Volume 111 — Kentucky Reports

Case 1 — Action to Recover Taxes APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Judgment for Defendant and Plaintiff Appeals. POINTS. 1.

<p>Private Roads — Opening of Passway — Burden of Proof — Assessment of Damages — Deduction of Benefits — Compensation for Fencing — Costs of Appeal to Circuit Court.</p> <p>Held: 1. Upon appeal by defendant to the circuit court from a judgment opening a passway and assessing the damages, it was not error to allow plaintiff .to assume the burden of proof, and to have' the concluding argument to the jury.</p> <p>2. It was error to instruct the jury that, in the event they found that the residue of defendant’s land was indirectly injured by the passway, they should deduct from such indirect or consequential damages any consequential benefits defendant might derive from the passway, as defendant had the right, before the passway was opened, to pass over his own land at will.</p> <p>S. Defendant was entitled to compensation for any additional fencing that might be rendered necessary by the passway.</p> <p>4. Defendant was entitled to the reasonable value of the land taken for the passway, and not merely to the value of the use thereof.</p> <p>5. As the owner of the land obtained a larger judgment on appeal' ■to the circuit court than he had obtained in the county court, it was error to render judgment against him for the costs in the circuit court, though his co-defendant, who had leased a part of the land and who recovered damages in the county court, recovered nothing on appeal; thus making the entire damages recovered against plaintiff in the circuit count no greater than the amount recovered in the county court.</p>

Case 3 — Action to Recover Damages for the Death of Plaintiff’s Intestate APPEAL FROM SIMPSON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

Case 4 — Action to Recover Damages for Personal Injuries APPEAL FROM ALLEN CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. The matters herein complained of will be discussed under the following heads, to-wit: 1. Petition for removal. 2. Demurrer to petition of appellee. . Peremptory instruction asked by appellant. 4. The damages are excessive. 5. The verdict not sustained by law and evidence. 6. Errors of law excepted to at the time. 7.

<p>Case 5 — Action for a Settlement of an Estate and fob a Sale of Land to Pay Debts of Testator.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment Confirming Sale, and the Purchasers, Hulsewede, &c., Appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>There can be no valid sale of an infant’s real estate where the infant is not before the court. Nor after the sale can the infant be brought before the court and the previous void sale ratified or confirmed. Jenkins v. Crofton’s Admr., 10 Ky. Law Rep., 456; Hocker v. Montague’s Admr., 16 Ky. Law Rep., 766; Robinson, Jr., v. Clark, 17 Ky. Law Rep., 1402; Wooldridge v. Harding, 21 Ky. Law Rep., 205; Womack v. Loar, 11 Ky. Law Rep., 6; Bill v. Burgess, 15 Ky. Law Rep., 41; Acts 1867-68, vol. 1, page 24.</p> <p>POINTS AND AUTHORITIES.</p> <p>■ After judicial sale of real estate, and before confirmation, the court has jurisdiction to entertain proceedings to bring infant defendants before the court, so as to perfect the title, and then to confirm the sale and require the purchasers to take the-property.</p> <p>AUTHORITIES.</p> <p>Busey v. Hardin, 2 B. Mon., 411; Maupin on Marketable Title, •p. 712; Daniel v. Leitch, 13 Gratt, 195; Cornwall v. Cornwall, 6 Bush, 374; Marshall v. Marshall, 4 Bush, 248; Huber v. Armstrong, 7 Bush, 590; Kinslow v. Grove, 98 Ky., 266; Bill v. Burgess, 15 Ky. Law Rep., 41; Gaar v. Elble, 16 Ky. Law Rep., 661; Browinski v. Phelps, 3 Ky. Law Rep., 59; Spencer v. Milliken, 4 Ky. Law Rep., 856; Henning v. Baringer, 10 Ky. Law Rep., 674; Schuhart v. Clark, 8 Ky. Law Rep., 342; Tyler v. Jewell, 10 Ky. Law Rep., 887; Kibbey v. Chitwood’s Admr., 4 Mon., 81; 28 Am. St. Rep., 417; Cunningham v. Anderson, 107 , Mo.; Langyher v. Patterson, 77 Va., 470; 1 Acts 1867-8, p. 24.</p>

<p>Municipal Corporations — Recovery of Street Assessments Paid Under Mistake of Law.</p> <p>Held: As the rule forbidding the recovery of municipal taxes voluntarily paid applies also to street assessments, property owners .who have, under mistake of law, paid assessments for street repairs for which the city alone was liable, can not recover the ■amount from the city on the ground that it was a debt of the city, paid by its order to the contractors.</p>

Case 7 — Action by Assignee for Settlement of the Assigned Estate APPEAL FROM HENDERSON CIRCUIT COURT. Judgment for Assignee and Planters’ State Bank Appeals. The question- to be decided in this case is: Can life insurance policies be attached? Do they pass to the assignee under a deed of assignment? Did these insurance policies have a surrender value in paid-up insurance or in cash; and if so, were they subject to the-payment of Willingham’s debts?

Case 8 — Action to Recover Attorney’s Fee APPEAL FROM HENDERSON CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. POINTS AND AUTHORITIES.' 1. As between an attorney and his client, transactions are fraudulent and void, which as between others are legitimate and proper. 3 Am. & Eng. Enc. Law, 2d ed., 332; Darlington’s Estate, 30 Am. St. R., 776; 1 Perry on Trusts, 206; 1 Story’s Eq., 310, 311, 312; Yardley v. Cuthbertson, 108 Pa. ,St., 395, and 56 Am.

Case 9 — Action to Enforce a Judgment APPEAL FROM JEFFERSON CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. W. T. Thurman was the duly elected prosecuting attorney of ■the police court of the city of Louisville with a fixed salary of $3,500 per year, payable monthly.

<p>Case 10 — Indictment and Conviction for Murder</p> <p>APPEAL FROM MARSHALL CIRCUIT COURT.</p> <p>Judgment of Conviction and Defendant Appeals.</p> <p>On the 8th day of the March Term, 1900, of the Marshall circuit court, an indictment was returned against the appellant, James Greer, and his two brothers, John Greer, a boy about sixteen years of age, and Joe Greer, a boy about fourteen years of age, charging them jointly with the offense of murder. The substance of the charge is as follows: “That the defendants did kill and murder John Thomas by compelling him to drink large and unusual quantities of wine and whisky, and 'by beatings bruising and wounding him, and by burning him with fire, and by dragging him on the ground with a rope or strap tied around his neck, and by leaving him helpless and exposed to the inclemency of a cold winter night so that he then and there immediately died.”</p> <p>On the next day the case was set for trial on the 14th day of the term, on which day, at the instance of defendant the prosecution was continued until the June Term, 1900, and on the 22d day of June the prosecution was called for trial when the attorney for the Commonwealth announced “ready for .trial," but the defendants appeared and filed their affidavits and moved the court for a continuance until the next term, whereupon the Commonwealth offered to admit said affidavits as a deposition and the trial was set for the 13th day of the tenn, three days later. When the prosecution was called for trial on the 13th day, June 25th, the defendants appeared, and in open court offered to file notice executed on the county attorney on June 22, 1900 (the Commonwealth’s attorney being absent from the county at the time), and also offered to file the petition of defendants, James, John and Joe Greer, and to-enter a motion for a change of venue, and in support of said motion oxtered to file the affidavits of Phillip Darnell, T. R. Riley and J. M. Cornett, but the Commonwealtli, by attorney, objected to the filing of said notice, petition and affidavits, and the court sustained said abjection, and refused to permit either of said papers to be filed to which proper exceptions were taken. The defendants demanded separate trials, and under the election •of the Commonwealth’s attorney the appellant, James Greer, was put upon his trial and convicted and his punishment fixed at confinement in the State penitentiary for life.</p> <p>The evidence in this case shows such a state of facts as will authorize the jury to find the defendant guilty of murder, voluntary manslaughter or involuntary manslaughter, and yet the court refused to instruct the jury except upon the question of murder, and erred in the instructions given, as well as in refusing to instruct on the whole law of the ease. The defendant, Jas. Greer, especially, was so drunk during all the time he was in company with deceased and during all the time the alleged injuries were inflicted on deceased as not to be responsible for the acts committed, and certainly in such condition .as to be entitled to an instruction allowing the jury to consider whether the acts done by him were the result of malice and premeditation, or whether they were done by one crazed with liquor so as to be incapable of forming an intention or entertaining malice.</p> <p>Upon the question of change of venue, the action of the court was so palpably wrong in not considering it that we do not feel it to be necessary to discuss it elaborately. A prima facie case was clearly made out, but the court would not give it any sort of consideration, or even allow the papers to be filed.</p> <p>AUTHORITIES CITED.</p> <p>Con. of Ky., sec. 11; Ky. Stats., secs. 1109, 1110; Sparks 'v. Com., 3 Bush, 3; Crystal v. Com., 9 Bush, 669; Smith v. Com., 14 Ky. -Law Rep., 261; People v. Com., 88 Ky., 174; Bush v. 'Com., 78 Ky., 269; Buckner v. Com., 14 Bush, 603; Brown v. Com., 14 Bush, 398; Parris v. Com., 14 Bush, 362; Conner v. Com., 13 Bush, 714; Higgins v. Com., 94 Ky., 54; 14 Ky. Law Rep., 729; Crocket v. Com., 18 Ky. Law Rep., 836; Howard v. Com., 15 Ky. Law Rep., 873; Allen v. Com., 9 Ky. Law Rep., 784; Burks v. Com., 7 Ky. Law Rep., 826; Trimble v. Com., 78 Ky., 176.</p> <p>The court will notice that the appellant did not offer to file his petition and affidavit for change o.f venue until after he had moved for a continuance and filed his affidavit as to what he-could prove by the absent witness, and his affidavit had been admitted as the depositions of such witnesses and the court, refused to allow it to be filed because it came too late and was-evidently made for delay and not in good faith.</p> <p>The appellant insists that the court erred in not giving the jury 'an instruction on manslaughter. We think there is no-evidence on which to base such an instruction. There was no> evidence to show that the killing was the result of passion or a sudden quarrel, and the court properly refused to instruct as. to manslaughter. Com. v. O’Brien, 69 Ky., 354.</p>

Case 11 — Action to Recover Balance Allesed to be Due for the Building of a Schoolhouse appeal from m’lean circuit court. Judgment for Defendants and Plaintiff Appeals. This suit was brought to recover a balance of $604, due for building a ischoolihouse. The case was decided on demurrer to plaintiff’s petition in the lower court and plaintiff has appealed.

