with the cases of Ratliff v. Commonwealth, No. 277; atcliff v. Nicholas County, No. 278; and Ratcliff and Others v. Nicholas County, No. 279. Briefly stated, the plaintiff claims that the Nicholas Fiscal Court at its April term, 1897, levied ad valorem taxes aggregating 34 cents, on each $100, worth of taxable property, and entered into certain contracts for the purchase of certain turnpike roads; that on June 17, the said court levied an additional ad valorem tax of 25 cents on each $100.00; that said levies exceeded the constitutional limit and are therefore void, and that the indebtedness incurred about said turnpikes was without the assent of two-thirds or any number of the voters of said county, and exceeded the revenue income for said year. That Ratliff, as Sheriff, received from all the tax payers, $23,237.40, and of. this sum, $9,846.35, or 25-59 of the first sum, was illegally collected. By an amended petition plaintiff withdraws claim to all the funds, except 9-59 of the gross sum which is alleged to he $3,242.79, for which judgment is asked.</p> <p>The petition does not set out or- allege that Wiggins or any tax payer, paid any definite sum.</p> <p>The following questions are raised hy demurrers and motions:</p> <p>1. Can Wiggins sue in his name for all the tax payers jin the county to recover a gross sum alleged to have been paid by the tax payers of the county and no joint-payment being alleged?</p> <p>2. Is there such a general interest in the subject matter, as would entitle Wiggins to sue for all the tax payers under our Civil Code, sec. 25?</p> <p>3. What right has Wiggins to sue for money paid by another tax payer, not jointly with him, but separate and independent of him?</p> <p>4 Can Wiggins by alleging a lump .sum and not setting out the amounts paid by each tax payer, nor even by himself, use the gross sum paid by all, in order to have the court acquire jurisdiction?</p> <p>5. The Commissioner’s report showing that Aris Wiggins paid, under the illegal levy, to one R. P. Sparks, the small sum of $9.25; is he such a fair representative of the class sued for as would be permitted, under the general rules of law, to sue in behalf of this class?</p> <p>6. What equity is there disclosed in plaintiff’s claim, unless perhaps it be to prevent a multiplicity of suits, and has Wiggins the right to complain of a multiplicity of suits?</p> <p>7. Are not the claims of each tax payer separate and distinct, and were not the transactions as alleged separate transactions? Can the sureties be denied the right to contest the claim of each tax payer, and should not each tax payer set out his cause of action? Can the sureties be bound or concluded by a judgment in favor of Wiggins, and have no day in court as to the merits of the claim of each individual tax payer? Were the payments by the tax payers a unit? After a judgment in favor of Wiggins how could these sureties contest the claims of the tax payers, and if more money was recovered than was actually received by Ratliff, who is to receive it — Wiggins?</p> <p>8. It being admitted that the money sued for is illegal taxes collected by the Sheriff, are the appellants, sureties on the official bond of the Sheriff, liable for same, the covenant of the bond being for the faithful performance of his duties; or is the Sheriff himself personally liable, but his sureties not responsible for money collected without warrant of law, or under a void order?</p> <p>AUTHORITIES CITED BY E. M. DICKSON.</p> <p>Civil Code Title, 3 chap. 1, sec. 25; Pomeroy’s Equity Jurisprudence, p. 292; ,sec. 268, vol. 1; Smith, &c. v. Swormstedt, &c., U. S. Sup. Ct.; 16 Howard, 288; Oswald, &c. v. Morris, &e., 92 Ky., 48.</p> <p>Authorities cited in C. W. Wood’s brief in regard to the liabilities of sureties: Hawkins v. Com., 1 T. B. Mon., 146; Brown v. Com., 6 J. J. Marshall, 636; Arnold v. Summers, 3 Bush., 555; Mercer County v. Gabbert’s Admr., 5 Bush., 438; Griffith v. Com., 10 Bush., 284; Hughes v. Cotton, 13 Bush., 600; Greenwell v. Com., 78 Ky., 320; Dawson v. Lee & Lee v. Hill, 83 Ky., 55;</p> <p>Osenter’s Admr. v. Burnett, 19 Ky. Law Rep., 610; Am. & Eng. Ency., vol. 24, p. 749-879; Ryan v. Williams, 29 Kansas, 487; U. S. v. Morgan, 28 Fed. Rep., 28; State v. Bonner, 72 Mo., 387; People v. Lucas, 93 N. Y., 585; People v. Hilton, 36 Fed. Rep., 172; Civil Code, chap. 9, sec. 140; Ency. Pleading and Practice, vol. 6, p. 767, 768, 777; Pomeroy’s Eq. Jur., vol. 1, p. 206.</p> <p>(No brief, except in response to appellant’s brief.)</p> <p>“If the tax collector has actually collected taxes and appropriated them to his own use the .sureties on his bond are not relieved from liability because the levy was illegally made.” Am. & Eng. Ency., vol. 24, 894; Mechem on Public Officers; Com. for use, &e. v. Stockton, 5 T. B. Mon., 192.</p> <p>(No other briefs in record.).</p>

Case 20 — Proceeding to Condemn Land — APPEAL FROM BOYD CIRCUIT COURT. Judgment Fixing Value, and Both Parties Appeal. CLASSIFICATION OF QUESTIONS DISCUSSED AND AUTHORITIES. 1. In a proceeding to condemn land an amended petition reducing the quantity of land sought to be condemned is proper and should he permitted to be filed before trial of case before jury in Circuit Court. Randolph Eminent Domain, sec. 354; Ind., &c. Ry. Co. v. Rineheart, 43 N. E., 238; 5 C., 14 Ind.

<p>Homicide — Insanity as Defense — Instructions to Jury — Sufficiency' of Evidence to Authorize Manslaughter — Instruction— Definition of Malice.</p> <p>Held: 1. It was error to instruct the jury that, in order to acquit accused of murder on the ground of insanity they must believe that, at the time of the shooting he “was laboring under such a defect of reason as not to know the nature and quality of the .act he was doing, or, if he did know it, that he did not know it was wrong,” as the court should have further told the jury that they must acquit on that ground if they believed “that as the result of mental unsoundness he had not then sufficient will power to govern his actions by reason of some insane impulse which he could not resist or control.”</p> <p>2. Instead of instructing the jury that if they “entertain a reasonable doubt as to any facts necessary to constitute defendant’s guilt they must acquit him,” it will he better, on another trial, to instruct them, in the language of Criminal Code Practice, section 238, that, “if there he a reasonable doubt of the defendant being proven to be guilty, he is entitled to an acquittal.”</p> <p>3. Upon a trial for murder, defendant was not entitled to an instruction as to manslaughter, where there was no provocation, and nothing to reduce the crime from murder to manslaughter.</p> <p>4. Where the death penalty has been imposed, the court can not say, on appeal, that the substantial rights of accused were not prejudiced by instructions omitting a material ground of defense.</p> <p>5. Upon a trial for murder, the court should instruct the jury that the words “with malice,” in their legal sense, denote a wrong-, ful act done intentionally, without just cause, and that by the term “aforethought” is meant a predetermination to do the act, however sudden or recently formed in the mind before the act is done.</p> <p>CHIEF JUSTICE PAYNTER, dissenting.</p>

Case 22 — Proceeding on Rule fob Failing to Pat Alimony Previously Adjudged — APPEAL from bracken circuit court. Judgment Discharging Rule and Plaintiff Appeals. 'QUESTIONS DISCUSSED AND AUTHORITIES CITED. 1. Alimony is a duty, not a debt founded on contract or judgment, and whether accrued or accruing, decreed as a lump sum, or installments, is not a claim provable in bankruptcy.

<p>Railroads — Change of Course of Stream — Measure of Damages — ■ Opinion Evidence as to Amount of Damages — Admissibility of Evidence under Pleadings.</p> <p>Held: 1. The measure of damages for the injury to plaintiff’s property from a change in the course of a stream in the construction of a railroad was the injury done to the soil, and the consequent diminution of the salable value of the land, the injury being a permanent one.</p> <p>2. It was error to permit a witness to answer the question, “How much, in your opinion, was. plaintiff’s land damaged by this change in the stream?” The proper inquiry being as to the salable value of the land hut for the injury, and then as to how much, if any, the salable value had been diminished by reason of the injury complained of.</p> <p>3. Evidence as to the value of crops destroyed was inadmissible under the pleadings as formed.</p>

Case 24 — Action for Personal Injuries — APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Judgment for Plaintiff and Defendant Appeals. This action was instituted by appellee, a boy about seventeen years of age, to recover damages for personal injuries.

<p>Case 25 — Action to Enforce Mortgage —</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>(No briefs.)</p>

Case 26 — Action to Recover One-Hale the Loss in a Partnership Venture — APPEAL FROM FULTON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. It is substantially agreed by the pleadings that appellant and appellee entered into some sort of an agreement by which they were to buy cotton, gin it, and put it upon the market. The first answer .admits.a partnership, hut defendant files an amendment denying that the contract constituted a partnership.