Case 12 — Action to Recover Taxes APPEAL PROM WASHINGTON CIRCUIT COURT. Judgment por Dependant and Plaintipp Appeals.

Case 13 — Action by Commonwealth of Kentucky Against Ginn & Co., &c., on a Bond — APPEAL PRONE GARRARD CIRCUIT COURT. Judgment fob Defendants and Plaintiff Appeals. The Legislature had in mind th'e best interests of the common schools when it enacted the statutes under which this suit •was instituted, — to protect the children of the public schools of Kentucky, many of them very poor, from the greed of powerful publishing houses and book trusts.

<p>Public Officers — Holding Over — Failure of Successor to Qualify— Vacancy in Office of Justice of the Peace.</p> <p>Held: Under Constitution, section 99, providing that justices of the .peace elected in November, 1894, should “continue in office three years, and until the election and qualification of their successors,” and that there should be an election of justices of the peace in 1897 and every four years thereafter, one who was elected to that office in November, 1897, having failed to qualify, his predecessor, elected in November, 1894, was not entitled to hold over, but there was a vacancy in the office, to be filled by appointment until the next general election, in November, 1898, as prescribed by Constitution, section 152, which provides for filling vacancies in all elective offices.</p> <p>CHIEF JUSTICE PAYNTER and JUDGE O’REAR — dissenting.</p>

Case 15 — Action upon an Official Bond — APPEAL FROM M’CRACKEN CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. In this action the appellant seeks a judgment for damages on account of personal injuries on a public highway; the defendants being the county road supervisor and his bondsmen. The only question is di'd the trial court err in sustaining the demurrer.

Case 16—Action to Recover Money Paid on a Forged Note— APPEAL FROM M’CRACKEN CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals — This action was brought by the executors of B. H. Wisdom, deceased, to recover of appellant bank $3,140 paid by them on a note for $5,000, dated August 22, 1896, and due on demand against their testate, B. H. Wisdom, deceased, who died April 16, 1897.

Case 17 — Motion for Judgment on a Bond appeal from bourbon circuit court. Judgment for Plaintiffs and Defendants Appeal. On. June 26, 1899, Speaks & Redmon, livery stablemen in Paris, Ky., caused a distress warrant (should be agister’s warrant) to be issued against certain horses of appellant, Griffith, for $325.80, with interest and costs, under section 2502, Kentucky Statutes.

<p>Homestead — Failure of Debtor to Occupy Land Until after Execution was Levied.</p> <p>Held: Land acquired by purchase was not exempt as a homestead, where it was not occupied as such until after the creditor’s execution was levied thereon, though it was so occupied at the time it was sold under .the levy.</p>

Case 19 — Exceptions by Sheriff to a Commissioner’s Report of Settlement with him as Tax Collector. — APPEAL FROM LAUREL CIRCUIT COURT. Judgment Sustaining Exceptions and Reams’, &c. Appeal. Counsel for appellants insist that the lower court erred: I. In overruling the demurrer filed by appellants to the exceptions of appellee. 2. By allowing appellees to introduce incompetent and irrelevant evidence. 3.

<p>Case 20 — Action to Enjoin Collection of Tax. —</p> <p>Appeal from graves circuit court.</p> <p>Judgment for Defendants and Plaintiffs Appeal.</p>

Case 21 — Action to Enforce a Judgment. — APPEAL FROM GARRARD CIRCUIT COURT. Judgment for Defendants and. Plaintiff Appeals. The appellees, Woods and Susie Ogilvie, were the children .and only heirs of - Ogilvie, deceased, who died in Tennessee.

<p>Sales — False Warranty — Seller’s Knowledge of Falsity — Measure of Damages.</p> <p>Held: 1. To entitle the buyer of a machine for the manufacture of gas to recover of the seller for a breach of warranty that the machine would not and could not explode, it is not necessary for him to allege that the seller knew that the warranty was false.</p> <p>2. The damages recoverable for such a breach of warranty include damages for personal injuries to the buyer from an explosion of the machine, such (damages being the natural and probable result of a breach of the warranty, and therefore within the contemplation of the parties.</p>

Case 23 — Action to Recoves Damages eor the Malicious Prosecution oe a Condemnation ' Proceeding — APPEAL EROM GREEN CIRCUIT COURT. Judgment eor Plaintiee and Dependants Appeal. POINTS AND AUTHORITIES. 1. An officer is not responsible in damages for anything which he may do as an officer, unless he acts without-authority, or from corrupt motives, or malice, knowingly doing that which is wrong. Marksiberry v. Beasley, 8 Rep., 534. 2.

Case 24 — Indictment for Criminal Conspiracy — APPEAL FROM WHITLEY CIRCUIT COURT. Indictment Dismissed and Commonwealth Appeals. This indictment charges the appellees with a criminal conspiracy in violation of sections 3915 and 3917, Kentucky Statutes.

<p>Case 25 — Action to Recover Double the Amount oe Usurious Interest Alleged to Have Been Paid to Defendant</p> <p>APPEAL FROM BOYLE CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p>

<p>Cross-Appeal — Limitation—National Banks — Usury—Forfeiture of Interest — Interest from Date of Filing Suit — Penalty for Taking Usury — Application of Payments.</p> <p>Held: 1. The limitation of two years applicable to original appeals does not apply to a cross appeal, which may be granted at any time before trial of the appeal. Elizabethtown, L. & B, S. R. Co. v. Catlettsburg Water Co., 110 Ky., 175. (20 R., 1632), 61 iS. W., 47, followed.</p> <p>2 A national bank by contracting for usurious interest forfeits all interest only to the date of 'bringing suit on the note, and judgment for the principal should bear interest at the legal rate from the date of filing the petition.</p> <p>3. A judgment against a national bank for twice the amount of interest paid, as a penalty for taking usury, should have allowed interest from the date of filing the petition to recover the penalty; that being the date of the first demand therefor.</p> <p>4. There may be payments of usurious interest as such which will entitle a debtor to recover of a national bank the penalty for ■taking usury, though the principal sum ‘remains unpaid; and such a case is presented where the interest upon one note is Included in the amount of another note, and the other note is subsequently paid in full.</p> <p>5. The penalty which may be recovered of a national bank for taking usury is twice the amount of the entire interest paid, and not merely twice the amount of the excess over the legal rate.</p> <p>6. The fact that payments made by the debtor have been applied by the bank on its books to interest as such does not authorize the presumption that the debtor so applied them, where he had no access to the books, and no knowledge of the application made by the bank.</p> <p>JUDGES BURNAM, GUFFY and HOBSON, dissenting.</p>

Case 27 — Indictment for Selling Liquor in Violation on Local Law — APPEAL FROM KNOX CIRCUIT COURT. Defendant Convicted and Appeals. This is an indictment for selling intoxicating liquors in quantities less than five gallons, in violation of an act regulating the sale of such liquors in the counties of Knox and Whitley, approved April 15, 1884. 1.

<p>Case 28 — Contest of Will —</p> <p>appeal from: bourbon circuit court.</p> <p>Judgment for Contestants, and Woodford and Others Appeal.</p>

Case 29—Proceeding for Re-Examination into the Condition of-Plaintiff’s Mind APPEAL FROM BUTLER CIRCUIT COURT. Judgmet Finding Plaintiff to be of Sound Mind and Removing Defendant as Her Committee and Defendant Appeals.

<p>Cask 30 — Actions on Policies of Fire Insurance</p> <p>APPEALS FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>Judgment for Defendants and Plaintiffs Appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Where the defendant fails to demur to an insufficient petition and the proof covers all the allegations necessary to a recovery, the defendant is not entitled to a judgment, notwithstanding the verdict, because a demurrer would have enabled plaintiff ■to make the correction in his pleadings, which proof shows he was able to make, and after judgment on appeal, holding petition bad, after judgment for plaintiff, defendant can not object to amendment where he failed to demur. Mast v. Lehman, 100 Ky., 464; Western Assurance Co. v. Ray & Co., 20 Ky. Law Rep., 1360; Rogers v. Felton, 98 Ky., 148; Daniel v. Holland, 4 J. J. M., 18; Wilson v. Hunt, 6 B. Mon., 369; Bond v. Logan, 21 Ky. Law Rep., decided March 17, 1900.</p> <p>2. Unless the parties know their rights at the time of filing the petition, there can never be an election precluding them from seeking some other form of relief. Dixon v. Patterson, 106 U. S., 584; Nyswander v. Lowman, 24 N. B., 355, 124 Ind., 584;, Milling Co. v. Walsh, 20 Mo. App., 107; Johnson v. Brinkman, 16 Mo., 558, 22 S. W., 813; Thomas v. Bland, 91 Ky., 1; Standard Oil Co. v. Hawkins, 74 Fed., 395; Spur v. Commercial Union, 42 N. W., 207, 40 Minn., 428; Spur v. Home Ins. Co., 42 N. W., 206, 40 Minn., 424; Coleman v. Ross, 4 B. M. 268; L. & N. v. Cooper, 56 S. W., 145; Vest v. Norman, 1 Ky. Law Rep., 317; Wybrant v. Fidelity, 9 Ky. Law Rep., 106; Hanning v. Bassett, 12 Bush, 361; Detroit Heating & Lighting Co. v. Stevensboro, 58 Pac., 193; Union Central Life Ins. Co. v. Phillips, 102 Fed., 19; Neal v. Neal, 9 Wall., p. 1; Crockett v. Lee, 7 .Wheaton, 522.</p> <p>Nor does it then constitute an election precluding another ■suit for a different sort of relief means the first suit has been prosecuted to a final judgment, and no further steps can be taken in it. That is the precise status of -this ease, and in the following cases, just like the present suits, where no final judgment had been rendered at law, equitable actions, by new pleadings were allowed. Thomas v. Bland, 91 Ky., 1; Spurr v. Commercial Union, 42 N. W., 207; Same v. Home Ins. Co., 42 N. W., 206; Coleman v. Ross, 4 B. Mon., 268; Detroit, &c., v. Stevensboro, 58 Pac., 193; Union Central v. Phillips, 102 Fed., 19.</p> <p>This is the second appeal taken in these cases, a decision having been rendered by this court and reported in 20 Ky. Law Reporter, page 1703.</p> <p>On September 25, 1895, the appellants instituted separate actions against the appellees upon several policies of insurance issued by them, setting forth the specific language of description contained in each and alleging that the property owned by them which was destroyed by fire was contained in a “frame addition” to a brick metal-roof building, situated at No. 216 on - the west side of First street, between Main and Market streets, in Louisville, Ky.</p> <p>The appellees denied that the property destroyed was in the frame addition at the time of the fire, but after a trial and verdict judgments were entered in the lower court in favor of the present appellants for the full amount insured by the several policies.</p> <p>At the trial it was proved that the property destroyed was in a detached building not connected with the brick described in the policies, and upon the appeal taken by the insurance companies it was held that the several verdicts rendered were flagrantly against the evidence and that the policies could not be held to embrace the separated building, and all of the judgments “were reversed and causes remanded for proceedings consistent with the opinion rendered by this court.</p> <p>Upon return to the lower court, appellants tendered amended and supplemental petitions setting forth that it was the intention to insure the property contained in the detached building, and in equity prayed for a reformation of the policies to establish a different contract from that set forth in the original petitions. After full hearing the lower court overruled the motion to file the amended pleadings and entered judgment dismissing the several original petitions. The appellants prayed an appeal from these judgments, and the amended pleadings are incorporated in the bill of exceptions.</p> <p>We contend that appellants, after having litigated their right under one contract, can not come in and invoke the equity jurisdiction of the court to establish another and an entirely different contract. Such a proceeding would not only *be inconsistent with the decision of this court, but would be opposed to every principle of pleading that establishes the doctrine oí election and declares against a variance and departure from the cause of action originally sued upon.</p> <p>AUTHORITIES CITED.</p> <p>Joyce on Insurance, vol. 4, sec. 3515; Wood on Insurances sec. 509; Washburn v. Great Western Ins. Co., 114 Mass., 175; Steinbach v. Relief Fire Ins. Co., 12 Hun. Sup. Ct., N. Y., 643; Nyswander v. Lowman, 124 Ind., 584; Detroit Heating & Lighting Co. v. Stevens, 58 Pac. Rep., 193; Spurr v. Home Ins. Co., 40 Minn., 424; Joslin v. Thomas, 36 Minn., 1.</p>

<p>Case 31 — Action by Plaintiff to Recover Possession of Her Child—</p> <p>appeal from laurel circuit court.</p> <p>Judgment for Plaintiff and Defendants Appeal.</p>

<p>Case 32 — -Action on an Accepted Order —</p> <p>APPEAL FROM BOYD CIRCUIT COURT.</p> <p>Judgment for Plaintiffs and Defendants, C. Crane & Co., Appeal.</p> <p>About August 31, 1896, Ben Williamson & Co. posted to C. Crane & Co., at Cincinnati, Ohio, this order:</p> <p>“C. Crane & Co., Cincinnati, Ohio: Pay to the order of Ben Williamson & Co., out -of the proceeds of timber delivered hereafter from waters of Twelve Pole and Guyandotte rivers, West Virginia, the East Lynn and R. A. Lewis jobs, under our contract with you, the sum of $5,731.39, and this shall stand as your receipt for all payments made.</p> <p>“August 31, 1896. R. H. PRICHARD,</p> <p>“PRICHARD & BRUBAKER.”</p> <p>C. Crane & Co. refused to aeept this order and returned the following order as embodying his understanding of the contract:</p> <p>“Messrs. C. Crane & Co., Cincinnati, 0.: Gentlemen: — Pay to the order’ of Ben Williamson & Co., out of the first money due us on the Twelve Pole and Guyandotte rivers, West Virginia, the East Lynn and R. A. Lewis jobs, under our contract with you, which means after deducting all moneys you have paid on said timber and any moneys you may have ■to advance in order to get same out and ready for delivery, as ■per our contract with you, the sum of $5,731.39; and this shall stand as your receipt for all payments so made:</p> <p>“September 8, 1896T R-. H. PRICHARD,</p> <p>“PRICHARD & BRUBAKER.”</p> <p>“September S, 1896. Accepted.</p> <p>“C. Crap.e & Co.”</p> <p>This order means (1) that you are only to pay this sum after deducting all moneys you have paid on said timber, and (2) any money that you may have to advance in order to get the .same out and ready for delivery, &c., and (3) nothing was (to be paid “until due us under our contract w'iltih you.”</p> <p>Erom which we conclude:</p> <p>(a) That the order sued on is a writing that was entered into ■contemporaneously with the' Verbal contract and is therefore to .he read and construed therewith.</p> <p>(5) If mistaken in this, then we contend that the order is ■conditional.</p> <p>We submit that lioth upon the facts and the law there should not have been a judgment against C. Crane & Co. upon this order.</p> <p>AUTHORITIES CITED.</p> <p>43 L. R. A., 467, and cases cited; Rogers v. Smith, 47 N. Y., 324; Weston v. Pollard, 16 B. M., 315; Richardson v. Dingle, 11 Rich. L., 407; Knight v. Knotts, 8 Rich. L., 35; Clinch Valley Coal & I. Co. v. Willing, 180 Pa., 165; Braley v. Henry, 71 Cal., 481; Thomson v. Sexton, 15 S. C., 93; Booth v. Eitzger, 82 Ind., 66; Watkins v. Bowers, 119 Mass., 383; Am. Gas & V. & M. Co. v. Wood, 43 L. R. A., 449; Hill v. Huntress, 43 N. H., 480; Gole v. Harp, 64 Ark., 462; Goodwin v. Nickerson, 51 Cal., 166; Smith v. Carter, 25 Wis., 283; Munro v. King, 3 Colo., 238; Rogers v. Smith, 47 N. Y., 324; Carrington v. Waff, 112 N. Y., 115; Thomas v. Page, 3 McLean, 167; Ruggles v. .Swanwick, 6 Minn., 526; Juilliard v. Chaffee, 92 N. Y., 530; Tiedeman, 29; Chitty on Bills, 221; Story on Bills, 254; Steele v. ■McKinley, 43 L. J. R., 358; Tiedeman, 219; U. S. v. Bank of Metropolis, 15 Pet., 395; Lindon v. Beach, 6 Hun. N. Y., 200; Lawrence v. Clark, 36 N. Y., 128; Pratt v. Coman, 37 N. Y„ 440; Barnard v. Campbell, 58 N. Y., 73; Crowell v. Plant, 53 Mo., 145; Pettis County v. Kingsbury, 17 Mo., 479; Campbell v. Pollc County, 49 Mo., 214; Owen v. Lavine, 14 Ark., 389; Hamilton v. Myrick and Williamson, 3 Ark., 541; Gwinn v. Roberts, 3 Ark., 72; Gallery v. Prindle, 14 Bab., 186; Babers v. Johnson, 5 D. C., 305; Baker v. Dobbins, 87 Ga., 545; Bryant & Ewers v. Hagerty, 87 Pa. St., 256; Jenks v. Wills, 90 Mich., 515; Am. Trust & Bank Co. v. Boone, 29 S. B., 182, sec. 1; Nat. Bank v. Ins Co., 104 U S., 54; Board Chosen Freeholders of Essex N. J. v. Newark City Nat. Bank, &c., 48 N. J. Eq., 51 (21 Atl., 185); Walker v. Manhattan Bank, 25 Fed. Rep., 245-255; Evans v. Evans, &e., 4 N. W., 929 (82 Iowa, 492); Eyrich v. Capital State Bank, 6 So., 615 (67 Miss., 60), Syl. 9; Proctor v. Hardigan, 9 N. E., 841.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Parol evidence not competent to contradict the terms of acceptance. Daniel Neg. Inst., sec. 517; Wright v. Morse, 9 Gray, 337; Blackistone v. German Bank, 39 Atl. R., 855; Beaverin v. Donnell, 7 Smedes & Marsh., 244; Wilson v. Dean, 74 N. Y., 531; Moore v. Parler, 16 Ky. Law Rep., 125; Smith v. Vertue, 30 L. J. C. P., 59 (4 Eng. Rul. Cases, 246).</p> <p>2. The assignment is good as payable out of funds to be earned under existing contract. Manley v. Bitzer, 91 Ky., 596; Pomeroy Eq., sec. 1286; Story Eq., sec. 1040.</p> <p>3. Treated as assignment, merely, the order fixed the fund beyond power of depletion by subsequent act of the parties. Buckner v. Sayre, 18 B. Mon., 745; Newby, etc., v. Hill, 2 Met., 530; Morton v. Naylor, 1 Hill, 583; Yeatés v. Groves, 1 Yes. Jun. 280; Bradley v. Root, 5 Paige, 632; Brill v. Tuttle, 81 N. Y., 454; Munger v. Shannon, 61 N. Y., ■ 251; IVIandeville v. Welch, 1 Wheat., 233; 5 Wheat, 277; Cantrill v. Hewlett, 2 Bush., 30; Parker v. Syracuse, 31 N. Y., 376; Brice v. Bannister, 3 Q. B. D., 569 (10 Eng. Rul. Cases, 411); Perry v. Harrington, 2 Mete. (Mass.), 368; 37 Am. Dec., 98.</p> <p>4. By express engagement appellant agreed to pay on conditions shown to have been performed and thus conclusively appropriated it to payment of appellees’ debts. Buckner v. Sayre, 18 B. Mon., 745, and cases above cited; also Williams v. Everett, 14 East., 581; Risley v. Smith, 64 N. Y., 582; Beardsley v. Cook, 38 N. E. (N. Y.), 109.</p> <p>5. By terms of contract in evidence, title to timber passed to appel-. lant, and the relation of Prichard and Brubaker thereto was as agents, or bailees of appellant for further delivery. Hagins v. Combs, 19 Ky. Law Rep., 1165; Bank of Huntington v. Napio,, 41 W. Via., 487; Byles v. Collier, 54 Mich., 1; Barry v. Wheeler, 25 N. Y., 522; Standard Oil Co. v. Van Eaton, 107 U. S., 325; Benjamin on Sales, sec. 309 and notes.</p> <p>6. Comment on cases cited for appellant, viz.: Goodwin, Admr., v. Amer. Nat’l. Bank, 48 Conn., 550; National Bank v. Insurance Co., 104 U. S., 54; Board, &c., of Essex v. NewarK, &c., 48 N. J. Eg., 51; Walker v. Manhattan Bank, 25 Fed., 247; Gallery v. Prindle, 14 Barb., 186; Baker v. Dobbins, 87 Ga., 545; Bryant, &e., v. Hagerty, 87 Pa. St., 256; Jenkins v. Wells, 90 Mich., 515; Bradford v. Drew, 46 Mass., 188; Ferguson v. Davis, 65 Mich., 677.</p>