<p>Case 27 — Action on Bill of Exchange —</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant, John Murphey, Appeals.</p> <p>SYNOPSIS AND AUTHORITIES.</p> <p>Appellant was sued upon several bills -of exchange upon which he was accommodation endorser. He pleaded that the bills in suit originated in loans by appellee, to his principal, several renewals having been made. That appellee had failed to protest some of the original bills as required, and he had been released. That one of the bills had been materially- altered .after he signed, and without his knowledge or consent, but with knowledge and consent of appellee. That appellee knew the facts in regard to his having been released from liability, and that appellant did not know them; that the principal had become insolvent at the time the things occurred releasing him, and the bank also knew of his insolvency. That he would not have renewed his previous liability if he had known the facts pertaining to his release upon the old bills, and never discovered the real facts until the cashier testified in these actions upon other issues. That in signing each renewal he believed he was liable upon the preceding bills from which he had in fact been released; that the bank officers knew he was in ignorance of the facts, and for the fraudulent purpose of inducing him to sign renewals and become bound,- after his release, they concealed this information and failed to communicate the facts to him.</p> <p>To this plea a demurrer was sustained. For reversal we rely upon the following authorities; Ray & Thornton v. Bank of Ky., 3 B. Mon., 513; Bank of U. S. v. Leathers, 10 B. Mon., 64; Ralston & Sebastian v. Bullitts, 3 Bibb, 261; Hubbel v. First Nat. Bank Stanford, 9 Ky. Law Rep., 766; Russell v. Rice, 19 Ky. Law Rep., 1613; Citizens Sav. Bank v. Walden & Lyddane, 52 S. W., 953, considered; Grey & Powers v. Bank of Kentucky, 2 Lit-tell, 378.</p> <p>STATEMENT.</p> <p>This action was originally brought at law in the Daviess Circuit Court as common law action No. 12114, the petition being •against W. M. Rudd, agent, as acceptor and drawer, and John Murpheyas endorser of a protested bill of exchange for $2,500.00, dated May 11, 1895, and due 30 days after date. The petition was filed January 10, 1896. On the 20th day of January, 1896, the defendant Murphey filed a general demurrer to the petition. On the 21st- day of January, 1896, the said defendant withdrew Ms said demurrer and filed an answer. Said .answer is in three paragraphs, and pleads:</p> <p>1. That Murphey was an accommodation endorser, and that H. W. Baker, the notary who protested said bill was an infant under the age of twenty-one years, and ineligible to hold said office.</p> <p>2. That he was procured to endorse said bill by fraud or mistake. That he endorsed a bill on the first day of February, 1893, for W. M. Rudd, (of which the bill sued on is a renewal) supposing he was endorsing a bill for the same amount to be used in renewing a bill due February 16, 1893.</p> <p>3. Denies that he delivered said bill to Rudd or that Rudd delivered or discounted the same to the plaintiff. Denies that Baker was a notary public, or that he protested said bill, or that he delivered notices of protest to R. A. Burnett at Murphey’s place of business.</p> <p>As the issues were made up and submitted for trial the only question before the court below, was, as to whether any of the predecessors of the bill sued on were allowed to pass maturity without protest, and whether that fact, if established, invalidated Murphey’s obligation as endorser on the bill in suit.</p> <p>AUTHORITIES CITED.</p> <p>Gray & Powers v. Bank of Kentucky, 2 Littell, 378; Buckner, &e. v. Clark, &c., 6 Bush., 168; 2 Am. & Eng. En'cy. Law, 361, and authorities cited.</p>

<p>Case 28 — Response to Petition for Rehearing —</p> <p>Petition for Rehearing Denied.</p>

Case 29 — Indictment for Uttering a Forged Instrument — APPEAL PROM KNOX CIRCUIT COURT. John Colson was Convicted oe Uttering and Publishing a Forged Instrument and he Appeals. The writing which the appellant is charged with uttering and publishing is as follows: “Barboursville, Ky., July 27, 1900.— Mr. John Colson — Sir: I want you to come heare sometime when they is nobody hear, I have got something to tell you. It is about what you saw at mother’s, an’ don’t fail to come.

Case 30 — Action to Enforce a Judgment — APPEAL FROM JEFFERSON CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. POINTS AND AUTHORITIES.

<p>Case 31 — Proceedings to Establish a Ditch Over the Lands of Another —</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>Judgment for Plaintiffs and Defendants Appeal.</p> <p>(No briefs.)</p>

Case 32 — Action fob a Decree Adjudging Plaintiff to Have an Undivided Interest in a City Lot — APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Judgment for Plaintiff and Defendants Appeal. A consideration of this question will involve the discussion of but two propositions: 1. Whether at the time of purchase at judicial sale by the appellants of the appellee’s interest, the appellant, J. Laurence Field, was a co-tenant with his co-appellant and the. appellee. 2.

Case 33 — Action to Have Local Option Election Adjudged Void— APPEAL FROM SPENCER CIRCUIT COURT. Judgment for Defendants and Plaintiffs Appeal. POINTS AND AUTHORITIES. 1. The statute which requires not less than ten to contest an election before the county board is mandatory, and less than that number can not he heard. 23 Am. & Eng. Ency. of Law, pp. 467, 468, and cases and notes; State v. Bradish, 37 L. R. A., 289, and cases cited; Ky. Stat., sec. 2566, sub-sec. 2. 2.

<p>Infants — Disaffirmance of Deed — Estoppel.</p> <p>Held: Where an infant conveyed land to his father to enable the father to become surety in a bail bond, a.nd that fact was recited in the deed as the consideration therefor, the court having accepted the grantee ,as surety upon the faith of the grantor’s testimony in open court that he was twenty-one years of age, the grantor wras estopped, upon arriving at age, to disaffirm the deed; and one to whom he conveyed the land in his effort to do so is affected by that estoppel, so that he can not claim the land ■as against the Commonwealth, which purchased at a sale made to satisfy a judgment on the forfeited bond.</p>

<p>Criminal Law — Former Conviction — Continuous Nuisance — Keeping Pool Room.</p> <p>Held: Where a pool room for betting on h'orse races was never vacant during several months, a watchman being left in charge each night, the nuisance thus maintained was a continuous offense; and a conviction under an indictment charging the nui'isance to have been maintained at any time during that period is a bar to another prosecution for the same offense, though alleged to have been committed at a different time during the same period, provided that time was prior to the former indictment, as time was not a material ingredient in the offense, and the defendant might have been punished under the first indictment for the whole time he had kept the house prior to that indictment.</p>

Case 36 — Action for an Injunction — APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. .Judgment for Defendant and Plaintiff Appeals. This case comes to your honors for the second time: the first appeal being taken in 1894 and reported in 17 Ky. Law Rep., p. 320.

<p>Burden of Proof — Identity of Mortgage Note.</p> <p>Held: Where a mortgagee was made a party defendant to an action by another lienholder, who alleged In his petition that the mortgage was fraudulent and was executed to secure a note for $500 which was without consideration, and the mortgagee filed an answer alleging that the mortgage was executed in good faith to secure a note for $500, money borrowed, which by. payments was reduced to $319, for which a new note was executed, the allegations of the answer being denied by reply, the burden was on the mortgagee to show that the note for the payment of which the mortgage was sought to be enforced was a renewal of the note secured by the mortgage</p>

Case 38 — Action for Damages to Real Estate — APPEAL FROM BREATHITT CIRCUIT COURT. Judgment for Plaintiffs and Defendants Appeal. The appellants, D. P. Hagins and W. H. Blanton, purchased the timber on a tract of land .on Winnie Branch from their co-appellant, Kentucky Union Company, and proceeded to cut and remove same.