<p>Case 33 — Order of Fiscal Court of Jefferson County Allowing Claim of L. B. Waters Against the County of Jefferson, and Appeal by the County of Jefferson to the Jefferson Circuit Court —</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>Judgment Dismissing the Appeal and the County of Jefferson Appeals.</p>

Case 34 — Action on Sheriff’s Official Bond for Negligent Killing of Plaintiff’s Intestate APPEAL FROM HICKMAN CIRCUIT COURT. Judgment for Plaintiff and Defendants Appeal. That Charlie Williams was killed by the two deputies is admitted. The killing took place about midnight of' February ■5, 1897, on a public road in Fulton county while the deputies were in pursuit of Dave Browder, an escaped murderer.

Case 35 — Action to Enforce a Mortgage Lien on Real Estate— APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Judgment for Defendants and Plaintiffs Appeal.

<p>Case 36 — Action to Enforce Payment of Stockholders’ Double Liability to Creditors of the Corporation</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment for Plaintiff and Defendants Appeal.</p> <p>The German-Real-Estate and Investment Company was incorporated in January, 1893, long after the present Constitution Had gone into effect by the filing of articles of incorporation under the provisions of chapter 56 of the General Statutes.</p> <p>On February 1, 1894, it filed in the Jefferson county clerk’s office by consent of holders of two-thirds of its stock, amendments to its articles changing its name to German-American Title Company. It did this without having first formally accepted the Constitution of Kentucky ,as section 574, Kentucky Statutes, requires. The company failed in May, 1896, and made an assignment for the benefit of its creditors, from which nothing can be realized for its general creditors. The appellee, Sol Levy, sued on an unsecured debt and sought to render the stockholders of the corporation liable for all the debts of the corporation.</p> <p>The appellant as a defense contends:</p> <p>1. A corporation organized before the act of April 5, 1893, had under that act (section 574, Kentucky Statutes) the right to amend its articles without making thereby its stockholders individually liable for debts contracted before September 28, 1897.</p> <p>2. That statute intended that it should apply to “old corporations” only after September 28, 1897, unless they reorganized under it (section 554) by filing new articles of incorporation, signed and acknowledged by all stockholders (as provided by sections 539 and 540); but that they might after accepting the Constitution amend their articles without coming otherwise under the act.</p> <p>The Constitution (sections 190-208) contains no section providing for the liability of stockholders for corporate debts, and to accept -the Constitution, therefore, does neither expressly nor .by implication, accept any provision concerning such liability.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., sees. 539, 540, 554, 559, 573, 574; Megargee v. Wakefield, and in petition for rehearing; Endlich on Statutes, secs. 4, 17; Harrington v. Smith, 28 Wis., 43; In re First Presbyterian Church, 107 Pa. St., 543; County of Erie v. Comr. of Water Works, 113 Pa. St., 372; Pittsburg v. Kalchthaler, 114 Pa. St, 552; Hoge v. R. R. Co., 99 U. S., 348; Keokuk R. R. Co. v. Mo., 152 U. S., 301; Maine R. R. Co. v. Maine, 96 U. S., ■499; Phil. & W. R. R. Co. v. Maryland, 10 Howard, 376; Memphis City Bank v. Tennessee, 161 U. S., 186; Mercantile Bank v. Tennessee, 161 U. S., 161; Phoenix F. & M. Ins. Co. v. Tennessee, 161 U. 'S., 174; Cin., Ham. & Day. R. R. Co. v. Cole, 29 Ohio St, 126; Tibballs v. Libby, 87 111., 142; Buffalo R. Co. v. Dudley, 14 N. Y., 336; Town of Reading v. AVedder, 66 111., 80; Bucksport v. Buck, 68 Me., 81; Milwaukee Co. v. Field, 12 Wis., 340; Howard v. Glenn, 85 Ga., 238; Cin. Coop. 'Co. v. Bate, 96 Ky., 356; Austin v. Winchester Tel. Co., 28 N. Y., 77; Thomas v. Dakin, 22 Wend., 9.</p> <p>While my clients are not parties to this appeal I represent several parties who are deeply interested in the question involved. I desire therefore to file a -brief as amicus curiae.</p> <p>(а) We submit that as the corporation was organized after the adoption of the fourth Constitution a formal acceptance of the Constitution was not necessary.</p> <p>(б) We further submit that the awarding of interest on the face of the stock is error. The stockholder was in no default . until the amount to be paid by him was ascertained.</p> <p>SYNOPSIS.</p> <p>1. This corporation was created before April 5, 1893; but after the adoption of the Fourth Constitution.</p> <p>2. The immunity provided for was valid.</p> <p>3. That immunity, by section 573, continued until September 28, 1897.</p> <p>4. The debt sued on and all other debts were contracted before September 28, 1897.</p> <p>5. The corporation might have accepted the provisions of the statute by reorganizing under section 554; this it did not do.</p> <p>6. The corporation, without reorganizing, had the right to amend its articles by accepting the provisions of -the Constitution (Kentucky Statutes, section 570).</p> <p>7. An acceptance of the Constitution would have been nugatory; as the Constitution was binding on all concerned without an acceptance.</p> <p>8. The double liability is not a matter of constitutional source; but the same is altogether statutory; and it was not required to be accepted, and was not accepted.</p> <p>9. There is no estoppel here; no one has been misled or prejudiced. The corporation had a right to accept the provisions of the Constitution without accepting the provisions of the statute; it availed itself of the right.</p> <p>10. It was error to allow interest in' the judgment. Sackett’s Harbour Bank v. Blake, 3 Rich. Eq., 225; Munger v. Jacobson, 99 111., 350; Cole v. Butler, 43 Me., 405; Casey v. Galli, 94 U. S., 680; Cleveland v. Burnham, 64 Wis., 361.</p>

Case 37 — Action to Recover Damages for the Death of Plaintiff's-Intestate APPEAL FROM TODD CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS AND AUTHORITIES. 1. The evidence is not sufficient to support the verdict. 2. The court erred in instructing the jury, especially in interlining instruction No. 3. 3.

<p>Official Bond — Limitation Thereon — Power of County Court to-Release Indebtedness of Sheriff to County — Liability of County Judge on his Official Bond for Taking Insufficient Surety on Sheriff’s Bond foe County Levy.</p> <p>Held: 1. In an action -against a county judge on his official bond for failure to take good security on sheriff’s county levy bond, the limitation is fifteen years.</p> <p>2. Under section 52, Kentucky Constitution, providing “that the General Assembly shall have no power to release or authorize the release, in whole or in part, the indebtedness or liability of any corporation or individual to this Commonwealth, or to any county or municipality thereof,” the county court.has no power to release, in whole or in part, the liability of the sheriff or his sureties to the county, and the attempted action to do so was void.</p> <p>3. As the Legislature has not seen fit to pass any statute imposing a liability upon county judges in taking bonds of sheriffs, or other officials, similar to that required in the ease of guardians and wards, they are not liable for taking insufficient surety on a sheriff’s county levy bond, as the judge in taking such bond acts judicially and presumably in good faith.</p>

<p>Preference of Creditors — Operation as Assignment — Joinder of Causes of Action — Effect of Subsequent Preferences —Deposit in Bank as Preference of Bank — Release of Surety.</p> <p>Held: 1. A petition by a creditor to have an act of preference committed by an insolvent debtor declared to operate as an assignment for the benefit of creditors states but a single cause of action, though other acts of preference subsequently committed are also alleged, and therefore plaintiff can not be required to make an election, it being proper, upon adjudging that the first preference operated as an assignment, to further adjudge that the' creditors subsequently preferred shall surrender the property alleged and proved to have been obtained by them.</p> <p>2. Where a deposit in'bank, made by an insolvent debtor, was applied by the bank to the payment of a note it held against the depositor, in order to prevent the release of a surety in the note, the making of the deposit was a preference within the statute,- though there may have been no intent to prefer, as that was .the natural result, and therefore, in an action to have a prior act of preference declared to operate as an assignment, the bank may be required to surrender the money, the facts constituting the deposit an act of preference being alleged and proved.</p> <p>3. The payment applied to the note being adjudged to be within the statute, the parties .are placed where they were originally, and therefore the surety is not released.</p>

Case 40 — Action foe Damages against City fob Building a Pest House Neab Plaintiff’s Property — APPEAL FROM M’CRACKEN CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. In 1897 the city of Paducah bought about twenty acres of land about three miles from its corporate limits and established a pest house thereon, about 250 yards from the land of the appellee at the nearest point, and over a half mile from .his residence.

Case 41 — Proceeding by the Commonwealth on a Forfeited Bail-Bond APPEAL FROM JEFFERSON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. There are three reasons why the judgment in this case should be reversed. 1. Because the court erred in not sustaining the motion of the appellant to dismiss the entire fiarfeiture proceedings on the face of the papers. 2. Because the court erred in adjudging the appellant’s response insufficient. 3.

Case 42 — Action to Recover Damages for Deceit APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Judgment for Defendant and Plaintiff Appeals. The Columbian Fire Insurance Company was organized under a charter which required the company to have a paid up capital of $200,000. It became insolvent in eighteen months, and its-assets placed in the hands of appellant, James S. Ray, as receiver.

Case 43 — Indictment foe Burglary APPEAL PROM FAYETTE CIRCUIT COURT. Defendant Convicted and Appeals. The defendant, Hattie Kyle, was indicted for burglary. When the case was called for trial the defendant, by attorney, demurred to the indictment and the demurrer was overruled. Defendant claims that the indictment is not good. Burglary is-a common law offense and has not been abrogated, repealed or modified in any way by the legislation of this State.

Case 44 — Action to Enforce a Bien foe Street Improvement APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. ■Judgment for Plaintiff and Defendants Appeal. Held: That.the failure of the municipal record to show the publication of a notice to property owners as to the improvement does not defeat the contractor’s lien.

Case 45 — Indictment fob Selling Liquor by Retail appeal from barren circuit court. Defendant Convicted and Appeals. 1. The court erred in overruling appellant’s motion for continuance. 2. The court erred in overruling demurrer to indictment. Crim. Code, sec. 165, sub. sec. 3, sec. 127'; 90 Ky., 488; 78 Ky., 180 and 130. 3. The court erred in sustaining demurrer to defendant’s plea of former trial and conviction. Crim. Code, sec. 164, sub. sec. 4; 88 Ky., 368; 83 Ky., 193.

Case 46 — Motion fob a Writ op Mandamus against John T. Hodge, Judge of the Campbell Circuit Court — APPEAL FROM CAMPBELL CIRCUIT COURT. Motion Sustained and Writ Granted.

Case 47 — Indictment fob Murder APPEAL FROM WEBSTER CIRCUIT COURT. Defendant Convicted for Manslaughter and he Appeals.

Case 48 — Action to Recover Land APPEAL from mason circuit court. Judgment for Defendant and Plaintiff Appeals. On April 3, 1896, appellee and his wife conveyed to appellant by deed of general warranty, a tract of land in Mason county, Kentucky, containing about 120 acres.

Case 49 — Actions to Enforce Liens for Street Improvement— APPEALS FROM JEFFERSON CIRCUIT COURT. Judgment for Plaintiffs and Defendants Appeal. We have heretofore filed briefs in these cases, and at the last moment before the oral argument, we take this opportunity to file a brief involving a full presentation of all the questions involved under -the comparatively recent decision of the supreme court of the United States in the case of Norwood v. Baker.

<p>Witness — Cross Examination of the Accused — Evidence of Particular Wrongful Acts.</p> <p>Held: Civil Code Practice, section 597, providing that a witness shall not be impeáched “by evidence of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of felony,” applies to the cross-examination of a'defendant in a criminal case, where he offers himself as a witness.</p> <p>The Attorney-General, Roht. J'. 'Breckinridge, on his motion to modify the response to the petition for rehearing ir. this case, states as follows:</p> <p>“I have read the response with great care and it seems to me that it overrules not only the opinion in the three cases mentioned, hut changes entirely the reach and extent to which ■cross-examination of witnesses has been for many years permitted both by precedent and authority, and so limits the cross-examination as almost to preclude any inquiry as to the past life and conduct of the witness, and thus may permit the greatest criminal to escape or the innocent to be convicted. The innocent should not be convicted, nor the guilty allowed ■to escape on the evidence of witnesses whose past life and conduct will not hear such scrutiny as will give a jury a fair.opportunity to judge of their credibility.</p> <p>“It may ,not he within the purview of my duty to do more (than obey and -assist in the enforcement of the decrees of this court, hut in a matter of the far-reaching effect of this opinion, I feel the court will permit the suggestion herein.”</p> <p>For former opinion, see 110 Ky., 105 (60 S. W., 185), (23 Ky. Law Rep., 151).</p>

Case 51 — Action on an Account APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Plaintiffs and Defendant Appeals. The appellant's ask a reversal in this ease: 1. Because under the pleadings the appellants had the burden of proof and was entitled to the closing argument, and the court erred in refusing to grant same when claimed. 2.

Case 52 — Action to Recover Logs and Damages for their Taking and Detention APPEAL FROM LETCHER CIRCUIT COURT. Judgment for Defendant and Plaintiffs Appeal. The action was brought by appellants against Day Bros. Lumber Co., to recover the possession of certain logs wrongfully taken by appellees in Letcher county, and damages for their detention. The petition alleges that the Day Bros. Lumber Co. has wrongfully and against plaintiff’s will and consent in.

Case 53—Action, to Recover Damages for Breach of Contract— APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Plaintifff and Defendant Appeals.

<p>■Case 54 — Action to Abrogate an Agreement of Arbitration and all Proceedings Thereunder and to Recover Possession of Land and for Rents and Interest</p> <p>APPEAL FROM HART CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendants Appeal.</p>

Case 55 — Indictment for Seduction APPEAL FROM DAVIESS CIRCUIT COURT. Defendant Acquitted and Commonwealth Appeals. Opinion Certified.

<p>Municipal Corporations — Street Assessments- — -Liability for cost of Reconstruction.</p> <p>Held: 1. As the liability, of abutting property owners for the cost of a street improvement is the creature of the statute, and the statute does not create such liability in cities of the first class except for original construction authorized by ordinance, abutting property in such cities can not be charged with the cost -of reconstructing a street, though the original construction may not have been by ordinance, or at the cost of abutting owners.</p> <p>2. The fact that no sidewalk was made when a street was originally constructed, or was ever thereafter made, does not prevent a subsequent improvement of the street from being a reconstruction; nor is it material that the street was originally improved, by building a “turnpike road,” as that is well understood to mean a macadam pavement, which is the kind of pavement, at the time of the improvement, in general use in the city.</p> <p>3. Kentucky Statutes, section 2834, part of charter of cities of first class, providing that the city shall not be liable for the original improvement of public ways without the right to enforce it against the property receiving the benefit thereof, has no application -to the reconstruction of a street.</p> <p>4. Kentucky Statutes, section 2835, providing that “the cost of making sidewalks, including curbing, whether by original construction or reconstruction, shall be apportioned to the front feet as -owned by the parties, respectively, fronting said improvement, except that each corner lot will pay the cost of its sidewalk intersection,” applies only when a sidewalk, including curbing, is either constructed or reconstructed; and .therefore, where no construction of sidewalk is provided for, but the ordinance and contract provide for an improvement of the carriage-way "by grading, curbing, and paving,” the curbing is a part of the improvement of the carriage-waj', and, if the work is reconstruction, must be done at the cost of the city.</p>

Case 57 — Action to Recover Sick Benefits APPEAL FROM HARRISON CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. This action was brought by appellant to recover $214, alleged to be due him for sick benefits from the Union Benevolent Society, of Cynthiania, No. 2. Appellees decline to pay the money upon the sole ground that appellant is not a member in good standing for the reason that he is in arrears in his dues.

<p>Case 58—On Motion to Dismiss Appeal for Failure to bole Transcript in Time —</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>Appeal and Error — Computation of Time for Filing Transcript.</p>

Case 59 — Indictment foe Violation of Local Option Law APPEAL FROM BUTLER CIRCUIT COURT. Defendant Convicted and Appeals. Appellant was a farmer living near Morgantown. On Saturday he attended a barbecue near Morgantown, and there saw a man, who, he was informed was selling whisky; the man was .a stranger and said to be from Grayson county.

<p>Held: Kentucky Statutes, section 1215, which, provides for punishing as a felon “any person who shall he found guilty of inducing, persuading, aiding or abetting, or enticing any female who has never been married, under the age of twenty-one years, to enter a house of ill-fame, house of prostitution, assignation or bawdy house, whereby such female so induced, persuaded, aided or enticed, shall he seduced and lose her virtue,”' applies though the person enticing is also the seducer; and an. offer on his part to marry the girl constitutes no defense, though section 1214 specifically provides for the punishment of any person who shall, under promise of marriage, seduce any female under twenty-one years of age, and then provides that no prosecution shall be instituted when the person charged shall have married the girl seduced.</p>

Case 61 — Action to Recover Damages fob Breach of Contract— APPEAL FROM TAYLOR CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. The plaintiff sued for and recovered damages for an alleged breach of contract in the sale of a carload of vehicles, phaetons, buggies, etc., to he delivered at Monticello, Ky. The verdict was $240, which we claim is not only excessive hut unauthorized by the law or the facts.

<p>Bvidehc e — Opinions—Municipal Corporations — Dedication of Street — Street Assessments — Set-Off.</p> <p>Held: 1. Exceptions were properly sustained -to portions of a deposition which, were opinions of the witness upon questions of law.</p> <p>2. No lien can arise against Abutting property for the cost of improving that part of a street which had not been dedicated.</p> <p>3. A set-off may be pleaded -against the claim of a contractor for the cost of a street improvement, though the governmental power of taxation is exercised in favor of the contractor.</p>

Case 63—Action to Enforce Judgments— APPEAL FROM DAVIESS CIRCUIT COURT. Judgment for Defendants and Plaintiffs Appeal. These consolidated actions were brought to enforce certain judgments obtained hy the plaintiffs respectively at law against the Owensboro, Falls of Rough & Green River Railroad Company for damages to their real estate caused by the construction of said railroad, which judgments remain unsatisfied.

Case 64 — Prosecution against an Officer for Being in a State of Intoxication while Holding a County Office APPEAL FROM PERRY CIRCUIT COURT. Defendant Convicted and Appeals. POINTS AND CITATIONS. 1. The indictment does not follow section 3749, Kentucky Statutes, ■and is therefore fatal. 2. The instructions are erroneous. 79 Ky., 45, Commonwealth v. Williams. 3.