<p>Case 39 — Action by M. Sabel & Son Against B. D. Chalkley & Co. to Subject by Attachment a Lot of Hides in Payment of a Debt of Plaintiffs Against Defendants —</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment Sustaining Claim of Planters Nat. Bank of Richmond, Va., to Attached Property, and Plaintiff Appeals.</p> <p>POINTS MADE AND AUTHORITIES. CITED.</p> <p>1. M. Sabel & Sons, having a claim against B. D. Chalkley & Co., ,of Richmond, Ya., instituted this action thereon against him in the Jefferson Circuit Court. • The attachment issuing therein was executed inter alia on ten bales of dry hides dn the L. & N. Depot -at Louisville, Ky., consigned by Chalkley to his own order, L. Marx & Bro., to be notified. A draft, with bill of lading attached, though accepted by said Marx, was returned unpaid. The attachment was sustained, but before sale, the Planters National Bank filed a “claim and delivery” -therefor, asserting ownership by reason of having advanced money on the draft above referred to.</p> <p>'2. The evidence shows (a) that the bank took the draft with all recourse on Chalkley, (6) and as we -insist, only for collection; (c) certainly not as absolute purchaser, but as collateral security, and admits having had ever since protest of the Marx note and the attachment by Sabel of Marx hides, and after receiving knowledge thereof, in their possession and control and credited to Chalkley on .the books of the hank funds more than sufficient to protect and pay themselves the amount of the advance..</p> <p>3. If the bank took the draft on the credit of Chalkley and for collection, though they credited him with the amount of the draft, immediately upon default by the acceptors, it was the right and duty of the bank ,to cancel the credit and charge back the amount of the draft to the .account of Chalkley, sufficient money being on hand to cover the same. Armstrong, Reev., v. Natl. Bank of Boyertown, 90 Ky., 430.</p> <p>4. Even if the bank .acquired title to the draft of Chalkley on L. Marx & Bro., whether by purchase or advances, they acquired no title whatever to the bill of lading or the hides represented thereby, but acquired only a lien. The bill of lading passed to them merely -as a collateral security. “The test of a pledge being that, if the debt is absolutely extinguished by the transfer, in whole or pro tanto, the transfer is a sale; if not, it is only a pledge.” Benjamin on Sales (1892), p. 9; Colebrook on Collateral Security, sec. 380, et seg.; Douglas, Recv., v. Peoples Bk. of Ky., 86 Ky., 176; Pettit & Co. v. First Natl. Bk. of Memphis, 4 Bush, 334.</p> <p>5. The bank has .a lien on the balance in its hand to the credit of its debtor to secure it against a loss on matured obligations. Morse on Banks .and Banking, vol. 1, sec. 324; Mt. Sterling Nat. Bk. v. Greene, 99 Ky., 262; Masonic Savings Bank v. Bangs, 8 Ky. Law Rep., 19.</p> <p>Control of such funds amounts to .a payment. This lien is not alone for the protection of the bank, but they will be required to assert it, where failure to do so would work an injury to a third party. Faulkner v. Cumberland Valley Bank, 14 Ky. Law Rep., 923.</p> <p>Taking other security does not affect the bank’s lien. Masonic Savings Bank v. Bangs, supra.</p> <p>6. The Planters National Bank, if not actually' paid, has two liens to secure it, one on the balance in its own hands, the other on ,•the hides in Louisville, on which M. Sabel & Sons have a lien by attachment that has been sustained and which is their only security.</p> <p>The court will in such a case marshall the securities.</p> <p>7. The court will marshall in favor of an attachment lien. The attachment creates a “lien” in the full sense of the word. The nature of the lien is not essential. The doctrine is enforced to prevent a common debtor from exonerating his singly charged estate from both debts. South v. Bradstreet, 16 Pick (Mass.), 264; Am. & Eng. Ency. of Law (2d ed.), vol. 3, p. 218; Am. & Eng. Ency. of Law (2b ed.), vol. 14, pp. 686-711; Kittredge v. Warren, 14 N. H. Rep., 509; Pearce, Tolle & Holton v. Hall, 12 Bush, 209; Nutter et al. v. Connett, 3 B. M., 198. Distinguishing Meyer v. Scharf, 34 S. W. Rep., 858.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. When goods are shipped, and the bill of lading is taken, to the consignor’s own order, title to the goods does not pass to the consignee on delivery to the carrier, but remains in the consignor. Kentucky Refining Co. v. Globe Refining Co., 20 Ky. Law Rep., 778.</p> <p>2. While bills of lading are not negotiable in the strict sense of that term, yet by the law merchant they are quasi negotiable; and an endorsement for value may transfer .to the endorsee the possession and absolute property of the endorser in the goods ■covered by the bill. Pett & Co. v. First Nat. Bk. of Memphis, 4 Bush, 338; Colebrook on Collateral Securities (2d ed.), secs. 375, 379 and 380; Jones on Liens (2d ed.), see. 824; Am. & Eng. Ency. of Law (1st ed.), vol. 2, p. 243; Dnylass, Reev., &e., v. Peoples Bk., 86 Ky., 180 and 181; L. & N. R. R. v. Hartwell, 18 Ky. Law Rep., 745; The Thames Case, 14 Wall., 98; Chandler v. Belden, 9 Am. Dec., 193; Rowley v. Bigelow, 23 Am. Dec., 612; Shaw v. Railroad Co., 101 U. S., 561</p> <p>3. The holder of an endorsed bill of lading can maintain replevin for ' the goods. Bank of Green Bay v. Dearborn, 115 Mass., 219; Fifth Natl. Bk. v. Bayley, 115 Mass., 228.</p> <p>4. The lien of a bank holding even an unendorsed bill of lading is superior to the lien of an attaching creditor. Petitt & Co. v. First Nat. Bk., &c., 4 Bush, 338.</p> <p>5. A bank holding a depositor’s note or draft is under no obligation to appropriate the depositor’s funds to its payment, should payment of the note at maturity, or of the draft on presentation be refused. Neill et al. v. Rogers Bros. Produce Co., 23 S. E. Rep., 704 and 705; Moss on Banking, sec. 559.</p> <p>6. While a bank has a general lien upon the funds and securities of its depositor to meet any balance due it on general account, yet this lien may be lost or waivered, as where securities are deposited for a special purpose, or where the conduct of the parties is inconsistent with the reservation of a general lien. Duncan v. Brannan, &c., 83 N. Y., 487; Neponset v. Leland, 5 Met. (Mass.), 262; Story on Agency, sec. 381; Colebrook on Collateral Security, sec. 62; Jones on Liens, yol. 1, secs. 244 and 251; Wycoff v. Anthony, &c., 90 N. Y., 488.</p> <p>7. The acceptance hy a hank of collateral security for the payment of a note is a waiver of its lien upon the debtor’s deposit. Farmers National Bk. v. McFerran, Admr., 11 Ky. Law Rep., 183.</p> <p>8. An attaching creditor who levies upon goods for which a hank at the time holds an endorsed hill of lading given to secure a draft executed to it by tbe debtor, is in no position to demand a marshalling of liens or securities, though the hank had on deposit funds sufficient to pay the draft. Sarff, &c., v. Meyer, &c., 34 S. W. Rep., 858.</p> <p>9. A creditor can acquire hy attachment no greater right in the attached property than the debtor had at the time of the attachment; and if before the attachment the debtor had assigned to a holder for value a hill of lading covering the attached property, the creditor would take nothing hy his attachment, the debtor’s right both of property and possession having passed under the assignment. Neill, &c., v. Rogers Bros. Produce Co., 23 S. E. Rep., 710; Drake on Attachments, sec. 245.</p>

Case 40 — Action for Breach of Contract — APPEAL FROM CLINTON CIRCUIT COURT. JUpGMENT FOR DEFENDANT AND PLAINTIFF APPEALS.

Case 41 — Action for Libel — APPEAL FROM HICKMAN CIRCUIT COURT. Judgment fob Defendants and Plaintiff Appeals.

Case 42 — Action by the Executors of S. B. Voris Against the Fidelity Trust and Safety Vault Co. to Enforce a Lien foe the. Cost of a Street Improvement — APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Plaintiffs and Defendant Appeals. There is but one question on this appeal and that is this: What constitutes a principal street, within the meaning of the charter of cities of the first class?

<p>Dower — Forfeiture by Diving in Adultery.</p> <p>Held: Under Kentucky Statutes, sec. 2133, providing, that if the wife voluntarily “leave her husband” and live in adultery, she shall forfeit all interest in his estate, unless they afterwards become reconciled, and live together as husband and wife; the wife by living in adultery in the husband’s home during his enforced absence, forfeits her right to have either homestead or dower.</p>

<p>Case 44 — Action by Robert M. Jewell Against the Louisville Trust Co., Administrator of C. P. Barnes, etc., to Enforce an Alleged Trust —</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment for Defendants and Plaintiff Appeals.</p> <p>This controversy arises from a clause in the will of C. P. Barnes, deceased, being the seventh clause of said will and is as follows:</p> <p>“I desire that my friend, Robert M. Jewell, be retained in the employ of the firm on such liberal terms as his long and faithful service entitle him to.”</p> <p>The petition shows that for many years the appellant had been a faithful employe of the testator in the building up and conducting of a large and lucrative jewelry business in the city of Louisville. The appellant brought this suit to compel the execution of this clause of the testator’s will.</p> <p>The petition shows that a very short time after the death of testator against plaintiff’s protest, the firm reduced the salary allowed plaintiff some time before his death by the testator. Later, the firm reduced his wages still farther, and finally, fired him out of the employment of the firm altogether. This suit is brought to recover the difference between what the appellant alleges to be a reasonable compensation to-wit, $20 per week, which had been allowed him by the testator for some time before his death, and what he was able to get elsewhere in other employments.</p> <p>■ It is contended by appellee that the clause of the will aforesaid is uncertain and unenforcible. The said clause is evidently in the character of a precatory trust and according to recent authorities is enforcible.</p> <p>AUTHORITIES CITED.</p> <p>. Colton v. Colton, 127 U. S. R'ep., p. 300; Phillips v. Phillips, 112 N. Y. Rep., 197; Blanchard v. Chapman, 22 111. App., 341; see also. Dierbert’s Appeal, 78 Pa. St. Rep., 296; Laurence v. Cook, 32 Hun., N. Y. Rep., 126; Bohan v. Barrett, 7 Ky. Law Rep., 398; Halsey, Trustee v. Morgan, &c., 17 Ky., 529.</p> <p>The appellant claims that under the will of C. P. Barnes, the business formerly conducted by Barnes & Bro., had to continue in business and continue his employment whether they wished it or not and whether the business was profitable or not, and whether his services were worth the amount or not. We say the will is not susceptible of any such construction, and there is no law entitling the plaintiff to any such claim. The clause referring to plaintiff was nothing more than a mere recommendation to his surviving partner and widow, and is not a precatory trust.</p> <p>AUTHORITIES.</p> <p>1. In order that a trust may arise from the use of precatory words, the court must be satisfied from the words themselves taken in connection with all the will, that the testator intended to create an express trust. The intention of the testator is the main thing. 27 Am. & Eng. Ency. of Law, 1 ed., p. 40.</p> <p>2. The testator’s desire that executors whilst acting in the management of the estate, and that the devisee when he shall enter into the receipt of my rents shall continue employe in his position at the usual fees allowed agents, held that these words did not create a trust in favor of the employe. Shaw v. Lawless, Clark & Finnelly’s Reports, vol. 5, p. 129; Foster v. Elsley, The Law Reports, 19 Chancery, 518.</p> <p>3. A direction in a will that a certain person shall be employed as agent whenever his trustees should have occasion for the services for a person in that capacity, held not to create a trust which such person could enforce. Finden v. Stephens, 22 Eng. Chancery Reports, being 2 Phillips, p. 142.</p> <p>4. Where the testator merely recommend or express a desire that his trustee should continue another in their employ to render services, does not create a trust. Lewin on Trusts, vol. 2, text book series, Blackstone Pub. Co., by Wm. Scott, top p. 805, side p. 641; Perry on Trusts, 5 ed., vol. 1, sec. 123.</p>

<p>Case 45 — Action by Josephine Martin v. Jacob P. Akees and Others, to Recover Damages for Deceit —</p> <p>APPEAL FROM FLOYD CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant, J. P. Akers, Appeals, Plaintiff Prosecuting Cross Appeal.</p> <p>The appellee, Josephine Martin, inherited from her father, Daniel Akers, an interest in a tract of timber land. In April, 1895, her brother, Jacob P. Akers, went to Missouri, where she had been residing since 1876, and bought from her for himself and brother, the appellee, George Akers, her share in the land for $800, her share having been set apart to her.</p> <p>This suit was brought by her against the appellant alone, Jacob P. Akers, for fraud in the purchase, she claiming that appellant had at the time misrepresented the value of the land and its condition as to timber. The relief asked was the value of the timber he had sold off the land before he bought it from her, or if this relief could not be afforded that the contract be rescinded and he be required to account for the timber. She did not, in fact, really bring the suit, or prosecute it, but hex-brother, F. C. Akers, with whom appellant had had trouble, brought it and prosecuted it in her name, under a vicious contract with her. Appellant denied all fraud upon his part in the purchase — all right to recover, but set up that his brother, George Akers, was an equal beneficiary in the purchase, made his answer a cross petition against him, and asked in case of a recovery that he recover one-half thereof of him. In an amended answer he set up as a defense to any recovery, a contract between appellee, Josephine Martin .and her brother, F. C. Akers, by which the latter was to attend to the suit, pay all costs and get one-half the recovery. In other words the defense of maintenance. George Akers admitted he was a co-equal purchaser, but averred he did not help make the contract and was not liable if any fraud was committed. The court upon final hearing dismissed the cross action as to him, and rendered a judgment for $375, with interest from May 8, 1896. and costs against appellant in favor of Josephine Martin. Both she and George Akers are appellees.</p> <p>The contract between Mrs. Martin and F. C. Akers was vicious beyond doubt. Not only was he to get one-half the recovery from his brothex-, but .she was not to pay any costs. This contract was made February 5, 1896, before any suit was brought. „</p> <p>We claim that this contract vitiated the whole proceeding. The .suit was to recover the value of the timber which was a part of the realty. The case falls not only within the general law against maintenance, but the fair scope and spirit of sectidn 211, Ky. Statutes, and she can not recover. Kentucky Statutes, sec. 211.</p> <p>Appellee, Josephine Martin left Floyd county twenty years before this litigation began and settled in Missouri six or seven hundred miles away, and had never seen the land since and knew nothing of its value or condition. She sold it to her brother in April, 1895. He sought her at her home in Missouri, and according to his own story completed the purchase within two hours after reaching her home, which he now asks the court to uphold. He knew the land and the quantity, and value of it and the timber; had contracted the poplar timber thereon at $5.00 per tree, and knew this sale of timber would bring him more money than he was paying for both land and timber. He knew she was ignorant of the quantity, quality and value of the .timber. He did not tell her of the sale he had made of it although .she made inquiry of him about it and its value. This timber was taken off the land under the contract of sale he had made of it, and the price paid to him and his brother, a partner with him in the matter, and from this sale he realized more than he paid for the whole land and timber.</p> <p>After she learned of the deceit and falsehood of her brother, she brought this suit for the value of the timber and obtained a judgment for only $375, from which he appeals, and she prosecutes a cross appeal.</p> <p>The appellant in his defense adds insult to injury, by not only seeking to be relieved from the wrong he has done in defrauding her out of the value of her timber, but asks that a double punishment be visited upon his sister, in consequence of it, because she made with -another brother of hers to aid her in correcting the wrong doings -of this one, a contract that is forbidden by law. But we claim that this contract was only void as between the parties and will not prevent a recovery by her of the damages she sustained in the fraud practiced on her by her brother in the purchase of the land.</p> <p>AUTHORITIES CITED.</p> <p>Bigelow on Fraud, 1 ed., pp. 27, 31 and 32; Pomeroy on Eq. Jur., sec. 901, vol. 2; Ky. Stats., secs. 209, 210, 215.</p> <p>The coimsel for appellant bases his argument chiefly on the champertous contract between appellee and her brother. The lower court very properly held that J. P. Akers alone was liable as he alone bought the land. As to the champertous contract, we claim it was only void ,as to the parties to it and did not affect the plaintiff’s right to recover for the fraud practiced on her. Weimhoff, &c. v. Rutherford, 17 Ky. Law Rep., 660.</p>

Case 46 — Action to Recover .Damages for the Death of Plaintiff’s Inti APPEAL FROM MUHLENBERG CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS AND AUTHORITIES. 1. The master is not liable to an employe for the negligence of a fellow servant. When a superior servant is engaged, with an inferior, in performing service ordinarily performed Dy the inferior, he becomes a fellow servant, and the master is not liable for his negligence.

<p>Case 47 — Indictment and Conviction por Murder —</p> <p>APPEAL PROM NELSON CIRCUIT COURT.</p> <p>(No briefs in the record.)</p>

<p>Case 48 — Indictment of James Howard for the Murder of William Goebel —</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>Defendant Convicted of Murdf,r and Appeals.</p> <p>(N.o briefs in the record.)</p>

Case 49 — Indictment Against Caleb Powers for Murder — APPEAL FROM SCOTT CIRCUIT COURT. Caleb Powers was Convicted of Murder and Appeals. 1. If the pardon which defendant plead 'on the calling of the case for .trial is valid, his motion to dismiss the indictment should have been sustained. The plea set out the fact that W. S. Taylor, who issued the pardon, was de facto and acting Governor when it was issued.

Case 50 — Action for Mandamus — APPEAL FROM CLARK CIRCUIT COURT. Judgment from Defendant and Plaintiff Appeals. This is an appeal from the Clark Gircuit Court in an action for a mandamus brought by the appellant to compel the appel; lee to sign a bill of exceptions.

<p>Case 51 — INdictment Against S. A. Pate fob Becoming Interested in a Road Claim While Holding the Office of Road ( Supervisor.</p> <p>APPEAL FROM BRECKINRIDGE CIRCUIT COURT.</p> <p>Judgment Dismissing Indictment and Commonwealth Appeals.</p> <p>The defendant S. A. Pate was indicted in the Breckinridge Circuit Court, under section 4332, Ky. Stats., for becoming interested in road claims while acting -as Supervisor of Roads in Breckinridge county.</p> <p>Two questions are presented:</p> <p>1. Is the indictment good on demurrer?</p> <p>2. Should the defendant’s motion for a peremptory instruction have been sustained?</p> <p>Appellee demurred upon the ground that sec. 4332 only applies to work let out by contract, and the indictment not specifically alleging the kind -of road work, it was demurrable. The court overruled the demurrer upon.the idea that the spirit and meaning of the section was to apply to any work on roads worked under the tax system, no matter by what process they were worked.</p> <p>The legislative intent in passing this section, certainly was to prevent any -of those officers therein named from bartering trafficking, or becoming in any way interested in these road claims growing out of the work upon roads over which they had supervision.</p> <p>' While the court was right in overruling the demurrer, we think the court was clearly wrong in sustaining appellees’ motion for a peremptory instruction. The reason for sustaining this motion was because the order qualifying the appellee supervisor did not show that he was sworn, or in other words* the oath was not “noted of record,” as the statute requires. We claim .that the law places the burden on him to show that fact. The .presumption is that all officers do their duty. While the provision .of the statute requiring the officers to he sworn may he mandatory, we think the provision requiring the oath “to he noted of record” is directory.</p> <p>AUTHORITIES CITED.</p> <p>Jones on Evidence, vol. 1, section 38, &c.; Nelson v. People, 23 N. Y., 293; Masters’ Exr. v. Bienker, '87 Ky., p. 1; Greer v. Wlntersmith, 9 Ky. Daw Rep., 96; Wood v. Terry, 4 haws N. Y., 80; Wood v. Morehouse, 45 N. Y., 368; 1 Laws N. Y., 405; 16 Ky. Law Rep., p. 63.</p> <p>Two questions are presented:</p> <p>First. Should the demurrer to the indictment have been subtained?</p> <p>Second. Did the court err in peremptorily instructing the jury to find the defendant not guilty?</p> <p>First. Under the statute there are two methods of working roads in counties in which a tax is levied, for that purpose; first by contract; second by hired hands, teams, &e., .Ky. Stats., ■section 4315, provides “that the supervisor with.the consent of the County Judge may designate certain roads and parts of roads, that are not to be let out as1 heretofore provided, hut which are to be worked and kept in repair eitner by special jontracts, privately made, .or by hands and teams hired by him, &e. The two methods are separate and distinct, section 4332, provides that it shall he unlawful for . . . the supervisor to become directly or indirectly interested in any contract for working roads or building or repairing bridges or buy or become interested in any road or bridge order or certificate growing out of sucb • work. This section clearly means contract work. Now, apply section 4315, with its distinction between contract work, and work by hired hands and teams and it is clear that the penalty Is only prescribed as against the officer becoming interested in claims growing out of contract work. If this construction is correct then the demurrer to the indictment should have been sustained. It affirmatively appears from the road .order set out in the indictment and from the averments of the indictment that the claim collected by defendant was not for contract work on the roads, hut was for pay for work actually done on the roads by defendants’ teams.</p> <p>:2. The peremptory instruction was proper. All the evidence introduced by the Commonwealth was the order of the Fiscal Court electing defendant supervisor of roads at a salary of $200 per year, an order of the County Court reciting that that the defendant appear and executed bond as supervisor,' that the settlement made with the administrator of the sheriff showed an allowance to defendant as supervisor a claim of $64Z.70 for. teams on road, and that said claim was approved by the court and paid to defendant. There is an entire absence of any proaf that defendant ever took the oath of office. Section 4314, Kentucky Statutes, provides that he shall take an oath for the faithful discharge of his duties and that the taking of the oath and the execution of the bond shall be noted on the order hook •of the ’court. This is wholly a technical prosecution. There is no effort, to prove and no hint that the money was not earned or that the county has been defrauded or has suffered any loss. The claim was a just one and was approved by the court, and it looks as i.f there were some motive of somebody demanding a persecution rather than a. prosecution of the defendant.</p>

■Case 52 — Action for Damages for Personal Injuries — APPEAL FROM LINCOLN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. The only question to be determined on this appeal is the correctness of the ruling -of the court in giving peremptory instructions to the jury to find for the defendant at the close of plaintiff’s testimony.

<p>Case 53 — Action for Writ of Prohibition —</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>(No brief in the record.)</p>

Case 54 — Action to Recover Land — APPEAL PROM HARLAN CIRCUIT COURT. Judgment por Dependant and Plaintipp Appeals. This is an appeal from a judgment of the Harlan Circuit Court awarding appellee a writ of possession to appellant’s land under a sheriff’s deed. In January, 1867, W. T. Hall, Administrator, recovered a judgment against Carr Brittain and B. B. Lankford for ?90 and costs in the Harlan Quarterly Court.

Case 55 — Action for an Injunction' — APPEAL FROM JEFFERSON CIRCUIT COURT. Chancery Division — Judgment for Defendants and Plaintiffs Appeal. POINTS INVOLVED AND AUTHORITIES CITED. 1. The act to provide free turnpike and gravel roads approved March 17, 1896, prescribes every step to be taken in the acquisition by a county of the toll-roads or turnpikes therein.

<p>Case 56 — Action to Enjoin the .Collection of a Tax —</p> <p>APPEAL FROM NICHOLAS CIRCUIT COURT.</p> <p>•Judgment for Plaintiffs and Defendants Appeal.</p> <p>(No briefs in the record.)</p>

Case 57 — Prosecution por Selling Liquor without License— APPEAL PROM UNION CIRCUIT COURT. Dependant was Convicted and Appeals.