'Case 65 — Action to Recover for Board and Medical Attention— APPEAL FROM MASON CIRCUIT COURT. .Judgment for Defendant and Plaintiff Appeals. Dina Smith, a helpless negress, broken down by the infirmity of years, without funds or friends, and incapable mentally of knowing her own needs, became an inmate of the Mason county infirmary, and was kept there some .twelve or fifteen years; receiving kind treatment, clothing, lodging, nursing and medical attention.

Case 66 — Action to Recover Rent APPEAL FROM FAYETTE CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals This is a proceeding by attachment for rent of a farm for the year ending March 1, 1900. The appellant filed answer to the suit claiming various credits, and claims $240 exemptions, for himself and five children, and $70 provender for certain stock he held as trustee for his children.

CaIse 67 — Prosecution for Selling Spirituous Liquors APPEAL FROM LETOHER CIRCUIT COURT. Defendant Convicted and Appeals. The appellant was indicted for selling -whisky in violation of a local prohibition law that took effect in 1884, but has long ceased to exist.

Case 68 — Action for an Injunction APPEAL FROM MARION CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. Appellant instituted this suit to enjoin the collection of poll, tax and tax on his personal estate by the city of Lebanon, on the ground that his domicile is not in the city, but out in the country on his farm. The circuit court adjudged his domicile to be in the city and dismissed his petition from which judgment he appeals.

Case 69 — Action to Enjoin a Sale Under an Execution APPEAL FROM GRAVES CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS AND AUTHORITIES CITED. 1.

<p>Wills — Conclustveness op Judgment Probating — Contest—Person Entitled to Appeal.</p> <p>Held: 1. A.judgment probating a will devising land rendered by a court having jurisdiction is binding not only on the heirs of the testator, but as a proceeding in rem on all the world.</p> <p>2. Under Kentucky Statutes, sections 4856-4861, using the words “any person interested” in defining who are proper or necessary parties to probate proceedings, any person who claims title under an heir of the testator may become a party to such proceedings, and may appeal from a judgment of probate.</p>

<p>Case 71 — Action to Enjoin the Collection of Taxes</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>JUDGMENT'FOR PLAINTIFF AND DEFENDANT APPEALS.</p> <p>Taxation — Mortgages Held by Non-Residents — Persons Entitled to Sue.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>The 'State has power to tax mortgages and other cboses in action of non-residents, provided the property mortgaged lies within the State.</p> <p>Savings and Loan. Soc. v. Multnomah county, 169 U. S.i 42i; Bristol v. Washington county, 177 U. S., 133; Bank of U. S. v. Mississippi, 12 §. & M., 456; Maltby v. Railroad Co., 52 Pa., 147; City of Detroit v. Lewis, 66 N. W., 958; Allen v„ National Bank, 48 Atlantic Rep., 78; Redmond v. Commissioners, 87 Ñ. C., 122; Dundee Mortgage Co. v. School Dist., 19 Fed. Rep., 359; 24 Fed., 197; Walker v. Jack, 88 Fed., 576; People v. Barker, 23 App. Div. Rep., 524 (N. Y.)</p> <p>All property that can by any law be taxed in this State must be assessed and is taxed, unless exempted by the Constitution itself. Constitution, .sections 170, 172 and 174; Kentucky Statutes, sections 4020, 4022, 4023, 4052, 4058, 3376, 3377 and 3381; City of Covington v. Commonwealth, 19 L. R., 105</p> <p>By the terms of the mortgage and bonds therein set out, Grant Green is a trustee and agent of the lenders, and this fact together with the permanency of the loan, gives the property a local situs for the purpose of taxation. Jones on Corporation Bonds and Mortgages, sections 299 and 33; Maltby y. Railroad, 52 Pa., 147; Cook on Corporations, section 815; Miller v. Railroad, 36 Vt., 452; Redmond v. Commissioners, 87 N. C., 122.</p> <p>Appellee alleges in the petition that it has no interest in the property and yet asks an injunction to prevent the taxation of that property. Again the petition alleges that it owns a right and title to one-tenth of the Water Company’s income, and it says this interest will be injured. In order to maintain the action appellee must have an interest. If it •has any interest, that interest is taxable.</p> <p>The names of the alleged owners of the bonds are not. disclosed by the petition. The presumption will be that if disclosed it would injure appellee’s case, by showing them to -be •in Frankfort or in some State where the property is not (taxable, for the reason it is located here, as in New York. People v. Smith, 88 N. Y., 576;</p> <p>All doubts will be resolved against granting an injunction •of a tax. Phoenix Ins. Co. v. Tenn., 161 II. S., 177; State v. Keokuk & W. Ry. Co., 133 Mo., 157.</p> <p>Taxation: A party who alleges he has no interest, right or (title in the property taxed, can not maintain an action to •enjoin the collection of taxes thereon.</p> <p>If a party has such an interest as will enable him to maintain an action for injunction, he has a taxable interest, and •such interest is taxable at his residence. The trustee resided in Frankfort and he brings, or rather his successor, to enjoin the collection of taxes by the city of Frankfort.</p> <p>The property here — Mortgage and bonds payable to Grant Green or bearer are taxable locally in Frankfort, as at the time Green lived in Frankfort and the property mortgaged is situated in Frankfort, and the name and residence of the beneficial owner or holder of the bonds is not disclosed, nor the property shown to have been listed for taxes elsewhere.</p> <p>Const., secs. 172, 174; Kentucky Statutes, secs. 4020 4023, 4022, 4058; 169 U. S., 421; 177 U. S., 133; Lexington v. Fish-back. 60 S. W., 727; 175 U. S., 309; New Orleans v, Stempel, 34 Federal, 355, (Strong case) 24 Federal, 197; 88 Federal, 576.</p> <p>1. Counsel in their brief state the proposition: “That a party who alleges he has no interest, right, or title in property taxed, can not maintain an action to enjoin the collection of taxes thereon.” The statement is adroit and ingenious, but has no application here. What we contend for is, if a party has no interest, right or title in, or possession or control of property, but the same is owned, controlled and possessed and managed by another than the owner, the former can not be lawfully assessed for taxation on such property of another, and can lawfully resist the effort to enforce the collection of the taxes from him.</p> <p>The questions presented by this appeal are:</p> <p>First. Is the property oovered by a mortgage executed to a trustee for the purpose of his holding, and enforcing, if it should become necessary, the lien by the mortgagee to secure bonds or credits held and owned by others, assessable for taxation against such mortgagee trustee?</p> <p>Second. Is the mortgagee trustee, in such a mortgage, with no right in or title to, or possession or control, as trustee agent or otherwise, of t)he bonds or credits secured by the mortgage, assessable for taxation for such bonds or credits?</p> <p>Our contention is:</p> <p>1. That a mortgagee acquires by the mortgage no estate or right of property in the property mortgaged.</p> <p>2. That a mortgage has no existence or value independent of the debt or credit secured thereby, and attaches to and belongs to the holder and owner of the credit wherever .he may be; and</p> <p>3. That in this State the situs of credits or choses in action for the purposes of taxation, is the domicile of the owner — the real or beneficial owner.</p> <p>AUTHORITIES.</p> <p>1. Injunction a proper remedy to restrain the collection of an illegal tax. Gates, &c., v. Barrett, &c., 79 Ky., 295, 296.</p> <p>2. A mortgagee acquires by the mortgage no estate or right of prop•erty in the property mortgaged. A mortgage .has no existence or value independent of the debt or credit secured thereby, and attaches and belongs to the holder and owner of the credit wherever he may he. 94 Ky., 271-276, Mencantile Trust Co. v.'South Park Residence Co.;; 78 Ky., 496, Taliaferro v. Gay; 14 Bush, 788, Woolley v. Holt; 12 Bush, 608, Douglass v. Kline; Desty on Taxation, vol. 1, sec. 11, pp. 11, 62 and 330; Cooley-on Taxation .page 63; 27 L. R. A., 797 Holland v. Comrs. Silver Bow Co.; 3 Mont., 173 Gallatin Co. v. Beattie; 71 Mich., 31 Taggard v. Salinac Co.; 100 U. S., 491, Kirtland v. Hotchkiss.</p> <p>3. That in thiá State the situs of credits, or choses iri action for the purposes of taxation, is the domicile of the owner — the real beneficial owner. The authorities cited above, and MSS. Opin. Feb. 8th, 1901, Lexington v. Fishback’s Trustee; 80 Ky., 71 Louisville v. Sherley, &c., 4 Bush 136, Thomas Gdn v. Mason County Courts; 8 B. M., 2 Commonwealth v. Hays; 100 U. S., 491 Kirtland v. Hotchkiss; 12 Iowa, 5.39; 300 and 324; 12 Iowa, 539; ;25 Cal., 603; 25 Colo., 349; Kentucky Statutes, secs. 3374, 3376, 3381 4020 and 4049.</p> <p>4. The case at bar distinguished from 84 Ky., 597, Baldwin v. Shine; 88 Ky., 141, Spalding v. Commonwealth; 32 L. R. A., 441, City of Detroit v. Lewis, 177 U. S. 133, Bristol v. Washington Co.; 58 Am. Dec., 31, Walla Walla v. Moore.</p>

Case 72—Action to Compel the Chesapeake and Ohio Railway Co. to Fence its Right of Way.- APPEAL FBOM MENIFEE CIRCUIT COURT. Judgment fob Defendant and Plaintiff Appeals. This appeal is prosecuted from a judgment dismissing appellant’s petition and raises these questions: 1. Can railroads be compelled to fence their roads under the statute? 2. If so, is appellant’s petition good?

Case 73 — Action to Enforce a Lien for Street Improvement— APPEAL FROM: JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Judgment for Plaintifff and Defendant Appeals. This is an appeal from a judgment enforcing an alleged lien for a street claim upon a warrant bearing date, October 2, 1893 for an alleged street improvement made more than ten years prior to that time. The appellant pleaded the statute of limitation of five years in due form.