<p>Case 58 — Indictment for Burning Dwelling House —</p> <p>APPEAL FROM LETCHER CIRCUIT COURT.</p> <p>Defendant Convicted and Appeals.</p> <p>(No briefs in the record.)</p>

Case 59' — Action for an Accounting of V7. I. Hilton’s Administrator, etc — APPEAL FROM SIMPSON CIRCUIT COURT. Judgment for Defendants and Plaintiffs Appeal. The points relied on for reversal are: 1. The estate of Hilton constituted one whole at his death, and in an action to settle it, all parties who were in possession of any part were properly joined as defendants, were in the absence of a conspiracy. 2.

Case 60 — Proceeding by the Commonwealth Against Claude Chinn to Remove Him from His Office as Clerk of the Fayette County Court. Judgment- Acquitting the Defendant of the Charges Preferred Against Him and Refusing to Remove Him from Hts Office.

Case 61 — Action by William Layer Contesting Will of Adam C. Layer — APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for the Propounders and Contestants Appeal. Adam C. Layer died in 1896 and’ left surviving him a widow, and three children, one son, and two daughters.

Case 62 — Proceeding by Commonwealth Against Youtsey, Receiver, and Others, to Assess Property — APPEAL FROM CAMPBELL CIRCUIT COURT. Judgment for Plaintiffs and Defendants Appeal.

Case 63- — Action by Sallie T. and Annie Cox Against J. H. Muib, ETC., EOB AN INJUNCTION- APPEAL FROM SPENCER CIRCUIT COURT. Judgment for Plaintiffs and Defendants Appeal. The appellee’s claim of a passway over the lands of appellants, is based on two grounds: First, by prescription; second, by necessity. The right from necessity is rather hinted at than distinctly claimed and is nowhere urged with any apparent confidence in its merit.

'Case 64 — Action on a Promissory Note — APPEAL FROM DAVIESS CIRCUIT COURT. ..Judgment for Defendants and Plaintiff Appeals. POINTS CONTENDED FOR AND AUTHORITIES. 1. A note executed by a principal in renewal, was entrusted to payee to secure signature of S. H. (surety on original note) and the signature was procured and the note returned, (as had been agreed), by payee to principal to get other sureties.

Case 65 — Action by Warren Neafus Against Louisville Bridge Co-for Personal Injuries — APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for the Plaintiff and Defendant Appeals. (Original brief not in the record.) SUPPLEMENTAL BRIEF. Since the filing of the appellant’s brief in this case, the court, has decided exactly the question upon which the appellant expected a reversal when the appeal was taken.

Case 66 — Action on a Promissory Note — APPEAL FROM HENRY CIRCUIT COURT. Judgment for Defendant, R. F. Peak, and Plaintiff Appeals. This suit was on a note given to appellant bank by J. C. Garriott with E. M. Garriott .and the appellee R. E. Peak as sureties for $1,132,24 on August 8, 1892. J. C. Garriott is the son of E. M. Garrott and brother-in-law of. Peak.

Case 67 — Action to Subject Real and Personal Estate 'of a Non- • resident Defendant to the Payment of Plaintiff’s Debt— APPEAL FROM CAMPBELL CIRCUIT COURT. Judgment Postponing Attachment to Mortgage Lien and Plaintiff Appeals. The attachment in this case was levied in the manner shown by the return which is as follows, to-wit: “Executed the within attachment this 27th day of April, 1894, on Wm. H. Hartón, trustee of the estate of Col. James.

<p>Taxation — Failing to Report Distilled Spirits, Removed from: Bonded Warehouse — Indictment.</p> <p>Held: 1. Under Kentucky Statutes, section 4111, the owner or proprietor of a bonded warehouse in which' distilled spirits are-stored must report to -the State Auditor and to the county court clerk the removal of spirits therefrom, whether or not they had been previously assessed for taxation, though the section refers to the warehouse “in which the spirits were stored at the-time of the assessment,” and requires the owner to report “the. years in which such spirits were assessed for taxation,” and to pay the taxes due thereon; it being the' manifest purpose of the statute to prevent such spirits from escaping assessment.</p> <p>2. An indictment under that statute sufficiently alleged that defendant was the owner of the warehouse ait the time the spirits, were removed, though the only direct allegation as to the ownership oflt the warehouse was that defendant owned it at the time the report was due.</p>

Case 69 — Action to Recover Money Paid for Defendant — APPEAL FROM NELSON CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. Appellant and appellees entered into a partnership to erect and operate a laundry at Bardstown, Ky. The laundry Was completed and commenced operations about June 1, 1898, with a man named Cannon as -superintendent. On August 15, 1898, appellees sold their interest in the laundry to appellant.

<p>Wills — Ademption of Legacy.</p> <p>Held: Under the Kentucky Statutes, section 4840, providing that a provision for or advancement to any person, whether a child or not, shall be deemed a satisfaction in whole or in part of a devise or bequest to such person contained in a previous will, “in all cases in which it shall appear from parol or other evidence to have been so intended,” one who claims an advancement to he a satisfaction of a legacy must aver that such was the intention of the testator.</p>

<p>Case 71 — Motion by Borches & Co. Against E. T. Bellis et al. for Judgment on a Claimant’s Bond —</p> <p>APPEAL FROM BELL CIRCUIT COURT.</p> <p>Judgment for Defendants and Plaintiffs Appeal.</p> <p>On May 5, 1899, appellants recovered in the Bell Circuit Court a judgment against appellee, B. T. Beilis, for $526.88 with interest from Nov. 2, 1898, on which an execution was issued July 3, 1899, and levied on the property in controversy herein. On July 17, 1899, the property having been advertised for sale on that day, appellee, J. F. Harkness, appeared and claimed said property and on said date the sheriff caused the property to be appraised and took from said claimant a bond as required under section 645 Civil Code, and made his return thereof.</p> <p>On October 4, 1899, appellants, by a notice filed in the Bell Circuit Court, duly executed on J. F. Harkness, principal, and Henry Steele and R. C. Ford, sureties, and entered a motion therein for judgment on said bonds as provided in section 648 of the Civil Code, and thereafter on October 28, 1899, the court prescribed the issue to be tried therein by order to-wit: That the ownership of the property levied on by the sheriff, under the execution against said defendant, Beilis, was the issue to be "tried. The court further ordered that the burden of proof was on the plaintiffs to said motion, to which the appellant then excepted. This is the first error complained of; we claim that the burden was on the claimant of the property.</p> <p>The second error complained of is that the court erred in peremptorily instructing the jury to find for the defendants. The evidence .offered by appellants consisted of the judgment, execution, levy, appraisement return and claimant’s bond and the testimony of the sheriff who made the levy that the defendant Beilis was in possession of said goods at the time he made the levy, and the testimony of Wood that he has known Beilisfor eight or nine years, and that he has always been engaged in the grocery business in Middlesboro, and is still in the same-house and business as heretofore. With this proof before the jury the court peremptorily instructed the jury to find for defendants over the objection of the appellants. Ky. Stats, sec. 1908; Merelon v. Ragan, &c., 5 Bush, 334; Civil Code, sec. 645..</p>

Case 72 — Action fob Mandamus — APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Judgment for Plaintiff and Defendant Appeals. 1.

Case 73 — Action to Recover Damages fob Malpractice — APPEAL PROM ROBERTSON CIRCUIT COURT. Judgment por Dependant and Plaintipp Appeals, This suit was brought by Jesse Wood against F. M. Downing in the Robertson Circuit Court seeking to recover of him the .sum of $5,000 for malpractice as a physician, and the defendant was served with process in said county.

■Case 74 — Action to Recover Damages for Personal Injuries— APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. .Judgment for Defendant and Plaintiff Appeals. B. J. Flynn, the appellant, .alleges that he was injured by the ■gross negligence of the defendant, and sues for damages. At the conclusion of his evidence, on motion of the appellee,, ■the Court gave the jury peremptory instructions to find for the defendant, and he .appeals.

<p>Case 75 — Action to Recover Damages for Personal Injuries—</p> <p>APPEAL FROM MASON CIRCUIT COURT.</p> <p>Judgment fob Plaintiff and Defendant Appeals.</p> <p>The grounds of plaintiff’s action in this case, are that appellant had negligently allowed a hole to remain in the street, into which she fell and broke her leg. The trial resulted in a judgment against the city for $2,000.</p> <p>We rely on the following points .and authorities for a reversal:</p> <p>POINTS AND AUTHORITIES.</p> <p>When a plaintiff’s own testimony shows him to have been .guilty of contributory negligence, it is the duty of the court to peremptorily instruct the jury to find for the defendant. Jacobs v. Ohio & Big Sandy R. Co., 20 Ky. Law Rep., 189.</p> <p>When a person walks over a place which he knows to be dangerous, he must use care proportionate to the danger; to forget it and act just .as if the danger did noc exist is contributory negligence on his part.</p> <p>Jones on Negligence of Municipal Corporations, sec. 221; Beach on Contributory Negligence, sec. 37; Baxter v. Troy R. Co., 41 N. Y., 502; Brucker v. Town of Covington, 69 Ind., 33; Buswell on Personal Injuries, sec. 165; Blount v. Grand Trunk Ry. Co., 61 Fed. Rep., 375; Schofield v. Chicago Ry. Co., 114 U. S., 615; Northern Pac. Ry. Co. v. Freeman, 174 U. S., 379'; Church v. Howard City, 111 Mich., 298; Gilman v. Deerfield, 15 Gray, 577; St. Louis, etc., Ry. Go. v. Forbes, 39 3. W. Rep., 63; Wood v. Richmond & Danville R. Co., 100 Ala., 660; 3 Elliott on Railroads, sec.. 1165; White v. Cincinnati Ry. Co., 89 Ky., 478; McQuillan v. Seattle, 45 Am. St. Rep., 799; Clarke’s Admr. V. Lv & N. R. R. Co., 18 Ky. Law Rep., 1082; L. & N. R. R. Co. T. Ricketts, 52 S. W. Rep., 939; 21 Ky. Law Rep., 662.</p> <p>Acceptance as well as dedication is necessary to make a street •a public street. City of Maysville v, Stanton, 12 Ky. Law Rep., 586.</p> <p>Part of the land dedicated for a street may be accepted by the municipality without accepting all of it. 2 Dillon’s Municipal Corporations, sec. 64'2, note 1.</p> <p>Evidence of repairs made after the accident is incompetent. Jones on Negligence of Municipal Corporations, sec. 243; Columbia R. Co. v. Hawthorne, 144 TJ. S., £02; Corcoran v. Peeks-kill, 108 N. Y., 151.</p> <p>The place where plaintiff was hurt was a hole made by a wash, and which had been gradually made for five years, and was .about a foot deep. The plaintiff knew of this hole, but on the night she was hurt she was aroused from her sleep about two or three o’clock in the morning to go and see her sister’s child, who was reported to be dying. The night was cold and moonlight, but the moon had just declined behind the western hill and it was then dark, especially on the eastern side of the house where this hole was situated. She was not excited nor in a hurry, but she was not thinking of the hole at the time she fell into it. She was thinking of the sick child, and it was so dark she could not see the hole until she fell into it. Her uncontradicted statement is: “I did not slip nor stumble. I slipped down in the hole and lost my balance. I tried to catch .myself, and threw my hands out, but this foot twisted under me and I came down.”</p> <p>It was five weeks before the surgeon unbandaged her foot, and she was seven weeks on the bed and she has suffered ever since and still suffers from her injury.</p> <p>The appellant relies for a reversal, first, on contributory negligence, and, second, that the portion of the street where the injury occurred had never been .accepted by the city as a street.</p> <p>Neither of these defenses is sustained by the evidence. The facts were submitted to a jury by proper instructions, and the verdict and judgment should be affirmed.</p> <p>AUTHORITIES CITED.</p> <p>89 Ky., 480, White v. Cincinnati, etc., Ry. Co.; 45 Am. Stat. Rep., 800, McQuillan v. City of Seattle; 9 Am. Rep., 730, Kelly, v. Blackstone; L. & N. v. Wolfe, 80 Ky., 82; 1 Reporter, 365, L. Gas Co.; L. & N., 13 Rep., 460; Town of Albion v. Hetrick, 46 A. R., 230; Reed v. Bragg, 5 J. J. Mar., 620; Curl v. Beens, 3 J. J. Mar., 173; Munsell v. Bartlett, 6 J. J. Mar., 22; Trotter v. Saunders, 7 J. J. Mar., 321; Fightmaster v. Beasley, 7 J. J. Mar., 411; Chiles v. Boothe, 5 Dana, 566; Merritt v. Polly, 16 B. M., 356; Thompson v. Thompson, 17 B. M., 28; U. S. of S. v. Underwood, 11 Bush, 276; Bell v. Rowland, Hardin, 301; Gallatin v. Bradford, 1 Bibb, 209; Dodge v. Bank of Kentucky, 2 Mar., 612; Jackson v. Holliday, 3 Mon., 366; Gregory v. Nesbitt, 5 Dana, 421; Shea v. R. & L. T. P. R’d. Co., 1 Bush, 109; Slaughter v. Morgan, 1 Met., 29; Stephens v. Brooks, 2 Bush, 138; Elliott on Roads and Streets, 649, 650.</p>

Case 76 — Action to Recover Usury Paid — APPEAL PROM BARREN CIRCUIT COURT. Judgment por Dependants and Plaintifp Appeals. On July 20, 1895, appellant borrowed from appellee, $1,022.05, and to secure its repayment conveyed to her the tract of land described in the petition, stipulating by either a written or oral contract that if appellant paid her on the loan aforesaid, the 'sum of $1,137.05 by October 20, 1895, she would reconvey the land to him.

Case 77 — Action to Recover Damages for Personal Injuries— APPEAL FROM M’CHACHEN CIRCUIT COURT. Judgment for Plaintiff for Only a Part of the Sum He Claims and He Appeals. Willie Macon, a small negro boy, was sent by his mother on some errand to a neighbor’s house.

Case 78 — Action toe a Mandatory Injunction — APPEAL PROM CAMPBELL CIRCUIT COURT. Judgment por Plaintipf and Dependant Appeals.

<p>Case 79 — 'Action to Recover an Attorney’s Feb and to Enforce ai Lien on Land Therefor —</p> <p>APPEAL FROM BREATHITT CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>On January 30, 1892, appellant made a written contract with Hurst land Bach, by the terms of which he agreed to pay them $200. Upon condition that they succeed in regaining for him the land in controversy in a suit pending in the Breathitt Circuit Court against appellant and others by one R. W. Barnett. The petition, in this action, alleges that “R. W. Barnett recovered ,a judgment for said land.” The petition further alleges that appellee “took charge of a refunding bond executed to him by Richard Combs, with W. M. Combs surety, and procured said Combs to purchase-said land, and caused a legal title to be conveyed to- the defendant and thus succeed in regaining .said land for him and fulfilling his original contract.”</p> <p>We can not see how this can be construed as a fulfillment of his .original contract, which was to defend a certain suit, and the money was to be paid only in the event of success in said suit. The failure to succeed in this suit ended the rights of the attorneys under that contract, and no subsequent act between .appellee and .appellant could revive that contract except by express .agreement, and this is not alleged .and nowhere .appears in the record.</p> <p>We think the judgment is erroneous:</p> <p>I. In adjudging any sum against the appellant, and, .second, in adjudging a lien .against the land. Walters v. Chinn, 1 Metcalfe, 503.</p> <p>Barnett had recovered judgment for the possession of a tract of land of appellant and one Minix.</p> <p>The .appellee and Hurst were .attorneys-at-law. Minix employed them to institute a suit in the Breathitt Common Pleas Court to vacaté that judgment, so far as it affected the land claimed by him. Afterwards appellant employed them to institute a similar suit for him .and agreed to pay $200 of the $500 that Minix had agreed to pay them. The object was to regain the land recovered by Barnett, and they were to have nothing unless they succeeded in regaining the land in controversy in said suit. The •appellee as counsel for him, had the privilege of exercising his discretion as to how .he would regain the land. He instituted suit for that purpose, and pending it he found that Barnett, who-did not live in Breathitt county, was largely .indebted. He procured executions to issue against him, and caused them to be ■levied on the land .and sold under them. He also procured Combs the warrantor of appellant’s title, to bid on the land, pay for it, •and convey the title to appellant. In this way .appellee regained for appellant! his land, and that, 'too, without cost or expense-to him. Kentucky Statute, section 107, provides that attorneys-at-law shall have -a lien upon all claims or demands put in their hands for -collection, and upon- the judgment for money or property recovered, &c.</p> <p>Upon this showing we submit that the appellee is entitled to his fee and to his lien on' the land.</p>

Case 80 — Action on Bond of Indemnity — APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Judgment for Defendant and Plaintiff Appeals. John S. Ray, appellee, being a judgment creditor of the'Southern Land Improvement Co., had an execution levied upon certain furniture, &e., in Pineville,. Ky.

Case 81 — Action on Policy oe Insurance — APPEAL FROM BOYLE CIRCUIT COURT. Judgment for Defendant and Plaintiffs Appeal. The questions to be considered in this case are: First, Can the contents of an exhibit attached to and filed with a pleading be considered by the court in sustaining or overruling a general demurrer to such pleading?

Case 82 — Action to Recover Damages.for Personal. Injuries— APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Plaintiff and Defendant Appeals.

<p>Case 83 — Action to Recover Hand —</p> <p>APPEAL PROM HENDERSON CIRCUIT COURT.</p> <p>Judgment por Dependant and Plaintipps Appeal.</p> <p>The question involved in this case is the construction of the deed of W. W. Shelby and wife to John W. Folden and wife, Georgiana Folden, of date June 30, 1888, for 216 acres in Henderson county. The habendum of that deed is:</p> <p>. “To have and to hold the aforesaid land to the parties of the second part and upon .their death without having been disposed' of by deed or will, the same is to descend to the heirs of said Georgiana Folden.”</p> <p>Also the deed of Wm. Shelby to John W. Folden and wife, Georgiana, of date September 30, 1890, of the 153-acre tract in Daviess county. That deed is to them “during their natural lives only and at their death the same is to revert to the legal heirs of the party of the first part.”</p> <p>Counsel for appellee contended and the court so decided that upon the death of Georgiana, John W. Folden took a life estate in the whole of said land and the same passed under his deed of asignment.</p> <p>To so construe the deeds is to disregard altogether section 2143, Kentucky Statutes, which provides: “If real estate be conveyed or devised to husband and wife unless a right by survivorship be expressly provided for, there shall be no mutual right to the entirety by survivorship between them, but they shall take as tenants in common, and the respective moieties be subject to the respective rights of the husband and wife as herein fixed, with all other incidents to such tenancy.”</p> <p>It was contended by counsel that the statute only applied to titles in fee simple, but the authorities, both elementary and case conclusively settle the matter to the contrary.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Statutes, secs. 2348, 2143; 3 Bush, 456; 4 Bush, 502; 18 A. D., 382; 5 Bac. Abr., 244; 30 L. R. A., notes p. 319 '(Niles v. Fisher); Trigg v. Jones, Admr., 42-S. W. R., 848.</p> <p>If there is anything for the court to try upon the record here presented it is the construction of two deeds made by Wm. Shelby to John W. Folden. and Georgiana Folden, his wife, which are set out in the record.</p> <p>It is contended by appellant that upon the death of Georgiana Folden, her husband still surviving, the heirs of W. W. Shelby in one case and in the other the heirs of Georgiana Folden become entitled to one-balf of the property (appellants being the heirs in both cases).</p> <p>For appellee it is contended:</p> <p>1. That section 2143, Kentucky Statutes, does not apply to the case of a conveyance to husband and wife jointly of a life estate only, and,</p> <p>2. That if that section does apply to the conveyance of a life estate, it was manifestly not the intention of the grantor in either deed that upon the death of one of the life tenants ■the survivor should surrender one-half the land.</p> <p>If appellants be right in their contention, then had Folden died first, instead of his wife, we would have the anomaly not to say absurdity of the heirs of the grantee suing the surviving daughter for partition; that is to say, that the grantors intended that should Folden die first the surviving widow should give up half the land. The court below did not take this view and dismissed appellant’s claim.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., sec. 2143; Blackstone Com., Book 2, 182; Doe Ex-dem Ross v. Garrison, &c., 1 Dana, 38-39; Moore v. Moore, 12 B. M., 664; Thompson v. Peables, 6 Dana, 388; Elliott v. Nichols, &c., 4 Bush, 505; Ky. Stats., sec. 2348-2349; City of Louisville v. Coleburn, 56 S. W., 581, it seems to us settles the case in favor of appellee.</p>

Case 84 — Commonwealth Appeals prom an Order Allowing Claims op Witnesses in the Case oe Commonwealth v. Tudor — APPEAL PROM METCALPE CIRCUIT COURT. This, case is brought here on appeal from the Metcalfe Circuit Court asking a construction of section 367, Kentucky Statutes, entitled Witnesses for the Commonwealth in Felony Cases. The record shows that a large number of witnesses were in tbis case upon the verbal order of the county attorney.