<p>Case 74 — Action of L. E. Wright’s Admr. v. Lexington & Eastern Railway Co.</p> <p>APPEAL FROM LEXINGTON CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p>

Case 75 — Action to Recover Price of Logs Sold APPEAL FROM LETCHER CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. In a contract for a sale of logs by appellant to appellees, it was stipulated in the contract that fifteen per cent, of the contract price should be retained by appellee on all logs not delivered by July 1, 1898. The logs were delivered on the first tide, but none of them were delivered until August 1, 1898.

Case 76 — Action on Sheriff’s Bond APPEAL FROM LOGAN CIRCUIT COURT. .Judgment for Plaintiff and Defendants Appeal. The question in this case is whether the sureties on the ■county revenue and official bond of the sheriff -are liable for ■the collection -of -a local railroad tax. An examination will .show that the only power intended -to be giv-en was to execute -the bond required by section 2 of the Act of April 7, 1886, vol. 1, Acts 1885-6, page 1214.

Case 77 — Action to Recover Damages for Personal Injuries— APPEAL PROM BOYLE CIRCUIT COURT. Judgment por Plaintipp and Dependan!: Appeals. At the time appellant was injured, he was employed as telegraph operator in appellant’s yard at Latonia. He left his office. to go to dinner, intending, as he says, to first go to the water closet used by the employes in the yards.' The way provided from his office- to the closet was down a screenings walk to.

Case 78 — Action to Recover Damages for Trespass to Land— APPEAL FROM GRAYSON CIRCUIT COURT. Judgment for Defendants and Plaintiffs Appeal.

Case 79 — Action to Recover Possession op Logs appeal from Letcher circuit court. Judgment por Defendants and Plaintiff Appeals. We claim that the petition in this case stated a cause of action, and the demurrer thereto should have been overruled.

Case 80 — Action to Recover Damages for the Death of Plaintiff’s Intestate APPEAL FROM FRANKLIN CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. Rasmus Breeden was killed by a Chesapeake & Ohio Railway train at a -public crossing in Woodford county on the track of the L. & N. R. R. Co., while the same was being used by the C. & O. under a traffic arrangement between said two companies set out in full in this record. POINTS AND AUTHORITIES.

Case 81 — Action to Recover Taxes APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION Judgment for Defendants and Plaintiff Appeals.

<p>Railroads — Culverts—Construction—Surface Water — Diversion— Trespass — Limitation.</p> <p>Held: Though the negligence complained of in the petition in an action against a railroad company referred to the act of opening a culvert, and not to the manner of its construction, yet, as the issue made in the evidence, and presented to the jury by the instructions, was upon the question whether the construction of the culvert was proper and skillful, the injury resulting from collecting the surface water upon the land opposite, and casting it in a body upon plaintiffs land, is not to be considered as of a permanent character, but each overflow was a distinct trespass, and the statute of limitations began to run only from the time when the overflow occurred.</p>

<p>Evidence — Withdrawal from Jury — Carriers—Outcries of Passengers — Admissibility of Evidence — Failure to Object — -Injured-Person — Personal Examination — Exemplary Damages.</p> <p>Held: 1. There can be no reversal for the admission of evidence which was withdrawn from the jury by consent of parties, and which the jury was admonished not to consider.</p> <p>2. The fact that outcries were made by passengers other than plaintiff in the collision in which plaintiff was injured was not admissible in evidence, but, as there was no objection to the admission of the evidence, there can be no reversal on that account.</p> <p>3. Where plaintiff testified that by reason of an injury to her hand she could not close the hand by voluntary exercise of its muscles, it was an abuse of discretion not to compel her to sub- • mit to an examination of the hand by physicians introduced by defendant as witnesses, who testified that they could tell by such an examination whether the hand was stiffened as claimed, and whether such condition would probably be permanent.</p> <p>4. Where the evidence presented a case of such negligence that the jury might-be warranted in finding that it evinced a reckless disregard of human life, it was proper to give an instruction authorizing exemplary damages.</p>

Case 84 — Action on a Bond APPEAL PROM CAMPBELL CIRCUIT COURT. Judgment por Dependants and Plaintipp Appeals. QUESTION DISCUSSED AND AUTHORITIES. Liability of an attorney-at-law for alleged negligence in loaning money for client. The case is presented by a demurrer to a petition as amended which was sustained. CASES CITED. Savings Bank v. Ward, 100 U. S., 195; Gilman v. Hovey, 26 Mo., 280; Gambert v. Hart, 44 Cal.

Case 85 — Action to Prevent Payment of Taxes out of Fund Attached, and to have Assessment declared Void APPEAL FROM DAVIESS CIRCUIT COURT. Judgment for Defendant -and Plaintiffs Appeal. 1 Our contention is that the record fails to show that any taxes were or are due from either Eugene O’Callaghan or Jerry O’Callaghan to the city of Owensboro.

Case 86 — Action on Written Obligation to pay $62.50 every three Months During Life of Payee as Interest on Money Owing by Payor to Payee APPEAL FROM FAYETTE CIRCUIT COURT. Judgment for Plaintiff and Defendants Appeal. POINTS AND AUTHORITIES. (1) A contract and not a will made by .the papers dated January 1, 1879. (McDowell v. Hall, 2d Biblb, 611).

Case 87 — J. F. Gilbert was Convicted of Murder and Appeals- APPEAL FROM BREATHITT CIRCUIT COURT. Defendant Convicted of Murder and Appeals. THOMAS T. COPE and W. N. COPE, for appellant. The appellant, having .been tried and convicted on a charge of murder and his punishment fixed at confinement in the penitentiary for life, prosecutes this appeal and complains: 1. That the lower court erred in permitting incompetent' evidence to go to the jury over his objection. 2.

-Case 88 — Action to Recover Damages for a Malicious Assault by a Railroad Conductor upon a Passenger APPEAL FROM FAYETTE CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals.

Case 90 — Indictment for Bribery APPEAL FROM m’CRACKEN CIRCUIT COURT. Indictment Dismissed on Demurrer and the Commonwealth Appeals.

Case 91 — Action to Recover Damages for Personal Injuries— APPEAL FROM FAYETTE CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. It is alleged in the petition that the defendant operated a Tailroad between Louisville and Lexington, Ky., and had an engine yard at Lexington situated in a low dark place in which, near a thoroughfare used by defendant, was located an ash-pit twenty feet long, four feet wide, and three and one-half feet deep.

Case 92 — Action for Wrongful Taking and Conversion of Personal Property APPEAL FROM KENTON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. Appellant sold the appellee a sewing machine and took a mortgage on dt from appellee for balance due after allowing her credits for what she had paid on two other machines previously sold to her by appellant.

Case 93 — Action to Recover Damages for Personal Injuries— APPEAL from franklin circuit court. Judgment for Plaintiff and Defendant Appeals. POINTS AND AUTHORITIES. 1.

Case 94 — Action to Recover Land APPEAL FROM OWSLEY CIRCUIT COURT. JUDSMENT FOR DEFENDANTS AND PLAINTIFFS APPEAL. This case grows out of the suit of Gideon Wolfe, &e. v. Wm.

Case 95 — Action by R. G. Aydelott v. A. M. Breeding to have the Court Determine if Plaintiff is or not Liable for a Loss Resulting from: an Investment of Trust Funds by Him. Held: used and enjoyed by my said daughter, free and exempt from all marital rights of any husband she may .have, and free from the control of such husband.” “Item 3.

Case 96 — Action for an Injunction APPEAL FROM DAVIESS CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. CLASSIFICATION OF QUESTIONS. 1. Dedication. A dedication is a devotion of ground or an easement over it for the benefit of the public. Intent and ownership are necessary. It may be made with or without a writing. It may be made verbally or by acts or even by nonaetion.

Case 97 — Action to Recover Damages for Personal Injuries— APPEAL PROM KENTON CIRCUIT COURT. Judgment por Defendant and Plaintiff Appeals. Appellant was sent by his employer to hang paper in appellee’s dwelling house in the city of Covington. He was in a room up stairs at work. His assistant was down on the ground making paste for appellant.

Case 98 — -Prosecution and Conviction for Manslaughter APPEAL FROM HOPKINS CIRCUIT COURT. Defendants Convicted and Appeal. The appellants, J. B. Lindle, Wade McIntosh and Ed Johnson, at the May term, 1901, of the Hopkins circuit court, were convicted of manslaughter an.d their punishment fixed at two years each in the penitentiary. To reverse this judgment this appeal is prosecuted. THE PACTS.

Case 99 — Action to have Certain Acts of Defendant, Priest, DECLARED TO OPERATE AS AN ASSIGNMENT FOR THE BENEFIT OF His Creditors APPEAL FROM MONTGOMERY CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. This is an appeal prosecuted upon a judgment rendered in two actions that were heard together, both instituted by appellant against T. W. Priest and others.