Case 85 — Action to Recover Damages for Personal Injuries— APPEAL FROM BRECKINRIDGE CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS AND AUTHORITIES. 1. The first instruction is abstract and should not have been given. 2. Ordinary risk defined. Shearman & Redfield on Negligence, vol. 1, sec. 185. 3. Instruction No. 2 assumes negligence; does not leave that fact to be ascertained by the jury. 4. Misconduct of attorney for plaintiff. 5.

Case 86 — Proceeding to Condemn Property — APPEAR PROM JEFFERSON CIRCUIT COURT, RAW AND EQUITY DIVISION. Judgment por Defendants and Praixtief Appears. This action was brought for the purpose of condemning, for park purposes, a tract of land situated within the limits of the city of Louisville, known as Central Park, containing about eighteen acres. Warning orders were made against all the defendants who were non-residents.

Case 87 — Action fob Contribution — APPEAL FROM KNOTT CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals.

Case 88 — Action Against Administrator and Heirs for Contribution — APPEAL FROM BREATHTTT CIRCUIT COURT. .Judgment for Plaintiff and Admr’s of Henry Hudson, Appeal— One Joseph Little and -appellee Combs were sureties on the. official bond of H. D. Back as sheriff of Breathitt County, for the year 1882, and the appellee now claims that Henry Hudson,, ancestor of appellants, was also surety on said bond.

<p>Case 89 — Action by B. B. Lancaster Against the Adm’r and Heirs at Law of George Peároe, Deceased —</p> <p>APPEAL FROM NELSON CIRCUIT COURT.</p> <p>Judgment for Defendants and Plaintiff Appeals.</p> <p>(No briefs.)</p>

Case 90 — Action to Recover Land — APPEAL PROM PENDLETON CIRCUIT COURT. Judgment for Defendant and Plaintiffs Appeal. There is no question in this case as to the paper title of the appellant to the strip of land in controversy under the facts proven. Hence we conclude that appellants’ claim of title to the Commonwealth is well established and proven and ought to prevail, unless appellants are barred by the statute* of limitations.

<p>Railroads — Right, of Street. Railroad, to. Cross — Municipal Authority- — Jurisdiction of Railroad Commission — What Constitutes “Reasonable and Feasible” Crossing.</p> <p>Held: 1. Kentucky statute, section 767, forbidding the construction of one railroad across another without the approval of the railroad commission, does not apply to the crossing of a trunk railroad by a street' railroad, as street railroads, by Id. section 821, are expressly excepted from the jurisdiction of the-railroad commission.</p> <p>2. Where a street-railroad company prior to the adoption of the present Constitution constructed- its road over certain streets of the city under an ordinance by . which the city reserved the right to declare forfeit the right of way and privileges “therein granted over such streets or parts of streets as said company should not have occupied by constructing and operating a line of street cars as therein provided at any time after five years from the 'passage of the ordinance,” no forfeiture having been declared, by the city, the company had the right after -the adoption of the Constitution, and more than five years after the passage of the ordinance, to extend its line over other streets and parts of streets named in the original ordinance, without becoming the highest and best bidder for the privilege, as required by Constitution, section 164, as the grant was an entirety, and the Constitution did not repeal any part of it; work having been begun thereunder prior to the adoption of the Constitution.</p> <p>3. A city ordinance granting .to a street-railroad company the right to operate its cars by electricity was valid, though the company was authorized by its charter to operate its cars only by animal power, and the grant made by the city became effective when the company was subsequently authorized by its charter to operate its road by electricity.</p> <p>4. Constitution, section 216, providing that “all railway, transfer, belt line and railway bridge companies shall allow ihe tracks of each other to unite, intersect and cross at any point where such union; intersection and crossing is reasonable or feasible,” applies to street railroads as well as steam railroads, and restricts the right of a street railroad ta construct its track across the tracks of a steam railroad in the streets of a city to cases where the crossing is reasonable or feasible.</p> <p>5. The crossing at grade of a trunk railroad by an electric street, railroad in a narrow street will not be enjoined as unreasonable, or not feasible merely because several- tracks will be crossed,, and forty or forty-five trains pass each day, or because the overhead wires will be a- source of danger in the operation of trains, and street cars may stop on the track by reason of tbe failure of' the current,</p> <p>JUDGES GÜFFY, DuRELLE and O’REAR, dissenting.</p>

Case 92 — Action Involving Priority of Claims — Individual and .Partnership — APPEAL FROM CAMPBELL CIRCUIT COURT. Judgment as to Priority of Claims, and Anton Walter, J1í., & Pease Co. Appeal. No question was made that it was the property of W. J. Wilmer & Co. that was insured.

Case 93 — Action fob Mandatory Injunction — APPEAL FROM KENTON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. Appellant John Morris, superintendent of the public schools of the oity of Covington, expelled Camilla G. Booth from the High School of said city, for writing an essay which he and her teacher, Miss Ella Shay, considered grossly insulting to Miss Shay, deserving expulsion.

Case 94 — Action to Enforce Specific Performance of Contract for Sale of Land — APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Judgment for Defendants and Plaintiff Appeals. SYNOPSIS AND AUTHORITIES. 1. Specific performance will not be refused on account of the title if the title be good to the exclusion of a reasonable doubt. 2 Writings made at the same time and as part of the same transaction will be construed together. Am. & Eng.

Case 95 — Indictment Against the Standard Oil Company for Failing to Have its Corporate Name Painted or Printed on its-Principal Place of Business. Appeal from Crittenden Circuit Court. Judgment of Conviction and Defendant Appeals. (No briefs in record.) The appellant being indicted, tried and convicted for violation of section 576, Kentucky Statutes, prosecutes this appeal and tasks a reversal, because: 1. The lower court overruled its demurrer to the indictment. 2.

Case 96 — Action on a Peomissory Note — APPEAL FROM DAVIESS CIRCUIT COURT. .Judgment for Defendants and Plaintiff Appeals, This is a suit on a note for $250, executed by Nannie B. Triplett and George V. Triplett, her husband, to A. C, Tompkins.

Case 97 — Action for a New Trial — APPEAL FROM PENDLETON CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. (No brief in record.) This is a proceeding for a new trial to review the case of the same style now in this court, numbered 233 — Duncan is the appellant in both eases; the court below having dismissed both proceedings. 1.

Case 98 — Action Upon a Bond — APPEAL FROM JEFFERSON CIRCUIT COURT. Law and Equity Division — Judgment fob Plaintiff, and Defendant Appeals. POINTS AND AUTHORITIES. 1. No cause of action was stated in the petition in the absence of an allegation that the assignee’s bond was approved by the county court. Ky. Stats., see. 76. 2. A suit to settle an assigned estate in the circuit court supersedes all proceedings previously had in the county court. Ky.

<p>Case 99 — Action to Subject Property Fraudulently Conveyed and Concealed to the Payment of Defendant’s Creditors —</p> <p>appeal from warren circuit court.</p> <p>(No brief in record.)</p> <p>The issue presented in this appeal is the Question whether or not the goods of Sam Maskovitz should have been subjected to the payment of the debts of the attaching creditors when their attachments were sustained. The court had no trouble in sustaining these attachments upon the fraud clearly shown by abundant testimony, but, upon final trial of the actions, the court refused to subject tbe property attached to the debts of these creditors on account of section 75, Kentucky Statutes, part of which is as follows: “And the intent of the assignor in making the assignment whether appearing upon the face of the deed or otherwise, shall not invalidate the deed unless he be solvent, and it appears that the assignment was made to hinder or delay creditors.”</p> <p>It was finally 'adjudged that the attachments should be sustained, but that the property could (not be applied to those debts, but must be distributed pro rata among all the creditors notwithstanding the attachments.</p> <p>In order to maintain that position it is necessary to adjudge that this one little clause of the statute repeals all the law in this State in chapter 54 of the same statutes, especially the first section thereof, that being section 1906, Kentucky Statutes.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., secs. 75, 1906; Bank of Commerce v. Payne & Co.r 86 Ky., 446; Kleine, Timberman & Co. v. Nie & Co., 88 Ky., 542.</p>

Case 100 — Indictment for Having and Keeping in Possession Burglars’ Tools, with Intent to Use Them Burglariously— APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION. Judgment of Conviction and Defendant Appeals. In appellant’s motion for a new trial in the lower court, he ■ gave six reasons why a new trial should be granted and the same reasons .are now urged for a reversal of that judgment, as follows: 1.

Case 101 — Action for Personal Injuries — APPEAL FROM KENTON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals POINTS AND AUTHORITIES. 1. An employe can not recover against the master for the negligence of a fellow-servant in same grade and line of service. 2. A servant can not recover for negligence of -a co-employe of a different or superior grade or rank, unless the negligence of such co-employe was gross negligence.

Case 102 — Petition Piled in Court of Appeals by S. J. Shackelford, Cleric of Said Court, Asking for a Writ of Prohibition Against Hon. Chas. Patteson, Judge of the Marion Circuit Court— Motion for Writ Granted. We make this point: 1. An execution from the Court of Appeals can not be enjoined by any other court, therefore, the Marion Circuit Court has no jurisdiction to entertain this injunction suit. 2.

Case 103 — Action to Recover Money Paid as Surety for Defendants — APPEAL FROM LAUREL CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. Andrew King Cook and S. G. Steele were partners as United States mail bidders and contractors, at London, Laurel county, Ky., and were awarded contracts on six routes in Virginia.

Case 104 — Action on a Promissory Note — APPEAL FROM OWEN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

Case 105 — Action to Recover Damages for the Death of Plaintiff’s Intestate — APPEAL FROM BOYLE CIRCUIT COURT. Judgment for'Defendant and Plaintiff Appeals. John E. Turner, an employe of appellee, was on September 26, 1899, run over by. appellee’s freight train in its yard at Mt. Pleasant, Tenn., and died-from injuries received In three weeks thereafter.

Case 106 — Action for a Construction of the Will of Andrew Dohn, Deceased — APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Judgment Construing the Will and Plaintiff'Appeals. POINTS AND AUTHORITIES. 1. A provision for maintenance in a will is personal to the legatee- and does not survive to its personal representative. Jarman on. Wills (5 Am. Ed.), vol. 2, pp. 463, 464, 462. 2.

<p>Telegraphs — Mistake in Transmission of Message — Contract— Measure of Damages — Limitation of Liability.</p> <p>Held: 1. Where a telegraph company negligently delivered a different message from that it was authorized to deliver, so that the sender was represented as offering goods at a lower price than that at which he had in fact offered them, and the supposed offer was .accepted in ignorance of the mistake, there was no contract, and the sender was not bound to deliver the goods at the lower price.</p> <p>2. The sender of the message, upon discovering the mistake after the goods were shipped, having refused to correct draft for price, which was attached to bill of lading, and the supposed buyer having, by an erroneous judgment, recovered damages against him for his refusal to deliver .the goods at the lower price, he is not entitled to recover of the telegraph company the damages •thus recovered against him, or the costs of the litigation, but only the difference between the price for which he offered to sell the goods and .the price for which they could, by the exercise of ordinary .care, have been sold in the market where they were after the mistake was discovered — not to exceed, however, ■the difference between the price at which he offered the goods and the price offered for them.</p> <p>2. The goods, which were perishable, having been attached by the supposed buyer, and allowed to depreciate in value by reason of decay and of a falling market, plaintiff can not recover anything on that .account, to the extent that he might have prevented such loss by replevying the goods and selling them promptly, or by procuring an order from the court for their immediate sale.</p> <p>4. A telegraph company, being a common carrier, can not, under Constitution, section 196, limit its common-law liability by stipulating that, if the message is not repeated, it shall not be liable, beyond the cost of the message, for any mistake in transmission.</p>

<p>Case 108. — Agreed Case Submitting the Question Whether Plaintiffs Have Power to Borrow Money and Mortgage the Trust' Property of the Speers Hospital to Secure its Payment—</p> <p>APPEAL FROM CAMPBELL CIRCUIT COURT.</p> <p>Judgment for Plaintiffs and Defendant Appeals.</p> <p>(No brief.)</p> <p>Elizabeth Speers, by her will, gave the greater part of her estate “in trust for the establishment -and maintenance of a hospital in the city of Dayton in Campbell county, Ky. The said hospital to be erected, maintained and conducted in such manner and upon such plans as in the judgment of the trustees would do the greatest good.” “The trustees to annually report .all their acts and doings to the higher court in said county having original equitable jurisdiction, and all vacancies in said' -trustees shall be filled by said court.”</p> <p>The trustees, with the funds, bought land in .the city of Dayton, taking the deed to themselves, as trustees, under said w;ll, their successors and assigns, and erected a handsome building' thereon.</p> <p>The appellees succeeding to the -trustees, found the hospital in debt and needing repairs. They applied to the chancellor, laying all the facts before him and he authorized them to borrow $6,000 to pay debts, and $2,000 to make needed repairs, and to-execute a mortgage on the property to secure it. The 'appellant agreed, to loan appellees this money, and then doubting the power of the chancellor to enter said decree, and of the trustees to borrow said money and execute the mortgage, the facts were agreed on and this case presented for adjudication. Ford, &c. v. Ford, Exr., 91 Ky., 572.</p>

<p>Case 109 — Action to. Recover Damages for Injury to Plaintiff from the Loss of a Son’s Services —</p> <p>APPEAL FROM LARUE CIRCUIT COURT.</p> <p>JUDGMENT FOR DEFENDANT AND PLAINTIFF APPEALS.</p> <p>(No brief in tbe record.)</p>

<p>Case 110 — Petition for Rehearing —</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p>

Case 111 — Action to Recover Taxes — APPEAL PROM HANCOCK CIRCUIT COURT. Judgment for Dependan tand Plaintiffs Appeal. The petition as amended alleges: 1.

Case 112 — Action to Enjoin the Collection op a Tax — APPEAL PROM HANCOCK CIRCUIT COURT. Judgment por Plaintipp and Dependants Appeal. 1. The petition in this case is for an injunction against the members of the board of education, and the tax collectors, but it does not allege facts showing that the court has jurisdiction of the subject matter; no amount of taxes is specified and it is not alleged that the real estate of the plaintiff is in any way involved in the suit.

Case 113 — Action to Enforce a Material Man’s Lien — APPEAL FROM KENTON CIRCUIT COURT. Judgment for Defendants and Plaintiff Apteals. This is an action in which appellant is seeking to impose a lien upon the property of Eilerman & Sons.

<p>Counties — Limitation of Indebtedness — Subscription in Aid of-Railroad — Repeal of Statute by Constitution.</p> <p>Held: 1. Under Constitution, sections 157, 158, limiting the indebtedness of counties, a subscription by a county in aid of a railroad even if it would otherwise be valid, is unauthorized, where it. would create an indebtedness in excess of- the limit prescribed.</p> <p>2. Under Constitution, section 179, providing that “the general assembly shall not authorize -any county to become a stockholder in any company, association or corporation, or to obtain or appropriate money for, or to loan its credit to, any corporation, association or individual, except for the purpose of constructing bridges, turnpike roads or gravel roads,” a vote taken in a county after the Constitution was adopted, favoring a subscription by the county in aid of a railroad, did not authorize the-county to make such a subscription, though, the vote and subscription were provided for by a law passed prior to the adoption of the Constitution; it being provided by section 1 of the-schedule of the Constitution that “the provisions of all laws which are inconsistent with this Constitution shall cease upon its, adoption.”</p>

Case 115 — Action to Recover Freight Charges Illegally Exacted prom Plaintifp — APPEAL PROM BARREN CIRCUIT COURT. Judgment for Plaintiff and Dependant Appeals. POINTS AND CITATIONS. I. Appellee neither alleged nor proved any damage whatever, and appellant showed that no damage was sustained by him. Louisville Gas Co. v. Kaufman, Straus & Co., 20 Ky. Law Rep., 1069; Grant v. Penn & Co., 133 N. Y., 658; L. & N. R. R. Co. v. Commonwealth, 20 Ky. Law Rep., 1380. 2.

Case 116 — Action to Recover Freight Charges Illegally Exacted from Plaintiff — APPEAL FROM MARION CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS AND CITATIONS. 3.. Appellee being a mere assignee and being insolvent should have been required to give bond for costs. Section 619, Civil Code. 2.

Case 117 — Action to Enjoin Defendant from Fencing its Right of Wat Through Plaintiff’s Land — APPEAL FROM MARION CIRCUIT COURT. Judgment foe Defendant and Plaintiff Appeals. In 1898, the appellee, L. & N. R. R-.

<p>Case 118 — Prosecution for Betting on an Election —</p> <p>APPEAL FROM GRAVES CIRCUIT COURT.</p> <p>Defendant Convicted and Appeals.</p> <p>1. The bet charged was only as to the number of votes that one candidate would receive in one county of the State, and is not suph “a betting on an election” as is contemplated by section 1975, Ky. Stats., Com. v. Branham, 3 Bush, 1; Cheek v. Com., 100 Ky. Rep., 1. .</p> <p>2. A contract was drawn by which appellant was to bet the witness, Matthews, at a future time, to-wit, at Pulton, Tenn., that B would not get 250 votes in Graves county, and it was also agreed that one Cavender, a saloonkeeper at Pulton; Tenn., should he stakeholder, and the money was sent to him as such stakeholder. No money was staked in Kentucky. Ky. Law Rep., 136; 'Mortmer v. Com.; Robertson’s Ky. Crim. Law and Procedure, sec. 401; 2 Bishop’s Crim. Procedure, 3d Ed., sec. 475.</p> <p>3. Parol evidence was not admissible to prove that B was a candidate for Governor. Borne v. Dyke, 3 Mon., 531; Hancock v. Byrns, 5 Dana, 514; Jarboe v. McAtee, 7 B. Mon., 279. See, also, 13 . Ky. Law Rep., 136. There is no bet until the money is put up.</p> <p>I. The defendant’s demurrer to the indictment was overruled and I fail to find any defect in the indictment; and, tried by the case of Manford v. Commonwealth, 13 Rep., 136, there can be no defect.</p> <p>2. The bet that B would not get 500 votes in Graves county was a bet. on the election as clearly settled in Commonwealth v. Kennedy, 15 B. Mon., 530. Also see Com. v. Hueser, 8 Rep., 61.</p> <p>3. The candidacy of B for Governor, was proven by parol evidence,. which was clearly competent as it was a matter of common. ' knowledge.</p> <p>4. The fact that the bet was made in Kentucky, and the money put in the hands of others to be sent to a stakeholder in Tennessee, will not void the statute. Ky. Statutes, sec. 1925; Crim. Code, sec. 124; 13 Ky. Law Rep., 136; 15 B. Monroe, 531; 8 Ky. Law-Rep., 61.</p>

<p>Partition — Statutory Proceeding — Power of Court to Make Partition Without Commissioners.</p> <p>Held: In an ex parte proceeding by a guardian for the partition of real estate, under Civil Code Practice, section 499, which provides for the appointment of commissioners to divide the property, there must, upon the rejection by the court of the report of the commissioners thus appointed, be another division, either hy the same commissioners, or by other commissioners appointed by the court, as the court has no power to make partition, except by confirming a report of commissioners,</p>

Case 120 — Action to Compel Defendants as Joint Owners to Contribute in Repairing the Joint Property — APPEAL FROM HARDIN CIRCUIT COURT. Judgment for Plaintiff and Defendants Appeal.