<p>Counties — 'Separation of City from- County for Governmental Purposes — Taxation of City Property for General County Expenses — 'Fiscal Court.</p> <p>Held: 1. Kentucky Statutes, sees. 1833-1851, defining and prescribing the powers and duties .of fiscal courts, which provide that when, for county governmental purposes, a city is by law separated from the residue of the county, “the city and county shall each pay its proportionate part of all expenses common to both said city and county, to he based upon the value of the taxable property in each as shown by the last preceding assessment for State purposes,” operated to repeal all special acts inconsistent therewith; and therefore the city of Covington, even if it was, by the various special acts of the Legislature for its benefit prior to that statute, separated from the residue of Kenton county for county governmental purposes, must, without regard to the provisions of those acts, pay its proportionate part of all county expenses common to both county .and city, such as the salaries of county officers, cost of maintaining .and providing suitable buildings for county purposes, wherever.located, cost of holding elections for State .and county officers, and cost of maintaining the public roads and bridges of the county.</p> <p>2. The fiscal court, consisting of the county judge and all the magistrates of the county, both inside .and outside the city, must provide for their payment by levying a .tax on all the property in the county subject to taxation, whether inside or outside the city.</p>

<p>Municipal Corporations — Negligent Construction of Sewer — Notice of Defect.</p> <p>Held: 1. A city is liable for injury .to property resulting from the construction of a sewer according to a plan which is palpably bad, though the execution of the plan may have been skillful.</p> <p>2. In an action against a city to recover damages for injury to ■property from the negligent construction of a sewer, it was proper to instruct the jury that “when the city undertakes to construct .a sewer it is its duty to exercise ordinary care and skill to keep it in condition to carry off the water collected thereby from such rainfalls as may be reasonably expected to occur in the neighborhood to be drained by such sewer.”</p> <p>3. Where the initial construction of a sewer by a city is manifestly defective, notice to the city of the defect is not a prerequisite to its liability for injury to property resulting therefrom.</p> <p>4. T,he right of action against a city for injury from the flooding of property by the negligent construction of a sewer accrues when the property is flooded, and limitation runs only from that date.</p>

Case 102 — Action foe an Injunction APPEAL FROM LETCHER CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

<p>Case 103—Ex Parte Action by City of Lexington by H. T. Duncan, Mayor, and W. S. Bronston, City Solicitor, to have an Ordinance of Said City Adjudged Void, in which Action the Home Construction Co. Filed Answer and was made a Party and Asked for Mandamus</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>Judgment Dismissing Action of City and Refusing Mandamus asked by Home Construction Company, and both Appeal.</p> <p>For the sake of argument, I shall admit that in a suit properly constituted the appellant would be entitled to a mandamus against appellees, Duncan and Br.onston, but the sole point I make is, that the lower court and this court have no authority to consider that question in this case. In short, the application for a mandamus should have been made in an original action and can not be presented in this suit in the form of a cross-petition.</p> <p>■ The right to file a cross petition is Of statutory origin, no such mode of relief being known to the common law. Statutory remedies are strictly construed, and statutes conferring them are rigidly confined to such cases as are within the plain meaning of the law, which is never extended by intendment or doubtful implication.</p> <p>“A cross-petition is the commencement of an action by a defendant . . . or by a plaintiff . . . and is not allowed to a defendant except upon a cause of action which affects or is affected by the original cause of action.” Civil Code, sec. 96, subsec. 3. 4</p> <p>If there is no defendant in the suit; if the plaintiff’s petition does not purport to set up a cause of action; if no judgment is prayed for in the petition against some one, then obviously no cross-petition can be filed, because there is no defendant to file one.</p> <p>The petition in this case is an ex parte one praying the court to pass upon the validity of an ordinance. This proceeding is authorized by the city charter, sec. 3063, Kentucky Statutes, art. 4, sec. 6, and except for this provision the court could not entertain such a petition. In no sense was it an action between two persons. It made no pretense of setting forth a cause of action.</p> <p>It, therefore, seems clear that the cross-petition of appellant should have been dismissed.</p>

Case 104 — Action on a Policy of Fire Insurance APPEAL FROM JEFFERSON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. Mrs. Malott, appellee, held a policy of insurance issued by appellant on her residence in Louisville. Its value was expressed in the policy as $1,800. In her suit she claimed that the injury amounted to a “total loss” of the property insured. The appellant traversed this averment, insisting there had been only a partial loss.

<p>Case 105 — Action on a Supersedeas Bond</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p>

<p>Case 106 — Action to Recover the Amount of Certain Notes Alleged TO HAVE BEEN LOST BY THE NEGLIGENCE OF DEFENDANT-</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>Some time prior to April, 1893, the appellee, Merchants’ Nat. Bank, of New Albany, Ind., opened an account with appellant. Second Nat. Bank, of Louisville, Ky., and the latter agreed to pay three per cent, interest upon daily balances in favor of the New Albany bank, and to do its bank collecting without charge.</p> <p>On April 1, 1'893, the Bedford Stone Quarries Company, a corporation doing business at Bedford, Ind., executed its two negotiable notes to the New Albany Mfg. Co. for $652.07 and $650, payable at the Bedford Bank, of Behford, Ind., in thirty- and sixty days. The New Albany Mfg. Co. discounted these two notes before maturity to the Merchants Nat. Bank, and the latter, on April 22d, sent the 30-day note, which matured May 4th, to appellant by mail for collection, and on the day it w-as received appellant sent it to its regular correspondent, the Bed-ford Bank, at Bedford, for collection. This bank, as the evidence shows, and the lower court found, was the largest and oldest bank in Bedford, and in good standing down to the day of its failure, on June 6, 1893.</p> <p>On May 13th, appellee sent the 60-day note to -appellant for collection, and the latter, on the day it was received, sent it -also to the Bedford Bank for collection. This was -about ten days after the maturity of the first note and appellant had not received any information as to the fate of the first note.</p> <p>On Jtme 6th, three days after the second note matured, the Bedford Bank assigned for the benefit of creditors, and up to this time appellant had received no information from it, as to whether either of the notes had been paid. On June 7th appellee wrote to the appellant asking a report of these two notes, and appellant replied that it had made inquiry of the Bedford Bank why it had not reported on them, and on June 14th the notes were returned to appellant by the Bedford Bank unpaid and unprotested, and on same day appellant returned them to -appellee as unpaid items. On the next day appellee returned them to appellant with -the statement that the New Albany Mfg. Co. claimed that due diligence had not been used, and through the failure of the Bedford Bank to protest the notes it was released from liability, as indorser or assignor, and that appellee charged -appellant’s account with the amount of the notes.</p> <p>A careful analysis of appellee’s plea shows that the acts of negligence charged are:</p> <p>1. That appellant was negligent in sending the notes to the bank of which W. C. Winstandley was president, as he was also secretary and treasurer of the maker of the notes.</p> <p>2. That it failed to present the notes for payment or to cause its agent, the Bedford Bank, to do so, or to protest or cause .the Bedford Bank to protest them, or to give notice of nonpayment and protest to the endorser.</p> <p>3. That it did not give appellee notice of the nonpayment and nonprotest until June 14th.</p> <p>4. It claims (that if notice of nonpayment and protest had been given to the endorser it would have paid them immediately after •maturity, and because of failure to give such notice the endorser was relieved of liability.</p> <p>5. It alleges that the Bedford Bank was insolvent at the time the notes were sent to it t>y appellant, and that nothing could be made out of it after its negligence in not presenting them for payment or protesting said notes.</p> <p>C. It alleges that the Bedford Stone Quarries Co. was insolvent on June 14th, but does not allege or show that anything could have been made out of it after the maturity of the notes or either of them.</p> <p>These are the only issues, and are all traversed, and are all decided in the lower court in favor of appellant, and the conclusions reached by the lower court, adverse to appellant, are predicated entirely upon .omissions of appellant, and inferences of negligence not alleged in appellee’s pleadings, and about which there was no issue made.</p> <p>AUTHORITIES CITED.</p> <p>Farmers’ Bank v. Newland, 97 Ky., 464; Bamberger, Bloom & Co. v. Bank of Tupelo, 15 Ky. Law Rep., 361; McCain v. L. & N. R. R. Co., 13 Ky. Law Rep., 334; Leech v. N. N. & M. Y. R. R. Co., 16 Ky. Law Rep., 287; Greer v. L. & N. R. R. Co., 94 Ky., 169; Morse on Banks & Banking (3d Ed.), secs. Í35, 236, 283; Warren Bank v. Suffolk Bank, 10' Cush., 583; Hyde v. Planters’ Bank, 17 La., 560; Baldwin v. Bank of Louisville, 1 La. Ann., 13,</p>

Case 107 — Action to Recover Damages for Breach of Contract— APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Judgment for Defendant and Plaintiffs Appeal. Peter Arlund and John Tevis made a contract with appellee, Carter, by which they employed him to build án electric plant and to do other things pertaining thereto, for the price of $6,000, to be erected in the village of New Richmond, Clermont county, Ohio.

Case 108—Action by Trustees Colored Common School District A., &a, against Hickman College to Recover Takes Alleged to have BEEN COLLECTED BY DEFENDANT- APPEAL FROM FULTON CIRCUIT COURT. Judgment for Plaintiffs and Defendant' Appeals.

<p>Res Judicata — Judgment of Federal Court Enjoining Collection op Taxes.</p> <p>Where a Federal court held that an unreversed judgment of a State court dismissing an action against a bank to recover taxes for the years 1893 and 1894 was a bar to the recovery of taxes against the same bank for certain subsequent years or any “other years,” and enjoined the collection of taxes for such years, and thereafter the judgment of the State court as to taxes for the years 1893 and 1894 was reversed on appeal, the judgment of the Federal court w.as not a bar to the recovery of taxes for those years upon the return of that case to the lower court.</p>

Case 110 — Action to Recover Damages for Death of Plaintiff’s Intestate APPEAL FROM M’CRACKEN CIRCUIT COURT. Judgment filing Petition for Removal of Cause to Federal Court and Accepting Bond for Removal, and Plaintiff Appeals In this action to recover damages for the death of plaintiff’s intestate, the I. C. R. R. Co., A. W. Sheppard and R. S. White are sued jointly. The railroad company is a non-resident of the State and Sheppard and White reside in McCracken county, ■Ky.

<p>Case 111 — Action for an Injunction</p> <p>APPEAL FROM CAMPBELL CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals</p>

<p>Executors and Administrators — Void Order Placing Estate in Hands of Public Administrator. i</p> <p>Held: 1. Under Kentucky Statutes, section 3905, requiring the county court to confide to the public administrator the estate of a deceased person “if it shall appear, after the expiration of the three months from the .death of the decedent, that no one will qualify as executor or apply for administration,” the-county court has no jurisdiction to place the estate of a deceased person in the hands of the public administrator until after the lapse of the three months from the death, and then only in the event no Other person has applied for administration.</p> <p>2. Where the county court .on the next day after the death of an intestate made an order placing his estate in the hands of the public administrator, a kinsman of the decedent, even though he may not have been entitled to administration, had such an interest as entitled him to appeal from an order refusing to set aside the order placing the estate in the hands of the public administrator.</p>

<p>APPEAL PROM CAMPBELL CIRCUIT COURT.</p>